Jess agreed that his father told him his mother had died in an accident, and later that she was murdered. But he had not told Michael and Phillip.
“Sara had doctors hypnotize you?” Brad asked quickly.
“Objection!”
“Overruled.”
“I don’t remember . . .” Jess was confused by his father’s constant switching of questions. He remembered that he had seen a psychologist or a psychiatrist to help him deal with the events of the prior eight years.
“On your birthdays, do I always bring out pictures of your mom?” Brad asked.
“I remember pictures, sometimes.”
Betty Troseth, sitting in the back row, was obviously distressed to see her grandson pinioned to the witness chair, bombarded with questions designed to make Brad look like an ideal father.
“Do you remember your dad telling you how much he missed your mother? Remember people stealing money from us?”
Jess shook his head, confused. At last, his father was done with him—at least for the moment. It was obvious to the gallery that Brad had tried to manipulate his son Jess to his advantage.
Brad had sent out a plethora of subpoenas—but they all bore the same date. If all his witnesses showed up on the date specified, they would be packed in the hallway like sardines. He had subpoenaed virtually the entire Oregon State Police staff and they knew better than to make the trip to Hillsboro without further notification. But Sara brought Brad’s three youngest sons as their subpoenas dictated. The boys were nervous, too upset to eat lunch. And Brad allowed Sara and his own sons to wait all day in the corridor. The next day, they were not there. He insisted they were violating their subpoenas; he wanted them available in case he needed them in court.
That was the way the trial was going, just as Upham had feared. There was no order and little continuity. Brad didn’t know how to cross-examine witnesses, and belatedly realizing his omissions, he wanted them back after they had left. Certain witnesses—like Betsy Welch, Cheryl’s attorney, and Julia Hinkley, the OSP criminalist—would almost wear a path back and forth from their offices to the witness stand.
Time after time Judge Alexander attempted to explain the law to Brad, and even to protect him from his own ignorance. And he warned him that he did not intend to give him a crash course in criminal defense during the trial. “Mr. Cunningham, am I going to have to sit here through the trial and teach you the law?” Alexander asked. “The vast majority of what you said was improper. You still haven’t figured out what your role is here.”
On November 21, Dr. Karen Gunson took the stand to testify about the autopsy she performed on Cheryl Keeton’s body eight years before, and once more Cheryl’s family braced themselves to hear the terrible details. In her soft feminine voice, Dr. Gunson described the massive head wounds Cheryl had sustained. She used enlarged photographs to show the jurors the victim’s injuries. She pointed out the “defense wounds” that Cheryl had sustained when she tried in vain to ward off the blows coming, in all probability, through the driver’s-side window. Finally, Betty Troseth could not take any more of this. She moved quickly from her seat at the far end of the last row and disappeared through the double doors into the corridor.
Dr. Gunson pointed out that the most unusual abrasion was the angry red line across the front of Cheryl’s waist. She didn’t know what had caused that.
“Death was instantaneous?” Upham asked.
Dr. Gunson shook her head slightly. “No, it probably took several minutes.”
One of Brad’s contentions was that Cheryl drove herself onto the Sunset Highway. Upham asked Dr. Gunson if Cheryl’s wounds would have allowed her to drive.
“No way.”
Upham then asked who usually takes custody of a body after it is released by the Medical Examiner’s office. Dr. Gunson listed the answers in descending order. “First, the husband or spouse, then the parents, then children or other family. Finally, a public official.”
Upham asked if Cheryl’s husband had claimed her body.
“No.”
Brad remained seated when he cross-examined Dr. Gunson. Some of his questions seemed designed to challenge the thoroughness of her postmortem examination of Cheryl’s body, others to learn details of her death that he wanted to know. “Was she ever conscious?” he asked, referring to the period after Cheryl had been attacked.
“Probably she would have gone unconscious and remained so.”
“Part of the time?” Brad pressed. “Passing out and coming to?”
“Probably not.”
“Was she in close contact with [her attacker]?”
“Probably within arm’s length.”
Brad asked if fingernail scrapings had been taken.
“I observed Julia Hinkley attempting to take scrapings.”
“Were her hands bagged?”
“Yes.” There was blood under Cheryl’s fingernails—her own blood—but her nails had been too short to retain other material.
“Did you check for semen?” Brad asked.
“I took anal and vaginal swabs.” There had been no evidence of sexual assault.
“Did you estimate time of death?”
“It appeared that she died shortly before her automobile was found.”
Brad sighed suddenly, a dramatic sound full of pathos, as if he were about to break into tears. He looked down at the table in front of him, the very image of a grief-stricken widower. But the dark shadow across his face disappeared in an instant and he continued to question Dr. Gunson. He switched his emotions on and off as if he were pulling on the string of a bare lightbulb.
Brad asked Dr. Gunson if she had observed petechiae (small blood hemorrhages associated with strangulation) in Cheryl’s eyes. Was she wearing glasses? Contacts?
“I didn’t see any,” she replied.
Brad was pleased, as if this proved her incompetence. He commented that Cheryl was very nearsighted and should have been wearing either her glasses or contacts.
Scott Upham was aware of Brad’s strategy. “Contact lenses were of no significance to you in this type of situation?” he asked Dr. Gunson on re-cross. “Is that correct?”
“That is correct,” she answered. Given the force of the blows the victim sustained, the transparent slivers of contacts could have been knocked out, hidden in the massive amounts of blood, or lost back in the swollen eyes.
“How do you determine time of death?” Upham wanted to reinforce Dr. Gunson’s earlier testimony about when Cheryl died.
In reply, she explained that even the best guess of a medical examiner would be “plus or minus four or five hours.” The very best way to establish time of death, she told the jurors, is by determining when the victim was last seen—or, in Cheryl’s case, heard. She had telephoned her mother just before 8 P.M., and Randy Blighton came upon her body less than a half hour later.
“Witnesses and the scene investigation tell far more than anything we can do at autopsy,” Dr. Gunson said.
Julia Hinkley testified that afternoon. She and Jim Ayers had done a reenactment of Cheryl’s actual murder, and Brad tried to forestall discussion of it. Judge Alexander denied his motion, and again anger suffused Brad’s face with scarlet.
Julia Hinkley was a smiling, cheerful woman. She also knew her stuff. This jury had not yet heard of the evidence she had collected in 1986, and she went through it all for them. Then she offered photos to show the reenactment that she and Ayers had done in 1992 to check out her findings and Dr. Gunson’s. With Hinkley as “Cheryl” and Ayers as “the killer,” the reenactment was only theory, but it was chilling theory. And it was chillingly exact.
All of the forensic evidence indicated that Cheryl had been assaulted while she was sitting in the driver’s seat of her Toyota van and had been bludgeoned with a multi-surfaced blunt instrument. Hinkley demonstrated the positions of the crime, explaining that she had suffered an injury herself in the reenactment, an injury much like one of Cheryl’s. “Now, she attempts to es
cape toward the passenger door,” Hinkley said quietly. “She gets the door partially open.” At this point in the reenactment, Ayers had yanked violently back on the waistband of Hinkley’s jeans. In the interest of forensic science, Hinkley had suffered exactly the same linear abrasion that Dr. Gunson had found on Cheryl’s waist, the deep red mark of the jean material cutting into soft flesh.
All independently, Hinkley and Ayers had come up with almost exactly the same sequence of a violent death struggle that Lieutenant Rod Englert had presented at Brad’s civil trial. Blood will tell—in more ways than the poets ever knew.
Upham asked Hinkley why the graphic equalizer knobs of the Toyota’s radio were broken off.
“It probably was done by her kicking when she was on the console. There were elongated scrapes on the bottom of her shoes that match . . .”
Near the conclusion of her testimony, Upham asked Hinkley about the hairs she had retrieved from the crime scene. The hairs had been sealed in glass slides in 1986, and in the custody of Oregon State Police investigators since. “The chain of custody is impeccable,” Hinkley commented. DNA matching was not possible at that time, but she found later that some of the hairs had DNA possibilities, and she gave them to DNA specialist Cecilia Von Beroldingen in 1993 for analysis. “I was looking for a root—using a stereo zoom scope—for a follicular tag. . . . I found four for DNA,” Hinkley said. Von Beroldingen was scheduled to testify for the State later in the trial—if Judge Alexander ruled in favor of the admissibility of DNA evidence.
Every prosecution witness who had faced Brad had managed to present a bland face to him, keeping private feelings hidden. During his testimony, Jim Ayers had accorded him a flat civility that was, somehow, more telling than if he had allowed his disdain to show. Now, Julia Hinkley’s eyes bore directly into Brad’s as he questioned her interminably on how she retrieved and preserved evidence. Whatever she was feeling, she did not betray it.
Brad wanted to know what “contaminants” might be on the hairs preserved. “What is a contaminant?” he asked Hinkley.
“[Something] not expected to be there—foreign,” she replied.
“Trace evidence is invisible to the naked eye?” Brad asked.
“It depends.”
Brad was obsessed with what he considered the missing fingernail scrapings. How did Julia Hinkley take scrapings?
“With a fresh scalpel.”
“With my wife, you did that?”
“That’s the only way to do it.”
“There was nothing there?”
“Nothing you could see.”
Brad obviously knew something about trace evidence—blood, fiber, hairs—and yet it was apparent his knowledge was superficial. He latched onto anything that he deemed “missing,” including Cheryl’s garage door opener.
“I left it for the police,” Hinkley said.
There was no argument from the prosecution. That device was missing. What significance it might have had was obscure—but Brad would ask for it again and again.
Cheryl’s Toyota van was also gone, sold a long time ago after it had been thoroughly processed and photographed. Brad considered its absence an important point in his favor. But it was of no consequence, nor was the other “missing” evidence.
“Detective Finch gave you human teeth on October first, 1986?” Brad asked Hinkley.
“No, I went to the van and got them. There were some in the back and some in the front.”
Brad asked about the missing “gold ring.”
“I don’t know where that is,” Hinkley said, explaining that she had kept only those items that were “forensically important” to her. The ring and the teeth were not, nor were the buttons kicked off the radio.
“You are married to Sergeant Hinkley?” Brad asked.
“Yes.”
“He was first on the scene,” Brad said, suggesting that the Hinkleys had collaborated on their recitation of events.
“We have not discussed the case,” Hinkley said firmly, and most believably.
The reenactment of the crime still rankled Brad. “This re-creation is your scenario?” he asked.
“That is correct.”
“And there could be many other scenarios,” Brad stated confidently. “Is that correct?”
Hinkley shrugged. “There could be. That is correct.”
60
As in the civil trial three years earlier, only one of Brad’s former wives agreed to testify. Upham and Carr made numerous out-of-state trips to speak with Loni Ann, Lauren, and Cynthia. The women were all cooperative—but not to the point that they felt they could face Brad in court.
Sara Gordon would. This trial was drawing more media attention than the last, and what she had to tell was personally embarrassing. It didn’t matter. She had Brad’s sons to think about, and that did matter. The boys were in limbo; she could not guarantee them anything about their future. If Brad was acquitted, she knew he would come for them and she would have to give them back to him. If he was convicted, she had pledged to raise them to adulthood.
As Sara took the stand for the prosecution on November 22, she was the third witness of the day. Cheryl’s secretary, Florence Murrell, and Sergeant James Hinkley had preceded her. Sara was very pale and terribly thin. She wore a black suit and a white blouse, making her look even smaller than she already was. She was so pretty that the jurors must have wondered why Brad had described his marriage to her as one of financial convenience only. Sara was apprehensive—not of direct testimony but of cross-examination. She spent hours on the stand answering Upham’s questions about her relationship with Brad, from their first meeting to their marriage and her discovery of his infidelity. Four years.
With the jury out of the room, Upham asked Sara about Brad’s veiled threat as their relationship finally disintegrated. “Brad told me that the person who killed Cheryl might kill me,” Sara said. “He said, ‘Never be alone. Make sure you have someone with you. . . .’”
Brad, of course, objected on the grounds of “marital privilege.” In a blow to the prosecution, Judge Alexander concurred. Sara was still legally married to Brad when he alluded to the danger in her life—even though she was living in fear of him.
To counter Sara’s testimony about his infidelity, Brad wanted to introduce evidence that he felt would show she was “plotting” against him with Lynn Minero’s husband, and that she had talked about this from an operating room phone—even while she administered anesthesia. Judge Alexander would not permit it, again protecting Brad from his own ignorance. “That testimony would be so damaging to your case . . . I can’t allow you to keep doing this to yourself.”
The jury filed back in and Sara’s direct testimony continued until the lunch break. When court reconvened at 1:37, the moment Sara feared most was at hand. She was about to be cross-examined by her ex-husband.
Brad looked at Sara dispassionately. “You currently have a lawsuit pending against me based on what the children and I own?” he asked. The property in contention in the “lawsuit” Brad mentioned was in a storage locker in Snohomish County. As always, he seemed preoccupied with possessions that had been taken away from him. But then, he may have just been trying to establish prejudice against him.
“The trustee put a hold on the children’s property,” Sara replied. “The children are living with me, and I’m their guardian ad litem. To get their toys and stuff—I plan to leave it alone right where it is—until the end of this trial and then I will get the children’s things. . . .”
Brad continued his cross-examination, only on financial matters. But when he had not made many positive points with that line of questioning, he tried another tack. He moved to the bakery acquisition and attempted to get Sara to say that he had done a great deal of work in remodeling it. No, Sara countered, he had hired a contractor to do the work.
“The equipment for the bakery?” Brad asked. “Did I buy it?”
“You chose. I paid.”
Brad was still get
ting nowhere. He was trying to establish how hard he had worked during all the years of their marriage—when he had no real job—but Sara would not validate that. All of the remodeling on the Dunthorpe house and on the bakery/bistro had been, in her opinion, done by hired labor. Nor would she support his recall of his pitiful circumstances after Cheryl’s murder.
Sara sighed with relief when the afternoon break interrupted Brad’s rambling cross-examination, but she had held her own. And he had obviously not expected that.
When the trial resumed later that afternoon, Brad at last asked a question that had some relevance to the case. “Did you say your third call to me was at eight-fifty P.M. [on September twenty-first]?”
“Yes.”
“Could it have been even earlier?”
“No.”
“The answering machine was only on when I was away?”
Sara had no reply to that, other than that she knew it had not been on that night.
Brad asked only a few more questions and they seemed pointless: when they met, where they lived, when she met the boys, what they had eaten on the night Cheryl was killed. The jury had already heard this information.
“No more questions,” Brad finally said.
Incredulous with relief, Sara smiled broadly for the first time during her testimony. Her ordeal was over. She stepped down from the witness chair. Except for the unalterable fact that Brad was the father of her sons, he was for all intents and purposes out of her life.
61
Upham continued his case for the prosecution. Eric Lindenauer, the young lawyer whom Cheryl had mentored at Garvey, Schubert and who had been with her the day she enrolled Jess in Bridlemile School, testified that she had been terrified of Brad. He said he had learned that Cheryl had been murdered at 11:30 on September 21, the night she died. Betty Troseth had called him and he was “absolutely devastated.” He then called the Oregon State Police to give them information about her fear of her estranged husband.