The Killer Clown Edition: The Prosecution of John Wayne Gacy (Rebroadcast)

Episode Notes

Transcript

Jonathan Amarilio: Hello, everyone.  This is Jon Amarilio, host of CBA’s @theBar.  Three years ago, when this podcast was still in its infancy, Judge Bill Kunkle, who insisted we call him Bill, came on the program to discuss his successful prosecution of infamous serial killer John Wayne Gacy.  To this day, he remains one of our most frequently downloaded episodes, and for good reason, it’s a remarkable story.  Bill recently passed away at the age of 81.  He was a dedicated public servant, an outstanding lawyer, a friend of the CBA and the podcast, and he’ll be missed.  We thought it appropriate to remember him here by rerunning our 2019 discussion with him as a special bonus podcast.  We hope you enjoy the show.

[Music]

Jonathan 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, topic stories, and whatever else strikes our fancy.

I’m 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 as 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.  Hi, Trish.

Trisha Rich: Hi, Jon.  How are you?  And frankly, I’m multi-talented.  I can do all of those things.

Jonathan Amarilio: If you could do them while we’re podcasting today, that would be great.  All right, go for it.  Trish, when you were last year, we were discussing fascinating and 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.

Jonathan Amarilio: All right.  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 in 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 a 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.

Jonathan 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 an appointed official witness for the State.  My 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, the three of us signed the Certificate of Execution, which is the final document as far as he’s concerned.

Jonathan 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 anticlimactic almost. Although there always means the media finds some way to make it more exciting than it was, which, of course, it’s their job.  But in this case, there was a period of time when they had kinked the hose, the tubing that met 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, so that took about 18 minutes.  There were a lot of questions from the media, and this oddly enough, it was almost like a circus town.

Jonathan Amarilio: Sure.

Bill Kunkle: You mentioned as Pogo, the Clown sideline, and all the TV was there and international press and so on.  And the director of the Department of Corrections and the warden of the prison and so forth and others officials had taken the mic first and they were being very defensive about this hitch and 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.

(00:05:05)

And then, of course, the immediate question was well, what about these 18 minutes?

Jonathan 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.  His chest was not moving.  He was dead as far as I was concerned.  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.

Jonathan 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 as satisfied revenge, although, I believe in retribution on behalf of society, on behalf of the victim’s families, but simply closing the door on one finally.

Jonathan Amarilio: Sure.  His last words are kind of famous, aren’t they?

Bill Kunkle: Famous but untrue.

Jonathan 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?

Jonathan Amarilio: Well, from what I read, they were, “Kiss my ass.”

Bill Kunkle: Well, he didn’t say that.

Jonathan Amarilio: That’s interesting.

Bill Kunkle: As far as I know.  I was in the front row —

Jonathan Amarilio: Yeah.

Bill Kunkle: —and there is 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.

Jonathan Amarilio: Right.

Bill Kunkle: But 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.

Jonathan Amarilio: Interesting.

Bill Kunkle: And the State is committing murder by killing me.

Jonathan Amarilio: Uh-hm.

Bill Kunkle: But the other phrase that “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, that 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.

Jonathan Amarilio: Okay.

Bill Kunkle: 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 and 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 use 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.

Jonathan Amarilio: So that reaction time was fairly fast there.  But as I understand it, 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?

(00:10:04)

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.  At that time, there 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.  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.

Jonathan Amarilio: Right.

Bill Kunkle: 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 Butkovich.  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 of witnesses.  But they had gone out with him later and then didn’t see him after that.

Jonathan Amarilio: So why do you think law enforcement had a difficult time connecting the dots?

Bill Kunkle: Well, the problem was, those three are perfect example, Butkovich, 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.

Jonathan Amarilio: And they weren’t talking to each other?

Bill Kunkle: Well, not unless they were in the same bar at the same time.

Jonathan Amarilio: Right, that just what is standard.

Bill Kunkle: Today 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 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: Correct.

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 or the night of the 21st, early morning hours 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 at 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.  It could have fallen off further downstream, literally all the way to New Orleans. I mean, who knows?  That’s a possibility that’s out there.  There’s never been any other evidence to suggest who it might have been or when it exactly it might have been or what had happened to the body if there is one.  I’m not sure that there’s a lot of support for that theory.

(00:15:16)

Jonathan Amarilio: Sure.

Bill Kunkle: Well that’s it, nothing else.

Jonathan 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 a young man from Iowa 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 around New Year’s and Gacy 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.  He says he assumed he was being attacked.  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.

Jonathan 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 but Butkovich and the other two that knew him and if there was some argument or something going on that are wrong, they would know where to find him.  His families would know where to find him.  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 an absolutely right on the head.

Psychologically, the defense kept talking about Dr. Jekyll and Mr. Hyde and frankly, I use that in closing argument because he made a voluntary decision to discover the evil not somewhere else but within himself, and when he did made that discovery, and remember that 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 and some of the books that other authors have written, Russ Ewing in particular in his book, Gacy says as much that he was worried about certain individuals going to the police or telling the story plus he enjoyed it.

Trisha Rich: What was the time period for that first victim’s murder?

Bill Kunkle: January 3, 1972.

Trisha Rich: Okay, and Gacy was ultimately apprehended in December of ’78?

Bill Kunkle:  ’78, right.

Trisha Rich: For six years, he was killing people?

Bill Kunkle: Correct, but it was doing it in a place that he had complete control of. He was doing it early morning hours when no one could see inside his house.

Trisha Rich:  Why was he throwing people in the river at the end? Did he just run out of room?

Bill Kunkle: Ran out of space exactly. He had gone to his next-door neighbor Lillian Grexa and showed her the plans he was developing for pouring two or three feet of concrete over the over the crawlspace so that he could add a second story to the house.

Trisha Rich: And so today, I think there’s still at least a couple of victims who are still unidentified.

Bill Kunkle: Six I believe.

Trisha Rich: Do you think those people will ever be identified?

Bill Kunkle: I’m very glad that the sheriff instigated the program to try to determine with the new technologies we have available now that weren’t available then to try to determine those identities. I think that’s allowable project, they’ve discovered in effect two and I just think it’s going to be very hard to get anymore.  Surprisingly, when the call went out in the beginning of the investigation for people to send in dental x-rays or other information, whatever, even if it was just a name and a date of family members or people that they knew that it disappeared in the right time period.  The response was not that great, you would have expected thousands and it wasn’t.

(00:20:00)

Trisha Rich: Yeah.

Jonathan Amarilio: 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 somewhere strictly for his sport.

Jonathan Amarilio: How did you find them?

Bill Kunkle: Well, we know that one of the victims, whose father was in law enforcement and whose uncle in law enforcement audibly testified as the life and death witness, was given a ride hitchhiking home from the Northwest Suburbs from a horseback riding.

Trisha Rich: Was it 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: It could be.

Trisha Rich: Yeah.  Interesting.

[Music]

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[Music]

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 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 or the —

Jonathan Amarilio: So creepy.

Bill Kunkle: –tree, farm, and so forth.  All of the mouth is very pointy.  The eyes are very pointy.

Jonathan Amarilio: Yeah.

Bill Kunkle: Have you 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.

Jonathan Amarilio: Right.

Bill Kunkle: 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.  That was evil makeup and —

Trisha Rich: Oh, gosh.

Bill Kunkle: — blah-blah-blah.  But one of the things that he would do is as entertainment as a clown for kids and others.  As he would do what he called the handcuff trick.  He would have a pair of police issue handcuffs, and he would handcuff himself behind his back, and then, of course, (00:23:37) 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.

Jonathan Amarilio: Okay.

Bill Kunkle: And so, he was able to pull the key out with a couple of fingers, unlock one, and then unlock the other, and bingo.  Great release from the handcuff trick.  the first thing he would do with the victim —

Jonathan Amarilio: On a heavy metaphor there.

Bill Kunkle: 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 into a state of defenselessness.  But fought their way out of it.  More than one 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 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.

Jonathan Amarilio: And that’s how he killed most of his victims, right?  Strangulation?

Bill Kunkle: Other than the first one.

Jonathan 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.

(00:25:04)

Trisha Rich: That is just terrifying.  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 same time.

Jonathan Amarilio: Right.  Yeah.

Trisha Rich: And this makes me feel no better about clowns.

Jonathan Amarilio: Just a well-founded fear, I think, now.

Trisha Rich: Yeah.

Jonathan 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 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.  That would be 120-mile an hour chases down the expressway.  Whatever.

Trisha Rich: So, he knew he was being tailed.

Bill Kunkle: Oh, it was absolutely open surveillance.

Trisha Rich: Yeah.

Bill Kunkle: I mean he knew absolutely what was going on.  Other days, he’d buy them breakfast or buy him dinner and a drink and so forth —

Jonathan Amarilio: Dr. Jekyll and Mr. Hyde.

Bill Kunkle: Oh, Yeah.  So, that was occurring on one occasion, and he was talking about his clowning.  He said, being a clown is great, it parades.  You can walk up to the crowd on the curb and squeeze women’s breasts, they just laugh.  Funny clown.  He said, you know what he said, “a clown can get away with murder.”

Jonathan Amarilio: A clown and the president, apparently.

Bill Kunkle: That’s what he said.  Clown can get away with murder.

Jonathan Amarilio: But he eventually just confessed to everything.

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 Robert 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 in 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 wasn’t her jacket, it was Robbie’s.  When he left to go talk to the contractor fella, she gave him the jacket back.  So, that remember to take out that receipt for the photo.

During the execution of the first search warrant at Gacy’s house, where they saw the lime in the crawlspace in a muck 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 Szyc’s — a picture of Szyc’s television set that was there.

Jonathan Amarilio: 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 waste basket.  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.

Jonathan Amarilio: Yeah.

Bill Kunkle: She had been interviewed, but she had forgotten about that.  And when her memory was reminded, she said, “Oh, yeah, I wrote the thing out, and you’re right, I must have stuck it in Robbie’s jacket.”  So now you had a connection, contrary to Gacy’s written and oral statements up to that point, tying Robert Piest to his house.

Jonathan Amarilio: Okay.

Bill Kunkle: And that was the first crucial lead.  It 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 to 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, “Look at this stuff he just gave me.”  They’re looking for the sergeant to get approval.

Jonathan Amarilio: Yeah.

Bill Kunkle: Do you want us to make a stop?  You want us to arrest them on this or what?

Jonathan Amarilio: Right, yeah.

Bill Kunkle: 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.

(00:30:07)

Jonathan Amarilio: Oh, for the Mafia?

Bill Kunkle: Yeah.

Jonathan Amarilio: Okay.

Bill Kunkle: And he used that same phrase when he tried to buy all the gun from a contractor friend of his who also testified at trial.

Jonathan 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 Rody, the contractor, “I’d really like to get a gun because I’m going – 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.”  Of course, he didn’t have that kind of guts.  He was guy that had a major fight with someone and would fall down and play dead all the time at one of his phony heart attacks but he was strong.  But anyway, technically the arrest was for the delivery of these narcotics to this underaged kid but once he was arrested, he again had another phony heart attack.

They took him to the Northwest Community Hospital which gave him a lot of time to prepare the second search warrant based on the stuff they’d found and 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, it was all necessary the beginning with 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 have put down in writing and sign but to numerous police witnesses, most of them in the presence of his attorneys and they were tremendously important evidence in terms of his psychiatric defense.

Jonathan Amarilio: So, let’s go there. You have these bodies, you have his confession, would you describe this as an open-end shot prosecution?

Bill Kunkle: Well, you’d hope so but you would know instantly, it was going to be an insanity defense.  And so, when we set up a sort of voluntary task force between law enforcement groups involved which now included Chicago Police as well, I had a number – thanks to the superintendent and chief of detectives, I had a significant number of homicide detectives from Chicago assigned to 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, was always weird. He always fell off the swing in grade school. I mean, 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, 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 and so forth.  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, internationally recognized expert particularly on paranoid and other schizophrenia who had examined him back in the 60’s when he had been charged with sodomizing a 16-year old youth in Iowa and in that case, he was adamantly 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 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.

Jonathan Amarilio: He was released after 18 months.

(00:35:00)

Bill Kunkle: In other words, lock the door.  Well, 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 in Illinois after 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: No, he was married in Iowa and had two natural children by that marriage in Iowa.  His wife divorced him after the charges.

Trisha Rich: 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 each of the restaurant.

Jonathan Amarilio: It’s just all kinds of creepy outfits.

Bill Kunkle: Oh yeah.

Jonathan 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, that was a 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.

Jonathan Amarilio: I see.

Trisha Rich: I mean, that’s not —

Jonathan Amarilio: And that was his defense?

Bill Kunkle: Not —

Trisha Rich: That’s not. That’s not a —

Bill Kunkle: Not a bizarre —

Trisha Rich: Yeah, I mean I buy it.

Bill Kunkle: Yeah.  I mean our job was to show them that as a legal matter, legal responsibility in terms of the insanity defense is 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.  I believe you could not take the approach so often taken in this and particularly in Texas.  We don’t care if the defense has 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.”

Jonathan Amarilio: Okay.

Bill Kunkle: And it was affirmed on a bill actually.

Trisha Rich: Wow!

Bill Kunkle: I’m not sure it would be today.  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 would get a lot of state of the art testing and diagnostic procedures as opposed to the defense psychiatrist and psychologist who were basically off variance who were – there was a guy from the Menninger Clinic and Karl Menninger, doesn’t believe anyone should be punished for crying that that crime  – it’s all a 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 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.

Trisha Rich: So, that’s the one that got you in the house?

Bill Kunkle: Well, when you say “you,” I wasn’t involved in the case at that time.

Trisha Rich: Right.

Bill Kunkle: It was the Des Plaines police that sought a warrant with the help of sheriff’s investigator and an assistant state’s attorney that was in the district who was our third chair, who did wind up as part of the trial team but the first search warrant didn’t properly state a defense.  It used the term that isn’t in the Illinois statutes.  It left out a lot of information that was known that could’ve provided a pretty good in my opinion an iron clad warrant but wasn’t in there.  And it was very sketchy.  In fact, there was rope recovered in the kitchen waste basket the same one that had the photo receipt piece of clothesline that we think was used for the rope trick on Robert Piest 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.

(00:40:04)

Bill Kunkle: And whether there was actually a 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.  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 warrant.  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.

Trisha Rich: Right.

Bill Kunkle: Okay, so my theory to 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 and subsequently, there were probably five warrants, search warrants, the later warrant standing alone.  He didn’t need to, because he accepted, he said, “No, there’s sufficient probable cause in the first.”

Jonathan Amarilio: Yes, I would think the fact that he was a clown would be enough.

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.

Jonathan Amarilio: 29 bodies in your basement?

Trisha Rich: Yes, sorry basements in your body.

Jonathan Amarilio: That would have been interesting.

Trisha Rich: Yeah, I feel like they’re going to figure that out regardless.

Bill Kunkle: Well, I would never second guess Judge Garippo.

Jonathan Amarilio: Politics 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 questioned the search warrant in the John Gacy case.

Trisha Rich: I would not want to be that guy, either –

Bill Kunkle: Notwithstanding my off repeated secondary argument that the second, third and fourth and fifth warrant would stand alone quite easily, and that’s all that mattered.  But no, that was not going anywhere.

Jonathan 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.  Bernard Carey was state’s attorney at the time.  I was the chief deputy.  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 attorney’s office, if you want to really succeed, you got to win all the cases you’re supposed to win, and every once in a while, win one or two that you’re not supposed to win.  The absolutely worst thing is to lose the case you’re supposed to win.

Jonathan Amarilio: Right.

Bill Kunkle: Okay, and to win this case, you have to get the death penalty as well, at the time.  I never took it lately, I always felt I got a lot of kidding from guys so that was really a tough one.  You had to 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, eleven 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 so, I never regarded 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 and allowed me to go all over the country lecturing to police officers or state attorneys, defense lawyers, whoever wanted to hear psychiatrists, even the national association of psychiatrists, medical examiner, investigators, you name it.  And so, it was a significant thing for my career in my life, but it was most significant because we were able to do the right thing for, at the time, 24 families and he asked about one of the hard points of dealing with the case.  While dealing with 24 grieving families is a starter.

(00:44:59)

Jonathan Amarilio: And that little piece of wisdom and justice is probably a good place for us to take a break.

[Music]

Jonathan 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.  Trisha 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 ready to play?

Bill Kunkle: Sure.

Jonathan Amarilio: Trish, why don’t you go first?

Trisha Rich: I have two laws that I have researched.  I spent the morning doing this in this Arctic day here in Chicago, and this is the first one.  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.  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 legislature, public officer, or 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 a radio show.

Trisha Rich: Wait, don’t tell me, yeah.  That’s actually what we’re aiming for here.

Jonathan Amarilio: (00:46:28).

Bill Kunkle: Unfortunately, I’ve seen some really bizarre laws.

Trisha Rich: And I’ll tell you, I think John’s going to know this one.  I feel confident that this is you’ll know.

Bill Kunkle: I’m going to say that the second one is the real one.

Jonathan Amarilio: Why is that?

Bill Kunkle: The first one sounds more bizarre, I guess.

Trisha Rich: Okay, John?

Jonathan Amarilio: I’m going to go with Bill.  I know the south 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 into 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 has for many years been an urban legend in that town that has picked up a lot of steam but has never been illegal so wink away, gentlemen.

Jonathan Amarilio: I actually have a friend from Ottumwa, Iowa.

Trisha Rich: Oh, really?

Jonathan Amarilio: Yeah, she was my roommate in law school.

Trisha Rich: I apologize, because I’m pretty sure I’m butchered the pronunciation.

Jonathan Amarilio: It from Ottumwa, Iowa.  Actually, no, you pronounced it right.

Trisha Rich: I looked it up there are 25,000 people that live there.

Jonathan Amarilio: It’s a big town for Iowa.

Trisha Rich: I felt that it was much bigger than I expected it to be.

Jonathan 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: Clown one, that’s interesting.

Trisha Rich: Apropos, huh?

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 might find you have frozen on the curb.

Jonathan Amarilio: You got a point.

Bill Kunkle: I’m going to have to go with the clown one.

Jonathan Amarilio: You think the clown one’s real?

Bill Kunkle: Yeah.

Jonathan Amarilio: Trish, what do you think?

Trisha Rich: I know the answer to this, John.

Jonathan Amarilio: Do you really?

Trisha Rich: I do.  Do you want me to say?

Jonathan 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.

Jonathan Amarilio: Well, it may be a law in Alabama, but it is also a law in Anchorage, Alaska.

Trisha Rich: No.  Well, it is a law in Alabama because I found it in my research for today’s program.

Jonathan Amarilio: 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.  You’re 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, but I knew it was a law in Alabama.  I thought you were trying to fool me.

Jonathan 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 Eslas, and everyone at the Legal Talk Network of course, they’re a great team.

Remember you can follow, send us comments, questions, episode ideas or just troll us on Facebook, Instagram and Twitter at cbaatthebar, all one word.  Please rate and leave us your feedback on iTunes, Apple Podcasts, 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, and we’ll see you soon @theBar.

[Music]

Jonathan Amarilio: Need a lawyer, Steve?

Steve:  I do.

Jonathan Amarilio:  You look like you need a lawyer.  The Chicago Bar Association Lawyer referral service has been making referrals for over 70 years to attorneys who have been thoroughly screened for experience in over 40 different areas of the law.  Call (312) 554-2001 or visit us online at www.chicagobar.org/LRS.

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