“When did you last talk to Brad?” Upham asked.
“On the phone—on September twenty-fifth. [My secretary] said that a Mr. Ballaster was calling. I knew no one by that name. I picked up the phone and it was Brad. . . . He asked if I was probating Cheryl’s will. I said, ‘No,’ and I directed him to Brian Whipp.”
When Brad cross-examined Lindenauer, he insisted that he had called a full week after Cheryl’s death, not three days later, to ask about her will. To suggest that Lindenauer and Cheryl might have been having an affair, Brad asked him how close he and Cheryl had been.
“We were close friends.”
“Didn’t you have keys to each other’s houses?”
“No,” Lindenauer said flatly.
Then Brad tried out another of his alternate-suspect theories. He asked Lindenauer if Garvey, Schubert and Barer had “key man” insurance.
“I don’t know.”
“Anything that pays benefits to Garvey, Schubert if [a partner dies]?” Brad pressed.
“I don’t know.”
“Was the firm having financial problems in 1986?” Brad asked.
This was a new motive. Brad was suggesting that Garvey, Schubert and Barer might have insured Cheryl as a “key man” and then had her killed so they could bail the firm out of financial problems. That made five entities Brad had suggested were far more likely to murder his estranged wife than he: Jerry Finch, the OSP detective who investigated her murder; some unknown pick-up from Jubitz Truck Stop; Cheryl’s own half brother, Jim Karr; one of her “many lovers” from her law firm; and, now, the law firm itself.
Brad listed names and Lindenauer identified them as partners at Garvey, Schubert and Barer.
“Were you aware that Cheryl was having affairs with these men?” Brad asked quickly.
“I object!” Upham barked.
“Sustained.”
A disgusted Eric Lindenauer stepped down.
Oregon State Police Detective Mike McKernan took the stand to give the jury a sense of the distances involved on the Sunday night of September 21, 1986. He had driven the route on a Sunday night, at the speed limit. From the American Dream Pizza restaurant to Brad’s apartment was six miles. “It took me fifteen minutes.” From Cheryl’s house to the Madison Tower, the time elapsed on a Sunday evening was nine minutes and forty-eight seconds. The distance from Cheryl’s house on the West Slope to the Sunset Highway where her body was found was three-tenths of a mile. The distance from her house to the Mobil station was seven-tenths of a mile. A man with an hour and twenty minutes of time unaccounted for could have made the drive to the Sunset Highway and back with relative ease.
The next big hurdle for the State was to get into evidence the DNA analysis of hairs removed from Cheryl Keeton’s body. Ray Grimsbo, formally a criminalist with the Oregon State Police crime lab, would observe the tests done by Dr. Cecilia Von Beroldingen. Judge Alexander ruled that he would allow the DNA results in. But Dr. Von Beroldingen’s testimony would have to wait. She had been called from California, but Brad was throwing the court schedule into such chaos that she could not testify. Now, she would not be able to return from California again until the fifth or sixth of December. Perhaps even later.
62
The tension in the courtroom was building by the day, chiefly because of Brad’s incompetence as a defense attorney and his ignorance of criminal procedures. He continually asked the D.A.’s office to produce the items of “missing” evidence.
“Every bit of this has been available for a year and a half,” Scott Upham said finally in exasperation.
“Let’s get the whole batch up here,” Judge Alexander said with equal exasperation.
The D.A.’s chief investigator, Jim Carr, a man known for his pleasant—if inscrutable—expression, had sat next to the courtroom door throughout the trial. Obligingly, he went to get the evidence that Brad thought would be so important. Some of it, in fact, had been missing for years. Some—like Cheryl’s checkbook with her West Slope address imprinted on the checks—was more dan gerous than helpful to Brad. The rest wasn’t relevant to his case.
The witness list that Brad had held so close to his vest proved to be almost identical to the prosecution’s. He planned to question Upham’s witnesses, apparently to bring out testimony about some massive cover-up by the Oregon State Police, the D.A.’s office, and the firm of Garvey, Schubert and Barer. Perhaps that was also the reason behind his continual demand for “missing” evidence. But Brad’s witnesses were seldom on hand. The court clerk, Gwen Lipske, would step out into the hall and call out a name. Once. Twice. When no one answered, she would step back into the courtroom to say that the witness was not there. That wasn’t really surprising, since Brad’s subpoenas were all dated on the same day, and that day was now long past.
Whether he would admit it or not, Brad was finding that the law was far more intricate than he was prepared for. Much of the testimony that he wanted to elicit was closed off to him. Again and again, Judge Alexander reminded him that his questions centered on areas that he should have handled when he was cross-examining Upham’s witnesses. Alexander saw—if Brad could not—that many of his proposed witnesses would damage his case. But Brad refused to listen to most of Alexander’s warnings. “At some point I can’t protect him from all his choices,” Alexander said with resignation. “I’ve tried to do that through this whole trial.”
Overriding Judge Alexander’s warning, Brad called Phil Margolin, his first attorney after the murder, and tried to get him to say that the Washington County D.A.’s office had “kidnapped” his sons to testify before the grand jury. Margolin denied it. The objections flew so fast that the only information that came from this witness was that Sara was the one who had paid for Brad’s consultations with Margolin—not a particularly positive point for his case.
Often Judge Alexander had to remind Brad that he had run out of proper questions. “You’re done, Mr. Cunningham. The witness may step down.”
Brad called the tow truck driver who allegedly had told him that Cheryl had made a date with Jerry Finch for later on the night she was killed. He wanted to reinforce his contention that Finch deliberately destroyed evidence that would link him to Cheryl.
“What did it matter, [assuming] that Finch allegedly said he had a date later with Cheryl?” Alexander asked wearily.
Undeterred, Brad suggested that the missing garage door opener might have been to Finch’s garage. “Evidence was destroyed,” he said again. “I’m not saying that Mr. Finch was the murderer. . . .”
Brad seemed to be writing a Perry Mason script and Judge Tim Alexander wasn’t buying it. Jerry Finch had been a happily married bridegroom. There was no evidence whatsoever to show that he had ever seen Cheryl before he viewed her body the night she died. Alexander would not admit testimony regarding Detective Finch from the tow truck driver, or any testimony on “the Finch connection.” It was all hearsay.
Nevertheless, Brad tried again when he questioned Harley James Collins Jr., the tow truck driver who hauled away Cheryl’s van.
“Was Finch upset?” he asked.
“Objection!” Upham said.
“Sustained.”
“Was he emotionally disturbed?”
“Objection!”
“Sustained.”
Once more, Judge Alexander sent the jury out. He pinioned Brad with his stare and told him that he could be held in contempt of court for asking questions he had been repeatedly warned about. “I can sentence you to jail for six months each time you do that,” Alexander said. “You could stay in jail longer than you might if you were convicted in this trial.”
“I’m walking just on the edge,” Brad countered defiantly.
“And you’re stumbling over—”
Brad had always argued with anyone who did not agree with him. Stubbornly he was arguing now with Judge Alexander.
“This is why we go to law school, Mr. Cunningham,” the judge said. “It’s a sophisticated concept.”
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Brad’s witnesses remained elusive and he volunteered to fill the time until someone showed up. Was it an act of pure bravura? Perhaps not. He had longed to get on the stand. Hadn’t he always been able to talk his way out of anything?
Judge Alexander warned Brad of the dangers of taking the witness stand himself. The defendant in a criminal trial does not have to testify, but if he does, he opens himself to cross-examination and to questions from the prosecution whose answers might totally destroy him. “Carefully consider the risk you place yourself in if you take the stand,” Alexander said.
Brad barely nodded, anxious to talk directly to the jury. “I want the jury to know that this will just be a portion of my testimony,” he said, adding that he would have much more to say.
“Okay. If other witnesses show up, we’ll take them.”
Brad was smiling broadly and he shook his head when Alexander suggested that he have Kevin Hunt or Tim Lyons question him on the stand. No, he was determined to go it alone. As he limped to the witness chair, hampered ever so slightly by the brace on his left leg, he was totally in his element. He sat, poised and supremely confident, waiting for the jury to file into the courtroom.
It was 2:45 P.M. on Thursday, December 1, 1994, and suddenly the witness was Brad Cunningham himself. There was no one else—at least not on that day. He was the only witness he had, but he seemed quite comfortable to be testifying.
Brad began with a brief autobiography of the years before he met and married Cheryl. He made no mention of his three previous wives. And oddly, in his description of his life with Cheryl, almost all he talked about was his financial empire. The jurors’ eyes glazed over as he told them in a friendly, confidentially soft voice about the huge amounts of money he had made—and lost. “Debts of four million nine hundred thousand dollars—but assets of fourteen million seven hundred sixteen thousand . . .” He spoke of banks, venture partners, his construction equipment, his apartment complexes, his office buildings, his laundromat, the homes in Tampico that he and Cheryl had bought, the hay crop he had harvested. The figures he tossed around were more than most people made in three lifetimes.
During his first hour as a witness in his own defense, Brad didn’t even mention Cheryl’s murder, but he talked in a mournful voice about having to sell “the boys’ house” in 1992. “I got a court order in Yakima and a fair price of fifty-nine thousand nine hundred dollars, but the boys and I only realized six or seven hundred dollars. We sold because we were behind in our taxes.”
Brad’s testimony was a litany of his own financial misfortunes caused, always, by someone else—Bob McNannay, Sara—never through his own actions. But after he had declared bankruptcy and everything seemed lost, he told the jury, his and Cheryl’s suit in Houston had finally been settled in 1991. In a settlement, the contractor would pay Brad $380,000, and the bonding insurer Brad had sued lost in court and was ordered to pay $609,700—plus interest. The award ended up to be $1,765,537.49. But all that was virtually wiped out by what Brad owed Vinson and Elkins and other creditors. “It took eight years,” he said proudly, “but we won.”
A wave of what seemed to be genuine pain and loss swept across Brad’s face as he ended his testimony by saying, “It was very sad. It wasn’t something that should have happened. . . .” The courtroom was hushed and those listening expected Brad to say how sad it was that Cheryl hadn’t lived to realize they had finally won their suit. Instead, he repeated, “It was very sad. We didn’t have to declare bankruptcy at all.”
Judge Alexander had ruled that he would allow DNA testimony into the trial, and Scott Upham would not rest his case until Dr. Cecilia Von Beroldingen had presented the DNA analysis for the prosecution. Dr. Von Beroldingen had been left legally blind after surgery for a brain tumor. But she remained one of the outstanding experts on DNA in the country, and she was able to testify with the use of magnifying devices. She was presently in California training with a guide dog. She had already flown back to Portland once to testify, and she would have to fly back again because of the incompetent way Brad was handling his defense.
The trial, expected to be finished by Thanksgiving, was headed toward Christmas with no sure end in sight. In mid-trial, in an unusual move, Judge Alexander ordered that Brad be examined by psychologists—one chosen by the State, and one by Alexander himself—to see if he was indeed competent to conduct his own defense. By Monday, December 5, it would be decided whether the trial would continue with Brad acting as the sole defense “attorney,” or if there might even be a mistrial. The question made for a glum weekend. The Christmas lights were up all along Main Street in Hillsboro and on the giant fir on the courthouse lawn. Nobody involved in this case seemed to have noticed.
On Monday, Judge Alexander excluded everyone but the principals and the press from the courtroom. Brad, as usual, had a number of issues to take up with the judge, issues concerning the unfair way he felt he was being treated. With Kevin Hunt attempting to run interference for him, Brad began to speak. “My position—”
Hunt quickly explained that the first issue Brad was about to bring up had already been ruled upon. Brad wanted a DNA report from his expert. But that was not all. He said he couldn’t get his out-of-state witnesses to court. He felt he could not count on his attorneys to find them. “I can’t get time with Lyons,” he complained. “I had other expectations of what would happen. . . . I just got the DNA reports . . . My experts aren’t here. Mr. Upham surprised me. . . .”
What had happened, quite obviously, was that Brad had begun to see the consequences of his inept attempts to defend himself. “I need to talk to witnesses one-on-one before they testify,” he said, harried and angry now. “I need—I need to have access to my attorney. I need an order to be with my expert witnesses.
Brad now requested more attorneys. He wanted attorneys who would seek and subpoena witnesses in Washington and California. “I need new lawyers to advise me—who will be there.”
Alexander looked at Brad, perplexed. “Your lawyers have done an excellent job,” he commented. “I’m not going to hire different ones. . . . You may be the only person in the history of Oregon who has had two lawyers advising you. I’m not going to give you three.”
The question of just how many attorneys Brad was going to have might very well have been moot. It looked as if the trial was about to evaporate. Both Lyons and Hunt had filed documents expressing their concerns about the way Brad was handling his defense. He had ignored their advice; he had brushed aside the judge’s warnings. They sincerely questioned his mental competence.
The two psychologists who had been observing Brad’s behavior were in the courtroom and ready to offer their opinions as to whether he should be allowed to continue. Judge Alexander had selected Dr. Donald True to observe and examine Brad, and Scott Upham had chosen Dr. Richard Hulteng. The question on everyone’s mind was: Is this a man of monumental ego and almost suicidal arrogance who is, nevertheless, sane—or is Brad Cunningham psychotic? The jury was not present in the courtroom while the two psychologists presented their findings.
Dr. Donald True testified first. He had observed Brad for five hours, watching him in the courtroom and on a one-to-one basis. But he had given him only one test—the Rorschach ink-blot test. It was True’s opinion that Brad was diagnosable, according to the guidelines in the DSM-4 (Diagnostic and Statistical Manual, the bible of psychologists and psychiatrists), as suffering from “severe delusional disorder.” He felt that Brad was “depressive, borderline suicidal,” and had “paranoid type ideation. . . . His mental disorder,” True said, “is such that he’s defeating his defense—fighting his own attorneys. . . . In my opinion, he’s not able to accurately perceive—or aid—himself.”
Although Dr. True believed that his mental problems were major, he said that Brad was probably delusional and paranoid only in certain areas. He could, for instance, go on with his life otherwise. “It’s not paranoid schizophrenia; he can function adequately—even brilliantly?
??in other areas.”
Brad did not care for Dr. True’s diagnosis. He asked to have an independent advisor, another psychologist, to evaluate him, someone to contest True’s findings. Alexander would not grant him another psychologist.
Kevin Hunt rose to tell Alexander that he was concerned about having Brad cross-examine Dr. True. Lyons and Hunt had now made full disclosure of their adversarial position with their client. Hunt wondered if he and Lyons could even continue. But they did agree to continue, and Upham’s chosen psychologist took the stand to give his opinion on Brad’s competence.
Dr. Richard Hulteng, director of evaluation and treatment at the Oregon State Hospital, a Ph.D. in clinical psychology who was also an attorney, said he had observed Brad, held a structured clinical interview with him for four hours, administered the MMPI test, and reviewed some five hundred pages of documents, police reports, and other test results. His diagnosis was diametrically opposed to that of Dr. True. Hulteng had found Brad a little depressed, not surprising given his current situation, and said that Brad did have a personality disorder—a “depressive maladaptive personality.” Hulteng found him “antisocial, paranoid, and narcissistic.” But none of these—or any personality disorder—indicated that a subject was “crazy.” They were, rather, an integral part of the way some people relate to the world.
“He wants to do the case his way?” Upham asked Dr. Hulteng. “Is that accurate?”
“Yes . . . at some point, he asked me not to talk to his attorneys. . . . Within a reality-based way, he cited individuals who may be against him—there were many. . . .”
“Is he competent to act as his own attorney?”
“I concluded that within the framework of understanding the nature of the procedure, he’s perfectly rational,” Dr. Hulteng replied. “He’s at least of high-average intelligence. . . . As defined by Oregon law, he has the capacity to assist in his own defense.”