Dead by Sunset: Perfect Husband, Perfect Killer? (100 page)

suit.

He had a fresh haircut, combed so that it mostly hid an encroaching

bald spot at the crown of his very large head.
 
His handcuffs were

always removed outside the courtroom so the jury would not see them.

But he wore a brace on his left leg, a bulky anti-escape device that

extended from his ankle to well above his knee.
 
Brad had asked that he

always be in place at the lectern from which he spoke to the jurors

before they came in, so they would not know about the brace.
 
Judge

Alexander acceded to that request.

Next, Brad said he needed glasses, he couldn't read all his files, he

had headaches, and his eyes blurred.
 
Sighing, Judge Alexander acceded

to that request too, but wondered why Brad's attorneysþor rather his

legal advisorsþhadn't seen to this a long time ago.
 
(Over the weekend

Brad would be taken to the Oregon Health Sciences facilities to get

glasses.

Because he was escorted there in his orange jail "scrubs," he

complained when the trial resumed that a potential juror might have

seen him there.) It was startling to hear Brad speak.
 
He had a rather

high, almost boyish voice.
 
He did not sound in the least violent.
 
He

smiled pleasantly when he said yet again, "Motion to continue .
 
.."

"Denied."

Brad glanced around the courtroom and his eyes fell on Cheryl's family

in the back row.
 
He asked that potential witnesses be barred from the

courtroom.

"We're not going to play that game," Alexander said calmly.
 
In Oregon,

survivors of crime victims have the right by law to be present in the

courtroom, whether they are to be witnesses or not.

It was time to pick a jury.
 
During voir dire, the opposing attorneys

could rather informally ask questions of those in the jury pool when

they filed into the jury box three at a time.
 
Brad had difficulty

asking simple questions and continually lapsed into conversation with

potential jurorsþalmost as if he felt he had to convince them now of

his innocence.
 
When Judge Alexander chastised him, Brad smiled and

said, "I've never done this before."

"This is very important to me, it's my life" was another of Brad's

frequent comments.
 
As, indeed, it was.
 
He was not facing the death

penalty, but the hedonistic freedom he had enjoyed his whole life would

end if he lost this most important courtroom battle.
 
Brad's arguments

however, weren't what Judge Alexander wanted to hear on voir dire.

"Mr. Cunningham, I haven't heard a question yet," he said.
 
"If you

don't ask one, ll move on to Mr.
 
Upham."

Brad was a quick study.
 
He asked the potential jurors questions about

their jobs, background, family, children, possible divorces, custody

battles.
 
Again and again he asked, "Do you wonder why I'm defending

myself?
 
Does it bother you?"

They all wondered.
 
It bothered none of them.

When Upham asked a question of a potential juror that drew a meaningful

responseþsuch as "Have you heard of winning at all costs?"þ Brad

appropriated that question for the next trio of possible jurors.

"Does it concern you that someone is indigent?"
 
he asked one juror.

Upham objected and Alexander sustained.

It became quickly apparent that Brad wanted to begin trying his case

with jurors who hadn't even been chosen yet.
 
His voir dire questions

centered around "crooked cops," "frame-ups," the plight of the

"indigent" defendant, the "loose morals" of the victim, and the length

of time between the murder and his trial.

To his credit, Judge Alexander would spend much of the trial giving

short lectures to Brad on law.
 
At this point, he explained what voir

dire of jurors was supposed to be, adding, "Mr. Cunningham, it takes

years to understand this sophisticated process."
 
Alexander likened

Brad to a first-year law student and reminded him to ask questions that

elicited only the facts of the jurors' lives.
 
Brad had taken two hours

on three jurors.
 
"You have ten minutes to finish, Mr. Cunningham,"

Alexander warned.

The prospective jurors often seemed intimidated by Brad.
 
He asked them

to define "affidavit" and "deposition" and other legal terms.
 
Most of

them could not.
 
And when they could not answer or the answer was not

what he wanted to hear, Brad was unfailingly calm and smiled, saying

softly, "Okay."
 
He asked about "vendettas" and "people who lie to fit

the facts" and "entrepreneurs" and "poisoning the well" and "burden of

proof."
 
But his most revealing questions were about what a potential

juror might think of him.
 
"How about someone who blames someone else

for all their problems?"
 
he asked one juror.
 
And another, "How about

women who collect men as prizes?"

No way was this trial going to be finished in two weeks.
 
With Brad's

tedious questioning of prospective jurors, it took until ten minutes

after two on November 8, 1994, for both sides to agree on twelve

jurors.

Although two alternates would be chosen soon after, thirteen days had

passed and opening arguments were still ahead.

Upham was sanguine.
 
His theory on juries was that almost any

combination of personalities would make a functional jury.
 
He was

satisfied with this one, balanced equally between males and females,

youth and age, professional and blue collar.
 
He had lost some he would

have liked þparticularly a young paramedic, who he knew would never

survive the defense's challenges.
 
All and all, it was a good jury.

But Upham had much more to be confident about.
 
In pre-trial rulings,

he had won the most important witness he could possibly have: Cheryl.

Her last note to Jim Karr was in.
 
Her last call to her mother was in

The jury would hear about those final, hopeless cries for help.
 
Judge

Alexander ruled that they were not "hearsay" but rather akin to

"deathbed statements."

Cheryl Keeton, one of the most brilliant young attorneys in the

Northwest, dead too soon, would "testify" in this trial.
 
And if Brad

was both the defendant and the defense attorney, then Cheryl would be

both the victim and the star witness.

On Monday afternoon, November 14, Judge Alexander's courtroom was

packed so tightly that the sacrosanct first row of seatsþheretofore

kept empty of spectatorsþwas grudgingly opened to the press.
 
Reporters

were allowed to sit in the first row except for the four seats directly

behind the defense table.
 
They all knew why: the premise was that Brad

might try to escape and use a reporter seated directly behind him as a

hostageþa soap opera scenario, perhaps, but one policy that all

courtrooms adhere to.

For the same reason, murder defendants never have wheels on their

chairs, it would be too easy to spin around and sprint for a door or

window.

Brad was certainly no ordinary defendant.
 
He wore his two hats

proudly.

There were television cameras aimed directly at him, and he almost

basked in their strobe lights.
 
He was no longer sleeping in a jail

cell.

The Washington County jail had provided him with a three-room suite,

part of the infirmary, all to himself.
 
He was now housed alone in part

so he could study his files late, and in part because he was the least

popular prisoner in the jail.
 
He had a television, but he complained

that he had no fax.
 
He also complained that his lights were not bright

enough.

In addition to his suit against his last judge, Brad was suing the

jail.
 
He was as litigious a defendant as most reporters had ever

seenþand the most quarrelsome.
 
As the trial began, he objected to

Upham's exhibits, maps, and photos.
 
He moved for a mistrial because

Judge Alexander walked out of the courtroom before Brad had presented

his motion asking to be present at the jury's on-site viewing of the

crime scene earlier that morning.

"We ruled on that weeks ago, Mr. Cunningham," Alexander said

implacably.

l Had Brad realized yet that he had forced one judge to recuse himself

only to place himself squarely in the eye of a man as obdurate as he

was himself?
 
Apparently not.
 
And even if he had the legal lingo down,

he didn't understand much more criminal law than any neophyte.
 
He said

that Alexander's rulings were "arbitrary and capricious."
 
He moved

again for a mistrial.
 
He didn't know that he had to submit such

requests in writing.
 
Upham did, Brad didn't.

"We won't spend time retreading old ground," Alexander said sternly.

"Don't waste my time."

Brad objected to the microphone on his table.
 
It had no "kill"

button.

"It's a public courtroom, Mr.
 
Cunningham."

Brad had still more complaints.
 
He said that Scott Upham had lied

about how long the trial would last, and that Upham had deliberately

kept "good jurors" out by saying that the trial would take so long.

"Sit down, Mr. Cunningham," Judge Alexander said.
 
Brad remained

standing.
 
"Sit down!"

No one had ever really told Brad what to do.
 
Alexander went further.

If there were any more delays, any more "games," he would throw Brad

out of the courtroom.

"Bring the jury in."

If ever two men were opposites, it was Scott Upham and Brad