Dead by Sunset: Perfect Husband, Perfect Killer? (91 page)

vain.

You're the only people who may ever have the power and the authority to

bring some kind of deliverance to the victimsþher little boys.
 
With

her death, half of them died tooþmaybe more.
 
Bring hack a verdict that

reflects the conscience of you people .
 
. . a verdict that will follow

Mr. Cunningham around the rest of his life, one that will reflect his

ego and that he will take notice of."

The jury would decide whether to award money for Cheryl's wrongful

death, the pain and suffering of her children, and their loss of their

mother, as well as punitive and exemplary damages.

Deliberations took a little more than five hours, and even Shinn was

shocked at their decision.
 
They had agreed with all of his

arguments.

They believed that Brad Cunningham had indeed beaten Cheryl Keeton to

death.
 
But they went further than he could have imagined.
 
Shinn had

privately been hoping that they might return with.a judgment of $15

million.
 
He wasn't naive enough to think that the money would ever

actually be paid.
 
It would likely be a Pyrrhic victory.
 
Brad would

undoubtedly claim poverty.

The jury had added in losses that even Shinn hadn't thought of There

should be money for Jess, Michael, and Phillip to go to college.

There should be money for counseling.
 
they announced that they had

awarded Cheryl Keeton's estate $81.7 miliion.
 
It was one of the

largest civil judgmentsþif not the largestþin Oregon history.

Interestingly for a man so hard to find, television camera crews had no

difficulty locating Brad in Houston.
 
Sitting on a couch in his

tastefully appointed apartment with his sons and Dana standing nearby,

he said that no one knew the pain he had suffered over Cheryl's

death.

"I miss herþterribly.
 
I had nothing to do with her death, and yet my

whole life has been ripped apart as if I did," he said with a slight

catch in his voice.
 
He refused to discuss any evidence or suspicions

that linked him to Cheryl's murder, but he said, "Yeah, I would like to

know what happened to her....

"This has been a very tough time for my family.
 
And it's very

difficult on me.
 
I'm not the same person I was a year ago, or two

years ago.

Just a lot of unnecessary pressures and stresses on the children and Iþ

reading what's been printed in the newspaper, the people not hearing

any other side of the story, and us being unable to give that other

side of the story....

"I have no money to fight this.
 
The boys and I live on Social

Security.

We have very little money.
 
We haven't had hot water in our house for

some time.
 
We haven't paid our rentþwe're not being evicted, but we're

leaving."
 
How could he be expected to pay Cheryl's estate 582

million?

Jess faced the cameras.
 
"It makes me kind of sad because he had to go

through that," he said.
 
"He's my dad.
 
I love him.
 
He couldn't have

done what they said he did."
 
And then the cameras followed Brad, Dana

and the boys as they stepped into a taxi.
 
Dana looked like a movie

star in her clinging blue dress and dark glasses, and Brad smiled

benevolently at his sons.

l When the trial was over, several jurors said that they were going to

write letters to Governor Barbara Roberts and Attorney General Dave

Frohnmayer to urge them to seek a criminal indictment against Brad

Cunningham.
 
"I think everyone on the jury felt he was responsible,"

said juror William Tyrrel.
 
Charlene Fort, the foreman, said, "I think

he should be tried in a criminal hearing."

Brad's aunt Trudy Dreesen denounced the trial and questioned the

motives of everyone who had testified against her nephew.
 
"All this

that's being said about him is a landslide of lies and network of

halftruths and twisted things," she said.
 
She would die believing that

Brad was a sad young widower who longed only to care for his little

boys.

Washington County District Attorney Scott Upham declined comment on the

verdict.
 
"The Keeton case is open and it has always been open," he

said.

"It is being actively investigated by the Oregon State Police."

Pressed, he explained the concept of double jeopardy and the conflict

his office had faced since 1986.
 
The civil verdict put the D.A."s

office in an uncomfortably hot spotlight.
 
It had been between a rock

and a hard place for almost five years now, agonizing over which way to

go to see that permanent justice was done in this case.
 
But it had yet

to seek a criminal prosecution against Brad.
 
Mike Shinn had done a

masterful job of proving Brad civilly responsible for Cheryl's death.

He had given the jurors the "clear and convincing" evidence required

for a wrongful death suit.
 
Still, most people watching television and

reading newspapers didn't have the faintest notion of the difference

between winning a civil case and winning a criminal conviction.

Shinn now had tossed a gauntlet in Scott Upham's direction.
 
And it

wasn't a subtle gauntlet.
 
In his final arguments, he had said in plain

language that the justice system in Washington County "has been either

too impotent or too cowardly to deal with it.
 
The legal .system has

utterly failed with this individual."

In this case, justice delayed was not justice denied.
 
It was, however,

justice delayed once more.
 
Upham had never given up on his quest to

gather enough evidence to convict Brad of murder in a criminal court.

In a sense, Mike Shinn's civil victory heartened him.
 
But in another

sense, it was as if someone had just lit a red-hot fire underneath

him.

Shinn had had three distinct advantages in the civil trial: (1) He was

unopposed, (2) He had had only to win with the preponderance of

evidence, while Upham would have to prove that Brad was guilty beyond a

reasonable doubt, and (3) Many witnesses called in the civil trial

would be considered "hearsay" witnesses or witnesses to "prior bad

acts" of the defendant, and never would he allowed on the witness

stand in a criminal trial.
 
As tSpham explained to Oregonian reporter

Joan Laatz, "Those rules are put in place to demand that prosecutors

seek justice.

Suspicion, feeling, innuendo, and motive do not amount to evidence."

And a man cannot be convicted of murder simply because he is a mean

S.O.B.

Sometimes "similar transactions"þsimilar crimes from a defendant's

pastþcan be admitted into a criminal trial, but their admission has

often opened the door to appeals.

Upham and his chief investigator, Jim Carr (not Cheryl's brother whose

name is spelled "Karr"), and Oregon State Police Detective Mike

McKernan finally decided to pursue a criminal indictment against

Brad.

If they failed, they failed.
 
If they got a criminal indictment and

Brad was acquitted, he would go free.
 
It was a risk Upham was prepared

to take.

For Mike Shinn, it was overþor as close to over as it could be for

anyone who had ever jousted with Brad Cunningham.
 
Gratefully, he

vacated his latest hotel and returned to his houseboat.
 
He was sick of

hotel food, sick of city noise, and he wanted to be back in his

floating home in the wild preserve.
 
He had no reason to feel any

safer, in fact, he had reason to feel less safe.
 
Brad was still

free.

But the civil trial was finished, two years of intense investigation

had paid off It was time to move on.

Scott Upham was an Oregon native who had attended Portland State

University and got his law degree from the University of Oregon.

With his thick, rapidly graying hair and a luxuriant mustache, glasses,

and tweed jackets, he looked like a college professor.
 
He was serving

his fifth term as D.A. of Washington County.
 
Hillsboro is basically a

small town, and Upham was so approachable to his constituency that his

name was listed in the phone book.
 
It was not unusual for his evenings

to be interrupted by someone who had a quarrel with the judicial system

of Washington County.
 
"They have the right to complain," Upham said.

"It doesn't happen very often, and it helps me keep in touch."

In his mid-forties, Upham jogged, worked out, and played golf, soccer,

and softball.
 
He liked a beer after work and, most of all, a good

cigar.

He was a familiar and popular figure around Washington County.
 
He was

also an excellent courtroom strategist.
 
He knew his cases inside out

and he was rarely surprised by anything the defense might throw at

him.

He was a man with a wicked, deadpan sense of humor.
 
But by mid-1991 he

had lost all sense of humor about Brad Cunningham Gathering enough

evidence to return to a grand jury and secure a murder indictment, and

then trying the case in court, would prove to be the toughest challenge

of Upham's career.
 
If any man knew the ins and outs of the legal

system, it was Brad.

There is a special kind of stress inherent in preparing for a criminal

trialþan!
 
criminal trialþand when it is a homicide case, the stress

grows exponentially.
 
Upham and his wife Mary Ann had three children

þtwo daughters and a son.
 
They were planning to build a new house.

But with the Cunningham case, Scott and Mary Ann Upham would find that

they scarcely saw each other often enough to draw up plans for a

chicken coop, much less a house.
 
Before Upham was finished with the