Dead by Sunset: Perfect Husband, Perfect Killer? (101 page)

Cunningham.

Upham was low-key, quietly confident, almost businesslike in his

refusal to become emotional in the courtroom.
 
He began his opening

arguments at 1:47

P.M. He explained to the jury that they would have evidence to consider

in two forms: the sworn testimony of witnesses, and exhibits.

He encouraged them to take notes, and to remember that his own opening

statement was not evidence.
 
"What Mr. Cunningham says is not

evidence."

Upham detailed the charges against Brad.
 
He stood accused of

intentionally causing the death of another human being.
 
The question

the jurors must decide was quite simple: "Did Bradly Morris Cunningham

bludgeon Cheryl Keeton to death on September twenty-one, 1986?"

Then, in his steady deep voice, Upham told the storyþthe tragedy,

really, of Cheryl's and Brad's lives.
 
All the marriages.
 
All the

divorces.
 
The births of their children.
 
Cheryl's steadfast emotional

and financial support.
 
Brad's million-dollar projects and the collapse

of his financial empire.
 
The faltering of their marriage.

For reporters and witnesses who had committed to memory the horrific

end of that marriage, there were no surprises, only admiration for

Upham's precise memory of every detail, every date, all the diminishing

highs of Cheryl's life and the accelerating lows.
 
For months Upham had

sat up late, reviewing literally a roomful of files until he probably

knew

Cheryl Keeton's life better than he recalled events and dates of his

own life.

What were the jurors thinking?
 
Had they ever heard a story of stalking

and terror like this oneþoutside of a movie theater?
 
No one could

tell.

All jurors quickly develop poker faces.
 
They stare at the prosecution

and defense alike without expression.
 
They look at photographs that

show horrors they could never have imagined and pass them on down the

line.

Only courtroom amateurs say they know what jurors are thinking.
 
No one

knows.

Rarely do opposing sides object during opening statements, but Brad

did.
 
With Tim Lyons and Kevin Hunt on either side of him to try to

keep him from popping up, he managed to keep silent until Upham began

to describe the Saturday before Cheryl died, when she had gone to her

son Jess's soccer game, violating, Brad felt, his custodial rights.

"At the soccer game," Upham said, "Brad grabbed Michael and Phillip and

walked around the fieldþaway from Cheryl.
 
Cheryl told Nancy Davis an

old sorority friend, that Brad had threatened her if she cameþ" "I

object!"
 
Brad shouted.

"Overruled," Judge Alexander said.

Upham continued the dreadful recital of the last forty-eight hours of

Cheryl's life until he reached Sunday night, shortly after 7

P.M. "Cheryl calls Betty.
 
Mr. Cunningham has just calledþhe has gas

problems.... He hung up on her.

"Seven-thirty P.M. Jim Karr called .
 
. .

"Seven fifty-nine P.M. Cheryl calls Betty.
 
She's upset .
 
. . she's

stern.
 
Mother, write this down."
 
Mr. Cunningham had just called.
 
He

told me he's at the Mobile station by the I.G.A."
 
That station is

seven-tenths of a mile from her house.
 
She said to her mother, I know

that station's closed."

"Her mother said, Don't goþ' "She said, I have to."
 
As often as most

of those in the courtroom had heard this awful progression, it never

failed to raise gooseflesh.
 
And there was always the fervent wish that

somehow the ending might be rewritten....

When Upham began to describe the murder, the muscles in Brad's neck and

jaw tightened.
 
"She was beaten to a pulp," Upham said, moving to the

jury box to show the pictures of the face and head of the once

beautiful victim.

"I object," Brad shouted.

"Overruled."

"I think the word to describe that is overkill," Upham said, "done by

someone who is extremely angry and bent on destructionþ" I object!

"Overruled."

Upham moved on to complete his description of the murder and to state

his belief that there was only one man who could have committed it.

Brad was seething, apparently forgetting that Upham had told the jury

that this was not evidence, it was the State's theory.

Then Upham began to talk of the physical evidence he would present.

"In 1992 the Oregon State crime lab became DNA capable," " he said.

"In 1993 hairs found on Cheryl Keeton's arm were submitted for DNA

analysis.

They were Cheryl'sþbut a contaminant on the hair was cellular material

that was consistent with that of Bradly Morris Cunningham.
 
. . . He

had motive, opportunity, and the timetable was right," Upham

continued.

"She was too tough.
 
She wasn't going to give up .
 
. . so the

defendant destroyed her physically."

It was 2:45

P.M. and Upham had spoken for only an hour.
 
But his whole case had

been laid out for the jury.
 
As the gallery filed out for the afternoon

break, no one said a word.

When the trial resumed, Brad was raring to go.
 
He would now have his

first chance to plead his case.
 
He was confident that he could explain

everything to the jury's satisfaction.
 
Dressed in his neat dark suit,

crisp white shirt, and wine-colored tie, he looked like the bank

executive he once wasþor like an attorney.
 
With whispered instructions

from Kevin Hunt, he walked to the lectern before the jury entered so

that they would not know about the restraining brace on his leg.

It was 3:09 when Brad began to talk.
 
His technique was to attack, not

to defend, and there was no logical order to his remarks.
 
"Right

before you left, the DNA evidence was mentioned," he said.
 
"We just

got it five minutes before.
 
It has nothing to do with me.
 
It won't be

borne out.
 
He ambushed us with tainted evidence.... In 1986,1 was not

charged.
 
I had alibi witnesses.... My children, six, four, and two,

told the police I was home all night with them.
 
In 1994 they are

fourteen, twelve, and ten, and they don't remember.
 
In 1986 my

children told the police to their satisfactionþand now it's been too

long.
 
That's very, very important to remember."

Brad's opening statement had much to do with the conspiracy he believed

existed to keep his children from him and to tape his calls.
 
He said

that of the fifty thousand relevant documents he needed, only sixteen

thousand of them had been paginated.
 
He then gave his own version of

the last day of Cheryl's life, telling of his strong suspicions that

Cheryl was "with someone" when he called her Sunday night.
 
"She was

coming for them.
 
I fixed popcorn and I put in a movie.
 
Michael and I

went down to pick up their little packs.... Lily saw us.
 
Jess was

watching The Sword in the Stone....

"Cheryl had a clump of hair in her hand, a cord with a key wrapped

around her wristþnot my hairþnot my key."

Brad then launched into his prime defenseþhis belief that Detective

Jerry Finch, who had been dead for six years, was having an affair with

Cheryl.
 
"The Collins Towing driver said Jerry Finch had a date with

Cheryl that night.
 
Why didn't they check Finch's house for blood?"

Brad told the jury how he had suffered.
 
"I lost my job.
 
I was kicked

out of my apartment.
 
Harassed by the news media.
 
I couldn't pay my

rent."
 
He then moved quickly to Cheryl's seamy childhood.
 
"Cheryl had

had a very, very tough childhood," he said.
 
"She had to baby-sit all

her younger siblings.
 
She was sexually molested by her mother's menþ

they were lower middle classþ" In the back row, Betty Troseth's mouth

dropped open in shocked, silent protest.
 
Brad had set out to throw mud

not only on Cheryl, but on her whole family.

In another abrupt change of direction, Brad began listing his many

accomplishments in real estate and construction.
 
He said he had made

millions before he was thirty-five.
 
"We went to Houston and built

seven office buildings and a warehouse."
 
But those responsible for

completing the project had ruined his and Cheryl's dreams, he said.
 
He

then veered off the subject of Cheryl's murder into an extremely

complicated explanation of his financial picture.
 
"In 1983, we had

fourteen million dollars in assets and six million in debts.
 
It was a

tough time.
 
We were lepers in the financial community.
 
I was earning

an income from the warehouse and two office buildings.
 
It was hard for

Cheryl to work because she faced the lawyers who were suing us.... We

eventually lost everything."

Standing at the lectern, facing the jury, Brad resumed his attack on

Cheryl.
 
"Our life was difficult .
 
. . Cheryl dealt with problems

differently.
 
. . . She went to the Jubitz Truck Stop and picked up

men.

She went to nude beaches.
 
She slept with attorneys.
 
She gave me

sexually transmitted diseases."
 
He dropped his head and half smiled,

saying that he wasn't very mad about that.
 
He clearly wanted to be

perceived as the ultimately forgiving husband.
 
In the next breath,