Oddly, even though this testimony had the potential to damage him more than Dr. True’s, Brad was happy with Dr. Hulteng’s diagnosis. Odder still, clearly seeing this as an opportunity to get many of his complaints into the record, he proceeded to demonstrate his paranoid personality disorder. He complained to Dr. Hulteng that Judge Alexander wasn’t being fair, that he gave Scott Upham favorable treatment. As Alexander listened without expression, Brad told Hulteng that the judge was prosecutorial and more interested in “getting me convicted than conducting a fair trial.”
“Yes—you told me that,” Hulteng said calmly.
Judge Alexander had a question for Dr. Hulteng. “Did you observe Mr. Cunningham going ahead even when I was concerned it was dangerous for him? Doesn’t that concern you?”
“Yes,” Hulteng agreed, “but that’s more maladaptive, narcissistic behavior. He isn’t delusional.”
“What about his inability or failure to recognize danger?” Alexander pressed.
“That’s just his poor judgment.”
Brad continued to complain about several of Judge Alexander’s rulings that he felt were unfair, and patiently Dr. Hulteng tried to explain to him what the crux of the matter was. “You and the judge were clearly having a difference of opinion. From where I sit, your view is distorted, but it doesn’t fall into ‘crazy’ because you’re not saying the judge is ruling against you because he’s receiving messages from Mars. Then I’d be concerned.”
For the first time in a very long time, there were smiles in the courtroom.
Dr. Hulteng’s opinion would prevail and the trial would go on. Brad, poor judgment and all, would continue to conduct his own defense. Lyons and Hunt would continue to try to advise him. And he, in all likelihood, would continue to ignore their advice.
63
DNA evidence is an esoteric and recent addition to a criminalist’s already impressive knowledge of things seen and not seen by the naked eye at a crime scene. And Cecilia Von Beroldingen was one of the outstanding DNA experts in America. She was a pretty, slender young woman whose self-confident movements belied the fact that she was legally blind. She took the stand just after lunch on December 12, and her seeing-eye dog, a golden retriever, waited for her at the far end of the press row next to investigator Jim Carr, its eyes never leaving its mistress.
It took several minutes for Scott Upham to elicit the plethora of credentials that Von Beroldingen possessed. She gave the jurors a crash course in DNA, explaining that humans normally inherit twenty-three chromosomes from the male parent and the same number from the female. DNA, the stuff of life, is found in these chromosomes. Although there are three basic methods, namely RLFP, PCR, and DQ Alpha, used to extract, amplify, and evaluate DNA, she told the jury that she had used the DQ Alpha typing process on the hairs preserved as evidence after Cheryl’s murder.
With blood samples taken from both Brad and Cheryl, Von Beroldingen was able to establish that they had different DQ Alpha profiles. Cheryl’s was “1.3,3,” while Brad’s was “1.2,4,” she said.
The only thing that Von Beroldingen had had to work with were the hair follicles. Two hairs had been found on Cheryl’s arm and blouse, hairs that still had the root or follicle attached. The hair shaft itself cannot be tested for DNA components but the “tag” or follicle can. The hair found on Cheryl’s forearm was consistent with Cheryl’s 1.3,3 DQ Alpha profile, but the human cellular contaminant on it was Brad’s type: 1.2,4. This contaminant could be anything from sweat to blood to mucus to semen, or any other bodily secretion. That would indicate that someone with a 1.2,4 DQ Alpha profile had been in contact with the hair found on Cheryl’s body.
It would be essential for the defense to establish what percentage of the population had 1.2,4 DQ Alpha profiles, and Kevin Hunt had planned to cross-examine Von Beroldingen. Judge Alexander ruled that he could not. Brad had chosen to defend himself and he could not have it both ways. Hunt would be allowed only to whisper questions, while Brad himself cross-examined Dr. Von Beroldingen. With his first question, however, an interesting phenomenon took place. Although his voice was as soft and conciliatory as it usually was when he questioned witnesses, there was apparently something in it that raised the hairs on the back of Cecilia Von Beroldingen’s dog. The perfectly trained animal leaned forward and growled deep in its throat, a sound that no one in the courtroom missed.
Brad had always been a quick study, and he had apparently boned up on DNA. The DNA pattern revealed during Von Beroldingen’s tests, he submitted, was not that unique. In fact, he managed to establish that approximately one out of ten Caucasians in the greater Portland area also had the same DQ Alpha genotype that Brad did. It was not as if he had left a fingerprint on Cheryl’s flesh, a fingerprint that was absolutely unique to him. Von Beroldingen could only say that he was among the 10 percent of the population who could have left the contaminants on the retrieved hairs, as opposed to the 90 percent with other DQ Alpha genotypes who could not. This was physical evidence to be considered with the circumstantial evidence that pointed to Brad, but it was not conclusive.
There were fireworks later in the day when the defense’s DNA expert, Randell Libby, testified. Brad’s questions and Libby’s answers seemed to meld too well, and a suspicious Upham raised an objection. It turned out that Libby had prepared seven and a half pages of questions—including many of the answers he planned to give—for Brad to use. Upham said that the list should have been shared with the prosecutor, and that the fact that it was not was a violation of discovery.
Judge Alexander sent the jury out, and when they were gone, he ruled that Libby’s testimony and the list that Upham called “crib notes” were indeed a violation of discovery. Randell Libby and his testimony disappeared from the trial. When the jury returned, he was gone and no explanation for his absence was given.
Brad moved once again for a mistrial.
“Motion denied.”
Brad took the witness stand for a second time on December 14. He was once again both witness and defense attorney as he continued his direct examination of himself. He spoke for more than two hours, focusing on the good times and bad times of his marriage to Cheryl. On a number of occasions he choked up and seemed about to burst into tears as he remembered his love for Cheryl. His emotions were still evanescent, however—gone in an instant. Strangely, his grief did not prevent him from harping on Cheryl’s promiscuity. Again and again he told the jury that she was having sexual relationships with seven or eight men at the time of her death. “That didn’t make her a bad person,” he said generously. “It didn’t bother me.” With a half smile of sad acceptance, he said only that he had worried because he didn’t think Cheryl’s affairs left her much time to care for their three sons.
Brad insisted that he was home with his sons all the Sunday evening in question, except for two quick runs with Michael to the parking garage. He estimated he hadn’t been out of his apartment for more than ten minutes total. “I was trying to run off his energy,” he said of Michael. “He was very hyper that evening.”
He denied that he gave conflicting stories of his whereabouts and activities to a number of different people. “I am telling you today,” he said earnestly to the jurors, his voice quavering, “I did not kill Cheryl.”
Just as Judge Alexander had warned him, Brad was now fair game for the prosecution. Scott Upham had memorized the convoluted transfers of homes, land, building materials, heavy equipment, guns, and vehicles that Brad had accomplished. He had already been relentless in questioning some of Brad’s attorneys and accountants, and now he was harder on Brad himself. Many of Brad’s holdings had never been disclosed to the bankruptcy court. This, Upham maintained, was one of Brad’s reasons to want Cheryl dead: she had been about to expose his financial machinations. Now, Upham did what Cheryl had been unable to do—he held those transactions up to the light.
Brad had a hard time explaining how trucks and trailers and guns changed hands on paper but, apparently, not in realit
y. The Prowler trailer that had eventually been purchased by Sara had bounced all over Washington State without ever once actually moving. Paperwork showed that Brad had given it to a law firm to pay for attorneys’ fees, then bought it back, then given it to his father. It seemed to have been the same with Brad’s guns and expensive cameras. He fumbled when he tried to remember where they had all gone. “We had fifty guns. . . .” Some went to a gun shop on consignment, some to his law firm. He wasn’t quite sure.
When Upham pointed out bankruptcy report irregularities, Brad had a ready answer. “Cheryl filled those out,” he said.
Upham was also fascinated with Brad’s tax returns, returns that Brad seemed to have forgotten. During the years when he had brought in virtually no income, he had taken huge deductions for business expenses. Cheryl had also threatened to expose his tax dodges to the IRS—heightening his motive for murder.
Brad’s face glistened with sweat as he tried to answer Upham’s increasingly intricate questions. At the same time, he took notes to help him with his own re-direct testimony.
Brad wasn’t concerned with questions about his sex life. He readily admitted to having affairs with his baby-sitter Marnie and with Lilya Saarnen. As for his other coworker, Karen Aaborg, he was disdainful. “She would come to my apartment and she was a date I couldn’t get to go home. . . . She wanted sex, so I did. . . . I only slept with her so she’d go home.”
“You have a facetious sense of humor?” Upham asked suddenly, changing the subject.
“Yes,” Brad said warily.
“The ‘poison plot’ was a joke?” Upham asked incredulously.
“Cheryl and I thought it was a joke,” he said, then added, “But it was like Betty—to poison me and take the kids to Arkansas and hide them so Cheryl could live the kind of life she wanted until she wanted them back.”
It was obvious to everyone watching that Brad was not only in deep water, he was way over his head. Upham hit him again and again with questions that demanded precise answers. And Brad could no longer tailor his answers to fit the facts and make them sound like anything but fiction. Even so, he would not show that he was in the least rattled. He continued to write down each question Upham asked him. He was alternately insolent and bored. He ignored Upham as much as anyone on the witness stand could ignore the attorney who was verbally pummeling him up one side of the courtroom and down the other.
Brad choked up as he said he had cried when he learned how Cheryl had died. “Finch said she had been bludgeoned. . . . You understand my state of mind,” he said. “I was nauseous. I was actually weaving. I threw up a little in my hand and ran for the bathroom.” Had he forgotten Jim Ayers’ testimony that he had shown virtually no emotion upon learning that Cheryl was dead, and that neither he nor Finch had told Brad how Cheryl died?
Again and again, Upham tripped Brad up. On times. On whom he had talked to the night of the murder and when. Even on what snacks he fed his children and what was on television. Brad was angry, but controlled.
“You were wearing a yellow-and-orange vest when Jess opened the door?” Upham asked.
“No.”
“You didn’t tell Jess you’d been jogging around Sara’s hospital?”
“No.”
“You washed up in the kitchen?”
“No.” Brad said he had put an old pair of shoes and pants in Sara’s car because he had to test soil on land in Tigard the next day. He had planned to pick up his Suburban at Providence Hospital early the next morning.
Upham asked a question that surprised Brad. “Who was going to take care of Phillip?”
Brad looked puzzled.
“You didn’t call anyone Sunday night to take care of Phillip Monday morning?”
He had not. The inference was, of course, that Brad knew that this Monday morning would be different, that there would be no need for routine baby-sitting.
Brad wanted to talk instead about the many loads of laundry he had done in his apartment Sunday night. “I did a lot of wash. I was staying busy,” he said. “I was having a good time with my sons.”
Brad’s answers were making less and less sense. Now in response to many of Upham’s questions, he evaded answering and talked instead of the destruction of his life by everyone. He could count on no one. He had been fired after Cheryl’s murder. Yes, Sara had paid some of his legal fees—but he had paid her back. Bob McNannay withheld trust funds from the boys, so he had had to borrow from the Colville tribe. He had had no choice but to let Sara adopt his sons so Betty wouldn’t get them. Sara didn’t want children. “I wish I hadn’t done it.”
Upham showed Brad the letter in which he begged Sara not to divorce him. “I wasn’t going to talk about certain things,” Brad said, “but it looks like I’ll have to.” He smiled. “It appeared she was seeing other men. Want to hear about it?”
Brad had slipped into a familiar refrain, but Upham didn’t encourage it. Instead, he asked if there was another reason for his divorce from Sara, and Brad said that his marriage began to disintegrate when the “tax thing” started to fall apart.
“In 1990?” Upham asked.
“Before,” Brad replied. “We had tax problems. There were certain accusations. Certain disclosures.”
Upham asked Brad if he recalled a stipulated money judgment and dissolution-of-marriage document he had signed on September 21, 1991—ironically on the fifth anniversary of Cheryl’s murder. In that document, Brad had admitted to most of Sara’s accusations and agreed to pay her a fifty-thousand-dollar judgment against him. “The boys got the farm,” Brad said vaguely. “I don’t remember the fifty-thousand-dollar judgment. I can’t remember certain events taking place . . . can’t remember denying Sara visits and phone calls with the children. . . . I just wanted out. I wanted nothing to do with her. ”
Upham remarked that Brad’s divorce from Sara was “eerily reminiscent” of the last days of his marriage to Cheryl. Brad didn’t get it. He said that he suspected Sara of drugging his children to control them. “I still do. They’re like Stepford children. . . . My boys have one mother—Cheryl.”
Upham had cross-examined Brad for three hours. He was unruffled, but Brad looked exhausted, stress tightening his face into a deeply lined mask.
When the letters that he had been sending to his sons while they were living with Sara were admitted into evidence, Brad panicked. He didn’t want the envelopes in evidence. Anyone who had seen those envelopes understood why. Judge Alexander allowed Brad to hold back the envelopes with their vicious and suggestive cartoons. And when court recessed, he grabbed for the stack of letters and hurriedly ripped the envelope off each one.
On re-direct, Brad took the stand to try to patch up the huge rents Upham had torn in his case. His own explanations were really all he had; the witnesses from his long list never materialized. Now, to refute the prosecution’s witnesses, he launched another tirade against the women in his life. He hinted that Sara was a lesbian who was using her money to keep his sons from him. “It’s been the boys and me, and now Sara has the children. . . . We’re going to sue Sara and get our farm back together. . . . the boys and I will be back together.”
Judge Alexander warned Brad that he was sliding toward closing argument rather than giving testimony.
Ignoring the warning, Brad again listed the faults of Loni Ann, Cynthia, Lauren, and of course Cheryl. He covered old territory, oblivious to the damage he was inflicting on his case as, once again, the details about his whereabouts and activities on the night of the murder changed slightly. Brad apparently feared that the jury had noticed his security leg brace, because he explained to them that he had a bad leg and wore a brace. “I had cancer of the bone when I was little, but it got better so I could play football in high school and college. . . .”
He was rambling and Alexander was running out of patience. He warned Brad to finish up. “I’ve done a lot of depositions,” Brad said. “I’ve always tried to be honest.”
Judge Alexander warned him
again.
When Brad veered back into his financial affairs and once again began to quote dollar figures, Alexander told him that there was no need to re-cover old ground. He looked at Upham and said, “Any request for re-cross will be viewed with great disfavor.”
“No questions,” Upham said wisely.
Brad wanted to call Judge Alexander as a witness, and Alexander explained that the judge of a trial cannot be called to the stand.
“I’m not sure that’s your call,” Brad said rudely.
“Well, in my courtroom, it is. You’ve rested your case,” Alexander said flatly.
“I move for a judgment of acquittal,” Brad said.
“Denied.”
Only Alexander had managed to keep the trial from becoming a “Keystone Kourt,” and he tried again to save Brad from his own ferocious ego. He offered him one more chance to change his plea from “not guilty” to “manslaughter in the first degree.”
“This would be your last chance,” Alexander said. “Murder is life in the penitentiary with various minimums.”
Brad huddled with Kevin Hunt, who obviously was urging him to take the judge’s advice. But Brad would have none of it. He was going for a straight “not guilty” verdict.
64
It was 3:27 P.M., three days before Christmas Eve, and at last the time had come for final arguments.
Although few knew it, Scott Upham was suffering from a violent case of forty-eight-hour flu that day. But his voice never betrayed his queasy stomach and pounding headache, and when a wave of dizziness hit him, he managed to make holding on to the lectern look like a strong posture rather than a need for support. He had not come this far to back off now.
Upham told the jury that their job was to decide what was worthy of belief and what was not, what was relevant and what was not. They must consider “direct evidence” such as eyewitness testimony and “circumstantial evidence”—a chain of circumstances pointing to an obvious conclusion. “Murder is the intentional taking of the life of a human being,” he said. “I’m here to tell you the defendant is guilty of murder.”