Dead by Sunset: Perfect Husband, Perfect Killer? (109 page)

him.
 
"I wasn't going to talk about certain things," Brad said, "but it

looks like I'll have to."
 
He smiled.
 
"It appeared she was seeing

other men.
 
Want to hear about it?"

Brad had slipped into a familiar refrain, but Upham didn't encourage

it.
 
Instead, he asked if there was another reason for his divorce from

Sara, and Brad said that his marriage began to disintegrate when the

"tax thing" started to fall apart.

"In 1990?"
 
Upham asked.

"Before," Brad replied.
 
"We had tax problems.
 
There were certain

accusations.
 
Certain disclosures."

Upham asked Brad if he recalled a stipulated money judgment and

dissolution-of-marriage document he had signed on September 21,1991

þironically on the fifth anniversary of Cheryl's murder.
 
In that

document, Brad had admitted to most of Sara's accusations and agreed to

pay her a fifty-thousand-dollar judgment against him.
 
"The boys got

the farm," Brad said vaguely.
 
"I don't remember the

fifty-thousand-dollar judgment.
 
I can't remember certain events taking

place .
 
. . can't remember denying Sara visits and phone calls with

the children....

I just wanted out.
 
I wanted nothing to do with her."
 
Upham remarked

that Brad's divorce from Sara was "eerily reminiscent" of the last days

of his marriage to Cheryl.
 
Brad didn't get it.
 
He said that he

suspected Sara of drugging his chiidren to control them.
 
"I still

do.

They're like Stepford children.... My boys have one motherþ Cheryl "

Upham had cross-examined Brad for three hours.
 
He was unruffled but

Brad looked exhausted, stress tightening his face into a deeply lined

mask.

When the letters that he had been sending to his sons while they were

living with Sara were admitted into evidence, Brad panicked.
 
He didn't

want the envelopes in evidence.
 
Anyone who had seen those envelopes

understood why.
 
Judge Alexander allowed Brad to hold back the

envelopes with their vicious and suggestive cartoons.
 
And when court

recessed, he grabbed for the stack of letters and hurriedly ripped the

envelope off each one.

On re-direct, Brad took the stand to try to patch up the huge rents

Upham had torn in his case.
 
His own explanations were really all he

had, the witnesses from his long list never materialized.
 
Now, to

refute the prosecution's witnesses, he launched another tirade against

the women in his life.
 
He hinted that Sara was a lesbian who was using

her money to keep his sons from him.
 
"It's been the boys and me, and

now Sara has the children.... We're going to sue Sara and get our farm

back together....

the boys and I will be back together."

Judge Alexander warned Brad that he was sliding toward closing argument

rather than giving testimony.

Ignoring the warning, Brad again listed the faults of Loni Ann,

Cynthia, Lauren, and of course Cheryl.
 
He covered old territory,

oblivious to the damage he was inflicting on his case as, once again,

the details about his whereabouts and activities on the night of the

murder changed slightly.
 
Brad apparently feared that the jury had

noticed his security leg brace, because he explained to them that he

had a bad leg and wore a brace.
 
"I had cancer of the bone when I was

little, but it got better so I could play football in high school and

college...."

He was rambling and Alexander was running out of patience.
 
He warned

Brad to finish up.
 
"I've done a lot of depositions," Brad said.

"I've always tried to be honest."

Judge Alexander warned him again.

When Brad veered back into his financial affairs and once again began

to quote dollar figures, Alexander told him that there was no need to

re-cover old ground.
 
He looked at Upham and said, "Any request for

recross will be viewed with great disfavor."

"No questions," Upham said wisely.

Brad wanted to call Judge Alexander as a witness, and Alexander

explained that the judge of a trial cannot be called to the stand.

"I'm not sure that's your call," Brad said rudely.

"Well, in my courtroom, it is.
 
You've rested your case," Alexander

said flatly.

"I move for a judgment of acquittal," Brad said.

"Denied."

Only Alexander had managed to keep the trial from becoming a "Keystone

Kourt," and he tried again to save Brad from his own ferocious ego.

He offered him one more chance to change his plea from "not guilty" to

"manslaughter in the first degree."

"This would be your last chance," Alexander said.
 
"Murder is life in

the penitentiary with various minimums."

Brad huddled with Kevin Hunt, who obviously was urging him to take the

judge's advice.
 
But Brad would have none of it.
 
He was going for a

straight "not guilty" verdict.

It was 3:27

P.M three days before Christmas Eve, and at last the time had come for

final arguments.

Although few knew it, Scott Upham was suffering from a violent case of

forty-eight-hour flu that day.
 
But his voice never betrayed his queasy

stomach and pounding headache, and when a wave of dizziness hit him, he

managed to make holding on to the lectern look like a strong posture

rather than a need for support.
 
He had not come this far to back off

now.

Upham told the jury that their job was to decide what was worthy of

belief and what was not, what was relevant and what was not.
 
They must

consider "direct evidence" such as eyewitness testimony and

"circumstantial evidence"þa chain of circumstances pointing to an

obvious conclusion.
 
"Murder is the intentional taking of the life of a

human being," he said.
 
"I'm here to tell you the defendant is guilty

of murder."

It would take twelve jurors to convict, and only ten to acquit.

With flawless memory, Upham went over the story of the lives of Brad

and Cheryl.
 
He had done so back in October when the trial began, and

now the story was familiar and the jury had a chance to judge for

themselves who was telling the truth.

"Cheryl was scared," Upham said.
 
"She changed her will, the

beneficiary of her life insurance."
 
Gesturing toward Brad, he said,

"This is the public Mr. Cunningham.
 
Cheryl knew the private Mr.

Cunningham.
 
. .

the temper, selfish, no empathy, competitive.
 
He's willing to act on

his propensity to destroy .
 
. . feels very comfortable, very at ease,

in hurting other people.
 
The kids are my possessions."
 
Cheryl wanted

peace.

What an enemy he was!
 
Relentless.
 
He has staying power, and he'll do

anything to get his way."

What a horror Cheryl had lived through.
 
This jury had neverþand would

neverþhear about what Brad had done to his first three wives, not in a

criminal case, but they had come to know Cheryl, and their eyes moved

from Upham to Brad as Upham spoke.
 
"The note [Cheryl left] and her

conversation with Betty were sufficient to convict," he said, "but

there's more."
 
He listed the strongest points of an already strong

case: Brad's threatening and obsessive behavior before Cheryl's murder,

his inconsistent alibis for the time of her death, his flight to evade

questioning.
 
"He told Sara on Monday evening," Upham said, ""I'd

better not answerþI'm digging too many holes, and I've got too many

holes to fill now."

" Upham recalled all the people Brad had accused of lying: Karen

Aaborg, Jim Ayers, Dr. Sardo, Jess, Jim Karr, Sara.
 
"Finally, he says

Cheryl lied to her mother and her brother in her last note.... The

innocent do not behave like that.
 
The innocent don't have to lie to

that degree.
 
He viciously murdered Cheryl Keeton, and he's lied.... He

lured Cheryl Keeton from the safety of her home.
 
Because of her love

for those children, she went.
 
Cheryl has told us what the truth is in

her conversation with her mother and in her note.
 
Bradly Morris

Cunningham murdered me."

" Brad and Upham had been allotted a total of two hours each for final

arguments.
 
Upham could speak once more, Brad could speak only once,

and he was clearly nervous.
 
But he had now formulated a timetable for

the night of the murder that warred with that established by the Oregon

State Police, and Mike Shinn, and Upham and his staff.
 
By adding a few

minutes here and shaving a few there, he set out to prove the

prosecution wrong.

As he spoke, Brad warmed to his subject and became animated.
 
He

insisted that, had he been the killer, there would have been a window

of only nine minutes and forty-eight seconds in which he could have

driven from the death site back to the Madison Tower, disposed of his

bloody clothing, driven through the gate, parked, gone up the elevator,

and unlocked the door "with a four-year-old boy in tow."
 
He asked,

"How could you get back to the Mobile station that fast?
 
I don't run

fourminute miles.
 
It would take at least seven minutes to run

back...."

No, he insisted, his Sunday evening had not been spent the way Upham

said.
 
He could account for every minute of the time between 7:30 and

10:00.
 
"I made popcorn.
 
Michael and I had to leave the room because