Dead by Sunset: Perfect Husband, Perfect Killer?

  The room was silent as the words began to sink in. Dallaire and Lindenauer were stunned and disappointed. More than disappointed, they were outraged that Brad seemed to have beaten the men and women who had been on his trail for eighteen months. “The cops were unhappy,” Dallaire remembered. “You could tell they didn’t like this decision.”

  The five men in the room all wanted the same thing, although they were coming at it from different angles. There had to be some way to construct a case against Brad Cunningham that would hold up in court. Cautiously, they explored the possibility that a civil case might be brought against him, a case that—if successful—might put enough pressure on Brad to force his hand. “If—if—” Dallaire began, “if we brought a case that would establish civilly that he killed her, would that be helpful?”

  The room was silent and then Heard, Ayers, and Finch said, “Yes!” almost in the same breath. “Yes, that would help.”

  It was a backdoor way to convict a suspected killer who had apparently escaped every criminal investigation ploy, but it was a way to begin. The Washington County D.A.’s office provided Dallaire and Lindenauer with a copy of the police files on Cheryl’s murder, and Ayers and Finch offered whatever help they could give.

  Dallaire returned to Seattle carrying a heavy box of files. Alone, he began to read the official follow-ups that described Cheryl’s death and the aftermath. “I was devastated,” he said later. He read the autopsy report in horror, fully aware for the first time of how brutal Cheryl’s murder had been. He tried to visualize the sunny, bubbly, brilliant young woman he had known and, for the moment, could not. He decided he couldn’t share the awful details of her murder with most of his staff.

  And then Dallaire came to a copy of the note Cheryl had left behind as she went to meet her killer. He held it in his hand, unbelieving. “I have gone to pick up the boys from Brad at the Mobil station next to the IGA. If I’m not back, please come and find me . . . COME RIGHT AWAY!”

  It was almost as if Cheryl was in the room, talking directly to him. “I was flabbergasted when I came across the note. And I got really angry,” Dallaire said. “I thought, Why didn’t they DO something?”

  Maybe there hadn’t been enough for the prosecutor’s office to go with a criminal charge against Brad, but Dallaire knew that the note he held in his hand was enough evidence to bring a wrongful death suit in civil court. At the next executive committee meeting of the law firm, he went in and said, “Do something!”

  He got no argument. Everyone at Garvey, Schubert who had known Cheryl was anxious to do whatever they could to bring her some modicum of justice. “We figured we had two ways to go,” Dallaire recalled. “We had some money that was in her estate—Cheryl’s profit sharing and the five thousand dollars. We thought, Let’s wave the money in front of Brad like a red flag and he’ll sue us. We can get him into court and we can prove wrongful death.”

  The second plan for hoisting Brad on his own petard was more complicated. There had been a murder in Washington State on July 26, 1974, that had eerie similarities to Cheryl Keeton’s. Ironically the killer, Anthony Fernandez, had come from Longview just as Cheryl had, although it was unlikely she had ever known him. Fernandez had been in prison on fraud convictions by the time Cheryl was in high school.

  “Tony” Fernandez was forty-eight and a paroled con man when he met a pretty forty-two-year-old widow named Ruth Logg in Auburn, Washington. He didn’t mention his criminal background, of course, to Ruth. He appeared at her door to look at the house she was offering for sale. He told her he was Dr. Anthony Fernandez and was in the process of setting up a counseling practice in Tacoma. He even showed her an article from a local paper announcing the opening of his practice. Ruth was a wealthy woman, as Fernandez noted when she showed him around her sumptuous home. As it turned out, he didn’t have to buy the house; he simply moved in.

  Despite her family’s reservations, Ruth Logg fell in love with “Dr.” Anthony Fernandez and married him six months later. With his counsel on financial affairs, she changed her will so that he would inherit everything she had, uncharacteristically disinheriting her two young daughters. Two years later, Ruth suffered what appeared to be a tragic accident. The Winnebago motor home she and Tony had rented plunged off a dirt road on Snoqualmie Pass in Washington’s Cascade Mountains. Ruth was found dead halfway down a steep embankment; the Winnebago was 150 feet further down the slope. She had succumbed to a fractured skull and a blow to the stomach, but she had no wounds that pathologists would expect to find in someone who had gone over a cliff in a vehicle.

  Tony Fernandez survived. He hadn’t even been in the Winnebago. He told authorities that Ruth had driven away from their campsite and he had followed twenty minutes later in another vehicle. Washington State Patrol investigators and detectives from the King County Police were suspicious of him, but they were working with a highly circumstantial case. There was no arrest.

  Eighteen months after Ruth Logg Fernandez died on a lonely mountainside, her daughters brought civil action against the man who had by then spent most of the assets of their dead mother’s estate. Judge George Revelle found that Anthony Fernandez “participated as a principal in the willful and unlawful killing of Ruth Fernandez.”

  The aspect of the landmark Fernandez case that appealed to the Garvey, Schubert partners was the fact that Fernandez was then charged criminally with the murder of his wife—more than three years after her death—and he was subsequently convicted and was serving life in prison.

  “We decided on our second option,” Dallaire remembered. “We would go for the civil trial. The committee at Garvey, Schubert told us, ‘Go forward!’ We wanted to shop this case out to a lawyer to see if there might be something there. Eric Lindenauer started looking around because he knew Portland attorneys. John Burke backed us up.”

  At that point, no criminal charges had been filed against Brad. Not in 1986. Nor in 1987 or in 1988. The world went on for everyone, except for Cheryl. But nothing was over in the pursuit of her killer. Everything was only suspended in time.

  It wasn’t as easy to find an attorney to go up against Brad Cunningham as the Garvey, Schubert partners had originally thought. As it turned out, there were few attorneys in Portland who were not already familiar with Brad. He was a most litigious man, and it was his policy to consult several attorneys on each of his legal actions before he chose one. After three or four turndowns, Dallaire and Burke and Lindenauer realized that finding an attorney willing to joust with Brad would be a challenge. Lawyers with families said they didn’t want to chance it. One said, “I have a daughter who walks to school alone. I won’t risk taking him on. Try Shinn.” He said that Mike Shinn, while he certainly enjoyed the company of women, had no wife—and he was notorious for loving a good scrap.

  That’s what the attorneys from Garvey, Schubert needed. They knew it would be far safer for a prosecutor to go up against Brad in a criminal case. If he were convicted criminally, he would go to prison and would not be a threat to anyone for years. But if a civil attorney should prevail, Brad would still be free. It would be a moral victory, and it might well be the springboard for a criminal charge. But even with a win, Brad would be as free—for a period of months—as he was at the moment. And if, as the lawyers who were about to set a net for him believed, he was a devious and dangerous—and vengeful—man, the civil attorney who brought him down would have to watch his back. Nobody but an attorney with a rebel streak, a maverick, would touch this dicey case.

  Mike Shinn was indeed a maverick, descended from a long line of mavericks. His great-grandfather was William Jasper Kerr, onetime president of Utah State University, Brigham Young University, and Oregon State University. Shinn’s mother Miriam’s ancestors had come from Pennsylvania by wagon train, members of a religious commune with a charismatic—but eccentric—leader. They made it to Oregon and founded the community of Aurora. His great-uncle William Kerr was the U.S. prosecutor for the Japanese war crimes trials, the Asia
n equivalent of the Nuremberg trials. And Shinn’s father, Bill, was an underwater demolition expert in World War II, a fearless swimmer whose assignment would compare to Navy Seals today. Tragically, Bill Shinn died of cancer at forty-two when his only son was in high school.

  Mike Shinn was a natural athlete and particularly gifted at football. He was one of the fastest and most nimble quarterbacks the Willamette University Bearcats ever had. He wasn’t very big, but he was smart and he was tough. Like his father before him, he excelled at risk taking. In 1968 the Bearcats were ranked number three in their division in the nation. They were led by Mike Shinn who threw for 1,508 yards and eighteen touchdowns. The whole 1968 team was inducted into the Willamette University Athletics Hall of Fame in 1993.

  In his forties Shinn was still a risk taker and a dogged opponent. In his forties, he played world-class rugby and checked the weatherman’s wind forecast before he glanced at his schedule for each day. If the wind was going to blow, Shinn was going to be out on the Columbia River windsurfing. He was a “board-head” and, like all windsurfers, hopelessly addicted to gliding across the water as fast as he could, wrestling with his sail to stay upright.

  Actually, Shinn’s major in college was English. “What I really wanted to do was go to film school and make movies, or go into publishing,” he said. “I never thought I was smart enough to go into law because I could never figure out who did it in the Perry Mason shows.” Shinn turned out to be a lot smarter than he thought he was, of course. “I ended up in law school at Willamette,” he said. After Willamette, Shinn clerked for a federal judge and then did some criminal work. “The last criminal case I defended, I got a guy acquitted of five bank robberies,” he recalled, “and I figured it was a good time to quit criminal law—while I was ahead.”

  It was late summer of 1989 when Mike Shinn listened as Greg Dallaire and Eric Lindenauer took him through the tragic details of Cheryl Keeton’s death. John Burke was on the phone, a participant in this hard sell. Ideally, they were hoping to convince Shinn to undertake the civil action against Brad on a contingency basis.

  Shinn was intrigued by the case; he remembered reading about Cheryl Keeton’s death on the Sunset Highway, though he hadn’t heard anything more for three years. Still, as he listened to the twists and turns the investigation had taken since 1986, he realized that this would be a colossally complicated case to prosecute civilly, criminally, or any way.

  “There were three reservations I had about taking the case,” he said later. “One of them was the very concept of filing a civil suit against a man for murder when he’d never been indicted . . . you don’t have the constitutional protection that you do in a criminal case. . . . My second reservation was that I might get killed. I knew two other lawyers who had looked at the case and said, ‘I don’t want to expose myself to this kind of risk.’”

  When Shinn was told that Brad was now married to Sara Gordon, that further complicated his decision. “The third concern was Sara,” he said. “I remembered her as a real perky, bright-eyed, intelligent, energetic, charismatic, neat lady. But it wasn’t just Sara. It was the idea of the kind of grief that would be brought to bear on the whole family. I didn’t know the kids, but it was inevitable. We never asked for it, but this was the kind of story that was going to lead to big-headline coverage.”

  Shinn realized how much time it would take, how many contacts would have to be made, how many hours would be billed by private investigators—and suggested that he be paid by the hour. He couldn’t afford to take the case on a contingency basis. Brad had allegedly gone through millions of dollars and no one knew if he had anything left. Even if Shinn won a civil suit against him, his cupboard might very well be bare.

  “It was going to be such an undertaking for me,” Shinn said. “It would mean doing little else. I told Dallaire and Lindenauer that I was willing to do it—but I’d go bankrupt if I did it on a contingency basis.” He estimated that the civil case would cost about fifty thousand dollars. But he couldn’t be sure. “If Cunningham has any money left,” he told Dallaire and Lindenauer, “he’ll probably hire someone like F. Lee Bailey, and, unlike other cases, there’s no bottom to this until the guy gets convicted of murder.”

  Dallaire never blinked at the fifty-thousand-dollar figure—or at the possibility that it might be more. He took the information back to the executive committee and they signed off.

  “We entered into an agreement with Mike Shinn in 1989, but we had to be cautious,” Dallaire remembered. “We were afraid that Brad would find out what we were doing by somehow seeing certain bills. We were the client hiring Shinn, but we didn’t want Brad to know that. On paper, then, the client was John Burke for Cheryl’s estate—but Garvey, Schubert was paying Mike Shinn. If Brad hired a lawyer to face off John Burke, we were concerned that he would find out the firm was paying and we’d have to grant discovery.”

  And too, if Brad should find out how many people from his past Shinn’s private investigators were prepared to interview, he might try to intimidate them so that they wouldn’t talk. He was, demonstrably, a past master at intimidation.

  Going into what was inherently a criminal case for the first time in many years. Shinn was a little apprehensive, but he moved ahead. He filed the civil suit, and it did indeed make headlines in the Oregonian.

  “One of the first things I remember is getting a letter from Sara,” Shinn recalled. “It said, in essence, ‘Gee, I haven’t seen you in ten years. I thought you were a nice guy. And now you’ve done this horrible thing to my family—’” She also wrote that all the employees of the Broadway Bakery that she and Brad owned had walked off the job, and that her sons’ friends wouldn’t play with them or return their phone calls. Shinn felt rotten. But he had anticipated that Sara would be angry, and he would just have to live with it.

  “The next letter I got,” he said with a grimace, “was from Brad’s first lawyer. He said there wasn’t a scrap of evidence against Brad. Brad had told him that probably John Burke killed Cheryl. . . . Then Brad’s lawyer threatens me with disbarment and a lawsuit, I’d met Greg and Eric, but I didn’t know John Burke beyond his voice on the phone. I wasn’t sure who the bad guy was. Sometimes I even wondered if it was Burke—if somehow I was being set up. . . .”

  Not sure what was going to develop—but now totally committed to the case—Shinn went ahead with traditional discovery work and the filing of motions. Brad was scheduled to file his first deposition in early 1990. “The night before, I get a phone call,” Shinn said. It was from one of Portland’s top attorneys, Forrest Rieke. He had Brad Cunningham in his office, along with Wes Urqhart, a bigger-than-life Texas lawyer from Vinson and Elkins in Houston. It was Brad’s opinion that Shinn’s suit had been filed to keep Brad from prevailing in his Houston lawsuits.

  “It became like guerrilla warfare,” Shinn remembered.

  The first shots from both sides had been fired in the case, but Shinn had yet to learn how tenacious Brad could be, and how calculating. If he had known that he was stepping into a runaway stagecoach whose horses were about to stampede, would he have said “no” to Greg Dallaire and Eric Lindenauer?

  Probably not. Mike Shinn always loved a good fight.

  37

  There is a rule of thumb in homicide investigations. The chance of finding and convicting the guilty person or persons diminishes in inverse proportion to the time that passes after the crime is committed. Given a choice, detectives want to catch the killer in twenty-four hours. They feel fairly comfortable with forty-eight hours. After that, they wonder if they will ever solve the case.

  Mike Shinn was reopening a murder case that was almost three years old. He wasn’t a criminal attorney, and he wasn’t even a crime buff. All he really had to bring to this project was a new point of view, a brilliant legal mind which he hid beneath a somewhat sardonic wit, and an inborn refusal to give up long after anyone with common sense would have thrown in the towel.

  He had his own “negatives.??
? Not only had too much time passed since Cheryl’s death, but he knew the Washington County District Attorney’s office was not particularly happy to have a civil attorney take on a case in which they had exhausted all possibilities. It was akin to an internist striding into an operating room, seizing the scalpel from the surgeon already in the middle of an operation, and saying, “Let me do it—I think I see where you’re going wrong.” Human nature being what it is, D.A. Scott Upham and Mike Shinn were probably not fated to be best buddies.

  Criminal prosecution works under different guidelines than civil trials. To prove a case criminally, the judge or jury must be convinced beyond a reasonable doubt that a defendant is guilty. That is, a reasonable man, after hearing the evidence and the testimony of witnesses, could come to no other conclusion. A civil case is proved by a preponderance of evidence. A judge or jury weighs the evidence presented by each side and decides which has the most compelling argument. Thus, it follows naturally that a civil case is easier to prove.

  In the end, after all the investigation by the Oregon State Police and Upham’s own office, they had concluded that they did not have enough evidence to charge Brad with Cheryl’s murder. That did not necessarily mean that Upham and his staff or Jim Ayers and the other detectives who had followed Cunningham’s movements with keen interest for the past three years believed he was innocent. They felt in their gut that he was guilty. But they doubted that they had enough firepower to prove guilt beyond a reasonable doubt. If they arrested him and tried him, and he was acquitted, they could never try him again. Double jeopardy would attach.

  All detectives and prosecutors can cite cases where they know full well that a man, or woman, is guilty but is still walking around free—and probably always will be unless he or she commits another crime. It is not one of their favorite topics. Brad was still walking around free and Shinn hoped to uncover something that everyone else had missed, but he didn’t really think he would. Only Perry Mason did that, and Shinn had never been able to second-guess Mason.