A Maricopa County judge ruled Monday that a former Phoenix cop and his Australian wife are eligible for the death penalty and ordered them to jail without bond in the murder case of the former police officer's 7-year-old daughter.
Sheriff’s deputies cuffed the unemotional couple and led them out of sight into custody after an extraordinary two-day evidentiary hearing that tested the patience of the judge and previewed what a jury will hear if the case gets to trial.
Germayne Cunningham, who is 39, and his 43-year-old wife, Lisa, were indicted for the murder and abuse of his daughter Sanaa in 2017. The state is seeking the death penalty, and following Monday's action, was green-lighted to pursue it.
The case was bizarre from the beginning and continued that way.
Sanaa died of pneumonia and complications such as sepsis on February, 12. 2017. State welfare agents didn’t report the death for months. A grand jury indicted the Cunninghams in December. Although they were late or absent for their first detention hearing, a judge allowed them to remain free.
Maricopa County Superior Court Judge Michael Kemp ruled that prosecutors had produced sufficient evidence to justify their plan to seek the death penalty and, consequently, to lock them up in county jail without bail until after the trial.
“There were many warning signs with regard to her need for medical attention,” Kemp said. “This was more than reckless behavior. This was more than a failure to provide care and it led to the child’s death.”
Kemp’s ruling capped two days of courtroom drama. A hearing that was scheduled for 30 minutes, and is routinely wrapped up sooner than that, needed testimony from the Goodyear police detective who led the investigation, plus legal arguments, topping five hours.
“We’ve already done a mini-trial,” Kemp said earlier in the day Monday. “It must be the longest bond hearing in the history of Maricopa County Superior Court.”
Much of that had to do with the complexity of the case.
Prosecutors charged the Cunninghams with 10 counts of felony child abuse and one of murder. They noted how the couple restrained Sanaa with plastic ties, a makeshift straightjacket and shackles, forced her to wear diapers, locked her in a laundry room or outside and made her pick up dog feces with her bare hands.
“The defendants restrained this child until she developed pneumonia until she died,” prosecutor Joshua Clark argued. On the day Sanaa died, she had been cold to the touch and unresponsive, drooling and unable to stand. The restraints, he said, made it impossible for Sanaa to expel infected fluid from her lungs.
“Neither defendant rushed the victim to the hospital for half a day,” Clark added. “This was abuse that led to pneumonia that killed Sanaa.”
But defense attorneys challenged the very basis of the case, arguing prosecutors never explained what the underlying crime was that led to the death.
“I don’t even know what the theory of the case is,” argued Eric Kessler, who is representing Germayne Cunningham. “It’s difficult to defend against a theory that isn’t being articulated.”
Instead, he and Taylor Fox, representing Lisa Cunningham, put forward the idea that doctors had conflicting opinions about what killed Sanaa. They noted the autopsy was inconclusive as to whether the frail, badly scarred girl was killed or died by accident. Also, they pointed out that the Cunninghams called Sanaa’s main doctor on a Friday, two days before the death, and were told to book an appointment on Monday.
Sanaa didn’t last that long. She died about four hours after she was taken to hospital early that Sunday morning.
“The state hasn’t explained: At what point in time should the Cunninghams have taken Sanaa to the emergency room?” Kessler said. “Hindsight is great.”
Instead, he and Fox portrayed the couple as struggling as best they could to cope. Sanaa was afflicted by serious and rare illnesses for a girl her age, including schizophrenia, behavioral disorders that led to uncontrollable urinating, violence, and self-inflicted wounds. They did what they could to stop the girl hurting herself of her young siblings, defense attorneys said.
After the hearing, Lisa Cunningham, wearing a white sweater, slowly removed her jewelry and held her wrists out for the handcuffs. Germayne Cunningham, in a dark blue suit, remained seated as he was arrested. Neither spoke much, or exchanged words. Both looked forward as they were led away.
The hearing previewed the trial to come. Before that, the Cunninghams could return to court as Kemp reviews a defense motion to send the murder charge back to a grand jury for a second opinion.
That hearing is scheduled for October.