William “Bill” Kunkle is a retired Judge of the Circuit Court of Cook County. Prior to taking the bench,...
Jon Amarilio is a partner at Taft Stettinius & Hollister in Chicago. He represents individuals, small businesses, state and...
Trisha Rich is a partner in Holland & Knight’s Chicago office, where she practices commercial litigation and professional responsibility...
Disclaimer: This episode was originally aired on February 6, 2019.
American serial killer and rapist, John Wayne Gacy, Jr., became notorious for the mass murder of at least 33 teenage boys and young men in the late 1970s. December 2018 marked the 40th anniversary of the discovery of the mass grave beneath his home, which shocked the American public and shattered the image of the safe suburban community. This episode provides a rare, behind-the-scenes look at the crimes and prosecution of the man dubbed the “The Killer Clown” by William “Bill” Kunkle, the lead prosecutor who took him on and sent him to his eventual execution.
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The Killer Clown Edition: The Prosecution of John Wayne Gacy (Rebroadcast)
Trisha Rich: Welcome listeners to our February edition of @theBar. This month we’re bringing back one of our favorite episodes of the show, which also happens to be one of the shows most popular so far. It’s called ‘The Killer Clown Edition: The Prosecution of John Wayne Gacy.’
It features retired Judge and former Prosecutor Bill Kunkle, who was the lead Prosecutor on the Gacy case and one of the State’s witnesses to Gacy’s execution. He gives an unparallel behind the scenes look at the case, making it a must listen not just for fans of true crime, but for anyone who is interested in how a murder case of this magnitude is handled.
We’re taking a break this month to regroup after our love edition from Revolution Brewing, which by the way you should also check out after listening to this.
Next month we’ll be back with a brand-new edition. In celebration of Women’s History Month, the show will feature a great discussion of Kate Black, the author of the book ‘Represent: The Woman’s Guide to Running for Office and Changing the World.’ Until then enjoy the scintillating true crime experience and we’ll see you soon @theBar.
Jon Amarilio: Hello everyone and welcome to the First Episode of Season 2 of CBA’s @theBar, a podcast where young and youngish lawyers have unscripted conversations with our guests about legal news events, topics, stories and whatever else strikes our fancy.
I am your host Jon Amarilio of Taft Stettinius & Hollister, and co-hosting the pod with me today is my good friend and true crime aficionado Trisha Rich of Holland & Knight.
Trish last joined us when we spoke with Amanda Knox’s Italian defense team and I’m really glad she’s back if only because I appreciate it when she criticizes me in person rather than trolling me on social media and via text message.
Trisha Rich: Hi Jon. How are you? And frankly I’m multi-talented, I can do all of those things.
Jon Amarilio: If you could do them while we are podcasting that would be great.
Trisha Rich: Let’s see.
Jon Amarilio: All right, Go for it.
So Trish when you were last here we were discussing fascinating a disturbing tale of murder and sure enough upon your return we’re doing the same today. I don’t know what that means, but let’s jump right into it.
Trisha Rich: Yeah, let’s do it.
Jon Amarilio: All right. So we’re joined today by Bill Kunkle. Bill is a former Cook County Circuit Court Judge, but more importantly for our purposes today, a former Cook County Deputy State’s attorney.
Bill tried numerous cases that have gone down in Chicago and indeed national legal lore, but none more famous than the one we’re here to discuss today, the trial and conviction of infamous serial killer John Wayne Gacy.
Many will at least know Gacy’s name but just to review the basics, Gacy was a serial killer who operated in and around Chicago throughout the 1970s, killing at least 33 young men and burying most of them throughout his house beneath the crawlspace under his dining room and his garage.
He is one of the most prolific serial killers in American history made worse by the fact that he moonlighted as Pogo, the Clown as if clowns couldn’t be any creepier. This last December marked the 40th anniversary of the discovery of the mass grave beneath his home, an important day for the city, for the state and indeed the country.
Bill, thank you so much for joining us @theBar.
Bill Kunkle: Glad to be here. Thank you.
Jon Amarilio: So let’s start at the most natural place, the end, you were present for John Wayne Gacy’s execution, weren’t you?
Bill Kunkle: I was. I attended as the appointed official witness for the State, by second Chair Bob Egan and our Chief Investigator Greg Bedoe, we’re also certified as official state witnesses and at the conclusion of the execution of three of us signed the certificate of execution, which is the final document as far as he’s concerned.
Jon Amarilio: What was that experience like?
Bill Kunkle: Well, it wasn’t the first execution that I had attended and particularly with lethal injection, they’re very clinical in a way kind of anti-climatic almost. Although, there always means the media finds some way to make it more exciting than it was, which of course, is their job, but in this case there was a period of time when they had kinked the hose that the tubing that lead in from the machine that dispensed the various liquids to the IV in his arm and they closed the blinds and had to start over by putting on a new hose and unclogging the system and so forth. That took about 18 minutes.
So there were a lot of questions from the media and it’s oddly enough, it was almost like a circus town.
Jon Amarilio: Sure.
Bill Kunkle: You mentioned as Pogo, the Clown sideline and all the TV was there, am international press and so on, and the Director of the Department of Corrections and the warden and the President and so forth and others, officials had taken the mic first and they were being very defensive about this hitch in the execution in the 18 minutes. And I was getting more and more agitated by their defensiveness and so when it became my turn at the podium and behind the mic, I said something about the scales of justice finally being leveled and so forth and spoke on behalf of the victims and their families.
And then of course, the immediate question was well, what about these 18 minutes?
Jon Amarilio: Right.
Bill Kunkle: I said well frankly if in fact he was still alive, I said I’m a layman, but I’ve toured this facility before I’ve been shown the mechanics of the machinery. You can follow the lights as they flash in the background yellow and red. He had completed the second solution. He was not — his chest was not moving, he was dead as far as I was concerned.
So I don’t think it mattered to him much less anyone else, but if in fact he was still alive for 18 extra minutes, he got 18 minutes more than he was entitled to.
Jon Amarilio: So you said that you’d seen executions before, did this one feel different? Was it special in any way?
Bill Kunkle: It was an end, in the criminal law and in civil law as well, there are many, many cases that seem to go on forever and always some new kind of appeal or new issue or a new sideline with an additional suspect or an additional victim or whatever.
And to find actual completion or a termination is extremely gratifying and that was the way I felt at that point. Not that it was satisfied revenge, although I believe in retribution on behalf of society, on behalf of the victims’ families, but simply closing the door on one finally.
Jon Amarilio: Sure. His last words are kind of famous, aren’t they?
Bill Kunkle: Famous but untrue.
Jon Amarilio: Is that right?
Bill Kunkle: I’ve never seen any written or tape-recorded evidence. I assume what do you think the last words were?
Jon Amarilio: Well from what I read they were “kiss my ass”.
Bill Kunkle: Well, he didn’t say that.
Jon Amarilio: That’s interesting.
Bill Kunkle: As far as I know. I was in the front row.
Jon Amarilio: Yeah.
Bill Kunkle: There was a glass wall, so you can’t really hear everything that’s going on behind it, but they’re really according to the warden and the assistant warden that were there, they gave him the opportunity to say anything before they started the series of solutions, but he did according to them, the only thing he said was something to the effect of killing me isn’t going to bring the victims back, something along those lines.
Jon Amarilio: Interesting.
Bill Kunkle: And the state is committing murder by killing me. But the other phrase the kiss my ass, did not happen at that time. I did hear one story there was the warden or one of the prison officials from Menard I think, where he had been housed on death row the longest, they came to Stateville to have the execution, had gotten to know him and shared a cigar with him from time to time and had walked around in the yard with him that day, smoking cigars, and he may have said that as part of a conversation with him at that time and that’s been attributed to be his last words but as far as I know they really weren’t.
Trisha Rich: So the execution happened in 1994, is that right?
Bill Kunkle: Correct.
Trisha Rich: Yeah. But the story of how John Wayne Gacy got on your radar started much earlier than that, right?
Bill Kunkle: On my radar, it was December 21st, well actually the 22nd after midnight of the 21st, the early morning hours of December 22nd of 1978.
Trisha Rich: And that was right after the disappearance of Robert Piest.
Bill Kunkle: Piest disappeared on the 11th, the Des Plaines Police Department to their credit waived the 72-hour rule on missing youths at that time, missing people and started an investigation and it was pretty clear within the first 24 hours that John Gacy was a suspect.
He had been the last one to see him alive as far as anyone knew and when he left the pharmacy where he was working and being picked up by his mother to go home for her birthday celebration. He had hollered at her as he left the store, wait for me, I’m just going out to talk to this contractor guy about a job. So she didn’t know his name, but the owners of the store knew who the contractor guy was, and that’s how the police were able to find out as I said within the first 24 hours who they were dealing with.
Jon Amarilio: So that reaction time was fairly fast there, but as I understand that law enforcement came under a lot of criticism after his arrest, because it had taken them better part of a decade to realize that he was behind a lot of these disappearances, right?
Bill Kunkle: Well, at the time of trial, we introduced at trial life and death witnesses and the identity of 22 of the 33 victims. So at that time, they were technically 11 unidentified. A lot of these people even that were identified had left home, had been out on their own for one reason or another. Some had been snatched off the street as we learned later from his statements and so on.
Bill Kunkle: But there were a lot of different stories that account for why, although many of their disappearances were reported at some point in time, there was no way to tie it to him or anyone else with respect to three of the victims, three of them had been workers on his construction crew, and the families knew his name and knew him and there was contact between the families and him, and in each of those instances he was given to the police and they investigated and wrote reports about him knowing this particular person in the case of John Butkovitch, on the day he disappeared they had been fighting over how much he owed John for prior work. And there had been some blows thrown and so forth in the presence of a couple witnesses. But they had gone out with him later and then didn’t see him after that.
Jon Amarilio: So why do you think law enforcement had a difficult time connecting the dots.
Bill Kunkle: Well the problem was and those three are the perfect example, Butkovitch, Szyc, and Godzik, all three were working for him, all three there were reports of police going to interview John Gacy as a person that may have been nearly the last or one of the last to see them alive, but even in those three cases they were never connected, because it was two different areas of Chicago Police Department Youth Division and a Suburban Police Department.
Jon Amarilio: And they weren’t talking to each other?
Bill Kunkle: Well not necessary were in the same bar at the same time.
Jon Amarilio: Right, that’s what’s the standard —
Bill Kunkle: The day when you have a missing person or an unsolved homicide, you have all kinds of forms that are filled out that go onto a computer system nationwide.
Jon Amarilio: Right.
Bill Kunkle: That allows people to search and compare and discover patterns, this would have certainly shown up on that, for example, but those things just did not exist in 1978.
Trisha Rich: Today I think Gacy is credited with 33 murders?
Bill Kunkle: Yes.
Trisha Rich: Do you think that number is correct?
Bill Kunkle: Yes.
Trisha Rich: You don’t think there are others that you didn’t ever –
Bill Kunkle: The only possible if you want to call it evidence for a 34th victim and no more than that, is in his oral statements to the police on the night of his arrest, on the night of the 21st, early morning hours of the 22nd. He stated several times that he had placed five bodies in the river. Only four bodies were recovered from the river. He said that the first body he disposed of in the Des Plaines River was done in the middle of the night as he always did off of a particular highway bridge and that when he threw that first one, first river body over the side of the bridge, he didn’t hear a splash and he was very worried that it might have hung up on the superstructure of the bridge or the pilings or the foundation, and as it turned out and that did not happen of course because there were no recoveries made from the bridge itself or even very close to the bridge, and so he realized that wasn’t a problem.
Now if in fact, he was counting correctly and there was a fifth one that would have been the first one in the river, so it would have predated the first body that was discovered and if he’s right that there was such a body number one, and number two, that there was no splash, it may have been because it fell on a coal or oil barge. Huge amount of long barge trains going up and down there to those refineries near Joliet with the oil and coal going to other locations.
So it could have fallen off further downstream, literally all the way to New Orleans. I mean, who knows. So that’s a possibility that’s out there, that’s never — there never been any other evidence to suggest who it might have been or when it might, exactly it might have been or what had happened to the body if there is one. So I’m not sure that there’s a lot of support for that theory.
Jon Amarilio: Sure.
Bill Kunkle: But that’s —
Jon Amarilio: Let’s rewind it a little bit for our audience and those of our audience who are not as familiar with him. What was Gacy’s Modus Operandi?
Bill Kunkle: Well, the first killing was the young man from Iowa who was identified post-trial. There were two identifications post-trial that we knew who they were, but all the paperwork hadn’t been finished and we didn’t want to delay anything. So the families were aware but those came first and then this young man from Iowa.
He disappeared, left home on around New Year’s and Gacy recovered, ran into him at the Greyhound Bus Station in Downtown Chicago, took him to his house spent the night and according to Gacy voluntary and consensual sex, one kind and another and in the morning Gacy awoke in his bedroom to see the young man standing at the foot of his bed with a large butcher knife and he says, he assumed he was being attacked. So he jumped off the bed and grabbed the kid and they fought over the knife and he got the knife stabbed him twice as he put it in the heart and killed him. That was the first one.
Jon Amarilio: And he just liked it so much he continued, decided to keep going?
Bill Kunkle: Certainly the psychiatric theory that I preferred, I think that certain victims were chosen because they could be a problem for him, like Butkovitch who — and the other two that knew him, and if there was some argument or something going on, that had gone wrong, they would know where to find him, his families would know where to find him. So he couldn’t allow that to happen. If he had a victim that wasn’t that well-known to him either way, even a nameless one, but if they were talking about going to the police or this and that, I think that was a problem for him. I think that was often part of the motivation.
But I think you had it absolutely right on the head psychologically, the defense kept talking about Dr Jekyll and Mr. Hyde and frankly I used that in closing argument, because he made a voluntary decision to discover the evil not somewhere else, but within himself, and when he had made that discovery and remembered it, he enjoyed that power of life and death and deciding who would live. And I think that was true of Gacy and he suggests that in some of the books that other authors have written, Russ Ewing in particular, in his book and Gacy says as much that he was worried about certain individuals, going to the police or telling the story and plus he enjoyed it.
Trisha Rich: So what was the time period for that first victim’s murder?
Bill Kunkle: January 3rd, 1972.
Trisha Rich: Okay and so then and Gacy was ultimately apprehended in December of 78. So for six years he was killing people.
Bill Kunkle: Correct, but he was doing it in a place that he had complete control of.
Trisha Rich: Yeah.
Bill Kunkle: He was doing it early morning hours when no one could see inside his house.
Trisha Rich: So why was he throwing people in the river at the end, did he just run out of –
Bill Kunkle: Ran out of space, exactly.
Trisha Rich: Well —
Bill Kunkle: He had gone to his next door neighbor Lillian Grexa and showed her the plans he was developing for pouring three feet or two or three feet of concrete over the crawlspace so that he could add a second story to the house.
Trisha Rich: Wow. And so today, I think there is still at least a couple of victims who are still unidentified, right?
Bill Kunkle: Six I believe.
Trisha Rich: Six. Do you think those people will ever be identified?
Bill Kunkle: I am very glad that the sheriff instigated the program to try to determine with the new technologies that we have available now that weren’t available then to try to determine those identities. I think that’s a laudable project. They’ve discovered in effect two, and I just think it’s going to be very hard to get any more.
Surprisingly when the call went out at the beginning of the investigation for people to send in dental x-rays or other information or whatever — even it was just a name and a date of family members or people that they knew that had disappeared in the right time period. The response was not that great. You would have expected thousands and it wasn’t –
Jon Amarilio: So while we’re on the victims, you said that Gacy selected some of his victims essentially to cover his tracks, what about the others?
Bill Kunkle: I think some work strictly for his sport.
Jon Amarilio: How did he find them?
Bill Kunkle: Well we know that one of the victims whose father was in law enforcement and whose uncle in law enforcement not only testified as the life and death witness was giving a ride hitchhiking home from in the northwest suburbs from a horseback riding.
Trisha Rich: Just opportunistic?
Bill Kunkle: Absolutely opportunistic. One of them was from out of state was leaving a rock concert and he was out there waiting to offer a ride.
Trisha Rich: I think that was Ted Bundy’s first victim too, right, with somebody hitchhiking to a rock concert.
Bill Kunkle: Could be.
Trisha Rich: Interesting.
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Trisha Rich: So I mean one of the things that John Wayne Gacy is most famous for was that he was also a clown but that didn’t have anything to do with the way he found his victims, right, that’s just happened to be a coincidence, wasn’t it, or am I misunderstanding that?
Bill Kunkle: Well, there was a connection of sorts. When he would dress up as Pogo, the Clown, which he says stood for Polish and always on the go. One interesting factor was his makeup. If you’ve ever seen the pictures of him with the balloons in front of the house —
Jon Amarilio: So creepy.
Bill Kunkle: Creep fireman and so forth, although the mouth is very pointy, the eyes are very pointy, if you’ve ever seen pictures of Emmett Kelly in the Great Circus Clowns, everything’s rounded. He is in fact the kind of clown that would be in an Opera or would scare children, because of the nature of that makeup and actually we got letters from different clown associations talking about this fact and pointing out that people shouldn’t refer to him as even an amateur clown, because he didn’t know what he was doing, this was evil makeup and blah, blah, blah.
But, one of the things that he would do as his entertainment as a clown for kids and others is he would do what he called the handcuff trick. He would have a pair of police-issued handcuffs and he would handcuff himself behind his back and that of course, Houdini like he would get out of it.
It wasn’t even a set of trick cuffs, it was regulation cuffs, but he simply had the key in a little pocket sewn into the cuff of his clown’s outfits. And so he was able to pull the key out with a couple fingers, unlock one and then unlock the other and bingo, great release from the handcuffs trick.
So the first thing he would do —
Jon Amarilio: On a heavy-metal —
Bill Kunkle: With a victim and which he did with many of what we call the living victims, people that were assaulted but not killed or trying to be put in into a state of defenselessness, but flat their way out of it, more than one, a couple testified at trial. They would get as far as the handcuff trick, but then what would happen next was the rope trick, where he’d put a noose around their neck and say, well let’s see if you would get out of this and in fact, he was setting up a garrote to twist the rope in such a way that it would cut off the blood flow to the carotid arteries and cut off and create asphyxia.
Jon Amarilio: And that’s how he killed most of his victims with a string –
Bill Kunkle: All along as far as other than the first one.
Jon Amarilio: Okay.
Bill Kunkle: And Dr. Stein testified that that kind of a garrote could create unconsciousness in as little as 10 to 30 seconds and death in as little as a minute to a minute and a half.
Trisha Rich: That is just terrifying, and Jon and I both belong to the generation that was born being terrified of clowns, because this was happening and then it was coming out right at the right time and this makes me feel no better about clowns.
Jon Amarilio: It’s just a well-founded fear I think now.
Trisha Rich: Yeah.
Jon Amarilio: Okay, so we’ve covered some of the ending and the beginning, let’s go to the middle part, Gacy’s confession and his arrest. How did all that go down?
Bill Kunkle: Well, beginning in a couple of days after Piest’s disappearance, Gacy was placed under 24-hour surveillance by the Des Plaines Police Department, and the County Sheriff and principally Des Plaines. A lot of interesting things happen during the course of that, not to beat the clown thing up but on one of the occasions, he would either be Mr. Nice Guy or he would be angry with him.
He was angry with him there’d be 120 mile an hour chases down the expressway or whatever.
Trisha Rich: So he knew he was being tailed?
Bill Kunkle: It was absolutely open surveillance. I mean he knew absolutely what was going on. Other days, he’d buy him breakfast or buy him dinner and a drink and so forth.
Jon Amarilio: With Dr. Jekyll and Mr. Hyde.
Bill Kunkle: Oh yeah. So one that was occurring on one occasion and he was talking about his clown, he said well, being a clown is great. At parades, you can walk up to the crowd on the curb and squeeze women’s breasts they just left laughed, plenty cloud. he said you know what, he said a clown can get away with murder.
Jon Amarilio: A clown and the president apparently. So –
Bill Kunkle: That’s what he said, clown can get away with murder.
Jon Amarilio: But he eventually just confessed to everything, right?
Bill Kunkle: Well before that what happened during the surveillance and the investigation by Des Plaines and the Sheriff’s Department, there was a young girl named Kim Byers who worked at the same pharmacy and on the night that Robbie Piest disappeared, he had been wearing this blue down jacket. He had lent it to her because she was working in a cold area by the front door, he was stocking shelves and a warm spot in the back.
While she had that jacket on, she filled out a photo receipt for some enlargement she was getting, ripped off the receipt, put the envelope in the photo drawer but put the receipt in the pocket of the jacket forgetting it wasn’t her jacket, it was Robbie’s. When he left to go talk to the contractor fella, she gave him the jacket back, but did not remember to take out that receipt for the photo.
So during the execution of the first search warrant at Gacy’s house where they saw the lime in the crawlspace in the mock and how it was a bad drainage area, so the lime made sense actually, but they didn’t notice anything else of interest there, but they recovered John Szyc’s high school ring, they recovered a picture of Szyc’s television set that was there.
Jon Amarilio: The trophies.
Bill Kunkle: They recovered a massive array of bond slips and driver’s licenses and jewelry that didn’t appear to be right for a guy of Gacy’s age, and lots of torture stuff and so forth. But the most important recovery they made was in the kitchen wastebasket, there was this red photo slip with a serial number on it, and they then went back to the pharmacy and asked them about it and they looked it up well, Kim Byers, she had been interviewed but she had forgotten about that and when her memory was reminded she said, oh yeah, I wrote that thing out and you are right, I must have stuck it in Robbie’s jacket.
So now you had a connection tying contrary to Gacy’s written and oral statements up to that point, tying Robert Piest to his house, and that was the first crucial lead and was part of what formed the second search warrant including the basis for the second search warrant, Szyc’s ring and some other things as well.
And so that second search warrant was served after his arrest, he was actually arrested in the afternoon of the 21st, late afternoon for passing marijuana and pills and so forth to a 14 year old gas station attendant in Park Ridge, who immediately ran over to the surveillance car and says here is the stuff he just gave me.
So they are now looking for the sergeant, — do you want us to make a stop, do you want us to arrest him on this or what? They couldn’t find the sergeant. Finally, they did or they decided to just do it and they arrested him and the young man that was driving him around that day was later a trial witness for us, one of the fellows that worked for him, said, he had told him that he had killed over 30 people for the outfit.
Jon Amarilio: Oh, for the Mafia?
Bill Kunkle: Yeah.
Jon Amarilio: Okay.
Bill Kunkle: And he used that same phrase when he tried to borrow a gun from a contractor friend of his who also testified at trial.
Jon Amarilio: Do you think he was trying to set up a defense already?
Bill Kunkle: Well he was — what he was doing at that point was at least he told Ron Rhode, the contractor, I’d really like to get a gun because I’m going to — I think these guys are going to take me down and if they take me down, I’m taking a few of them with me.
Now, of course, he didn’t have that kind of guts. He was a guy that in a major fight with someone would fall down and play dead all the time and one of his phony heart attacks, but he was strong.
But anyway, technically the arrest was for the delivery of these narcotics to this underage kid, but once he was arrested he again had a another phony heart attack, they took him to Northwest Community Hospital, which gave him a lot of time to prepare the second search warrant.
Jon Amarilio: Right.
Bill Kunkle: Based on the stuff they had found in the statement from the kid and other things. Went to the house, began digging in two separate areas, and when I say digging, just a little troweling was all that was necessary in the beginning, some lights under there and bingo, in two opposite corners of the crawlspace they discovered human remains.
And so they went back to the station, charged him with multiple homicides and some other counts, and they began to talk and gave a series of oral statements, which he refused to sign, which he refused to have recorded or videotaped, refused to put down in writing and sign, but to numerous police witnesses and most of them in the presence of his attorneys.
And they were tremendously important evidence in terms of his psychiatric defense.
Jon Amarilio: So let’s go there. You have these bodies, you have his confession, would you describe this as an open-and-shut prosecution?
Bill Kunkle: Well, you’d hope so, but we knew instantly it was going to be an insanity defense. And so when we set up sort of voluntary task force between all the law enforcement groups involved which now included Chicago Police as well, I had a number, thanks to the superintendent I had Chief of Detectives, I had a significant number of homicide detectives from Chicago assigned to and assist the Sheriff’s investigators and going out and doing immediate interviews of relatives and neighbors and so on.
If you wait for the defense to get those people, oh gee, he was always weird, he would fell off the swing in grade school and he was having nightmares ever since.
Trisha Rich: Jon and I totally don’t do that.
Bill Kunkle: Yeah, but if you get there first, it’s — hey, he was a great guy. He plowed our snow every winter. If my lawnmower was broken he’d come cut the grass. He was our Democratic precinct captain you know and so forth. And we don’t get it, just a great guy.
No sign of, the kind of serious mental illness that would take to model an insanity defense and we had a unique situation where we had a doctor named Leonard Heston, who was the Chief of the Psychiatry Department at the University of Minnesota Medical School, and a nationally recognized expert particularly on paranoid and other schizophrenias, who had examined him back in the 60s when he had been charged with sodomizing a 16-year-old youth in Iowa.
And in that case he was ultimately pled guilty and he was sentenced to 10 years. The judge before sentencing had reviewed Heston’s reports and then sent him a letter and said, I want some more detail on this, a specific idea about what the right sentence should be. And basically what Heston wrote back was, this guy is a serial predator. He’s a sexual predator, he’s going to remain one, there are no known therapies either chemical or otherwise that are going to improve his situation. He is going to remain dangerous and you should sentence him to the most protective sentence to protect society that you can.
Jon Amarilio: He was released after 18 months.
Bill Kunkle: Well they wouldn’t lock the door. Well the max, he didn’t give him the max, but he gave him a pretty good sentence of 10 years, but after a year and a half, Iowa paroled him and Illinois to their discredit, agreed to transfer his parole to Illinois.
Trisha Rich: That’s when he got married, right. He got married and moved here?
Bill Kunkle: Well he was no, he was married in Iowa. He had two natural children by that marriage in Iowa. His wife divorced him after the charges.
Trisha Rich: Oh so weird.
Bill Kunkle: He was running three Kentucky Fried Chicken Restaurants for her father who owned them, and had pictures of him in a Kentucky Colonel Suit in a restaurant.
Jon Amarilio: It’s just all kinds of creepy outfits.
Bill Kunkle: Oh yeah.
Jon Amarilio: Okay. So, what would you say, was there ever a moment in the trial where you were concerned?
Bill Kunkle: No, I mean I was always concerned because when we selected the jury and there were a lot of interesting legal points in this case too in terms of selecting a jury out of County, but trying the case here. I mean that was the first in Illinois.
Credit Judge Louis Garippo for that and seven of the total jury said, on voir dire examination that someone who killed 33 people and put 29 of them on his own property and slept over them in their crawlspace has to be crazy.
Jon Amarilio: I see.
Trisha Rich: I mean that’s not –
Jon Amarilio: That was his defense?
Bill Kunkle: Not, not —
Trisha Rich: Yeah. That’s not —
Bill Kunkle: Not of desire.
Trisha Rich: Yeah. I mean I abide it, right?
Bill Kunkle: So, I mean our job was to show them that as a legal matter, legal responsibility in terms of the insanity defense, it’s something different than saying that guy is got to be crazy. There were a number of jurors that either themselves or had family members who had been successfully treated by therapists and psychologists and psychiatrists.
You couldn’t take the — I believe you could not take the approach that’s often taken in the south and particularly in Texas, we don’t care if the defense as a psychiatry, we don’t need one. There was a famous at least in the guys in the public defender’s law was a case in Cook County years ago, where an assistant public defender argued to a jury — it was a case where — I’m sorry not an assistant public defender, it was assistant state’s attorney had a case where the defense had three psychiatrists and psychologists and the state had no one.
And so the evidence goes in and he now in closing argument, he said, you know what folks, psychiatrists are like bananas. You can buy them by the bunch.
Jon Amarilio: Okay.
Bill Kunkle: And it was affirmed on appeal actually. I’m not sure it would be today, but at that time it was, but in any case, we felt we had to take the insanity defense seriously. We assembled a team of really good medical model psychiatrists and psychologists who did a lot of state-of-the-art testing and diagnostic procedures as opposed to the defense psychiatrists and psychologists who were basically off variance.
There was a guy from the Menninger clinic and Karl Menninger, doesn’t believe anyone should be punished for crime that that’s — it’s all the mental disease and has written about that extensively and so forth.
Trisha Rich: I know one of the challenges in this case was that the search warrant had some controversy surrounding it and what I don’t know is if that was the first one or the second one, and I assume there was a motion to suppress that followed that. Can you talk about that a little bit?
Bill Kunkle: It was the first warrant, the first warrant.
Trisha Rich: So that’s the one that got you in the house?
Trisha Rich: Well, when you say you I wasn’t involved with the case at that time. It was the Des Plaines police that sort of warrant with the help of Sheriff’s investigator and an assistant state’s attorney that was in the District, who was our third sheriff, who did wind up as part of the trial team.
But the first search warrant didn’t properly state an offense. It used the term that what isn’t in the Illinois statutes. It left out a lot of information that was known that could have provided a pretty, pretty good in my opinion, an ironclad warrant, but wasn’t in there.
And it was very sketchy. In fact there was a rope recovered in the kitchen wastebasket, the same one that had the photo receipt piece of clothesline, that we think was used for the rope trick on Robert Peist and had some of his hairs on it. That’s why we think that. That was not admitted at trial because it was outside the scope of the first warrant, and it could have easily been included in a way.
But the serious problem was the misstatement of the offense and whether there was actually sufficient evidence for probable cause, the way it was written. I mean there was probable cause known, but it wasn’t in there, that was the defense belief.
So there was a hearing on that in trial. Now, my feeling always was that the second warrant was written in such a way that it didn’t need the first one. Now it absolutely included things that were covered based on the first warrant, but I believe established more than adequate probable cause even if you omitted those items, okay.
So my theory of the judge and I did not argue that Terry Sullivan argued the motion, he was the one that helped prepare the warrant. So the judge did not accept the concept of the second warrant stand and subsequent there were only five warrants, search warrants.
The later warrants standing alone he didn’t need to, because he accepted he said, no, there’s sufficient probable cause in the first.
Jon Amarilio: Yeah, I would think the fact that he was a clown would be enough, yeah.
Trisha Rich: I do think and we’re all lawyers here, and we spend a lot of time thinking about the legal system. I feel like if somebody finds 29 basements in your body, they’re going to figure out a way to make that warrant valid.
Jon Amarilio: 29 bodies in your basements?
Trisha Rich: Yeah, sorry basements in your body, yeah.
Jon Amarilio: That would have been interesting.
Trisha Rich: Yeah. I feel like they are going to, they are going to figure that out, regardless.
Bill Kunkle: Well, I would never second-guess Judge Garippo.
Jon Amarilio: Probably stick to this day.
Bill Kunkle: I will tell you that I have a personal feeling that he did not want to be remembered as the guy that quest the search warrant in the John Gacy case.
Trisha Rich: I would not want to be that guy either sorry, sympathize that.
Bill Kunkle: Notwithstanding my oft-repeated secondary argument that the second, third and fourth and fifth warrants would stand alone quite easily, and that’s all that mattered.
Trisha Rich: Yeah.
Bill Kunkle: But, no, that was not going anywhere.
Jon Amarilio: So zooming out a little bit, it’s been decades since this happened. As I said at the top of the hour, you’ve had a number of really famous cases in Chicago, but this was really a career-defining case for you. Looking back on it, what do you take away from it?
Bill Kunkle: Well, it was a career-defining case in many ways, it was a wonderful opportunity. Bernie Carey was state’s attorney at the time, I was his Chief Deputy. He personally asked me to try the case. I wanted to try the case, but you asked before about is it a slam dunk? Well, it was often said in the state’s attorney’s office, if you want to really succeed, you’ve got to win all the cases, you’re supposed to win and every once in a while when one or two that you’re not supposed to win.
So the absolutely worst thing is to lose a case you’re supposed to win.
Jon Amarilio: Right.
Bill Kunkle: Okay. Well, and to win this case you have to get the death penalty as well at the time.
So I never took it lightly. I always felt oh, I got a lot of kidding from guys, oh that was really a tough one you had to kept, try there with all the bodies on the property. As I said before though there were lots of novel legal issues involved. We had at the time of trial 11 unidentified bodies.
We had proof of custody, chain of custody and identity on river bodies and so forth. There were a lot of issues, and then you’re dealing with a jury from a county you’re not familiar with as you are with day-to-day Cook County juries. And it’s as you say, a guy that sleeps over 27 bodies every night.
And so, I never regarded it as a slam-dunk, and it was a lot of work. You have to learn a lot of psychiatry, you have to learn a lot of forensics, a lot of what I already knew, but it was a tremendous education. It allowed me to go all over the country lecturing to police officers, state’s attorneys, defense lawyers, who ever wanted to hear, psychiatrists even the National Association of Psychiatrist medical examiner investigator. You name it.
And so, it was a significant thing for my career and my life, but it was most significant because we were able to do the right thing for at the time 24 families. And you asked about one of the hard points of dealing with the case, while dealing with grieving families is a starter.
Jon Amarilio: And that little piece of wisdom and justice is probably a good place for us to take a break.
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Jon Amarilio: And we’re back. So Bill we want to end this episode the way we end every episode with a game, we call stranger than legal fiction. The rules are pretty simple. Trish and I have researched some strange but real laws that are still in the books somewhere in the United States. We’re going to read one of those to you and then we’re going to read another to you that we’ve just completely made up and we’re going to quiz you and each other to see if we can distinguish strange fact from legal fiction.
You are ready to play?
Bill Kunkle: Sure.
Jon Amarilio: Trish, you don’t you go first.
Trisha Rich: So, I have two laws that I have researched to spent the morning doing this and this our sick day here in Chicago and this is the first, I’ll read the first one and then the second one and then you can tell me which one you think is real and which one you think is not real.
So the first one is in Ottumwa, Iowa it is illegal for a man to wink at a woman they do not know, and the second one is that in Kentucky it is required by the state constitution that every legislator, public officer or a lawyer has to take an oath swearing that they have not fought in a duel with a deadly weapon?
Bill Kunkle: This is kind of like the radio show.
Trisha Rich: Wait, wait, don’t tell me.
Bill Kunkle: Yeah, yeah, yeah.
Trisha Rich: That’s actually what we were aiming for here.
Jon Amarilio: It was really that comedy.
Bill Kunkle: And personally I have seen some really bizarre laws oath.
Trisha Rich: And I will tell, I think Jon is going to know this one. I feel confident that this is you will know.
Bill Kunkle: I am going to say that the second one is the real one.
Jon Amarilio: Why is that?
Bill Kunkle: The first one sounds more bizarre I guess.
Trisha Rich: Okay Jon?
Jon Amarilio: I’m going to go with Bill. I know this out still has a lot of anti-dueling laws on the books, which says something about their need for them.
Trisha Rich: Well, you’re both right. That is the correct law. Still to this day when you get sworn in to the bar in Kentucky you have to swear an oath that you have not participated in a duel with a deadly weapon.
The law in Iowa is not a law but was has for many, many years been an urban legend in that town that has picked up a lot of steam. So but has never been illegal. So wink away gentlemen.
Jon Amarilio: I actually have a friend from Ottumwa, Iowa.
Trisha Rich: Oh really?
Jon Amarilio: Yeah, she was my roommate in law school.
Trisha Rich: I apologize because I’m pretty sure I am butchered the pronunciation.
Jon Amarilio: I have two friends in Ottumwa, actually. No, you pronounce it right.
Trisha Rich: I looked it up there are 25,000 people that live there. So –
Jon Amarilio: It’s a big town for Iowa.
Trisha Rich: I felt that it was much bigger than I expected it to be.
Jon Amarilio: Yeah. All right. Option number one Bill, round two. In Anchorage, Alaska, it is illegal for a person to get drunk at a bar and remain on the premises, option number one. Option number two, in Reno, Nevada it is illegal for a licensed clown to initiate any contact with a person under 14 years of age, that person can touch the clown, but the clown cannot initiate contact with that person? Bill, what do you think?
Bill Kunkle: Well number one, that’s interesting.
Trisha Rich: Apropos.
Bill Kunkle: Yeah, in Reno. Well, the thing about the Alaska one is if you were drunk in a bar and you had to leave, you may find you a frozen on the curb the next.
Jon Amarilio: It’s a good point.
Bill Kunkle: So I’m going to have to go with the clown one.
Jon Amarilio: You think the clown ones real?
Bill Kunkle: Yeah.
Jon Amarilio: Trish, what do you think?
Trisha Rich: I know the answer to this Jon.
Jon Amarilio: Do you really?
Trisha Rich: I do. Do you want me to say?
Jon Amarilio: Go.
Trisha Rich: I think the clown one is real and the Alaska one is fake, in Alaska, but that is in fact a law in Alabama.
Jon Amarilio: Well, it may be a law in Alabama but it is also a law in Anchorage, Alaska.
Trisha Rich: No kidding.
Jon Amarilio: It is.
Trisha Rich: Well, it is the law now because I found it in my research for today’s program.
Jon Amarilio: Oh wow, okay. So the statute says an intoxicated person may not knowingly enter or remain at an establishment while intoxicated. Bill, you’re an expert on mens rea. I don’t know exactly what that means, if you are really intoxicated but that’s the law. The other one, I don’t know maybe it’s a law, I just made it up, but it could very well be.
Trisha Rich: I just recognized the Alaska one that I knew it was a law in Alabama. I thought you’re trying to fool me.
Jon Amarilio: Always. And that’s going to be our show for today. I want to thank our guest Bill Kunkle for joining us for this disturbing but informative and truly fascinating discussion. I also want to thank everyone here at the CBA who makes this machine run including my co-host today Trish Rich.
Our executive producer Jen Byrne, and our sound crew Ricardo Islas and everyone at the Legal Talk Network, of course, they are a great team.
Remember, you can follow us and send us comments, questions, episode ideas or just troll us on Facebook, Instagram and Twitter @CBAatthebar. Please also rate us and leave us your feedback on iTunes, Apple Podcast, Google Play or wherever you download your podcast, it helps us get the word out.
Until next time, for everyone here at the CBA, thank you for joining us. We will see you soon @theBar.
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|Published:||February 12, 2020|
Young and young-ish lawyers have interesting and unscripted conversations with their guests about legal news, events, topics, stories and whatever else strikes our fancy.
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