Dead by Sunset: Perfect Husband, Perfect Killer? (99 page)

Washington County jail and demanded to be moved to another facility.

He told Judge Bonebrake that prisoners were hiding cigarettes and

matches in the jail ceiling and creating a fire hazard.
 
He feared for

his life and asked to be moved to safer quarters.
 
He did not approve

of the alternate jails that were suggested, however, and he remained in

the Washington County jail.

His betrayal of his fellow prisoners did not go unnoticed.
 
The lowest

creature in any penal institution is a "snitch," and Brad was a

constant snitch.
 
In grade school, he would have been called a

"tattletale."

In jail or prison, the revenge against a snitch may not come

swiftlyþbut it always comes.

William Berrigan was the commander of the Washington County jail and

Brad was not one of his favorite prisoners.
 
During Brad's

eighteenmonth stay, he would be disciplined eleven times and spend six

months in lock-down in a six-by-nine-foot cell.
 
He wrote to the FBI

and asked for an investigation of the jail because he felt his civil

rights were being violated.

At his July 5 omnibus hearing, Brad was represented by Tim Lyons and

Kevin Hunt.
 
This time he was dressed in the traditional faded orange

pajamalike jail uniform.
 
His hands were cuffed, his legs were

shackled.

His complexion had taken on the yellowish jail pallor that all longtime

prisoners have, but his shoulders and biceps were "buffed"þhe had

obviously been working out in his cell.
 
He carried his omnipresent box

of files, and his confidence had not diminished at all.
 
This was to be

the only time when Tim Lyons could truly act as Brad's attorney, and

his expertise was apparent.
 
Since so much of the evidence was

circumstantial, it was quite possible that Lyons could win an

acquittal, but Brad treated him as he had all his other attorneys.
 
He

had to be in charge, and he leaned against Lyons constantly, mouthing

directions.
 
He pushed notes across the polished defense table, tapping

his finger to get Lyons' attention.
 
Lyons often pulled away from his

client.

The defense hit hard at the long delay in issuing the criminal

indictment and asked what new evidence the State had.
 
Most of all,

they wanted to have any statements Cheryl had made just before her

death banned from the criminal trial.
 
They also sought Upham's "work

products" in preparation for the trial and during his investigation.

Judge Bonebrake would not allow that and would delay his ruling on

whether Cheryl's statements and notes were "hearsay" or "excited

utterances."
 
If Upham could get into the trial Cheryl's statements

made to her mother minutes before she died and the note she wrote to

her brother, he would breathe easier.

There was new evidence.
 
DNA analysis had come into its own since 1986,

and O.S.P criminalist Julia Hinkley had retained the hairs found on

Cheryl's body.
 
There was more witness testimony, too.
 
But the most

important testimony, if Judge Bonebrake would allow it, would be from a

woman dead for eight years: the victim.

Brad's next trial date, August 29, 1994, was postponed.
 
Lyons was

representing another murder defendant and Brad complained that neither

of his attorneys was available for conferences with him when he felt it

was necessary.
 
His phone calls were not returned quickly enough.
 
He

abruptly fired J. Kevin Hunt and Tim Lyons and announced that he would

represent himself.

Brad felt completely capable of handling his own defense.
 
Even though

he was not an attorney, he certainly was conversant with the law, with

attorneys, with courtrooms, and with all manner of suits.
 
He had had

his own office at Vinson and Elkins' law firm in Houston whenever he

wanted it during the years his suit in Texas dragged on.
 
But he had no

experience with a criminal trial and had never gone to law school.

And even if he had, the old saw that almost anyone can quote is, "He

who defends himself has a fool for a client."
 
But nothing and no one

could dissuade him from taking the reins of his own defense.

Once he had dispensed with his lawyers, Brad went after Judge Alan

Bonebrake.
 
He couldn't legally fire a judge, but he did the next best

thing.
 
He sued him, claiming Bonebrake had violated his civil

rights.

Now that Bonebrake had personal legal matters pending with the

defendant, he felt he could not serve as an impartial judge.
 
He

recused himself.

Judge Timothy Alexander replaced him.
 
But if Bonebrake had been an

implacable brick wall whom he detested, Brad would soon find that he

had unwittingly placed himself in front of a judge who not only had an

encyclopedic knowledge of the laws of Oregon but who had almost no

patience with defendants' histrionics and diversionary tactics.

Alexander would carefully explain pitfalls to the defense, but once he

had given his warning, he was not pleased to have to repeat it again

and again .
 
. . and again.
 
Outside the courtroom, Tim Alexander had a

great sense of humor.
 
Inside, he had virtually none.

With twenty years' experience as a trial lawyer, Scott Upham was

confident that, facing even as savvy a layman as Brad Cunningham one

on-one, he could make mincemeat of him.
 
But Upham shuddered at the

thought of the circus Brad could create if he was allowed to represent

himself.
 
There is an order and a sequence to the law.
 
Brad knew

nothing of that.
 
Even law school graduates rarely venture into

criminal law until they have been in practice for five years or more.

Brad's defending himself was going to be a little like a first-year

medical student performing open heart surgery.

Brad didn't know the rules, he didn't know the procedures, he didn't

know the language, he didn't know the techniques, and he would probably

turn what should be an orderly progression of witnesses, evidence, and

arguments into utter chaos.
 
Of all people concerned, Upham hoped that

Brad could be dissuaded from being a one-man show, that he would be

opposing a real attorney and not a man who had demonstrated throughout

his life that he had to be in charge.

But Brad was adamant that he would defend himself, although he

grudgingly agreed to allow the State of Oregon to retain Hunt and Lyons

as his legal advisors, if not as his attorneys.
 
He himself would

select the jury, question witnesses, and present his own arguments.
 
He

would be the voice, but he would have Lyons and Hunt next to him to

consult on issues where he had ventured out of his depth.

The trial that had been first scheduled for January of 1994 was set

over from August to October 24 and then to October 26.
 
Main Street in

Hillsboro was decorated for Halloween when the trial began at lastþ

nine months after it was supposed to.
 
Estimates were that it would

last two weeks.
 
When it finally ended, the jack-o'-lanterns were long

since gone, snow covered the Washington County Courthouse grounds, and

Main Street was decorated for Christmas.

Part VIThe Criminal Trial

Brad's initial bail hearing fourteen months before had been held in the

old section of the Washington County Courthouse.
 
On the fourth floor

of the newer addition, two elevators open onto a corridor with a huge

woven wall hanging done in peach, orange, and blue tones that greets

everyone who emerges with the motto "Wherever Law Ends, Tyranny

Begins"þJohn Locke.
 
Every spectator heading for the two courtrooms on

the fourth floor has to pass through highly sensitive metal

detectors.

Nothing metal gets through.
 
No pocketknives.
 
No hat pins.
 
No nail

files.
 
No "church keys."
 
No jokes.

Judge Alexander's courtroom had only three rows of chairs for the

gallery, and when Brad's trial began, the back row was almost entirely

filled with Cheryl's family.
 
They had been through this too many times

before, but this was the trial that might finally give them some

closure.
 
It would not be easy for them, but they would commute every

day of the trial from Longview in the hours before dawn and after

sunset: Betty and Mary Troseth, Susan and Dave Keegan, Bob McNannay,

Jim Karr, and Cheryl's cousin Katannah King.
 
Her half sisters and

their husbands flew up from California to be present: Debi and Billy

Bowen and Kim and Bill Roberts.

So many people had been involved with Cheryl's lifeþand with her

death.

Mike Shinn would often be in the courtroom, as would Sara's friend and

protector Jack Kincaid (a presence that particularly rankled Brad).

There would always be a line at the metal detectors and, except for the

media and family, seating would be scarce.
 
Portland networkaffiliate

cameramen, radio and television field reporters, an occasional

syndicated tabloid television- producer from Los Angeles, even a

reporter from the London Guardian would wander in and out.
 
The

constant media presences, however, were Fiona Ortiz and Robin Franzen

from the Oregonian, Laurie Smith from the Daily News in Longview, Eric

Apalategui from the Hillsboro Angus, and this author and her

assistant.

Every trial takes on a life of its own, and this one more than any

other would have a strangeness and, indeed, the chaotic propulsion that

Uphan had feared.
 
There was always the sense that, had it not been

for

Judge Alexander, it might hurtle off the track at any moment.
 
No one

could ever really know what the defendant would do next.

As the trial got under way, Upham was as low-key and inscrutable as his

opponent was volatile.
 
Brad was once again dressed in a neat dark