Lawyers make closing arguments in airman's murder trial at Ellsworth AFB

James T. Cunningham


By ARIELLE ZIONTS | Rapid City Journal, S.D. | Published: February 17, 2021

RAPID CITY, S.D. (Tribune News Service) — Lawyers focused on the defendant's character, his police interview and testimony from doctors during closing arguments Tuesday of the Ellsworth Air Force Base trial against an airman accused of murdering his infant son.

James Cunningham lied multiple times before confessing to punching Zachariah and medical evidence shows the infant died from being shaken and hit multiple times, a prosecutor said.

This case involved "too many injuries and too many stories," said Lt. Col. Dayne Horne. "Innocent people do not tell lies to make themselves sound innocent."

Cunningham didn't hit Zachariah, he made the "mistake of his life" by setting him on the kitchen counter and medical evidence shows his injuries could have been caused by the fall, countered defense lawyer Major Carlos Cueto Diaz.

"People sometimes confess to crimes they didn't commit" and there was an "emotional roller coaster that led up to this so-called confession, questionable confession," Diaz said.

Cunningham, a 26-year-old from Rapid City, is charged with murdering his six-month-old son on March 3, 2020. Zachariah died nine days later once he was taken off life support after being declared brain dead from a traumatic brain injury.

The jury comprised of eight male airmen will begin deliberating after four days of testimony from Zachariah's mother Caitlynn Merhoff, law enforcement, Cunningham's co-workers and medical experts, including some who treated Zachariah.

Jurors listened to the 911 call, viewed body camera footage from officers responding to the house and hospital, and watched the video of Cunningham's interview with Rapid City police officers. Cunningham did not testify.

Cunningham will be convicted if three-fourths of the jury believe he committed murder by acting in a way that is "inherently dangerous to another" while knowing his actions would result in death or great bodily harm. This contrasts to the unanimous verdicts required in civilian courts.

If convicted, the airman faces a maximum punishment of life in prison without parole.

Cunningham's downstairs roommate testified that she heard "more than one" loud thud on March 3, 2020, before he came downstairs asking her to call 911 since Zachariah was unresponsive, Horne said.

Cunningham began lying when he told the roommate that he didn't know why Zachariah was hurt, Horne said. Cunningham told responding officers that the infant hit his head while playing in his jumper but then went back to not knowing anything when he met Merhoff, his ex-fiancée, at the hospital.

The airman told detectives that he's extremely careful to protect Zachariah's head when carrying him through doors or near walls so why would he place his infant — who can only sit up for a few seconds before falling — on the kitchen counter, Horne asked. If this was the true story why didn't Cunningham admit it so doctors could better treat his son's life threatening injures?

The detectives who interviewed Cunningham weren't coercive, Horne said. They asked open-ended questions, allowed for silences, didn't feed Cunningham ideas and reminded him multiple times that he was free to leave since he wasn't being detained.

Cunningham was the one who introduced the idea of him punching his son, not the detectives, he added.

Zachariah had bruises on his forehead and hairline, which two doctors testified is evidence of "multiple impacts to the head," not just one punch or a fall, said Horne. He said a third doctor testified that both bruises could be caused by one impact.

Unexplained bruising elsewhere on Zachariah's body was evidence of abuse, Horne said two doctors testified.

Kenneth Snell, the doctor who conducted the autopsy, testified that Zachariah's TBI could have been caused by shaking alone, or shaking and punches, Horne said. He said Zachariah's severe retinal damage and hemorrhaging to his neck bones could have only been caused by shaking.

Zachariah was missing some common symptoms of shaking but none are required for a shaking diagnosis, Horne said all three doctors agreed.

"Witness after witness" testified that Cunningham was a wonderful father, Diaz said.

Does it make sense that Cunningham "all of a sudden chooses to punch and shake the baby that he adores?" he asked.

Diaz played parts of the 911 call, video of medics arriving at the home, and footage an officer telling Cunningham his son had a brain bleed to demonstrate how distraught Cunningham was about his son's injury.

"You have to keep the emotional nature of this in mind" to understand why Cunningham gave fake stories, then told the truth, and then made a false confession to police when he was worried about his son, Diaz said before breaking down the interview step by step.

"For nearly three minutes these two officers stare down" Cunningham after he first says Zachariah hit his head while playing in the jumper, Diaz said.

He said Cunningham eventually started to sob because he was emotional from beginning to tell the truth by saying Zachariah fell, but off his lap. The airman quickly apologized and told the true story about him falling off the counter.

But a detective then put Cunningham in a tough spot by telling an "outrageous lie" about babies surviving multi-story falls onto concrete. The detectives then planted the idea that Cunningham was a stressed out father into his head.

"Police have cornered him" once Cunningham makes "a confession that begins with a question," Diaz said in reference to Cunningham asking "Can I really hit my kid ... did I really get so mad at him that I just hit him?" in his interview.

Cunningham asked more questions about how he can't remember or believe what he did since police were "gaslighting" him, his lawyer argued. The detectives then ask him suggestive yes or no questions, and Cunningham provides the most simple answer each time.

One doctor testified that Zachariah's injuries could have been caused by a single fall, or by a punch and shaking, Diaz said. That answer is the most honest and shows reasonable doubt, he said.

He said other bruises found on Zachariah's body must have developed while being treated and transported from his house to the Rapid City and Sioux Falls hospitals since no caretaker or first responder noticed them.

Diaz said Snell made up an unrealistic story about a bruise migrating from one part of Zachariah's ear to another part. He cast doubt on another doctor who he said works hand-in-hand with police and rarely testifies on behalf of defendants.

A senior officer who wasn't on trial became very emotional and defensive during cross examination so it's understandable why Cunningham didn't testify, his lawyer said.


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