John Wayne Gacy

Executed May 10, 1994 at 12:58.m. by Lethal Injection in Illinois

11th murderer executed in U.S. in 1994
175th murderer executed in U.S. since 1976
1st murderer executed in Illinois in 1994
2nd murderer executed in Illinois since 1976

Since 1976
Date of Execution
(Race/Sex/Age at Murder-Execution)
Date of
(Race/Sex/Age at Murder)
Date of
Method of
to Murderer
Date of
Lethal Injection
John Wayne Gacy

W / M / 30 - 52

Greg Godzik, 17
John Szyc, 19
Robert Piest, 15
John Butkovich, 17
Tom Boling
David Talsma
Robert Winch
Russell Nelson
John Mowery
Robert Gilroy, 18
Matthew Bowman
John Prestige
Rick Johnson
William Carroll, 16
Samuel Stapleton
Randall Reffelt
Darrell Simpson
Billy Kindred
Frank Landingin
James Mazzara
+ 13 unidentified males

John Wayne Gacy was convicted of 33 murders of mostly teenage boys. He was sentenced to death for 12 of those murders (12 proved to have been committed after Illinois had passed post-Furman death penalty), and to natural life in prison for the others. The bodies of most of the victims were unearthed in the crawl space under Gacy's middle class home in the Chicago suburbs. Evidence showed that the defendant led a double life, engaging in charitable and political activities at the same time he was committing a series of sadistic torture murders. He enticed many young men to his home for homosexual liaisons, tying or handcuffing his partners then strangling or choking them. Gacy was a successful contractor, was active in the community, and often dressed up as a clown for parties. He has the distinction of having been convicted of more murders than anyone else in American history.

On December 11, 1978, a 15-year-old Des Plaines high school sophomore, Robert Piest, disappeared shortly after leaving work at a pharmacy where Gacy had recently completed a remodeling job. Police put Gacy under surveillance, and when it was learned that two teenage employees of Gacy, Gregory Godzik and John Butkovich, also had recently disappeared, the police obtained a search warrant for Gacy's home. A roll of film belonging to Piest was seized in the ensuing search. A second search warrant was executed and three lime-covered bodies were found in the crawl space. Gacy pointed officers to the precise locations of certain bodies in the crawl space and stated that he had lured the victims to his home, either expressly for sex or through the promise of employment, and then strangled them. A total of 29 bodies were recovered on the property and 4 more were discovered in a nearby river. Gacy recanted his confession and did not testify at trial, where he asserted an insanity defense unsuccessfully.

People v. Gacy, 468 N.E.2d 1171 (Ill. 1984) (Direct Appeal).
People v. Gacy, 530 N.E.2d 1340 (Ill. 1988) (PCR).
Gacy v. Welborn, 994 F.2d 305 (7th Cir. 1993) (Habeas).
Gacy v. Page, 24 F.3d 887 (7th Cir. 1994) (Habeas/Stay).

Final / Special Meal:

Fried chicken, French fries, Coke and strawberry shortcake.

Last / Final Words:

"Kiss my ass."

Internet Sources:

Cook County Circuit Court Clerk: John Wayne Gacy

The "Killer Clown" - People v. John Wayne Gacy, 79C-69 et seq.

The 33 indictments of John Wayne Gacy document the State of Illinois case against one of the most prolific and notorious murderers in United States history. Gacy, a construction contractor, lived in a quiet suburb northwest of Chicago. He made himself well known in his community for his political work and his help to charitable causes. He often appeared at children's performances dressed as a clown. But the friendly clown had another life.

The law caught up with Gacy late in 1978. The mother of a young man who disappeared after applying to Gacy for a job notified the police. A search warrant allowed police to search Gacy's home. Warrant pages 1,2,3. Authorities eventually discovered the remains of 27 corpses underneath the house, plus 2 more under the garage and driveway. Eventually Gacy told police he had thrown 4 other corpses into the DesPlaines River.

Gacy was indicted for 33 murders. Indictment 1,2,3,4,5,6,7,8. He was found guilty in March of 1980. Verdit pages 1. Judge Louis B. Garippo sentenced him to death. Execution pages 1,2,3,4. The Circuit Court ruling was appealed. The Supreme Court of Illinois affirmed the death sentence of execution by lethal injection. Supreme Court pages 1. On May 10, 1994, the sentence was carried out. Clerk's Memorandum .

People v. John Wayne Gacy may be viewed in the Archives Reading Room. This large case file totals 22 boxes. Much of the written and visual material is extremely graphic in nature. To view the file, contact the Archives at 312-603-6601.

SerialKillers Archives by David Lohr

John Wayne Gacy was born on March 17, 1942, in Chicago Illinois. According to the book Killer Clown, by Terry Sullivan and Peter Maiken, Gacy seemed to have a regular childhood with the exception of his turbulent relationship with his father, John Wayne Gacy Sr. The authors describe the father as an unpleasant, abusive alcoholic prone to physically and verbally assaulting his children. They describe Gacy as deeply loving his father and wanting desperately to gain his approval and attention, but failing to win him over. (Gacy Sr. died on Christmas Day 1965.)

After attending four high schools during his senior year and never graduating, Gacy dropped out of school and left Chicago for Las Vegas. While there, he worked part time as a janitor for Palm Mortuary. Unhappy in Vegas, he returned to Chicago a few months later.

During the early 1960’s, Gacy enrolled in a business college and developed a talent for salesmanship. A born salesman, he could talk his way in and out of practically any situation. Upon graduating, he went to work as a management trainee at Nunn Bush Shoe Co in downtown Chicago. He excelled in his position and within weeks was transferred to Springfield, Ill., to manage a men’s clothing outlet for the company, where he remained employed for nearly a year. Shortly after his promotion, Gacy married into a wealthy family and relocated with his new bride to Waterloo, Iowa. In 1966, at the request of his father-in-law, Gacy took over management of the family’s chicken restaurant. Gacy quickly became a well-known and liked member of the community, according to later accounts in the Waterloo Courier.

However, all was not well with Gacy. The future serial killer would be arrested for the first time in 1968. The felony charge, attempting to coerce a male employee into homosexual acts, came as a big surprise to those who thought they knew this likable father of two infants, especially his wife of two years. Gacy pled guilty to sodomy and was sentenced to 10 years in Iowa’s State Men’s Reformatory in Anamosa. His wife filed for divorce following the sentencing. Angered, Gacy informed her he did not want to see his children again and would henceforth consider her and the two kids dead.

After serving 18 months, Gacy was paroled in 1971 and moved back to Chicago. He went to work as a construction contractor and then started his own construction business. That July he remarried a recently divorced women he had met through mutual friends and, with financial assistance from his mother, moved into a house in Des Plaines, with financial help from his mother. In February 1971, Gacy again ran into trouble with the law. He was charged with the attempted rape of a young man. The charges were dropped when the victim failed to appear in court for the hearing.

Gacy had a talent for business. According to the Des Plaines Journal, he was known by local merchants as a sharp businessman, who would often undercut his business rivals' contracts by hiring on a number of high-school age employees to cut his costs. His business grew. Gacy spent part of his leisure time hosting elaborate street parties for friends and neighbors, dressing as a clown, and entertaining children at local hospitals. He also immersed himself in organizations such as the Jaycees and the local Democratic party. As a Democratic precinct captain he once had his picture taken with First Lady Rosalyn Carter.

Gacy’s second wife divorced him in March of 1976. According to accounts in Harlan Mendenhall’s book, Fall of the House of Gacy, Gacy's second wife felt she could no longer cope with the marriage due to her husband's unpredictable moods and bizarre obsession with homosexual magazines. The couple did not have children.

On Dec. 12, 1978, the police again focused their attention on John Wayne Gacy. Robert Piest, a teenage stock boy at a local Des Plaines pharmacy, had come up missing. Gacy was the last person seen with the boy prior to his disappearance. When investigators ran a background check on Gacy, they were surprised to discover that he had previously served time for committing sodomy on a teenage boy. With this incriminating information, investigators were able to obtain a warrant to search Gacy’s house. During the execution of the warrant, investigators entered a crawl space located beneath the home. A rancid odor was quickly noticed. The smell was believed to be faulty sewage lines and was quickly dismissed. Without any noticeable incriminating evidence, investigators returned to headquarters to run tests on the evidence they seized.

During a review of the items confiscated from Gacy’s house, investigators soon realized that they had unknowingly seized a piece of critical evidence. One of the rings found at Gacy’s house belonged to another teenager who had disappeared a year earlier. With this new information, investigators began to realize the possible enormity of the case that was unfolding before them. Following the discovery of their new information, it was not long before investigators were able to obtain a second search warrant for Gacy’s home.

On Dec. 22, 1978, Gacy, realizing that his dark secrets were about to be exposed, confessed to police, telling them that he had murdered approximately 33 young men over the past seven years. He also drew them a detailed map to the locations of 28 shallow graves under his house and garage. Further he admitted to dumping five others into the Des Plaines River. Gacy told detectives, "There are four Johns." He later explained that there was John the contractor, John the clown, and John the politician. The fourth person went by the name of Jack Hanley. Jack was the killer and did all the evil things.

Gacy’s murder trial began Feb. 6, 1980, in the Cook County Criminal Courts Building in Chicago. During the five-week trial the prosecution and the defense called more than 100 witnesses to testify. The defense strategy was to establish that Gacy was insane and out of control at the time of the killings. To bolster this claim the defense put on the stand psychiatrists who had interviewed Gacy prior to trial. After the closing arguments, the jury deliberated for only two hours before finding Gacy guilty of murdering 33 people.

On March 13, 1980, Gacy was sentenced to die. Gacy was transported to Menard Correctional Center in Illinois. He would remain there for just over 14 years until he was transported to the Statesville Penitentiary near Joliet for execution.

On May 9, 1994, Gacy sat down for his last meal: fried chicken, French fries, Coke and strawberry shortcake. Prison officials later described his demeanor as "chatty . . . talking up a storm." In a phone interview shortly before his execution, he told a Knight-Tribune reporter, "There's been 11 hardback books on me, 31 paperbacks, two screenplays, one movie, one off-Broadway play, five songs, and over 5,000 articles. What can I say about it?" But of course, he quickly protested, "I have no ego for any of this garbage."

Just after midnight on May 10, 1994, Gacy was executed by lethal injection. For his last words, Gacy snarled, ''Kiss my ass.''

The Crime Library: John Wayne Gacy

John Wayne Gacy, Jr. (By Rachael Bell and Marilyn Bardsley)

It is no surprise that John Wayne Gacy, Jr. was admired and liked by most who had known him. He was a sharp businessman who had spent his time, when not building up his contracting company, hosting elaborate street parties for friends and neighbors, dressing as a clown and entertaining children at local hospitals and immersing himself in organizations such as the Jaycees, working to make his community a better place to live. People who knew Gacy thought of him as a generous, friendly and hard-working man, devoted to his family and community. However, there was another side to Gacy that few had ever witnessed...

It was May 22, 1978, and Jeffrey Ringall had recently returned from a winter vacation in Florida to his home in Chicago. He decided to reacquaint himself with the city by visiting New Town, a popular area of Chicago where many popular bars and discos could be found. While walking through the area, his path was blocked by a black Oldsmobile. The heavy-set driver leaned out from the window and complimented Ringall on his unseasonable tan. He continued to make small talk and then asked if Ringall wanted to share a joint with him while they rode around town.

Ringall was delighted to escape the cold and share a marijuana cigarette with the stranger. He hopped in the car and began to smoke with his friendly new acquaintance. Before they were half way through with the joint, the man grabbed Ringall and quickly shoved a rag over his face doused with chloroform. Ringall lost consciousness and only briefly reawakened a couple of times during the car ride. During his wakeful periods Ringall watched in a daze as street signs passed, trying to make sense of what was happening to him. Yet before he was able to understand where he was and what was happening, the stranger again covered his face with the chloroform-soaked rag and he passed out. Once when he was awake, Ringall remembered being in a house and seeing the heavy-set man naked before him. Ringall also remembered seeing on the floor a number of varying sized dildos that the stranger pointed out to him and remarked on how he was going to use them on his unwilling prisoner. That evening Ringall was viciously raped, tortured and drugged by the sadistic stranger.

Later the next morning, Ringall awoke from one of his blackouts fully clothed and under a statue in Chicago’s Lincoln Park. He was surprised to be alive after the trauma that was inflicted on his body. He made his way to his girlfriend's and later to the hospital where he stayed for six days. During his hospital stay, Ringall reported the incident to the police who were sceptical about finding his rapist, given the little information that Ringall could provide. Along with skin lacerations, burns and permanent liver damage caused from the chloroform, Ringall suffered severe emotional trauma.

Yet, he was fortunate to be alive. Ringall was one of the few victims of John Wayne Gacy, Jr. to have survived. During a three-year-period, Gacy went on to viciously torture, rape and murder more than thirty other young men, who would later be discovered under the floorboards of his home and in the local river.

The Beginning

Chicago's Irish inhabitants and Mr. and Mrs. John Wayne Gacy marked the day with celebration. It was St. Patrick’s Day and Marion Elaine Robinson Gacy and John Wayne Gacy, Sr. welcomed their first son into the world at Edgewater Hospital in 1942. John Wayne Gacy, Jr. was the second of three children. His older sister Joanne was born two years before him and two years later came his youngest sister Karen. All of the Gacy children were raised Catholic and all three attended Catholic schools where they lived on the northern side of Chicago. The neighborhood in which Gacy grew up was middle class and it was not uncommon for young boys to take on part-time jobs after school. Gacy was no exception and he busied himself after school with a series of part-time positions and Boy Scout activities. The young Gacy had newspaper routes and worked in a grocery store as a bag-boy and stock clerk.

Although he was not a particularly popular kid in school, he was liked by his teachers and co-workers and had made friends at school and in his Boy Scout troop. He always remained active with other children and thoroughly enjoyed outdoor scouting activities. Gacy seemed to have a very normal childhood with the exception of his relationship with his father and a series of accidents that affected him. When Gacy was eleven years old he was playing by a swing set when he was hit in the head by one of the swings. The accident caused a blood clot in the brain. However, the blood clot was not discovered until he was sixteen. From the age of eleven to sixteen he suffered a series of blackouts caused by the clot, yet the blackouts ceased when he was given medication to dissolve the blockage in the brain.

At the age of seventeen, Gacy was diagnosed with a non-specific heart ailment. He was hospitalized on several occasions for his problem throughout his life but they were not able to find an exact cause for the pain he was suffering. However, although he complained frequently about his heart (especially after his arrest), he never suffered any serious heart attack. During Gacy’s late teens, he suffered some turmoil with his father, although relations with his mother and sisters were very strong. John Wayne Gacy, Sr. was an abusive alcoholic who physically abused his wife and verbally assaulted his children. Although John Sr. was an unpleasant individual, young Gacy deeply loved his father and wanted desperately to gain his devotion and attention. Unfortunately, he was never able to get very close to his father before he died, something which he regretted his entire life.

After attending four high schools in his senior year and never graduating, Gacy dropped out of school and left home for Las Vegas. While in Vegas, he worked part time as a janitor in a funeral parlor performing odd jobs. He was not happy in Vegas because he couldn't get a decent job. He tried desperately to earn enough money to get back home. However, it was difficult because there were few jobs available for those who did not have a high school diploma. It took him three months to earn enough money for a ticket back to Chicago where his two sisters and mother joyfully awaited his arrival.

Soon after Gacy returned from Las Vegas in the early 1960’s, he enrolled himself into a business college and eventually graduated. While at business college, he perfected his talent in salesmanship: Gacy was a born salesman who could talk his way in and out of almost anything. He put his talents to work when he was hired at his first job out of business school at the Nunn-Bush Shoe Company. He excelled in his position as a management trainee and it was not too long after his start with the company that he was transferred to manage a men’s clothing outlet in Springfield, Illinois. It was during this time that Gacy’s health again took a turn for the worse. He had gained a great deal of weight and he began to suffer more problems with his heart condition. Soon after his hospitalization for his heart, he was hospitalized again for a spinal injury. His weight, heart and back problems would plague Gacy for the rest of his life, yet that would not stop him from his work or other activities.

While in Springfield, Gacy became involved in several organizations that served the community: the Chi Rho Club where he was membership chairman, the Catholic Inter-Club Council where Gacy was a member of the board, The Federal Civil Defense for Illinois, the Chicago Civil Defense where Gacy was a commanding captain, the Holy Name Society where he was named an officer and the Jaycees where Gacy devoted most of his time to and eventually became first vice-president and "Man of the Year." It was obvious that Gacy took his involvement in community organizations very seriously and he devoted most of his free time to them. Many who knew Gacy at this time considered him to be very ambitious and eager to make a name for himself in the community. He worked so hard that on one occasion he was hospitalized for nervous exhaustion. However, once again he refused to let his health problems stand in the way of life and happiness.

In September 1964, Gacy met and married a co-worker named Marlynn Myers whose parents owned a string of Kentucky Fried Chicken fast food restaurant franchises in Waterloo, Iowa. Fred W. Myers, Gacy’s new father-in-law, offered him a position with one of his franchises. Soon after that Gacy and his new wife moved to Iowa. Life seemed to hold a lot of promise for Gacy at this time in his life.

Gacy began working for his father-in-law, learning the business from the ground up. On average he worked for twelve hours a day, yet it was not uncommon for him to work fourteen or more hours a day. He was enthusiastic and eager to learn, with hopes of one day taking over the string of fast food restaurants. When Gacy was not working, he was active in the Waterloo, Iowa, Jaycees. Gacy worked tirelessly performing volunteer work for his community through the Jaycees. It was there that he made most of his friends and spent most of his time. In Clifford L. Linedecker’s book, The Man Who Killed Boys, he quoted Charlie Hill, a Jaycee volunteer who knew well: "He wanted to be very successful and he wanted to be recognized by his peers.... [Gacy] was always working on some project and he was devoted to the Jaycees. The club was his whole life."

However, Gacy managed to find some time with his wife when not working for his father-in-law or doing volunteer work. Marlynn gave birth to a boy shortly after their move to Iowa and soon after the birth of their son, they celebrated the birth of a daughter. The Gacys had every reason to be happy during the first few years in Iowa. They had a nice house in the suburbs and a loving and healthy family. Marlynn enjoyed looking after the children and John was happy in work and with the Jaycees. He was even working on a campaign for the presidency of the Jaycees. Everything seemed almost too good to be true, and indeed it was.


Everything seemed to be looking good for John Wayne Gacy, Jr. Yet, his lucky streak would not last too much longer. Rumors were spreading around town and amongst Jaycee members regarding Gacy’s sexual preference. It seemed that young boys were always in Gacy’s presence. Everyone heard the stories that Gacy was homosexual and made passes at the young boys who worked for him at the fast food franchises. Yet, people close to him refused to believe in the gossip, until May of 1968 when rumors became truths.

In the spring of 1968, Gacy was indicted by a grand jury in Black Hawk County for allegedly committing the act of sodomy with a teenage boy named Mark Miller. Miller told the courts that Gacy had tricked him into being tied up while visiting Gacy’s home a year earlier, and had violently raped him. Gacy denied all the charges against him and told a conflicting story, stating that Miller willingly had sexual relations with him in order to earn extra money. Gacy further insisted that Jaycee members opposed to him becoming president of the local chapter organization were setting him up.

However, Miller’s were not the only charges that Gacy would have to face. Four months later Gacy was charged with hiring an eighteen-year-old boy to beat up Mark Miller. Gacy offered Dwight Andersson ten dollars plus three hundred more dollars to pay off his car loan if he carried out the beating. Andersson lured Miller to his car and drove him to a wooded area where he sprayed mace in his eyes and began to beat him. Miller fought back and broke Andersson’s nose and managed to break away and run to safety. Soon after Miller called the police, Andersson was picked up and taken into police custody where he gave Gacy’s name as the man who hired him to perform the beating.

A judge ordered Gacy to undergo psychiatric evaluation at several mental health facilities to find if he were mentally competent to stand trial. Upon evaluation, Gacy was found to be mentally competent. However, he was considered to be an antisocial personality who would probably not benefit from any known medical treatment. Soon after health authorities submitted the report, Gacy pleaded guilty to the charge of sodomy.

When the judge finally handed down the sentence, Gacy received ten years at the Iowa State Reformatory for men, the maximum time for such an offence. John Wayne Gacy, Jr. was twenty-six years old when he entered prison for the first time. Shortly after Gacy entered prison, his wife divorced him on the grounds that Gacy violated their marriage vows.

While in prison Gacy adhered to all the rules and stayed far from trouble. He was a model prisoner, realizing that there was a high possibility of an early parole if he remained non-violent and well behaved. Eighteen months later, Gacy’s hopes came true, his parole was approved. On June 18, 1970, Gacy left the confines of the prison gates and made his way back to his place of birth in Chicago.

New Beginnings

John Wayne Gacy, Jr. immediately began to put his life back on track again after moving back to Chicago. He knew he could not afford to let the past disrupt his future if he could help it. The only thing that seemed to have weighed Gacy down was the death of his father while Gacy was in prison. Gacy went through difficult periods of depression after his release from prison because he regretted never saying goodbye to his father. He felt cheated that he never had a chance to improve his relationship with John W. Gacy, Sr., a man whom he loved dearly despite of his abusive behavior. However, although deeply saddened by unresolved conflicts with his father, Gacy refused to let it ruin his future. Gacy moved in with his mother and obtained work as a chef in a Chicago restaurant. A job that he enjoyed and worked at with enthusiasm.

After four months of living with his mother, Gacy decided it was time he lived on his own. His mother had been impressed with how her son had readjusted to life outside the prison walls and she helped him obtain a house of his own immediately outside Chicago’s city limits. Gacy owned one-half of his new house located at 8213 West Summerdale Avenue in the Norwood Park Township and his mother and sisters owned the remaining half of the home. Gacy was very happy with his new two-bedroom 1950’s ranch style house that was located in a nice, clean, family oriented neighborhood. He was quick to make friends with his new neighbors, Edward and Lillie Grexa, who had lived in the neighborhood since the time it had been first built. After only seven months of living in his new home, he was spending Christmas evening with the Grexas, whom he had invited over for dinner with his mother. The neighbors became fast friends and often gathered together for drinks or a game of poker in the comfort of their homes. The Grexas had no idea of Gacy’s criminal past or his most recent run in with the law.

A little more than a month after the Grexas had visited for Christmas dinner at Gacy’s home, he had been charged with disorderly conduct. The charges stated that Gacy had forced a young boy, whom he had picked up at a bus terminal, to commit sexual acts upon him. Gacy had been officially discharged from his parole for only a few months before he was already breaking the law again. However, Gacy slipped through the system when all charges against him were dropped, due to the no-show of his young accuser at the court proceedings. Gacy was a free man once again.

On June 1, 1972 Gacy married Carole Hoff, a newly divorced mother of two daughters. Gacy had romanced the woman who was in a state of emotional vulnerability and she immediately fell for him. She was attracted to Gacy’s charm and generosity and she believed he would be a good provider for her and her children. She was aware of Gacy’s prison experience, yet she trusted that he had changed his life around for the better. Carole and her daughters quickly settled into their new home with Gacy. The couple maintained a close relationship with their neighbors and the Grexas were always invited over to Gacy’s house for elaborate parties and barbecues. As flattered as they were to receive such invitations by their young neighbors, they were always bothered by a horrible stench that prevailed through the house. Lillie Grexa was sure a rat had died beneath the floorboards of Gacy’s house and she urged him to solve his problem. However, Gacy blamed the horrible stench on the moisture build-up in the crawl space under his house. Yet, it wasn’t a problem with moisture beneath the house. Gacy knew the real and more sinister cause for the stench and he kept the truth from everyone for years.

Although many friends, family members and neighbors complained about the strange smells coming from Gacy’s house, it certainly didn’t stop them from attending his theme parties. Gacy threw two memorable barbecue parties in which he invited all those close to him. On one occasion more than three hundred guests showed up to attend one of Gacy’s parties. The two that were attended by the most people were a luau theme party and a Western theme party. Both were huge successes. Gacy thrived on the attention he received from people who had either been to or heard of the parties. He liked to feel important.

In 1974, Gacy decided he wanted to go into business for himself. He began a contracting business named Painting, Decorating, and Maintenance or PDM Contractors, Incorporated. He hired young teenage boys to work for him. He told friends that he hired such young men to keep the costs low. However, that was not Gacy’s only reason for hiring teenage boys: Gacy intended to seduce his young employees. His homosexual desires and urge to inflict harm were slowly becoming more apparent to those around him, especially his wife.

Carole and John had drifted apart by 1975. Their sex life had come to a halt and Gacy’s moods became more unpredictable. He would be in a good mood one moment and the next moment he would be flying into an uncontrollable rage and throwing furniture. He was an insomniac and his lack of sleep seemed to have only exacerbated his other problems. Gacy was rarely home in the evenings and when he was, he was either fixing something with the outside of the house or working in the garage. However, there was one thing that Carole was extremely worried about. It was not only that Gacy showed no sexual interest in her that hurt Carole, but also what pained her even more was when she began to find magazines with naked men and boys in her house. She knew that Gacy was reading them and he acted nonchalantly about his new choice of reading material. In fact, Gacy had told Carole that he preferred boys to women. Naturally, Carole was distressed and she soon filed for divorce. The couple’s divorce became final on March 2, 1976.

Although Gacy was having marital problems, he refused to let it hold him back from realizing his dream of success. Being a man who thrived on and delighted in recognition and attention, Gacy turned his sights to the world of politics. It was in politics that Gacy hoped to make his mark in the world. He had high aspirations and hoped to one day run for public office.

Gacy realized that he had to get his name out and make himself known by participating in volunteer projects and community activities. He also knew that if he were to succeed in politics he had to win over the people. Gacy had a natural talent when it came to persuading others and he creatively came up with a way to gain the recognition he sought. It was not long before Gacy caught the attention of Robert F. Matwick, the Democratic township committeeman for Norwood Park. As a free service to the community, Gacy and his employees volunteered to clean-up Democratic Party headquarters. Gacy further impressed Matwick when the contractor dressed up as "Pogo the Clown" and entertained children at parties and hospitals.

Unaware of Gacy’s past and impressed by his sense of duty and dedication towards the community, Matwick nominated Gacy to the street lighting commission. In 1975, Gacy became the secretary treasurer. It seemed as if Gacy’s dreams of success were beginning to come true; however his career in politics would be short-lived. Troubles started to brew when rumors began to circulate about Gacy having homosexual interest in teenage boys. One of the rumors stemmed from an actual incident that took place during the time Gacy was involved with cleaning the Democratic Party headquarters. One of the teenagers who worked with Gacy on that particular project was sixteen-year-old Tony Antonucci. According to the boy, Gacy made sexual advances towards him, yet backed off when Antonucci threatened to hit him with a chair. Gacy joked about the situation and left him alone for a month.

The following month while visiting Gacy’s home, Gacy again approached Antonucci. Gacy tried to trick the young man into handcuffs and believing he was securely cuffed he began to undress the boy. However, Antonucci had made sure that one of his hands was loosely cuffed and he was able to free himself and wrestle Gacy to the ground. Once he had Gacy on the ground he handcuffed him, but eventually let him go after Gacy promised he would never again try touching him. Gacy never made sexual advances towards Antonucci again and the boy remained working for Gacy for almost a year, following the incident.


Seventeen-year-old Johnny Butkovich was like most young men who enjoyed cars and he took great pride in his 1968 Dodge on which he was continually working. He particularly loved to race his car, a hobby that cost quite a bit for a young man of seventeen. In order to pay for new parts to sustain his hobby, he knew he had to get a job. Johnny began doing remodeling work for Gacy at PDM Contractors -- a position that he enjoyed and that paid well. He and Gacy had a good working relationship, which made the long hours pass by more quickly. However, their working relationship ended abruptly when Gacy refused to pay Johnny for two weeks of work -- something Gacy did often to his employees in order to save money for himself.

Angered that Gacy had withheld his pay, Johnny went over to his boss's house with two friends to collect what he believed was rightfully his. When Johnny confronted him about his pay check, Gacy refused to pay him and a large argument erupted. Johnny threatened that he was going to tell authorities that he was not deducting taxes from earnings. Gacy was enraged and screamed at him. Finally, Johnny and his friends realized that there was little they could do and they eventually left Gacy’s house. Johnny dropped off his friends at their house and drove away, never to be seen alive again.

Michael Bonnin, also seventeen, was not too different from Johnny in that he enjoyed working with his hands. He especially liked doing wood working and carpentry and he was often busy with several projects at a time. In June of 1976, he had almost completed work on restoring an old jukebox, yet he never had a chance to finish the job he had begun. While on route to catch a train to meet his stepfather’s brother, he disappeared.

Billy Carroll, Jr. was the kind of boy who seemed to be always getting into trouble ever since his parents could remember. At the age of nine he was in a juvenile home for stealing a purse and at age eleven he was caught with a gun. Billy was mischievous and spent most of his time on the streets in Uptown, Chicago. At the age of sixteen, Billy was making money by arranging meetings between teenage homosexual boys and adult clientele for a commission. Although Billy came from a very different background than Michael Bonnin and Johnny Butkovich, they all had one thing in common -- John Wayne Gacy, Jr. Just like Johnny and Michael, Billy also disappeared suddenly. On June 13, 1976, Billy left his home and was never seen alive again.

Gregory Godzik loved his job with PDM Contractors and he didn’t mind doing the odd jobs that his boss required of him, such as cleaning work. The money from his job also allowed for him to buy parts for his 1966 Pontiac car, a time-consuming hobby. He was proud of his car and, although it was a bit of an eye sore, it served its purpose. On December 12, 1976, Gregory dropped his date off at her house, a girl he had had a crush on for some while, and drove off towards his home. The following day police found Gregory’s Pontiac, but Gregory was missing. He was seventeen years old.

On January 20, 1977, nineteen-year-old John Szyc also disappeared much like the other young men before him. He had driven off in his 1971 Plymouth Satellite and was never seen alive again. Interestingly, a short while after the young man vanished, another teenager was picked up by police in a 1971 Plymouth Satellite while trying to leave a gas station without paying. The youth said that the man he lived with could explain the situation. The man was Gacy, who explained to police that Szyc had earlier sold him the car. Police never checked the car title which had been signed eighteen days after Szyc’s disappearance with a signature that was not his own. In Linedecker's The Man Who Killed Boys, the author points out that Szyc had known not only Gregory Godzik and Johnny Butkovich but had also, "been an acquaintance of John Gacy, although he hadn’t worked for PDM Contractors."

Robert Gilroy was an outdoorsman, avid camper and horse lover. On September 15, 1977, eighteen-year-old Gilroy was supposed to catch a bus with friends to go horseback riding but he never showed up. His father, who was a Chicago police sergeant, immediately began searching for Robert when he heard that his son was missing. Although a full-scale investigation was mounted for his son, Robert was nowhere to be found.

More than a year later another young man named Robert Piest would vanish mysteriously. The investigation into his disappearance would lead to not only the discovery of his body but the bodies of Butkovich, Bonnin, Carroll, Szyc, Gilroy and twenty-seven other young men who had suffered similar fates. It would be a discovery that would rock the foundations of Chicago and shock all of America. Robert Piest was only fifteen when he disappeared from just outside the pharmacy where he had worked just minutes earlier. His mother, who had come to pick him up from work, had been waiting inside the pharmacy for Robert, who had said he’d be right back after talking with a contractor who had offered him a job. Yet, Robert never returned. His mother began to worry as time passed. Eventually her worry turned to dread. She searched the pharmacy area outside and inside and still Robert was nowhere to be found. Three hours after Robert's disappearance, the Des Plaines Police Department was notified. Lieutenant Joseph Kozenczak led the investigation.

Soon after learning the name of the contractor who had offered the job to Piest, Lt. Kozenczak knocked at the man’s door. When Gacy answered, the lieutenant told him about the missing boy and asked Gacy to go with him to the police station for questioning. Gacy said he was unable to leave his home at the moment because there was a recent death in the family and he had to attend to some phone calls. Gacy showed up at the police station hours later and gave his statement to police. Gacy said he knew nothing about the boy's disappearance and left the station after further questioning.

Lt. Kozenczak decided to run a background check on Gacy the next day and was surprised to find that Gacy had served time for committing sodomy on a teenager years earlier. Soon after Lt. Kozenczak’s discovery, he obtained a search warrant for Gacy’s house. It was there that he believed they would find Robert Piest. On December 13, 1978, police entered John Wayne Gacy, Jr.’s house on Summerdale Avenue. Gacy was not at his home during the investigation. Inspector Kautz was in charge of taking inventory of any recovered evidence that might be found at the house. Some of the items on his list that were confiscated from Gacy’s home were: A jewelry box containing two driver’s licenses and several rings including one which had engraved on it the name Maine West High School class of 1975 and the initials J.A.S; A box containing marijuana and rolling papers; Seven erotic movies made in Sweden; Pills including amyl nitrite and Valium; A switchblade knife; A stained section of rug; Color photographs of pharmacies and drug stores; An address book; A scale; Books such as, Tight Teenagers, The Rights of Gay People, Bike Boy, Pederasty, Sex Between Men and Boys, Twenty-One Abnormal Sex Cases, The American Bi-Centennial Gay Guide, Heads & Tails and The Great Swallow; A pair of handcuffs with keys; A three-foot-long two-by-four wooden plank with two holes drilled in each end; A six mm. Italian pistol with possible gun caps; Police badges; An eighteen-inch rubber dildo was also found in the attic beneath insulation; A hypodermic syringe and needle and a small brown bottle; Clothing that was much too small for Gacy; A receipt for a roll of film with a serial number on it, from Nisson Pharmacy; Nylon rope.

Three automobiles belonging to Gacy were also confiscated, including a 1978 Chevrolet pickup truck with snow plow attached that had the name "PDM Contractors" written on its side, a 1979 Oldsmobile Delta 88 and a van with "PDM Contractors" also written on its side. Within the trunk of the car were pieces of hair that were later matched to Rob Piest’s hair.

Further into the investigation, police entered the crawl space located beneath Gacy’s home. The first thing that struck investigators was a rancid odor that they believed to be sewage. The earth in the crawl space was sprinkled with lime but seemed to have been untouched. Police found nothing else during their first search and eventually returned back to headquarters to run tests on some of the evidence and research the case more. Gacy was called into the police department and told of the articles that they had confiscated. Gacy was enraged and immediately contacted his lawyer. When Gacy was presented with a Miranda waiver stating his rights and asked to sign it, he refused when instructed by his lawyer. Police had nothing to arrest him on and eventually had to release him after more questioning about the Piest boy's disappearance. Gacy was put under twenty-four hour surveillance.

During the days following the police search of Gacy’s house, some of his friends were called into the police station and interrogated. Gacy had told his friends earlier that police were trying to charge him with a murder but claimed he had nothing to do with such a thing. From the interviews police gathered little information on any connection with Gacy to Robert Piest. Friends of Gacy could not believe he was capable of killing a teenage boy. Frustrated due to the lack of evidence that police had linking Gacy to Piest they decided to arrest Gacy on possession of marijuana and Valium. Unknown to police at the time, Gacy had recently confided in a friend and co-worker a day before his arrest that he had indeed killed. Gacy further confided in his friend that he killed about thirty people because they were bad and trying to blackmail him.

Around the time Gacy was arrested, he was awaiting action on the Ringall case in which he had been charged with rape. Determined to find his rapist, Ringall had months earlier waited by one of the highway exits that he was able to remember during one of his wakeful episode in Gacy’s car, before being chloroformed again. Finally, after hours of waiting by the exit, he spotted the familiar car and followed it to Gacy’s house. Upon learning Gacy’s name, he immediately filed charges of sexual assault. Finally, after intense investigation and lab work into some of the items confiscated by police from Gacy’s house, they came up with critical evidence against Gacy. One of the rings found at Gacy’s house belonged to another teenager who had disappeared a year earlier named John Szyc. They also discovered that three former employees of Gacy had also mysteriously disappeared. Furthermore, the receipt for the roll of film that was found at Gacy’s home had belonged to a co-worker of Robert Piest who had given it to Robert the day of his disappearance. With the new information, investigators began to realize the enormity of the case that was unfolding before them.

It was not long before investigators were back searching Gacy’s house. Gacy had finally confessed to police that he did kill someone but said it had been in self-defense. He said that he had buried the body underneath his garage. Gacy told police where they could find the body and police marked the gravesite in the garage, but they did not immediately begin digging. They first wanted to search the crawl space under Gacy’s house. It was not long before they discovered a suspicious mound of earth. Minutes after digging into the suspicious mound, investigators found the remains of a body. That evening, Dr. Robert Stein, Cook County Medical Examiner, was called in to help with the investigation. Upon his arrival at Gacy’s house, he immediately recognized a familiar odor --the distinctive smell of death.

Stein began to organize the search for more bodies by marking off the areas of earth in sections, as if it were an archaeological site. He knew that the excavation of a decomposing body must be done with the utmost care to preserve its integrity and that of the gravesite. Throughout the night and into the days that followed the digging progressed under the watchful eye of Dr. Stein.

Death Count

On Friday, December 22, 1978, Gacy finally confessed to police that he killed at least thirty people and buried most of the remains of the victims beneath the crawl space of his house. According to the book Killer Clown: The John Wayne Gacy Murders by Sullivan and Maiken, Gacy said that, "his first killing took place in January, 1972, and the second in January, 1974, about a year and a half after his marriage." He further confessed that he would lure his victims into being handcuffed and then he would sexually assault them. To muffle the screams of his victims, he would stuff a sock or underwear into their mouths and kill them by pulling a rope or board against their throats, as he raped them. Gacy admitted to sometimes keeping the dead bodies under his bed or in the attic for several hours before eventually burying them in the crawl space.

On the first day that the police began their digging, they found two bodies. One of the bodies was that of John Butkovich who was buried under the garage. The other body was the one found in the crawl space. As the days passed, the body count grew higher. Some of the victims were found with their underwear still lodged deep in their throats. Other victims were buried so close together that police believed they were probably killed or buried at the same time. Gacy did confirm to police that he had on several occasions killed more than one person in a day. However, the reason he gave for them being buried so close together was that he was running out of room and needed to conserve space.

On the 28th of December, police had removed a total of twenty-seven bodies from Gacy’s house. There was also another body found weeks earlier, yet it was not in the crawl space. The naked corpse of Frank Wayne "Dale" Landingin was found in the Des Plaines River. At the time of the discovery police were not yet aware of Gacy’s horrible crimes and the case was still under investigation. But, investigators found Landingin’s driver’s license in Gacy’s home and connected him to the young mans murder. Landingin was not the only one of Gacy’s victims to be found in the river.

Also, on December 28th, police removed from the Des Plaines River the body of James "Mojo" Mazzara, who still had his underwear lodged in his throat. The coroner said that the underwear stuffed down the victim's throat had caused Mazzara to suffocate. Gacy told police that the reason he disposed of the bodies in the river was because he ran out of room in his crawl space and because he had been experiencing back problems from digging the graves. Mazzara was the twenty-ninth victim of Gacy’s to be found, yet it would not be the last.

By the end of February, police were still digging up Gacy’s property. They had already gutted the house and were unable to find anymore bodies in the crawl space. It had taken investigators longer than expected to resume the search due to bad winter storms that froze the ground and the long process of obtaining proper search warrants. However, they believed there were still more bodies to be found and they were right. While workmen were breaking up the concrete of Gacy’s patio, they came across another horrific discovery. They found the body of a man still in good condition preserved in the concrete. The man wore a pair of blue jeans shorts and a wedding ring. Gacy’s victims no longer included just young boys or suspected homosexuals, but now also married men. The following week another body was discovered.

The thirty-first body to be found linked to Gacy was in the Illinois River. Investigators were able to discover the identity of the young man by a "Tim Lee" tattoo on one of his arms. A friend of the victim's father had recognized the "Tim Lee" tattoo while reading a newspaper story about the discovery of a body in the river. The victim's name was Timothy O’Rourke, who was said to be such a fan of Bruce Lee’s that he took the Kung Fu master's last name and added it to his own name in his tattoo. It is possible that Gacy had become aquatinted with the young man in one of the gay bars in New Town.

Yet, another body was found on Gacy’s property around the time O’Rourke was discovered and pulled from the river. The body was located beneath the recreation room of Gacy’s house. It would be the last body to be found on Gacy’s property. Soon after the discovery, the house was destroyed and reduced to rubble. Unfortunately, among the thirty-two bodies that were discovered that of Robert Piest was still unaccounted for. Piest was still missing.

Finally in April 1979, the remains of Robert Piest were discovered in the Illinois River. His body had supposedly been lodged somewhere along the river making it difficult to find his body. However, strong winds must have dislodged the corpse and carried it to the locks at Dresden Dam where it was eventually discovered. Autopsy reports on Piest determined that he had suffocated from paper towels being lodged down his throat. The family soon after filed a $85-million suit against Gacy for murder and the Iowa Board of Parole, the Department of Corrections and the Chicago Police Department for negligence. Police investigators continued to match dental records and other clues to help identify the remaining victims who were found on Gacy’s property. All but nine of the victims were finally identified. Although the search for the dead had finally come to an end, Gacy’s trial was just beginning.


On Wednesday, February 6, 1980, John Wayne Gacy’s murder trial began in the Cook County Criminal Courts Building in Chicago, Illinois. Jury members, who consisted of five women and seven men, listened as prosecutor Bob Egan talked about Robert Piest’s life and his gruesome death and how Gacy was responsible for his murder thirty-two other young men. Egan told them about the investigation into Gacy, the discovery of bodies beneath his house and how Gacy’s actions were premeditated and rational. In Sullivan and Maiken’s book, Killer Clown: The John Wayne Gacy Murders, it is said that Egan’s statement," left a stunning impression on the jurors and the courtroom spectators, who were learning some of the details of Gacy’s killing for the first time." Egan’s opening statement was followed by one of Gacy’s defense lawyers, Robert Motta. He opposed Egan’s statement by claiming Gacy’s actions were indeed, irrational and impulsive, but asserting that he was insane and no longer in control of his conduct.

If had been found insane, Gacy would have become a ward of the state mental health system. Furthermore, there are no time limits on the incarceration of such a person and in many cases they are set free when they are deemed mentally stable enough to re-enter society. This is what Robert Motta believed was best for his client. Yet, an insanity plea is usually a very difficult one to prove. Although prosecutors were stung by Gacy’s insanity plea, it was something they had expected and were well prepared for. When the opening statements had concluded, the prosecution brought its first witness to the stand, Marko Butkovich, the father of Gacy’s victim John Butkovich. He was the first witness of many that included the family and friends of the murdered victims. Some of the witnesses broke down in tears on the bench, while others sadly recounted their last goodbyes to their loved ones.

Following the friends and family of the victims came the testimony of those who worked for Gacy who survived sexual and usually violent encounters with their boss. Some of his ex-employees told of his mood swings and how he would trick them into being handcuffed. Others told of how he constantly made passes at them while at work. The testimony continued for the next several weeks, including that of friends and neighbors of Gacy, police officers involved in the investigation and arrest of Gacy, and psychologists who found Gacy sane during the killings. Before the state rested. it had called some sixty witnesses to the bench.

On February 24th, the defense began its proceedings and to the surprise of many in the courtroom, the first witness they had called was Jeffrey Ringall. It was expected that Ringall would testify in behalf of the prosecution. However, Ringall had previously mentioned his encounter with Gacy in a book and the prosecution believed that would damage their case if they took him on as a witness. Therefore, the prosecution did not call him as a witness because they believed his testimony would better help their case during cross-examination. Gacy’s other defense lawyer, Amirante, asked Ringall if he thought Gacy was able to control himself. Ringall didn't believe so, considering the savagery of Gacy's attack. Testimony of Ringall did not last very long because he broke down while telling the court the details of his rape. Ringall was so stressed that he began to vomit and cry hysterically. He was eventually removed from the courtroom as Gacy sat by exhibiting no signs of emotion.

In an effort to prove Gacy’s insanity, Amirante and Motta called to the stand the friends and family of the accused killer. Gacy’s mother told of how her husband abused Gacy on several occasions, at one time whipping him with a leather strap. Gacy’s sister told a similar story of how she repeatedly witnessed he brother being verbally abused by their father. Others who testified for the defense told of how Gacy was a good and generous man, who helped those in need and always had a smile on his face. Lillie Grexa took the stand and told of how wonderful a neighbor he was. However, Mrs. Grexa did say something that would prove damaging to Gacy’s case. She refused to say that he was crazy, instead she said she believed Gacy to be a "very brilliant man." That statement would conflict with the defense's story that he was unable to control his actions and was insane.

The defense then called Thomas Eliseo, a psychologist who interviewed Gacy before the trial. He found Gacy to be extremely intelligent, yet believed that he suffered from borderline schizophrenia. Other medical experts that testified on behalf of the defense gave similar testimony stating that Gacy was schizophrenic, suffered from multiple personality disorder or had antisocial behaviour. They further stated that Gacy’s mental disorder impaired his ability to understand the magnitude of his criminal acts. In conclusion, they all found him to have been insane during the times he committed murder. After the testimony of the medical experts, the defense rested its case.

Both sides emotionally argued their cases to the jury that sat before them. Each side recalled previous witnesses and experts who had testified. The prosecution reminded the jury of the heinous crimes committed by Gacy, talked of his manipulative behavior, his rape and torture of the victims and how his crimes were premeditated and planned. The defense insisted that Gacy was insane and out of control at the time of the killings and pointed to the testimony given by experts during the trial. After the closing arguments and the testimony of over a hundred witnesses over a period of five weeks, the jury was left to make their decision.

It took only two hours of deliberation before the jury came back with its verdict. The courtroom was filled with silence and everyone within stood at attention when the jury marched in with its verdict. The silence was broken when the court clerk read, "We, the jury, find the defendant, John Wayne Gacy, guilty..." Gacy was found guilty in the deaths of thirty-three young men and as Sullivan said, he had the "singular notoriety of having been convicted of more murders than anyone else in American history." Gacy received the death penalty and was sent to Menard Correctional Center where, after years of appeals, he eventually was killed by lethal injection.


This feature story is primarily drawn from the Chicago Tribune and the Chicago Sun-Times, plus the following books:

Cahill, Tim, Buried Dreams: Inside the Mind of a Serial Killer (1986).
Linedecker, Clifford L., Man Who Killed Boys (St. Martin's Paperbacks, 1994).
Mendenhall, Harlan, Fall of the House of Gacy (Mass Market Paperbacks, 1998).
Sullivan, Terry and Peter T. Maiken, Killer Clown (Mass Market Paperback, 1997)

Charles Nemo

JOHNNY, WE HARDLY KNEW YE! (Four Visits to Serial Killer John Wayne Gacy) by Charles Nemo.


Just after midnight on May 10, 1994, American serial killer (1) John Wayne Gacy was executed by lethal injection at the Stateville Prison in Joliet, Illinois. Published accounts indicate that Gacy went stoically to his death. (2) Although he generally denied responsibility for the gruesome murders of 29 young men buried in the crawl space of his home (and at least four more dumped into a nearby river) just outside Chicago, he did make revealing comments during various audio and video interviews that allow reasonable inference of more than passing knowledge of the young lads’ untimely demise.

I visited Gacy four times on Death Row at Menard Correctional Center in Chester, Illinois in 1993 and 1994. I also received dozens of letters, postcards and collect calls from him. (3) These events turned out to be the end of my long journey into "the heart of darkness", that mid-life passage that all of us must make if we wish to evolve and mature, or at least come to understand how things really are and adjust to them. It had begun almost 10 years earlier with the break-up of my long-term marriage and some severe career disappointments in the form of encounters with sociopathic clients and colleagues. (4) I survived those challenges and managed to preserve some small hope for the human race until my encounters with John Wayne Gacy and the criminal so-called "justice" system. Then I could no longer ignore the truly grim realities of life.

Let me tell you how I approached this article. I began with the dry historical information about Gacy’s life and alleged (5) crimes and the details of how I came to visit him in the first place in order to get in the mood for more brutal thinking. Then I wrote my conclusions. I had to hit the key lessons from the encounter. Lastly I filled in the blanks with my explanations of everything I felt I had learned. I’ve always worked that way, believing that if you can’t state your conclusions succinctly, then you really don’t understand the subject. I’ll leave it to my readers to judge both my approach and the substance of my work.

Four Trips to Hell

I had the opportunity in to visit Gacy on Death Row (6) four times during the last year of his life. I had had many sociopathic clients and colleagues, but I was interested in meeting a real "bad ass" in order to test my perceptive capabilities to the maximum. I was dating a so-called "Riot Grrrl" (an ardent female fan of heavy metal music, who often dressed in black clothes and combat boots) during that time who had come to regard Gacy as a father figure (7) during several years of letters and phone calls. She had the contact, and I had the cash, so we went together for the first two visits in 1993. (8) We broke up in January, 1994, and I traveled with two other women for the last two visits in 1994. All the women were luridly good-looking and eager for action, which delighted Gacy and his inmate "bodyguard" (who always shared in the visits), as well as the redneck prison guards. (9)

The drill was the same each time. My companion(s) and I would fly to St. Louis on Saturday morning, shack up at the Embassy Suites on the waterfront and "party hearty" on Saturday night. A nightclub called Mississippi Nights across the street from the hotel always had good beer and decent bands, some of them well-known groups such as Gwar. I always drove a Cadillac, and after several hours at the club, we’d cruise the dark night on both sides of the Mississippi River. We made a number of side trips to such places as heavily-black East St. Louis, where we saw running mobs in the streets, and dozens of hookers linked up along the curb outside seedy roadhouses (with apt names such as the Discreet Hotel) waiting for anyone stupid enough to pick them up for an AIDS-ridden grope. The slaughterhouses just across the river from St. Louis were also a grim attraction. Anything dealing with death and urban decay was an object of fascination, but we were always safe from the real lessons inside our locked luxury car. We typically ended our Saturday-night fun with pizza and beer back at the hotel anywhere from 4 AM to 6 AM on Sunday morning. Sometimes there was hot, sweaty sex, and we’d fall asleep exhausted.

Rising on Sunday afternoon, we’d play some more and then drive two hours south to the gritty rural redneck town of Chester, Illinois. Its only claims to fame are a statue honoring the creator of the Popeye cartoon, a grim fortress for the criminally insane, and the Menard Correctional Center. Motels were terrible during the first two visits, but a new Best Western was completed in early 1994, and we were among its first guests in its finest room, priced at a reasonable sixty dollars and complete with a Jacuzzi hot tub. There was nothing really remarkable about our stays in Chester, except that my Riot Grrrl companion nearly got me killed on the second trip when she got drunk and tried to provoke a fight in Chester’s lone biker bar, but I was able to talk both of us out of that. Cute little waitresses desperate for action and attention would ask why we were in town and perk right up when we told them. Women indeed love "bad boys", as I observed in an earlier footnote.

The Menard Correctional Center is a century-old brick maximum-security monstrosity on the banks of the Mississippi River. Menard serves as one of two Illinois death rows and is also a maximum-security prison for several hundred other felons. We had to be there early Monday morning and could stay until 2:30 PM. Visitors pass through a guardhouse where they must remove all metal items and store them in lockers. Shoes are x-rayed and a quick patdown done before a guard accompanies the visitors through a half dozen gates and iron doors to a cafeteria. A guard watches closely while visitors buy food, cigarettes and snacks from vending machines. The goodies are stacked on trays which visitors carry through another half dozen barriers to the death row visiting area, an air-conditioned series of small rooms furnished with metal tables and chairs on either side of a short corridor. There are no windows. An ominous sense of loss hits you like a fist in the gut when you pass through so many barriers and are told all the things you can’t do. (10) Even chewing gum is forbidden.

Altogether I met with Gacy for almost 20 hours, at least half of it being just the two of us in a room while the women met with Gacy’s unofficial "bodyguard" (another death row inmate) in another room across the hall. Unlike many prison meeting areas, there were no bars or windows between Gacy and his visitors, although he was always in handcuffs. A camera in one ceiling corner allowed guards in a room on the other side of a barred gate to watch us. I never worried about Gacy doing anything dangerous, although he once made the comment (as he walked behind me and noticed me watching him very carefully) that he could have broken my neck before guards would have been able to get through the gate from their room down the hall where they watched the television monitors. (11)

Gacy always brought documents from his legal proceedings and explained them, together with the thick log book in which he had been tracking his daily activities and visitors since his incarceration in late 1978. He also brought small gifts such as prison-made cigarettes. I particularly waited with eager anticipation for the paintings, which he had done for me at nominal cost. I eventually ended up with four (12) of my own, plus several (13) which I gave to women friends. Much of each meeting was taken up with mundane conversations about life and philosophy, and we always had lunch brought to us by guards -- a decent salad, bread and butter, milk, and overcooked meat or fish. Gacy would always "pig out" on the snacks we brought; he had a real sweet tooth, and the snacks were things he didn’t get elsewhere. We’d stay until about 2 PM, have one of the guards take some Polaroid photos at a dollar apiece (one of each pose for us and one for Gacy), and then dash madly for the St. Louis airport for a late afternoon flight back home.

This gives you an idea of the structure of our trips. The last of the four trips was the most remarkable. We saw him on Monday a week before his execution and were his last visitors other than family and appellate attorneys. He’d called and written more frequently in the last few weeks and was plainly nervous, but still full of the old braggadocio. (14) He talked vaguely about an unnamed donor who was going to give him half a million dollars to fund another round of appeals. It all sounded possible, but I when I saw him in person I knew he was just blowing smoke. Ever the con artist, he almost had me convinced, but his unhealthy, beet red complexion and copious sweating even in air conditioning gave it all away. It was and always had been bullshit. He was going down and damn well knew it. He knew I knew it too. I almost felt sorry for him, but the looming image in my mind of his lifetime of lies wouldn’t allow it. I listened quietly, shook his clammy hand when it was time to leave, and said that it had been interesting to know him. I said I wished him well, but both he and I sensed the insincerity of everything. He called later in the week for a short chat, cocky as always but definitely edgy, and then once more the weekend before his execution to say good-bye, but luckily I wasn’t home to take the call.

Gacy’s Life (15)

In the few years before his December, 1978 arrest, John Wayne Gacy killed at least 33 boys and young men and buried most of them in the crawl space under his home near Chicago, Illinois. Gacy, a building contractor, lured them to his home with prospects of employment and sex, and then tortured them before killing them. He had an abusive father, but there was little else in his background to portend such infamy. (16)

Born on March 17, 1942, he claimed his father was alcoholic and frequently beat both him and his mother. John had an effeminate side and could never seem to earn his father’s approval regardless of the efforts he made. He dropped out of high school in his senior year and left home for a short time, working in a mortuary in Las Vegas. He returned home to attend a local business college and began selling shoes. At the age of 22, he married a woman whose father owned a chain of Kentucky Fried Chicken restaurants in Waterloo, Iowa. Gacy became a successful manager of his father-in-law’s business and a socially-active citizen. He joined the local Jaycees (17) and held key offices and received numerous honors as a Jaycee.

In 1968 he began a tortuous ten-year downward journey of criminality that would culminate in his arrest as a serial killer. Although he claimed to have been framed, he was sentenced to prison after pleading guilty to molesting a teenager employed in the restaurant he managed. His wife divorced him. Gacy was an exemplary prisoner and was paroled after only 18 months, returning to Chicago to become a cook and later to open a construction and remodeling business and become a small-time local politician.

His next arrest in 1971 involved a teenager’s accusation that Gacy had tried to force him to engage in sex, but the charge was dismissed when the youth failed to appear in court. He remarried but soon ceased sexual relations with his wife. Gacy had become active in community affairs as a Democratic precinct captain and as a clown ("Pogo" or "Patches") at children’s parties and hospitals. He hosted large parties at his home for local dignitaries and neighbors. Gacy answered comments by his wife and others about the peculiar smell in the home by saying that there was a lot of dampness in the crawl space. In fact, he had employed teenagers in his business and had them dig trenches in the crawl space underneath his home. Gacy had been sexually torturing to death some of the young men who worked for him and others that he picked up in downtown Chicago. He lured them by promising them money or employment. One of his favorite routines was to persuade them to participate in his "handcuff trick" in order to incapacitate them. He would then chloroform them and sodomize them. This was followed by his "rope trick" in which he would insert a rope around the victim’s neck, insert a stick in the loop, and twist it slowly like a tourniquet until the victim strangled to death. Gacy liked to read passages from the Bible while doing this.

He buried most of his sexual victims in shallow graves in the crawl space under the house, covered them with lime, and left them to decompose. One potential victim was lured into Gacy’s black Oldsmobile (complete with spotlight to look like an unmarked police car) on the pretense of police questioning, handcuffed, abused sexually and then released for unknown reasons. Enraged by liver damage caused by the chloroform, the victim staked out freeway entrances until he spotted Gacy’s car and then demanded action by authorities. Authorities declined to prosecute Gacy because of lack of evidence.

Gacy’s undoing came in December, 1978 when he visited a pharmacy to do a remodeling estimate, and lured away a 15-year-old boy whose mother had dropped him off at the pharmacy to file a job application. Police learned that Gacy had been there just before the boy’s disappearance and began watching Gacy closely, especially after learning about his previous molestation conviction. A detective asked to use the bathroom during a visit to Gacy’s home and smelled the telltale odor of decomposition when the furnace fan kicked on. A search warrant led promptly to the discovery of rotting corpses in the crawl space. Nationally televised news reports showed heavily-garbed police workers as they went about the grim task of collecting the remains.

Gacy is alleged to have confessed his crimes during interrogation and even to have drawn a map of the bodies’ placement, but Gacy signed nothing. He was convicted of murder and all appeals denied. Execution at just after midnight on May 10, 1994 was greeted by a large, enthusiastic crowd outside the prison, tempered by a small number of death penalty protesters. Audio interviews recorded just after his arrest and aired after his death were extremely incriminating, and video interviews in the years just before his death showed him to be extremely callous.

Gacy the Man

Above all I was struck by the ordinariness of the man. He could be anybody -- your neighbor, co-worker or friend, or even your father (he had two children by two wives). He was somewhat short (5’8") and fat (well over 200 lb.) with oily skin and greasy, dishwater hair streaked with gray. He was jolly and likable -- perfect for the role he assumed in clown suit and makeup as Pogo or Patches for entertaining at children’s parties and visits to children’s hospital wards. His demeanor was good enough to get him voted Jaycees Man of the Year, and a minor role in Chicago politics that eventually led to his infamous photo shaking hands with the wife of President Jimmy Carter.

Yet he was a habitual liar. (18) He steadfastly denied any guilt during our early visits and was quite convincing in his many claims, always presenting himself as a victim of one kind or another. (19) He was extremely garrulous, though, and not nearly as intelligent as he liked others to believe (20), which led inevitably to his being caught in at least some of his lies. His average intelligence was reflected in his art, which was colorful but as two-dimensional as he was. He was crude and brutal about his bisexuality and other matters, and enjoyed trying to shock people that he thought might disapprove of his preference for boys and young men to satisfy his sexual appetites. (21) His lack of sensitivity became particularly evident in a videotaped interview that I saw after his death in which he made the claim, "The only thing I’m guilty of is running an unlicensed cemetery" (referring to the 29 bodies buried in the crawl space under his home and in his yard).

These characteristics were not all immediately evident, and even after listening and watching carefully for hours, I never would have guessed he was a serial killer without being told.


In my younger years, untouched by the hard realities of life, I was in favor of capital punishment -- "an eye for an eye" and all that sort of thing. Four visits to John Wayne Gacy, coupled with extensive reading about so-called criminal "justice", have changed my views. Why?

1. It costs much less on average to house, feed and clothe a murderer for life than it does to go through the extended legal appeals. (22)

2. So why not just shortcut the appeals process? The answer is that many innocent people are sent to Death Row. (23)

3. America seems to be producing more and more serial murderers and other major felons. (24) Why not promise these people life in prison under reasonable conditions in return for a promise of continued co-operation as better tests for genetic and other defects are developed? Let’s study the criminal profile scientifically (25) and do what we can to prevent the development of serial killers, i.e., deal with the cause of the problem to save much misery later on.

4. Capital punishment just doesn’t prevent crime. Most murderers and serial killers in particular act in the heat of passion and/or honestly believe they won’t get caught. (26) The thought of execution doesn’t even enter their minds let alone worry them.

5. America claims to be a Christian nation. What happened to the forgiveness we preach to others? Is our religion just another of America’s many hypocrisies? (27)

There’s an old maxim about not judging a book by its cover. While usually applied as an admonition against drawing unfavorable conclusions too quickly, it has its dark flipside too. One need only note the appalling daily media reports to realize the folly of being too trusting. Perhaps any trust is too much, and parents groan as they destroy their young children’s innocence by cautioning them with tales of evil strangers. Ultimately we all become strangers to each other, and the social fabric of trust that binds us together first frays and then falls apart.

Gacy confirmed my lessons in the corporate world and life generally that real evil usually is not flamboyant; it does its very best to hide under a cover of respectability. (28) There are many actual and potential Gacy’s, and we must always be on guard against them. (29) We can’t like our neighbors if we can’t trust them; therefore, we have no reason to do them good, and ultimately only a reason to hurt them as our hardness deadens our sensitivity to pain.

This is the bitter, black legacy from John Wayne Gacy, and most of all from our leaders who created the conditions that that spawned Gacy and others like him. Our business, political, religious and military leaders have failed us abysmally. (30) I no longer believe in anything but the inevitability of death and the need to have as much pleasure as possible beforehand, with the proviso that I absolutely will not take advantage of others along the way, and will help the truly helpless when I can. The latter proviso is at least a matter of expedience, since I have no desire to end up as Gacy did. It’s my own private moral standard, but it’s the best I can manage. I don’t know if Hell exists, but if it does then John Wayne Gacy surely must be there.


Fox, James Alan et al. Overkill -- Mass Murder & Serial Killing Exposed (1994). Plenum Press, 233 Spring Street, New York, NY 10013-1578.

Gacy, John Wayne. A Question of Doubt (1991). Craig Bowley Consultants, P.O. Box 225, Times Square Station, New York, NY 10108-0225. This 216-page tome is Gacy’s version of events. It was scheduled for publication in a limited edition of 500 copies at $250.00 each complete with deluxe binding, color photo of Gacy, and Gacy’s autograph, but I do not know if it was ever published. I obtained a proof copy from Gacy himself.

Hickey, Eric W. Serial Murderers and Their Victims (1991). Wadsworth Publishing Company, 10 Davis Drive, Belmont, CA 94002.

Holmes, Ronald M. et al. Serial Murder (1988). Sage Publications, Inc., 2111 West Hillcrest Drive, Newbury Park, CA 91320.

Kozenczak, Joseph et al. A Passing Acquaintance (1992). Carlton Press, Inc., New York, NY. $12.95. Kozenczak was the chief of police in Gacy’s home town of Des Plaines, Illinois and the man responsible for bringing Gacy to justice.

Lester, Harold. Serial Killers - The Insatiable Passion (1995). The Charles Press, P.O. Box 15715, Philadelphia, PA 19105.

Moore, W. John, "The Death Penalty’s Marathon Man". The National Journal, December 18, 1993, p. 51.

Ressler, Robert K. et al. Whoever Fights Monsters (1992). $22.95. St, Martin’s Press, 175 Fifth Avenue, New York, NY 10010.

Sparks, James Arthur. A Case Study on John Wayne Gacy (1996). The University of Alabama, Tuscaloosa, AL. Thesis submitted for M.S. in Criminal Justice.

Staton, Rick, ed. More Letters to Mr. Gacy (1992). Myco Associates, P.O. Box 45888, Baton Rouge, IL 70895. $20.00. A sequel to They Call Him Mr. Gacy, this book captures photocopies of several hundred of the more interesting of thousands of letters to and from Gacy.

Sullivan, Terry. Killer Clown (1983). Windsor Publishing Group, 475 Park Avenue South, New York, NY 10016. $4.99. Gacy hated this book with a passion.

Taylor, Gary, "Fake Evidence Becomes Real Problem". National Law Journal, October 9, 1995, p. A1.

Wallis, Claudia, "Medicine for the Soul". Time, July 11, 1994. p. 64.

Wertz, Marianna, "How Many Innocents Have Been Executed in the United States?" The New Federalist, March 3, 1997, p. 11.

Wilkinson, Alec, "Conversations with a Killer". The New Yorker, April 18, 1994, p. 58.


1. A serial killer can be defined as someone who kills three or more people with a "cooling off period" between killings. One definition of the cooling off period is more than 30 days between the first and last killing. Lester, p. 16.

2. Cable News Network, May 10, 1994.

3. Gacy was a prolific writer, painter and raconteur. He claimed to have written more than 10,000 letters during his 14 years on Death Row, as well as completed more than 2,000 oil paintings, entertained hundreds of visitors, made thousands of phone calls, and fielded dozens of interviews.

4. The only differences between white-collar criminals and other kinds are that the former are richer and better educated. It’s been estimated that 3% of all U.S. adult males are sociopaths. Fox et al, p. 19. I’m convinced that a substantial number of these twisted people become key executives by virtue of their enormous drive for power and wealth. See footnote 16 for further definition of the term "sociopath".

5. Attorneys use the word "alleged" a lot even when the evidence of their clients’ guilt is overwhelming, which exposes attorneys to the ridicule and contempt of the general public, who have little use for the concept of "innocent until proven guilty". One only need watch the grotesque litany of endless American talk shows and sports broadcasts to understand that the American equivalents of Roman bread and circuses are welfare and mindless entertainment. Americans don’t care much about ideas or ideals -- we just want to see blood!

6. August and October, 1993, and February and May, 1994. In fact, Gacy told me when he called to say good-bye two days before his execution that we were his last outside visitors except for his family and lawyers.

7. It has truly amazed me to see the number of young (teens to late 20’s) Americans who have sought paternal approval and affection from John Wayne Gacy, Richard Ramirez and other well-known sociopaths and psychopaths. Understandably, the criminals themselves groove on it totally. One of our four visits to Gacy was shared with a small, skinny man in his mid-20’s who had come all the way from California with his girlfriend to visit Gacy because the visitor had never had any relationship with his real father. Gacy had offered the young man advice and fatherly concern (and gotten a blow job from him in a visiting room with a broken camera as his girlfriend watched; we were visiting Gacy’s inmate "bodyguard" in another room down the hall at the time). The young man confided in me because I was dressed in black from head to toe, including a black linen shirt, slacks and boots, and he believed that I was a priest because of my dress -- in spite of my pierced ear and shoulder length hair! Gacy later told me the same story without being asked, so it was probably true, especially in view of the notoriously lax conditions in Illinois prisons (see footnote 14).

8. Gacy required that a biographical questionnaire be sent to him by every prospective visitor, and he had one of his own that he sent as an example. Gacy liked to write letters and make collect phone calls, and I received several dozen of each during the year that I knew him. He was always brusquely optimistic and chatty. At Christmas, 1993 he sent Christmas cards with a color photo of him as Pogo or Patches the Clown, roles he had assumed as an entertainer at children’s parties and in children’s hospital wards during the years before he was tagged as America’s most prolific serial killer. The letters and cards are now valuable collectors items, and there was a scandal in the months before his death as it became widely known that large sums of money were being sent to private accounts for his paintings, other collectibles and even a John Wayne Gacy $1.99/minute telephone "hot line". Ostensibly, the money was used for his legal defense fund, but Gacy’s defense team was provided at public expense.

9. It also delighted the women. Let me put it bluntly: "bad boys" make women wet! See, for example, Sheila Eisenberg’s Men Who Kill & the Women Who Love Them. Sure, there are some women such as fundamentalist Christians who want to castrate anything male, but these are the exception rather than the rule.

10. Anyone who thinks seriously of committing a crime, and not committing suicide if caught, should visit a real prison. I was thinking recently about Charles Manson who was convicted of conspiracy and sentenced to death (later commuted to life in prison) for the Tate/LaBianca slayings shortly after I married my first wife. In the quarter of a century since then, I’ve had several wives and well over a hundred lovers, traveled and lived well, and generally done what I pleased. Charlie has rotted in a small cell, been the subject of several assassination attempts, and been deprived of almost everything the rest of us take for granted, even his guitar. Can any of us really conceive what that kind of misery must be like???

11. I thought of Robert Ressler’s spooky anecdote about his visit to infamous 6’9" 300 lb. California serial killer Edmund Kemper. Ressler reported that after conclusion of his interview, he rang for the guard, who did not come for a good 20 minutes because it was shift change time. Kemper commented that he could have screwed Ressler’s head off and placed it on the table to greet the guard. Ressler et al, p. 47.

12. He sold me a graphic rendition of Wisconsin serial killer Ed Gein (model for Robert Bloch’s Psycho) complete with realistic red paint splatters resembling blood, and a colorful Charles Manson portrait. Gacy gave me a Hitler caricature, and I bought a beautifully framed skull with bloody teeth (captioned "Dahmer Skull") on black matte background at an exhibition of serial killer art.

13. These included a one-of-a-kind depiction of Russian serial killer Andrei Chikatilo, as well as several of the Pogo oils for which Gacy is best known, and a one-of-a-kind portrayal of cartoon character Fred Flintstone.

14. "Hey, death row’s great -- death row’s a fucking blast. I get cable t.v., I get phone access any time I want, I get to paint, I get all these privileges and nobody fucks with me. On the other hand, the general population [of the prison], that’s for fools and animals. It’s a jungle out there, so you’re at the mercy of being killed at any moment for anything, and some people just have time to kill, they get petty." Letter from John Wayne Gacy. I had some doubt as to the veracity of this claim at the time, but the infamous Richard Speck video changed my mind. Speck, a Chicago mass murderer of eight nurses, died in prison of a heart attack at the age of 50 in 1990. Five years later a video made secretly while he was on death row was released. It showed Speck, with pockmarked face and hormonally-enlarged breasts, dressed in women’s panties and cavorting with a black inmate. The two snorted what appeared to be cocaine through a rolled $100 bill and engaged in various sex acts, all the while bragging about what a good time they had been having. Subsequent public outrage led to a significant crackdown on Illinois inmate freedom.

15. See the REFERENCES at the end of this article for a detailed bibliography.

16. Suprisingly to laymen, the term "sociopath" is usually applied to serial murderers like Gacy rather than a term such as "psychopath" that would indicate less responsibility for their actions. Sociopathy is an "antisocial character disorder" in which a person has a complete lack of empathy for others. "Yet they are otherwise rational, logical, appropriate, competent, even charming and persuasive." Holmes et al, p.66. Sociopaths do exactly what they want to do without conscience or respect for the rights of others. They can rise high in careers requiring ambition and drive, such as business, the military, government or even religion. See also footnotes 4 and 18.

17. In Gacy’s day, the Jaycees were a charitable and social group of young men in their 20’s and 30’s, typically ambitious, smooth-talking self-promoters climbing fast in the business world. They organized "smokers" at which they played cards, drank and smoked, watched porn videos, and planned their charitable activities. It’s been claimed that they’ve "cleaned up their act" following unfavorable publicity about their social activities.

18. Sociopaths often are intelligent and charming. A number of my clients and colleagues have been quite convincing in their folksy, "Hi! How are ya?" approaches. It may take years before one becomes aware of the evil underneath the pleasant mask, especially when it’s further cloaked in the rectitude of fundamentalist Christianity. In general, hypocrites and other crooks "wear" religions like shit "wears" stink!!!

19. Gacy had many plaintive woes that he described at great length to anyone who would listen. For example, he claimed to have a congenital "bottleneck" heart defect, but there is no such medical condition. He particularly liked to say, "I’m the 34th victim." It was a mark of his lack of imagination that he never changed his stories about such obvious fallacies as the "bottleneck" heart even after he had been exposed in various newspaper articles and books as a liar.

20. His claim of two college degrees was also a lie.

21. He liked to say, "I’m a pitcher, not a catcher." This meant that he took the dominant "top" role in his homosexual encounters.

22. "Millions Misspent, a 1992 report, said that Texas has spent three times more on each death penalty case than it spends to keep a convict in prison for 40 years." Moore, p. 51.

23. "With 313 executions in the United States between 1970 and the end of 1995, ... one Death Row inmate is released because of innocence for every five inmates executed." Wertz, p. 11. This fact, caused at least in part by badly contaminated evidence (such as the unreliable lab reports and Detective Mark Fuhrman’s perjury in the O.J. Simpson murder trial), is just the tip of the iceberg of the flawed American criminal "justice" system. See the detailed discussion of fake evidence in Taylor, p. A1.

24. Holmes et al, p. 21. Hickey, p. 131.

25. "According to a recent report in Science, researchers have found discrete locations in the brain of an intricate system that serves, among other things, as the human moral compass. ... It is quite possible that some of history’s greatest villains harbored an unseen the prefrontal cortex. Such may be the condition of all psychopaths. ... And now...scientists will know where to search for that hole. It is surely where they will look when studying the brain -- donated to science -- of serial killer John Wayne Gacy executed last May in Illinois. Suppose a...defect is found? Will it seem fair to have executed the man if he was physically incapable of moral judgment? ... If moral judgment can be broken, surely the next step is to fix it." Time, July 11, 1994, p. 64.

26. Holmes et al, p. 67.

27. See my article "Violence: the Sour Cherry in America’s Pie" in EsoTerra #6.

28. Real evil comes into the open only in unusual circumstances or when it finds safety in numbers, e.g., Pol Pot’s genocidal Communists in Cambodia. I have a theory that American fundamentalist Christians are about to show their real face of evil under the mask of patriotism and self-righteousness.

29. One recent study estimates that there are 350 serial killers in America with an average of 10-12 victims per killer. Holmes et al, pp. 20-21. I have seen other estimates ranging from 50 to several thousand active serial killers.

30. See footnote 27.


John Wayne Gacy Jr., born in Chicago in 1942, was beaten and called a "sissy" by his alcoholic father; and suffered a childhood head injury that caused him to have periodic blackouts for years. He was a restaurant manager in Iowa in 1968, when his arrest for sodomizing a young male employee and paying to have a witness beaten for testifying against him led to the breakup of his first marriage. Remarried, he settled in a Chicago suburb and kept his homosexuality secret, narrowly avoiding a 1971 sodomy rape charge when the victim failed to show in court. Gacy was a community activist, a successful independent contractor, a leader in the Junior Chamber of Commerce, and Jaycee-elected 'Man of the Year." He entertained hospitalized children as Pogo the Clown.

Gacy began to torture and kill in 1972. His victims, all male, ranged in age from nine to 27. Many were lured by promises of construction jobs, offered liquor and, once drunk, were tied to a chair and chloroformed. Each was violated, and those Gacy killed were usually buried in the crawlspace beneath his home. In 1978 Gacy's wife left him, in 1977 one victim survived and reported Gacy to police, but they were slow to act and only charged him with a misdemeanor. In late 1978, the mother of a missing man told police her son had phoned to tell her he'd been offered a job by Gacy. investigators found 28 bodies in the crawlspace and five more corpses in a local river. Survivors then came forth to identify Gacy. In 1988, Gacy was sentenced to 21 life imprisonments and 12 death sentences. Alternately denying his guilt and attributing his crimes to childhood atrocities, he paints clown portraits in jail.

FBI - Freedom of Information Act: John Wayne Gacy

(17 pages) John Wayne Gacy was arrested for murder in 1979. FBI documents reflect cooperation with local authorities and Gacy's identification record or "rap sheet."

Suburban Chicago News

"Gacy Killed Dozens, and Maybe Was Good for More Than 33," by Terry H. Burns.

Chicago -- Serial killer John Wayne Gacy was convicted of systematically murdering 33 young men and boys from the early to late 1970's. No one in this country ever has been convicted of killing so many people. Is it beyond reason to believe that America's most horrific killer might has murdered other? "I personally believe he killed a lot more than 33 people," said Joseph Kozenczak, a former Des Plaines police detective who headed the Gacy investigation. "I thin there are other victims out there, but we might never know," he added.

Part of the problem is that Gacy at first admitted to his role in the killings, but since has denied his part in all but one. The killing, Gacy told authorities, involved a boy he picked up at a bus station and murdered after the teen-ager come after him with a kitchen knife. That boy was one of 27 later found buried in the crawl space under Gacy's Norwood Park Township home near Des Plaines, IL. "I think there are missing kids out there, and no one has ever tried to link them to Gacy," said Terry Sullivan, one of several former Gacy prosecutors.

Even 14 years after the fact, Sullivan admits that the most frustrating aspects of the case are its "enormity" and "probably never knowing whether there were any more victims out there." "There's a real possibility there are," he added. Others are reluctant to link Gacy to other murders. "I don't think it would fit his pattern," said Steven Egger, professor of criminal justice at Sangamon State University and an expert on serial killers. "He started killing when he got to Chicago because he had a base and a comfort zone, his home," Egger said. Although he insists that Gacy's killings were confined to the Chicago area, Egger admits that it's not "beyond the realm of possibility" that other victims exist. Other officials contend that more victims might exist because Gacy lived and worked in various cities across the country before settling down in the Chicago suburbs.

Gacy not only lived in Iowa -- where he served a prison sentence for sodomy -- but spent a brief time in Springfield and several East Coast cities. "Serial killers always travel a lot, and I can't see where Gacy would be the exception," Kozenczak added. Especially intriguing to prosecutors and investigators was a large United States map discovered in a room that Gacy used as an office in his suburban home.

The map was littered with colored pins showing the towns were Gacy had lived or worked through the years. "There were pins all over the place," recalled Robert Ressler, former head of the FBI's Violent Criminal Apprehension Program and an expert on serial killers. Although Ressler said that, during his conversations with Gacy, the accused killer has denied any link between the map and other killings, "I think Gacy's good for more than 33."

Suburban Chicago News

"Gacy meets death at midnight; Execution: Unless last-minute appeals succeed, the killer of 33 will meet a drug-induced death," by Terry H. Burns

Joliet -- Time is quickly running out for convicted serial killer John Wayne Gacy. Instead of measuring his life in terms of weeks or years, the 52-year-old Gacy has only a matter of hours. Unless last-minute appeals forestall the inevitable, the former building contractor who killed 33 young men and boys has a date with the executioner. In addition, the tile walls have been covered with reinforced steel plating "to prevent any escape," said Nic Howell, an Illinois Department of Corrections spokesman. Gacy will be watched around the clock by a correctional officer sitting at a desk directly across from his cell. From inside his cell, Gacy should be able to see a small enclosed courtyard that at one time was used as a basketball court by death row inmates. "It all depends on his attitude, but he will be allowed (into the courtyard) for some fresh air. We'll be as cooperative as we can," Howell said.

Gacy's last day - On his final day, Gacy will be allowed the customary visits from family and friends and, of course, his last meal. At about 9 p.m., any family or friends will be asked to leave, but Gacy can spend the next few hours with a minister "if that's what he chooses," Howell added. At about 11 p.m., the final preparations begin, and Gacy will be offered a sedative, something Walker refused. Then, at exactly 12:01 a.m., the serial killer will be taken from his cell, strapped onto a gurney and given an intravenous saline solution in his arm. Ironically, one of the last things Gacy will see as he's wheeled into the death chamber is an exit sign hanging over the door. Once in the chamber, the saline tube is removed and replaced by an intravenous line running to the drug-filled syringes in the "delivery module" attached to the wall.

Although corrections officials contend that they "have a handle" on carrying out the procedure, Gacy's attorneys say the lethal-injection machine in prone to malfunction. As part of their appeal, attorney John Greenlees said state prison officials botched the 1990 Walker execution when an intravenous line carrying the deadly chemicals developed a kink. Instead of dying quickly and painlessly, "it appears highly likely that Mr. Walker was literally tortured to death," he said. Prison officials dispute that charge. "I was there, and 27 or 28 others were in the room, and nobody said boo about anything going wrong," Howell said. "Obviously, the system worked, because Charles (Walker) is no longer with us," he added.

The execution - As for Gacy, once his arms are cuffed at the wrists, and restraints fastened around his waist and upper chest, a white sheet will be placed over him to cover everything but his head. The two executioners -- chosen by corrections Director Howard Peters III -- stand behind a one-way mirror just above Gacy's head. From behind the glass, the execution team can see Gacy's feet, but not his face. At a few minutes after midnight, Warden Sal Godinez will give Gacy a chance to say any last words, and then signal the executioners to simultaneously push buttons on a small machine that starts the flow of lethal drugs. Although there are two executioners, the machine randomly selects the one who actually triggers the drugs.

Three drugs will be administered in 30-second to one-minute intervals -- sodium pentathol, an anesthetic; pancuronium bromide, to paralyze the respiratory system; and potassium chloride, to stop the heart. If all goes as planned, Gacy should be pronounced dead within 10 to 15 minutes.

The Wacky World of Murder

JOHN WAYNE GACY - BORN : March, 1942 - VICTIMS : 33

I'm sure that you all know what Gacy did, if not then here's a brief summary: Gacy was a hypocondriac - in childhood he was hit in the head with a swing, and had a blood-clot on the brain, once this was removed he seemed to just invent any illness so people would pay attention. This little habit never seemed to leave him in later life. (He seemed to develop a heart problem anytime he was in danger)

He graduated business college and went on to marry into a wealthy family, taking over the management of the families chicken restaurant. John became a well known and liked member of the community, and his arrest in 1968, on a charge of attempting to coerce a male employee into homosexual acts came as a big suprise to everyone, especially his wife. Gacy didn't really want to go to trial so he paid for the young male to be beaten. All this did was cause more trouble and he had more charges laid against him. In the end Gacy pled guilty to sodomy and recieved 10 years in prison. Since he was such a model prisoner he was paroled in only eighteen months. Needless to say his wife divorced him while he was inside.

Gacy moved to Chicago where he set up as a building contractor. Once again he turned out to be a great success at his chosen profession. Gacy remarried and moved into a very upmarket neighborhood. He became active in politics, working for the Democrats (he even had his picture taken with First Lady Rosalyn Carter), and also performed for sick children as 'Pogo the Clown'.

Gacy ran into trouble with the police again in February, 1971 when he was charged with the attempted rape of a young man. This charge was dropped as the victim never appeared in court at Gacy's hearing and the charges were dropped. On October 18, 1971, Gacy had his probation officially discharged. Less than three months later Gacy killed for the first time. Gacy picked up the unidentified young man at a bus terminal and took him for a drive he would never return from. What Gacy did to his victims has never actually been clear, but it is known they were tortured rather violently, usually raped repeatedly, then shown the 'rope trick'. The 'rope trick' was strangulation. Gacy went on killing young men almost at will for seven years, burying them in the crawlspace under his house. Gacy made up a story about sewer problems as the smell from the crawl space began to get worse, and it seems everyone believed him The beginning of the end came for Gacy's on December 12, 1978. He picked up Robert Piest at a pharmacy where Piest worked. Gacy fed him a line about a better job and Piest fell for it, accompanying Gacy back to his house. The next time anyone would see Piest he was a bloated corpse.

As Gacy was the last person seen with Piest police decided to check him out, and as he had previous arrests for shagging young men, he made a great suspect. The police went to interview Gacy at his house and with the stench of 28 corpse wafting up into the house it didn't take to long for them to realize what was under the house, but they had no way of getting down there to check. Once the police had decided Gacy was there man they basically hassled the poor bastard into screwing up, and once they had the evidence they needed Gacy was arrested.

John made a full confession, admitting there were 28 bodies under his house and garage and that he had dumped another five in a local river. After arrest Gacy tried feigning insanity, pretending he had another personality, Jack, who did all the evil shit. Then, once Jack failed, he tried to say he was forced into a confession and, in fact, it was a conspiracy by three other people who did all the killing and then set him up. POOR BABY.

While in prison Gacy did hundreds of paintings that were bought by everyone from Hollywood stars to the average guy. It became something of a trend to own one. Gacy was executed on May 10, 1994, by leathal injection.

Illinois Death Penalty.Com

John Wayne Gacy, 51, was executed by lethal injection at Stateville penitentiary on May 10, 1994, a little more than 14 years after he was found guilty of murdering 33 boys and young men. The bodies of most of the victims were unearthed in the crawl space under Gacy's brick bungalow in an unincorporated area known as Norwood Park northwest of Chicago. Gacy, a self-employed contractor, had moved to Norwood Park in 1971 when he was paroled after serving 3 years of a 10-year sentence in Iowa for sodomy of a male teenager.

On December 11, 1978, a 15-year-old Des Plaines high school sophomore, Robert Piest, disappeared shortly after leaving work at a pharmacy where Gacy had recently completed a remodeling job. The youth's mother had come to drive him home, but he asked her to wait a few minutes while he went to talk to a man about a job. The boy did not return. When routine checking of Gacy's background turned up his Iowa criminal record, Des Plaines police put him under surveillance. After additional investigation revealed that two teenage employees of Gacy, Gregory Godzik and John Butkovich, also had recently disappeared, the police obtained a search warrant for Gacy's home. A roll of film was seized in the ensuing search, and it was soon determined that it belonged to the Piest boy.

At this point, the Cook County Sheriff's Police obtained a second search warrant. When they executed it the night of December 21, they found three lime-covered bodies in the crawl space. According to Cook County Sheriff Richard J. Elrod, Gacy pointed officers to the precise locations of certain bodies in the crawl space and stated that he had lured the victims to his home, either expressly for sex or through the promise of employment, and then strangled them. On December 22, the day after the first bodies were discovered, Gacy was charged with the Piest murder. In the days that followed, 28 additional bodies were exhumed from the crawl space and Piest's body was found in a river where Gacy had dumped it. Eventually, Gacy was charged with and convicted of all 33 murders. Cook County Circuit Court Judge Louis B. Garippo sentenced Gacy to death for 12 of those murders and to natural life in prison for the others. Gacy also found guilty of one count of deviate sexual assault and one count of indecent liberties with a child.

Gacy's execution followed by four years the execution of Charles Walker, who had abandoned his appeals and became first person to be executed in Illinois after the U.S. Supreme Court allowed capital punishment to be resumed in 1976 after a 4-year hiatus (Gregg v. Georgia, 428 U.S. 153). Gacy was the first to be involuntarily executed.

Nieder v. Gacy, 121 Ill.App.3d 854, 460 N.E.2d 342 (Ill.App. 1 Dist. 1984)

Mother, individually and as special administrator of son's estate, brought wrongful death action against alleged killer, city, Iowa State Board of Parole and others. The Circuit Court, Arthur A. Sullivan, J., entered default judgment against alleged killer but dismissed other defendants, and plaintiff appealed. The Appellate Court, McNamara, J., held that: (1) specific police immunity statutory provisions prevailed over general immunity provisions relating to any public employee enforcing any law, and thus action was barred against city for actions of its police officers in absence of allegation of special duty owed to deceased son individually, and (2) where son was killed seven years after Iowa Parole Board's release of alleged killer to Illinois and five years after parole period expired, son's death was too remote a consequence of Parole Board's actions to permit jurisdiction over Board to be obtained on basis of commission of tortious act in Illinois. Affirmed.

People v. Gacy, 103 Ill.2d 1, 468 N.E.2d 1171 (Ill.App. 1 Dist. 1984). (Direct Appeal)

Defendant was convicted in the Circuit Court, Cook County, Louis Garippo, J., on 33 counts of murder, one count of deviate sexual assault and one count of indecent liberties with a child, and he appealed. The Supreme Court, Goldenhersh, J., held that: (1) admission of defendant's confession to 33 murders did not constitute plain error where nothing in record supported defendant's contention that his confessions were not the product of a free and rational mind; (2) trial court did not err in refusing to allow funds for a publicity survey and a publicity analysis; (3) evidence supported verdict finding that defendant was sane at time of the offenses; and (4) in light of the 33 homosexually related murders and numerous other incidents of sexual torture and physical abuse, jury was not required to determine that whatever emotional disturbance defendant suffered precluded sentence of death. Affirmed. Simon, J., filed separate opinion concurring in part and dissenting in part.


In indictments returned in the circuit court of Cook County, defendant, John Wayne Gacy, was charged with 33 counts of murder, one count of deviate sexual assault, one count of indecent liberties with a child, and one count of aggravated kidnapping. The circuit court allowed defendant's motion that one trial be held on all pending indictments. Following a jury trial during which the charge of aggravated kidnaping was dismissed, defendant was found guilty on all of the other counts. In a hearing requested by the People concerning the 12 murders committed subsequent to the enactment of the death penalty provision of section 9-1 of the Criminal Code of 1961 (Ill.Rev.Stat.1979, ch. 38, par. 9-1), the jury found that one or more of the factors set forth in section 9-1(d) existed, and found that there were no mitigating factors sufficient to preclude a sentence of death. Defendant was sentenced to death on 12 counts of murder and to terms of natural life on each of the remaining murder counts. The sentences were stayed (87 Ill.2d R. 609(a)) pending appeal to this court (Ill. Const.1970, art. VI, sec. 4(b); 87 Ill.2d R. 603).

The testimony shows that on the evening of December 11, 1978, Robert Piest, a 15-year-old boy, worked at the Nisson Pharmacy in Des Plaines. His mother had driven to the pharmacy to pick him up after work and he told her that he was going to see a building contractor about a summer job and would be back in a few minutes. He was never again seen alive. Defendant was a building contractor and had spent much of the evening in the Nisson Pharmacy. At about the time Piest disappeared, defendant's truck was seen outside the pharmacy. The Des Plaines police department suspected that defendant was involved in Piest's disappearance. The police learned that he had a record of sexually assaulting young men and had been convicted in Iowa for an assault on a teenage boy. A more detailed review of the facts surrounding the investigation and the issuance and execution of several search warrants will be set forth in the discussion of the issues.

In the course of the investigation defendant admitted that he had killed approximately 30 individuals, some buried in the crawl space under his home and five thrown into the Des Plaines River. Excavation of the crawl space and the area surrounding defendant's home recovered 29 bodies. In addition, four bodies were recovered from the Des Plaines and Illinois rivers, downstream from the place where defendant had told the police that he threw the bodies.

Defendant contends first that the circuit court erred in denying his motion to suppress the evidence seized as the result of the search warrant issued on December 13, 1978, and argues that both the complaint for the search warrant and the search warrant itself were defective. The complaint stated:

“I, Joseph Kozenczak, Detective Lt. with the Des Plaines Police Dept. received information on Dec. 11, 1978 concerning the missing persons case report on Robert J. Piest M/W 15 DOB: March 1963 5'8, 140 lbs, brown hair and a slim build. During the course of my police investigation the following information was revealed, that Piest was last seen at 1920 Touhy Ave. in Des Plaines in Nisson Drugs where he works by Kim Byers a fellow employee. Byers stated that Piest approached her and said, ‘Come watch the register; that contractor guy wants to talk to me, I'll be right back.’ At which time Piest went outside of the store to meet with John W. Gacy. Mrs. Elizabeth Piest, the missing boy's mother was also in the store at this time and was waiting to pick her son up from work. Prior to leaving the store her son requested that she wait a few minutes while he spoke to a subject about a Summer construction job. Mrs. Piest waited over twenty minutes in the store and then began looking for her son. Robert Piest left the store at approximately 2100 hrs. and has not been seen or heard from since.

On the date in question John W. Gacy was observed in the store at 1920 Touhy Ave. on two different occasions. Once at 6:00 P.M. and a second time at 8:00 P.M. at which time he stayed in the store until 8:50 P.M. which was the approximate time that the missing person Robert J. Piest disappeared from the store location. During the course of my investigation it was found that John W. Gacy is in fact a contractor and owner of same, which is under the name of PDM Construction Company, located at 8213 W. Summerdale, Norridge, Ill. which is his residence.

A one story ranch type house, brick structure with semi-circle drive in front and a driveway on the east side of the building. The property also contains an oversize brick garage in the rear of the property. Also included is a Black Van truck with ‘PDM’ painted on it along with a black pickup truck with ‘PDM’ on its side, also, a black 1979 Oldsmobile Illinois Lic. # PDM42, Vin: 3N69R9X105706.

During the course of my investigation, I learned that John W. Gacy was arrested and convicted in Waterloo, Iowa in 1968 for Sodomy and sentenced to 10 yrs. in prison. The Sodomy arrest involved 15 and 16 year old youths. In 1968 John W. Gacy was arrested for Conspiracy-Assault with attempt to commit Felony on 15 and 16 year old youths-CD3036939. Subject was also arrested on June 22, 1972 by the Northbrook, Ill. police Dept. Case # 7204499-Aggravated Battery and Reckless Conduct, which was a sex related offense.”

The search warrant recited that probable cause had been established and it directed the police to: “ * * * search John W. Gacy and 8213 W. Summerdale-Norridge, Ill. and the following described vehicles: and seize Light blue down jacket and hood, tan colored Levi Pants-Brown wedge type suede shoes-lace type-Brown leather wallet-Levi T-Shirt, along with hair samples, blood stained clothing and dried blood samples, along with the following three vehicles: 1) Black van truck with ‘PDM’ on side 2) Black pick-up truck with ‘PDM’ on side 3) Black 1979 Oldsmobile Ill. Lic. 1978 ‘PDM 42’ Vin: 3n69R9X105706.”

Defendant argues that the warrant failed to satisfy the “basis of knowledge” test of Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and failed to disclose sufficient facts to establish probable cause. In reviewing the sufficiency of the complaint we are guided by the Supreme Court's statement in Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, “that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, Beck v. Ohio [ (1964), 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142, 147-48]; that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial, McCray v. Illinois [ (1967), 386 U.S. 300, 311, 87 S.Ct. 1056, 1062, 18 L.Ed.2d 62, 70]; that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca [ (1965), 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684, 688]; and that their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States [ (1960), 362 U.S. 257, 270-71, 80 S.Ct. 725, 735-36, 4 L.Ed.2d 697, 708].” (393 U.S. 410, 419, 89 S.Ct. 584, 590-91, 21 L.Ed.2d 637, 645. We are not concerned, as was the court in Aguilar, with the reliability of an unnamed informant because it is readily apparent from the affidavit from whom the hearsay information contained in the complaint was obtained. The judge to whom the complaint is submitted must make a judgment whether probable cause existed, and the information furnished him “must provide the affiant's answer to the magistrate's hypothetical question, ‘What makes you think that the defendant committed the offense charged?’ ” Jaben v. United States (1965), 381 U.S. 214, 224, 85 S.Ct. 1365, 1371, 14 L.Ed.2d 345, 353.

Defendant argues that Lieutenant Kozenczak's statements were conclusional and did not identify the sources of his information or answer basic questions such as “Who stated John W. Gacy was in the store two times? How did he, she or they know it was Gacy? Was this information acquired through firsthand or personal knowledge of the informant?” Defendant argues too that the information presented to the warrant judge did not support a reasonable belief that the crime of unlawful restraint had been committed. Defendant suggests: “At best, it is perhaps unusual or suspicious when a 15-year-old boy does not return to his place of employment after he says he will be right back. * * * Even if Piest's disappearance was suspicious, there is no indication, from the facts cited, that John Gacy had any connection with this disappearance.”

Defendant asserts that there was insufficient information to support a finding of probable cause that evidence of the crime of unlawful restraint might be found in the places designated to be searched.

We agree with the People that the sufficiency of the complaint does not rest on whether each segment is complete in itself but whether the complaint, considered as a whole, adequately establishes that there was “a fair probability that * * evidence of a crime [would] be found in a particular place.” (Illinois v. Gates (1983), 462 U.S. 213, ---, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548, see also People v. Morano (1970), 45 Ill.2d 60, 63, 256 N.E.2d 790.) A common sense reading of the complaint would indicate that Lieutenant Kozenczak received his information from Kim Byers, Robert Piest's fellow employee, and Mrs. Elizabeth Piest, his mother. That the complaint does not set forth in detail how one of these individuals was able to identify John Gacy as the contractor with whom Piest went to speak is not a fatal defect. Furthermore, much of the hearsay information was received, not from an undisclosed professional informant, but from the victim's mother. That the mother of a missing 15-year-old boy would not be likely to supply misinformation to the police searching for her son was a factor appropriately considered by the judge who ordered the warrant to issue.

The assertion that the complaint contained insufficient facts to establish probable cause is without merit. Defendant concedes that it is proper, under certain circumstances, to consider prior arrests and convictions of a suspect in determining whether probable cause exists. (See Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142; United States v. McNally (3d Cir.1973), 473 F.2d 934.) Here, Lieutenant Kozenczak's complaint indicated that he had information concerning the suspect's criminal history and had discovered a significant pattern of sexual misconduct involving young men. Nor do we agree with defendant that it was not indicative that a crime had been committed but only “unusual” or “suspicious” when a 15-year-old boy stated that he was going to speak with the suspect, left his place of employment, and then failed to return.

Defendant next asserts that the complaint was fatally defective in that it failed to state the time when the informants made their observations. Defendant points out that the complaint stated only that Lieutenant Kozenczak had received this information on December 11, 1978, but does not indicate on what date Piest was last seen at the drugstore. Defendant suggests, in his reply brief, that “[m]issing person cases may remain unsolved for weeks, months, or years.” Defendant concludes that “[w]ithout more specific information regarding time, a reasonable person could not have concluded that evidence of the alleged offense was presently on the premises to be searched.” We disagree. A common sense reading of the complaint indicates that Lieutenant Kozenczak received this information while investigating a missing person report at Nisson Pharmacy on December 11, 1978. We conclude that the issuing judge had a substantial basis for concluding that probable cause existed, and we decline to disturb his determination.

Defendant contends next that the warrant failed to describe with particularity the items to be seized. The items to be seized were “Light blue down jacket and hood, tan colored Levi Pants-Brown wedge type suede shoes-lace type-Brown leather wallet-Levi T-Shirt, along with hair samples, blood stained clothing and dried blood samples * * *.” Defendant argues that because there was no indication as to the alleged owner of the clothing or items, no mention of any sizes, styles or manufacturers, and no explanation as to why the items might be evidence of a crime, the warrant authorized a general search.

Defendant points out that the clothing worn by the 140-pound Piest would be different in size than that worn by a 195-pound man. Defendant argues too that no distinguishing characteristics concerning the wallet to be seized were described in the warrant. We do not agree. The warrant described the color, style, and even the type of material used in each article of clothing described. The T-shirt and pants are even described as to the manufacturer-“Levi.” That the wallet could have been described more particularly did not authorize the police to conduct a general search and thus render the warrant fatally defective.

Defendant contends that assuming, arguendo, that the search warrant was valid the scope of the search was so broad as to constitute an impermissible general search. The inventory of the items seized listed 57 objects, only one of which, the blue jacket, was listed in the warrant. Two items, a receipt for film left to be developed at Nisson's drug store and a Maine West High School class ring, are of particular significance. It was learned that the receipt was in Piest's possession when he disappeared and the class ring was owned by John Szyc, who had been reported missing. The police photographed a television set in defendant's home, and it appeared to be similar to one which had been taken from Szyc's apartment.

The People contend that the items seized were in plain view and there was sufficient information in possession of the officers to support their conclusion that the ring and receipt in some manner connected defendant with Piest's disappearance.

We disagree that any improper seizure concerning the television set occurred since the television set was not seized. The taking of a photograph does not amount to seizure, and defendant advances no argument as to why the police acted improperly in photographing the television set. Concerning the Maine West High School ring, the police were aware, as indicated by the information contained in the complaint for search warrant, that Piest lived in Des Plaines, was 15 years of age, and that there was a high probability that he attended this high school. Although the ring did not bear Piest's initials, the police officer conducting the search may not have immediately noticed the initials on the ring, and, in any event, the police were aware, at this time, that defendant could very well be a habitual sex offender and that more than one victim could be involved. The film receipt which was found in a waste basket in defendant's home showed that film had been left for development at Nisson's Pharmacy and would tend to show that he had been in the pharmacy. We find no error in the seizure of the photo-finishing receipt or the high school ring.

A search warrant issued on December 21, 1978, authorized the police to search defendant's home for the remains of the body of Robert Piest. The underlying complaint for the warrant, prepared by Lieutenant Kozenczak, basically reiterated the facts contained in the first complaint for search warrant and stated: “Recovered during that search [pursuant to the December 13th warrant] was a customer receipt # 36119 from a film developing envelope with the name and address of Nisson's Pharmacy stamped on it in ink. Further investigation revealed that this receipt had last been in the possession of Robert Piest, immediately prior to the time he had disappeared.”

The complaint also stated that Officer Robert Schultz had informed Lieutenant Kozenczak that he had been invited into defendant's home by defendant while on the surveillance unit assigned to watch defendant, and that while inside he detected “an odor similar to that of a putrified human body.” Officer Schultz indicated that he had smelled the odor of at least 40 putrified human bodies and that the smell in defendant's home was similar. Defendant's first two arguments concerning this contention assumed the invalidity of the first warrant. Since we have held to the contrary, we need not address these issues. Defendant's third argument concerning this contention is that even assuming the validity of the December 13 search, the underlying complaint for the December 21 search warrant failed to satisfy the two-prong test of Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

Defendant makes two contentions concerning the showing of probable cause in the complaint for the search warrant. First, defendant notes that the complaint does not explain the basis for Lieutenant Kozenczak's conclusion that the photo-finishing receipt was on Robert Piest's person at the time of his abduction. The testimony at the hearing on the motion to suppress showed that Des Plaines police officers had spoken with Kim Byers and that she had said that she was wearing Robert Piest's jacket when she filled out the photo-finishing envelope, ripped off the receipt, and placed it in the jacket pocket. She later returned the jacket to Piest, who put the jacket on before leaving the store. Defendant asserts that, because this information was not contained in the complaint, this court may not make reference to this information in determining whether the complaint established probable cause. Defendant also complains that Officer Schultz did not promptly notify Lieutenant Kozenczak about the smell of decaying flesh and this casts doubt on the veracity of Officer Schultz' conclusion.

We find that the complaint, when viewed as a whole, is sufficient, and the circuit court correctly refused to suppress the evidence seized as the result of the warrant's execution. We agree with defendant that evidence adduced at the suppression hearing may not be used to bolster the sufficiency of the complaint for warrant. We do not agree, however, that the fact that Officer Schultz waited some 40 hours before telling Lieutenant Kozenczak of the odor he detected while in defendant's home automatically invalidated the probative value of this evidence. The 40-hour delay in bringing this information to Lieutenant Kozenczak goes to the issue of the credibility of Officer Schultz, an issue for resolution by the circuit court, and not this court on review. We hold that the evidence of the smell of decaying flesh in defendant's home, discovery of a film receipt purportedly on the victim's person at the time he disappeared, and the reiterated facts contained in the first warrant, taken together, provide a sufficient basis for the circuit court to refuse to suppress the evidence seized as a result of the execution of that warrant.

Defendant argues that the evidence obtained as a result of the searches executed pursuant to the final three warrants must be suppressed as fruits of the prior illegal searches. Because we have already determined that the prior searches were not illegal, this argument must fail.

Defendant next contends that two days before his arrest he asked a police officer, in the event of his arrest, to inform his attorney, and that the police officer's failure to communicate with defendant's attorney before questioning him violated his fifth and fourteenth amendment right to have counsel present at his interrogation. Defendant also contends that his first confession was not the product of a rational mind or a free will, and that his second confession and all statements subsequently made were the product of “ineffective advice” from his attorney to confess. Although no objections were made at trial to the admission of these confessions, defendant argues that the plain error rule should be invoked or, alternatively, that the failure to object is evidence of the incompetency of counsel.

Criteria for determining whether the doctrine of plain error should be invoked have been enunciated by this court, i.e., whether the evidence is closely balanced, or if the error is of such a magnitude that the accused is denied a fair and impartial trial. (People v. Szabo (1983), 94 Ill.2d 327, 355, 68 Ill.Dec. 935, 447 N.E.2d 193.) We find here no reason to invoke the plain error doctrine. Defendant's supposed invocation of his right to counsel when talking to Officer Hackmeister was apparently no more than a request that the officer contact defendant's attorney when he was finally arrested, because defendant had received money from out of State to be used to post his bond. The record shows that defendant was in continuous contact with his attorneys during the days prior to his arrest and that on the night before his arrest he had told his attorneys that he was responsible for 33 murders. Defendant was read his rights and had read and signed a waiver form given him by the Des Plaines police department. Nothing in the record supports defendant's contention that his confessions were not the product of a free and rational mind, and, moreover, failure to assert his objection at trial precluded the circuit court from making a record on this point so that this court could properly review such a contention. Nothing in the record supports defendant's contention that trial counsel encouraged him to confess, but even if defendant's attorneys had done so the night before he was arrested, such a decision on their part could easily be viewed as a legitimate defense tactic. Justice Jackson's observation that “any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances” (Watts v. Indiana (1949), 338 U.S. 49, 59, 69 S.Ct. 1347, 1358, 93 L.Ed. 1801, 1809) is inapplicable to this situation. If defendant had revealed to his attorneys any details whatsoever concerning the 33 murders, defendant's attorneys were aware that some 27 or so bodies were buried in the crawl space and in other parts of defendant's home and that the police were on the verge of uncovering these bodies. Moreover, defendant's attorneys would have been aware that the Des Plaines police had positively linked defendant to Robert Piest's disappearance and that further links between defendant's young former employees and their disappearances would be discovered. Under these circumstances it does not indicate incompetence on the part of defendant's attorneys that they concluded that an assertion of innocence would border on the ridiculous and that confessions might bolster a possible insanity defense. The fact that even the earlier newspaper accounts suggest that defendant had a significant mental disturbance supports the assertion that defendant's attorneys could have immediately concluded that an insanity defense would be the most realistic defense in this case. In light of defense counsel's able representation of defendant throughout the trial proceedings, we reject the contention, made by appellate counsel, that trial counsel “abandoned [defendant] and rendered ineffective assistance of counsel * * *.”

Concerning the manner of selecting the jury at his trial, defendant contends that the court's questioning during voir dire was insufficient; that the jurors should have been sequestered during the time between their selection and the beginning of the trial; and that the voir dire should not have been conducted in open court. Defendant contends too that his counsel and the counsel for the prosecution should have been permitted to directly interrogate the prospective jurors instead of being required to rely upon the court's questioning; that he should have been permitted peremptory challenges in addition to the 20 permitted by statute; and that the court's questioning of the prospective jurors concerning their attitudes toward the death penalty produced a biased jury.

Defendant contends that the court's questioning was inadequate because it did not sufficiently explore the prospective jurors' exposure to news accounts of the case. Defendant cites a number of instances which he asserts show that questioning on this topic was insufficient. As pointed out by the People, however, the circuit court announced at the outset of the questioning that counsel, if they felt it was necessary, would be permitted to request more questions on specific topics during questioning of a prospective juror. Defendant has listed only one instance where his request for additional specific questions on exposure to news accounts was denied. In that instance, defendant requested that the court ask a prospective juror “what he remembers out of the newspapers * * * what he remembers specifically out of the newspapers and radio.” We find that while the court might properly have made such an inquiry, it was not required to do so because the court questioned the prospective juror sufficiently as to the sources from which he had learned of the case, and whether he had formed an opinion from these sources and from persons who may have expressed opinions about the case. The prospective juror stated that from what he had heard and seen he did not come to the conclusion that defendant had committed the offenses in question. On these facts, in view of the discretion vested in the circuit court in the examination of jurors, we find no reversible error. (People v. Moretti (1955), 6 Ill.2d 494, 532, 129 N.E.2d 709.) It should be noted that in each of the other references to the record that defendant contends show insufficient questioning on this matter, defendant was given an opportunity to suggest further questions when the court had completed its interrogation, and failed to do so. Defendant did suggest questions on other subjects for the court to ask, and these were generally pursued. In certain of the instances cited by defendant, further questioning was unnecessary because those jurors were excused for cause.

Defendant's next disagreement with the court's questioning concerns the prospective jurors' opinions as to defendant's guilt. The record shows that defendant was given the opportunity to request that the court ask specific questions as to the prospective jurors' opinions of the guilt of defendant. Defendant complains of the questioning of Mrs. Loudenback, a prospective juror, but the record shows that after she was questioned by the court, the court inquired if there were further questions and defense counsel replied that he had “no more questions.” In other instances cited by defendant, no error was committed because counsel was given the opportunity to suggest additional questions concerning the potential jurors' opinions as to defendant's guilt and failed to do so, or the juror was excused for cause.

Defendant's next objection to the circuit court's questioning of prospective jurors concerns the insanity defense. Defendant complains of the colloquy between the judge and the first prospective juror. The record shows that when defense counsel protested the inadequacy of the questioning the court asked a number of additional questions. Defendant challenged the juror for cause on the ground that he had a preconceived predetermined opinion on the question of defendant's insanity but counsel proposed no additional questions to be asked of the juror. Simply stated, defendant's complaint concerning the questioning of the panel is that it was done “in such a way as to hide the jurors' biases rather than reveal them.” The purpose of the circuit court's questioning was to enable the attorneys to exercise their peremptory challenges intelligently, and to determine whether a juror should be excused for cause. The record shows that the circuit court's questioning of this prospective juror was sufficient to fulfill both these purposes. We have reviewed the other portions of the record cited by defendant in support of his argument that the circuit court's questioning was insufficient. In most of these cited instances, defense counsel did not suggest additional questions to be asked of the prospective jurors. In certain instances, where defense counsel asked the court to question the prospective jurors further on the insanity defense, the court did so. On this record, defendant cannot complain that the questioning was insufficient to permit him to challenge jurors for cause or to exercise his peremptory challenges.

Defendant contends next that the circuit court did not adequately question the prospective jurors concerning their attitude toward homosexuality. Our review of the instances cited by defendant shows that with every prospective juror defendant had the opportunity to tender specific questions and failed to do so. In the example cited by defendant, counsel did not tender a specific question, but asked the circuit court to inquire generally about the prospective juror's feelings toward homosexuality. Under the circumstances the court's refusal to do so was within its discretion.

Defendant's next disagreement with the manner in which the voir dire was conducted concerns the court's questioning on the prospective jurors' attitudes toward the death penalty. Defendant complains that the questions concerning the death penalty, as they were reframed after the interrogation of the first 15 jurors, made it much less likely that a prospective juror would reveal that he strongly favored the imposition of the death penalty. While we agree that the questions asked of the later jurors allowed for shorter responses, we do not find in the record any questions tendered by defense counsel that might have elicited a more thorough response. In the first example of the revised questioning used by the circuit court of which defendant now complains, when the voir dire of this juror was completed, defense counsel was asked if he had any further questions and responded that he did not. In the other instance cited by defendant, the prospective juror was excused for cause, so no error could have been committed in his questioning. Therefore, we hold that defendant waived his opportunity to discover more about the prospective jurors' attitudes about the death penalty by failing to tender additional questions during the voir dire. We also note that no questions concerning the death penalty appear in defense counsel's list of questions submitted to the circuit court prior to voir dire.

Defendant next complains that the circuit court failed to inquire further of prospective jurors who mentioned that other jurors had been discussing the case. The record reveals, however, that defense counsel only requested that the court ask the prospective jurors what they knew of other jurors' opinions about the case. The circuit court's response was that the prospective jurors themselves would reveal their own opinions during voir dire. We cannot say that the circuit court abused its discretion by proceeding in this manner. The court was under no obligation to question the prospective jurors further upon hearing that they had merely heard other prospective jurors discussing the case. The cases cited by defendant in this regard are distinguishable. In People v. Cravens (1941), 375 Ill. 495, 31 N.E.2d 938, the trial court was given information after a trial that one of the jurors, who had become foreman of the jury, knew the defendant previously and had already concluded that he was guilty. During the voir dire of that trial, this same juror stated that he knew nothing about the defendant and had not expressed any opinion as to his guilt or innocence. On those facts, the defendant was granted a new trial. It is not contended here that any of the prospective jurors deceived the court, but only that more information should have been obtained concerning their opinions of the case. As previously noted, defendant was permitted to propose additional questions if he believed the voir dire insufficient, but has cited no instance where specific questions were proposed and rejected by the court. In People v. Peterson (1973), 15 Ill.App.3d 110, 303 N.E.2d 514, cited by defendant, the circuit court received information just before trial that one of the jurors had expressed her opinion that the defendant should plead guilty so that the jurors could go home. Defendant has cited no instance of failure to excuse for cause a prospective juror with a preconceived opinion but contends that the circuit court did not question the prospective jurors sufficiently to discover such opinions. Defendant's failure to suggest specific questions to be asked of prospective jurors to elicit such preconceived opinions leaves us with nothing to review.

Defendant contends next that the failure to sequester the jury between the time of their selection and the beginning of trial denied him his right to a fair and impartial jury. Defendant complains that this procedure allowed the jurors to be exposed to media coverage of the case, and to discuss the case with their family members and friends. The People correctly point out that defendant neither moved to sequester the jury over this time, nor later asked for a mistrial, nor was it shown that any prejudicial media coverage occurred during the time in question. We also note that immediate sequestration would have placed a great burden on the jurors, who may have been able to use the week to organize their personal affairs before leaving town for a lengthy trial. As noted by the People, placing a greater burden on the jurors may have angered them, and the defendant might well have been the most likely target for their anger. (See United States v. Haldeman (D.C.Cir.1976), 559 F.2d 31, 85.) For this reason, defense counsel may have decided as a tactical matter not to ask that the jury be sequestered before trial.

Defendant contends next that the extensive publicity surrounding his trial made it imperative that the voir dire be closed to the public. Defendant argues that the extensive publicity caused many prospective jurors to be hesitant to answer questions completely and truthfully. Defendant also contends that the news media, permitted to attend the voir dire, could reveal the questions leading to excusal of jurors, thus enabling prospective jurors to learn of these questions and formulate answers which would either avoid or require their own excusal. We note first that defendant did not request the public be excluded from voir dire proceedings until after a number of jurors had already been questioned. When defendant did ask that the remainder of the voir dire be closed to the public, he did so only on the bare assertion that prospective jurors were not being fully candid. The Supreme Court has held that the press and general public have a constitutional right of access to criminal trials. (Globe Newspaper Co. v. Superior Court (1982), 457 U.S. 596, 603, 102 S.Ct. 2613, 2618, 73 L.Ed.2d 248, 255; Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 558-81, 100 S.Ct. 2814, 2818-30, 65 L.Ed.2d 973, 978-92 (plurality opinion).) This right is not without limits (see Press-Enterprise Co. v. Superior Court (1984), 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629, and defendant has not shown a sufficient basis upon which to invoke a limitation to that right. While it is true that prospective jurors may be reluctant to discuss their attitudes towards homosexuality, or prior dealings with the criminal justice system, this danger may exist in any voir dire, and the presence of the news media was not reason enough to close the proceedings to the public. While the sixth amendment guarantees the accused a right to a public trial, it does not give a right to a private trial. (Gannett Co. v. DePasquale (1979), 443 U.S. 368, 382, 99 S.Ct. 2898, 2907, 61 L.Ed.2d 608, 623.) To close the proceedings to the public requires a more compelling reason than was shown to exist here. Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 580-81, 100 S.Ct. 2814, 2828-30, 65 L.Ed.2d 973, 991-92.

Defendant contends next that the circuit court's refusal to permit the attorneys to ask questions during voir dire denied him due process of law and the right to a fair and impartial jury. Our Rule 234 states that “[t]he court shall conduct the voir dire examination of prospective jurors.” (87 Ill.2d R. 234.) In People v. Jackson (1977), 69 Ill.2d 252, 260, 13 Ill.Dec. 667, 371 N.E.2d 602, we held that while a defendant has a right to trial by an impartial jury, that right does not require that the parties themselves be permitted to interrogate the jurors. Defendant cites Silverthorne v. United States (9th Cir.1968), 400 F.2d 627, in support of his contention that, when a case has received extensive pretrial publicity, the attorney should be permitted to interrogate the jurors. Silverthorne is distinguishable, however, since the trial court in that case failed to discuss the publicity issue individually with a number of the prospective jurors, and undertook little or no questioning of the jurors as to what they had heard or seen about the case. Here, the circuit court interrogated each juror individually as to the publicity issue, and asked detailed questions concerning the jurors' sources of information. The circuit court also permitted the attorneys to suggest additional questions when they felt the court's questioning was inadequate. In many instances, defendant had no other questions to ask of the jurors. Thus, on these facts we cannot say that the court abused its discretion by choosing to personally interrogate the jurors.

Defendant also complains that he should have been permitted more than the 20 peremptory challenges allowed by statute. We note first that defendant did not exhaust the peremptory challenges that he was given. (Ill.Rev.Stat.1977, ch. 38, par. 115-4(e).) The only case cited by defendant in his brief in support of his contention is People v. Speck (1968), 41 Ill.2d 177, 242 N.E.2d 208. That case is inapplicable, however, since the parties in that case agreed to give each side a higher number of peremptory challenges than allowed by statute. There was no error in limiting defendant to 20 peremptory challenges.

Defendant next complains that the examination of the prospective jurors on their attitudes toward the death penalty resulted in the selection of a jury which failed to represent a fair cross-section of the community and which was biased in favor of the prosecution. Defendant admits that his argument on this point was rejected by this court in People v. Lewis (1981), 88 Ill.2d 129, 146-47, 58 Ill.Dec. 895, 430 N.E.2d 1346, and in People v. Carlson (1980), 79 Ill.2d 564, 585-87, 38 Ill.Dec. 809, 404 N.E.2d 233. Having previously considered and rejected defendant's arguments, we decline to reconsider them here.

Defendant contends that because of the circuit court's refusal to provide funds for a publicity survey and a publicity analysis he was denied the right to a fair trial and the effective assistance of counsel. Before trial, defendant sought a change of venue and then moved for the appointment of a market research firm “to conduct a valid statistical survey both within and outside of Cook County to determine the effect of pretrial publicity on the temperament of those members of the community or communities who are potential veniremen for this cause.” The circuit court told defense counsel that in order for the court to properly evaluate the motion, counsel needed a letter from the research firm explaining what the firm proposed to analyze and how such an analysis would be conducted. Defense counsel filed an amended supplemental motion with a “proposal for venue survey” as an appendix. The proposal was submitted by the National Jury Project and explained in detail the purpose of the survey and the manner in which it was to be conducted. In addition to determining the extent of exposure of potential jurors to news media coverage, the National Jury Project proposed to obtain information concerning “collateral prejudices” such as the potential jurors' attitudes on the issues of sexual preference, deviant behavior, and the “impaired mental state defense.” The cost of the venue evaluation was estimated at approximately $38,000, although confining the survey to a limited number of counties and applying other cost-cutting measures could have reduced the budget. The supplemental motion was denied.

A publicity survey was performed by Editec, Inc. In addition, materials were submitted by the Chicago Sun-Times, the Chicago Tribune, Paddock Publications, and publishers from Winnebago, Champaign, Sangamon, and Peoria counties. Dr. Richard Ney, a psychologist, was called to interpret the data contained in the survey and the material gathered from the press and electronic media. Dr. Ney explained that there were a number of factors that should be considered in analyzing the effect which publicity has on a particular geographical location. The first factor was sheer volume. The more articles and news reports disseminated in a particular location, the more likely that area's inhabitants would recall the event.

Dr. Ney explained that the second factor to be analyzed in determining the impact of media coverage is the emotional impact created by certain types of articles. Six types of articles generate strong emotional responses. First, articles which made reference to “homosexuality” elicited emotional responses. Second, pairing homosexuality with the term “mass murderer” had a strong emotional impact because it combined the number of deaths with the “topic of death.” The two Chicago newspapers carried many of these first two types of articles when the story first broke, but discontinued them a week to a month later. Third, “human interest” stories focused on an individual's involvement in the case rather than the actual facts of the case. Human interest stories were particularly prevalent in the Chicago area, but not in the outlying counties. Fourth, certain articles compared defendant to other notorious mass murderers. These articles were labeled “guilt by association” articles. Fifth, articles labeled “quasi-legal” articles spoke of how a defendant could “beat the rap” by using the insanity defense to avoid criminal responsibility. While such articles purportedly dealt with legal issues, they were loaded with emotional terms and tended to bias the reader towards the view point of the writer. Sixth, articles labeled “local interest” articles described the particular impact defendant's case would have on the people of Cook County, such as the cost of trying him and providing for his defense. Dr. Ney explained that in all these categories, there was “more of this type of emotionally impacting material” in Cook County than in any of the other outlying counties. Dr. Ney explained that people in other counties would know about the case, but that there would be a difference in the type of material by which they received the information concerning defendant's crimes.

Another factor to be considered was reports of statements made by public officials. Statements made by public officials carried more weight because readers recognized the status associated with that public official's office. The fourth factor to be considered was the use of headlines. The larger the headline, the more important a reader would believe the information contained in the article was. Also, the type of material contained in the headline would have a significant impact on the reader. For example, instead of stating “33 boys slain” in a headline, the Cook County news media would use a day-by-day “body count,” such as “bodies of 3 teens found, 29 more are feared slain.” Again, in both these areas the impact in Cook County was much greater than in the other counties of the State.

Dr. Ney identified four principles which could be used to gauge the effect these factors had on the reading audiences exposed to these materials. The first principle was the “primary-recency effect,” or the concept that the news best remembered was that first received and most recently received. The second effect was the “halo” effect, or the concept that the manner in which information is presented could affect the reader's understanding of that information's content. For example, referring to defendant as an “admitted homosexual” could give the reader a negative attitude towards the defendant which could make it difficult for that reader to objectively view the remaining information contained in the article. The third principle was called “the law of proximity” and basically means that two concepts, when placed in close proximity, will be viewed as a psychological unit. Thus, when an article appeared with a headline reading “A killer goes free, how can it happen?” and a picture of the defense attorney appeared below the headline, the reader would associate the defense attorney as one who freed killers, regardless of whether the article made such an assertion. The final principle, which is actually a series of principles listed under one heading, Dr. Ney labeled the “cognitive memory theory.” Under this theory, information which is associated with a strong emotional response is much more easily remembered than information which does not evoke a particular emotional response. Thus, memories concerning bizarre behavior, violent crime, or sex are retained longer than information concerning nonviolent crime or other less emotional events.

These principles, as applied to the media coverage in this case, Dr. Ney explained, each illustrated that the news media coverage in Cook County was much more prejudicial to defendant than in other counties. In particular, human interest stories appeared predominantly in the Cook County news media. The public in Cook County more easily identified with the crimes because the victims lived in the same area as they did and they recognized the public officials involved in the investigation. Also, because of the prejudicial nature of the articles printed in Cook County, such as the articles associating defendant's trial counsel as one who sets killers free, prospective Cook County jurors were more likely to have prejudicial preconceived ideas about defendant's cause.

In arguing for a change of venue, defense counsel stressed that the defense had met its burden in showing that there was a reasonable likelihood of prejudice “in Cook County itself and nowhere else * * *,” that the violent publicity was “far greater” in Cook County than in the other five counties that were studied, and that the prejudicial impact of which Dr. Ney spoke existed in Cook County but not in the other five counties studied, and that “the feeling that Mr. Motta and I have gotten visiting other counties was that there is a knowledge of the case, but there is not the same pattern of deep-rooted prejudice against the defendant” as there was in Cook County. The court granted defense counsel's motion for change of venue, specifically finding that there was “a substantial decrease of publicity outside of Cook County, perhaps strikingly so,” and that even though publicity would be generated in whatever county the jury selection was conducted, this was the best method of insuring a fair trial for defendant. The circuit court emphasized the emotional connection that the inhabitants of Cook County had with this case because of the type of publicity, e.g., human interest stories and community interest stories, combined with the “particular community interest” in determining that the prejudicial impact of news reports required a change of venue. The jury was selected in Winnebago County and the trial was held before that jury in Cook County.

Defendant contends that he had insufficient information to determine whether Winnebago County had been unduly influenced by prejudicial publicity and that this constitutes reversible error. We disagree. While Dr. Ney did suggest that he had insufficient information to determine which of the five counties outside of Cook County had the least amount of prejudicial publicity, the reason for suggesting that Cook County's publicity was prejudicial was that the crime occurred in Cook County. Citizens living in other counties, by definition, would not establish the emotional tie to the crimes based on geographical location and the belief that the crime was significant because it happened in their community. While Dr. Ney indicated that people in Illinois might relate to the crime to some degree because of the jurisdictional boundaries of Illinois, more so than, say, a citizen of Montana, it must be kept in mind that the case had to be tried in some community in the State of Illinois. (People v. Speck (1968), 41 Ill.2d 177, 183, 242 N.E.2d 208.) Also, as was indicated during the hearing on this matter, if defendant was convicted of this crime, he would have been guilty of the greatest number of murders for which any one person had ever been convicted. Consequently, it was inevitable that news coverage would be significant in any part of the country.

Defendant had no right to be tried in the county which was most likely to be favorably disposed to defendant and his theory of defense. The contention that the circuit court was constitutionally mandated to provide funds for a study which would have “included a determination of the attitudes on the issues of sexual preference, deviant behavior, and the insanity defense” of the five major counties in Illinois is untenable. The right to a jury trial has been interpreted by the Supreme Court as the right to an impartial jury selected from a representative cross-section of the community. (Witherspoon v. Illinois (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.) But just as the People may not select a jury which is predisposed on a pertinent issue which will arise at trial, the defendant may not seek out a county in which prospective jurors will most likely be predisposed on the defenses which the defendant will raise. We agree with the People that the defendant's request was, in effect, an attempt to substitute public opinion polls for the process of voir dire. We find no error in the circuit court's refusal to allow funds for this expenditure.

Defendant raises 14 issues concerning the presentation of his insanity defense to the jury. Because of the number of issues and because one of the contentions is that the People failed to prove beyond a reasonable doubt that defendant was sane at the time of the alleged offenses, a review of the evidence is necessary.

The People, in opening statement, reviewed the facts of the case as revealed by the investigation conducted by the Des Plaines police department and others and then described in detail several of the murders as recounted by defendant in his confessions. The assistant State's Attorney stressed that the confessions of defendant, as corroborated by physical evidence and the testimony of other witnesses, would show that defendant committed the murders because the victims were “an inconvenience to him” and that the murders were the results of premediated and rational acts. The assistant State's Attorney urged the jurors to utilize their “common sense” while listening to the testimony of the expert witness who would testify in this case. Defense counsel also urged the jurors to use their common sense, and told them that the evidence would show that the acts of defendant were not those of a normal, rational person. Defense counsel stated that the evidence would demonstrate that defendant followed a pattern which showed “a profound, incredible obsession.” Defense counsel stated: “We will hear a lot of evidence, great detail, that John Gacy went out in the evening, picked up boys, and these boys were all the same-in the same category; certain age group, certain body build, certain color hair, certain sexual preferences.” Defense counsel stated that four psychiatrists would be called for the defense and that “[t]hese psychiatrists will testify that Mr. Gacy demonstrates a host of seemingly neurotic symptoms, * * and will continue to be dangerous, he requires intensive psychiatric treatment within an institution for the rest of his life.” Defense counsel also stated: “Those psychiatrists will testify that he was unable to fully and consciously control his acts, which are motivated by overwhelming and uncontrollable primitive drives.” Defense counsel then proceeded to impugn the reputation of the psychiatrists who would testify for the People, calling Dr. Robert Reifman “a mechanic for the State,” stating that Dr. James Cavanaugh had “an iron-clad inflexible bias,” and that Dr. Jan Fawcett would testify on behalf of the People because defendant's cause was too unpopular for the doctor to associate himself with the defense. Defense counsel stated: “The defense of insanity is valid and it is the only defense that we could use here, because that is where the truth lies.” Again, counsel stated that “this man belongs in a hospital for the rest of his life.”

Witnesses testified that 29 bodies were recovered from the crawl space under defendant's home, under his driveway, and under his garage, and that five bodies were recovered from the Des Plaines River. Medical experts working for or in association with the Cook County medical examiner explained how identifications were made on the remains of these bodies and testified that one body, identified as body No. 9, had an incised area on the upper portion of the fifth rib and two incised areas on the left lateral of the sternum which were consistent with stab wounds. Six bodies were found with ligatures around their necks, and 13 bodies were found with foreign bodies in the posterior aspect of the mouth and throat. The official cause of death for those bodies with materials impacted in the mouth or the throat was “asphyxia due to suffocation,” but it could not be determined medically whether the cloth was inserted before or after death. Several of the life and death witnesses testified that the victims were not homosexuals, but had steady girl friends, had just begun to date girls, or had plans to marry.

Former business associates, friends, and employees of defendant testified concerning defendant's actions during the period when the murders were committed and shortly before his arrest. David Cram worked for defendant and moved in with him after defendant was divorced from his second wife. He testified that defendant told him that he had a degree in psychology, which he needed in order to more easily manipulate people. Defendant admitted that he was bisexual, that he was not a big drinker, and that he never “went crazy” when using drugs or alcohol, or both. Cram testified that defendant had him dig trenches in the crawl space, purportedly for drainage purposes, and that defendant had him spread lime throughout the crawl space to rid the crawl space of its pungent odor. Cram testified that he was with defendant after the police had executed the first search warrant and that when they returned to defendant's home, defendant asked Cram to check the crawl space. Cram refused, so defendant checked the space and appeared “shook up about it.” Ronald Rhode, a cement contractor who worked with defendant, stated that shortly before defendant was arrested he told him: “Ron, I've been a bad boy * * * I killed 30 people, give or take a few.” Defendant told him that he had some doctors that “were on his side,” and that he thought he would go free. Tony Antonucci also worked for defendant. He testified that defendant openly admitted that he was bisexual. He testified that defendant once asked him if he would engage in homosexual activity if it “meant his job.” Antonucci testified that defendant once came over to his house to show him stag films. They began wrestling, and defendant managed to put handcuffs on Antonucci. Defendant then unbuttoned Antonucci's shirt and unbuckled his pants and pulled them down to his knees. Defendant then left the room. Antonucci managed to get out of one of the cuffs, but pretended that he had not, and when defendant returned to the room Antonucci placed the handcuffs on defendant. Defendant then stated: “You're the only one that not only got out of the handcuffs, but put them on me.” Antonucci stated that after defendant had been handcuffed he continued to speak to him in a rational manner. Michael Rossi also worked for defendant. Defendant had sold him a car previously owned by John Szyc, who was later discovered to be one of defendant's victims. Rossi testified that on December 21, 1978, he went over to Cram's house to drop off some of defendant's tools, and that while he was there defendant arrived. He stated that defendant was emotionally disturbed, acted very nervous, and was “breaking into tears.” He stated to Cram and Rossi that on the preceding night he had confessed more than 30 killings to his lawyers. Rossi testified that he had helped dig trenches in the crawl space, and supervised newer employees who were directed to dig trenches in the crawl space. He stated that defendant was very sensitive about where the employees dug, and would place markers designating the specific area in which the trenches were to be dug. Rossi testified that defendant was not a heavy drinker, that he complained of his health often, told Rossi that he had leukemia and once experienced something that appeared to be a heart attack, but that his health never prevented his getting his work finished.

Several police officers and an assistant State's Attorney testified concerning defendant's confessions. Prior to his arrest, defendant had stated to the police officers who were following him that “clowns can get away with murder.” Before his arrest, defendant unplugged the sump pump in his crawl space so that it would fill up with water and removed the ladder descending into the crawl space. After confessing to the murders, defendant spoke of “four Johns” and told the police that he did not know all of the personalities. He told Detective Michael Albrecht: “Mike, I won't be in jail very long for this, I won't spend a day in jail for this.” He described the murder of Robert Piest in some detail, and stated that after he had put the rope around Piest's neck he twisted it twice, but then the phone rang, so he went to answer the phone, and left Piest to die of suffocation. Apparently referring to one of his four personalities, defendant told police that “Jack does not like homosexuality.” He told police that the victims had all sold their bodies for $20 and that they had killed themselves. Defendant told Investigator Bedoe that all of his victims had come to his house voluntarily, that all the murders concerned money, and that they all occurred in his house. In describing the disposal of Robert Piest's body, defendant told Investigator Bedoe that he had to make “two or three passes” at the bridge where he was going to throw the body in the river before the bridge was clear of other traffic. Investigator Bedoe testified on cross-examination that defendant openly admitted that he was bisexual, but expressed a tremendous fear of being a homosexual. Officer Phillip Bettiker testified that defendant said that Piest said that he would do almost anything for a great deal of money. Defendant used a rosary to demonstrate to Officer Bettiker and the other persons in the room at the time of the confession the “rope trick” that he used to strangle his victims. He stated that he did not have anal sex with Piest, but that “Jack might have.” Defendant stated that he did not use the lime to speed up decomposition of the bodies, but rather used muriatic acid for this purpose. The lime was used, defendant explained, to sweeten the smell of the crawl space. After drawing a diagram of where the bodies were located in the crawl space, defendant put his hands over his face and stated: “What's going on. Jack drew that diagram of the crawl space.” Lawrence Finder, an assistant State's Attorney, testified that defendant was emphatic about the fact that there were no bodies buried underneath his driveway. At the time of his confession, the driveway was still intact. Later, a body was found buried underneath the driveway. Defendant admitted to some 1,500 homosexual relationships. Defendant stated that he killed “Joe from Elmwood Park” because he wanted more money for the sex act, and that he would tell defendant's neighbors that he was homosexually raped by defendant if he did not pay the extra money. Defendant stated that the killings became less frequent later on because he was working so hard, and he was too tired to “go cruising.” Defendant described the killing of John Butkavitch, and stated that since Butkavitch threatened to kill him if he was released from his handcuffs, he killed Butkavitch instead. He stated that Greg Godzik had dug his own grave, and that he had killed John Szyc because he had asked for more money. Defendant told Finder that he usually killed his victims for one of two reasons: because the victim demanded more money than originally agreed upon or because they posed a threat to him by exposing his sexual preferences to his neighbors. Defendant explained that Robert Piest did not fit the pattern. He had handcuffed Piest after Piest had come to his house with him to discuss the possibility of employment. Defendant placed handcuffs on Piest, and then attempted to perform oral sex on him, but could not since Piest could not get an erection. Because Piest “became frightened” defendant worried that he might tell somebody what had happened, so he performed the “rope trick” on Piest. Defendant stated that only “Jack Hanley” knew why Piest's body was put into the river. Defendant explained that he would frequently stuff socks into the mouths of victims to prevent the blood coming through the mouth after death from staining the floor. He stated that he had graves dug so that he would have graves available.

Defendant called two witnesses who described defendant's assaults upon them. Jeffrey Rignall testified that one night when he was walking to a local bar, defendant offered him a ride. Once inside the car, defendant placed a cloth soaked in chloroform over Rignall's face, causing him to lose consciousness. Defendant carried Rignall into his house and offered him a drink. Defendant appeared very relaxed. Defendant then chloroformed him again. When Rignall regained consciousness, he found himself restrained on a wooden board which was suspended by chains. The board had holes in it where his arms went through and where his head was placed. Defendant, who was naked, was standing directly in front of Rignall masturbating. Defendant then grabbed Rignall's head and shoved his penis into Rignall's mouth, shouting: “You love it, you love it,” with a tone of voice used by a drill instructor. Rignall lost consciousness several more times, and when he regained consciousness defendant shoved an unidentified object into Rignall's rectum. He repeatedly stated, “You love it,” talked in obscenities, and “made it clear” to Rignall that defendant was in complete control. The next thing Rignall remembers is waking up, wearing only his blue jeans, next to a statue in a park near his home in Chicago. It was very cold outside. His face was scarred and swollen and he was bleeding from his rectum. Rignall testified that he was currently under psychiatric care and was also receiving treatments for his liver because the repeated use of chloroform had damaged his liver. Rignall was of the opinion that defendant was not legally sane at the time of this episode and stated that he reached this opinion “by the beastly and animalistic ways he attacked me.” Michel Ried testified that he was a homosexual and met defendant in “New Town.” After a brief conversation, he and defendant engaged in sex for which defendant paid Ried. Ried testified that he was having difficult times financially, and that defendant gave him a job and allowed him to move in with him. One night in defendant's garage, which at the time was unlit, defendant told Ried to get some fuses which were under the work bench. As he did, defendant hit him with a hammer. Ried got up and saw that defendant had his arm cocked back as if he were going to strike again and had a “kind of strange” look in his eyes. Ried grabbed defendant's arm and asked him what he was doing. Defendant just looked at him, put the hammer down, and told Ried that he did not know what had come over him, but that he felt like he wanted to kill Ried. Defendant then “patched up” Ried's head. Ried stated that at the time of this incident he did not think defendant knew what he was doing. On cross-examination, Ried stated that he might have had an argument with defendant before this incident occurred. Several weeks earlier, defendant and Ried were attempting to break into a house and Ried saw defendant coming from behind him with a tire iron in his hand. When Ried turned around and saw him coming, defendant stopped and stated that he thought there might be trouble. Ried stated that, at the time of the incident with the hammer, he had not looked at defendant before defendant struck him.

Several members of defendant's family and childhood friends testified concerning defendant's past. Defendant's sister testified that their father was never pleased with defendant and told him that he would turn out to be a fairy, just like his friend, Barry. Defendant's sister stated that their father had a Dr. Jekyll and Mr. Hyde type personality. Their father would come home from work, lock himself in the basement, and drink. Often he would come back up and eat dinner with the family, but if anyone said anything that displeased him, he would lunge across the table at them. The night before defendant's sister was to marry, defendant and his father got into an argument over whether or not defendant would take a bath that night. Defendant's father held defendant against the wall and said: “Hit me * * * what's the matter with you? Are you a coward? * * Hit me. You will never stick up for yourself.” Defendant's father tripped on a chair and fell, accused defendant of tripping him, and threatened to kill defendant. Defendant's sister stated that she once found silk underpants in defendant's bed, and that when she was five or six years old, defendant had taken his mother's underwear and put it underneath the porch. She testified that the basement was locked and the children were never permitted to go down there unless accompanied by a parent. She testified that on the night before her wedding, her husband-to-be said something which she could not remember, but that defendant became enraged and started attacking her husband-to-be. Defendant jumped out of the car in which they were riding and walked to their house, which was about a block away, and when she arrived home, defendant acted as if nothing had happened. She also testified to an incident where defendant was coming out of anesthesia and began thrashing around with “the strength of ten men.” Defendant's mother, Marian Gacy, testified that defendant was an unhealthy baby and was not expected to live. She confirmed the incident where defendant took her silk underwear and hid it beneath the porch. She described an incident when defendant was approximately two years old where the father, for no apparent reason, punched her in the face, knocking out her bridge and causing her to bleed profusely. The father left, and when the police arrived they advised them to leave the home for a few days until things calmed down. When they returned, the father came home, ate dinner, and acted as if nothing happened. She described an incident where defendant apparently had had some type of seizure, and when he was revived he was fighting and kicking like a madman. Because defendant repeatedly passed out at school, he was told by Dr. John Cavanaugh that he should be sent to Cook County Hospital for psychiatric evaluation. Defendant told her: “Mom, don't send me to the psychiatric ward. I will be good.” So she did not. She testified that her husband would go down to the basement and drink after work, and that he would talk to himself in two different tones of voice. She testified that her husband was very critical of defendant and never showed any affection towards him.

Carol Loftren, defendant's second wife, testified that she found silk bikini underwear, which were stained in front, lying around the house. She stated that defendant never hid the fact that he was bisexual. She said defendant was a gentle lover, but that throughout the marriage they had increasingly less sex, until one day defendant stated that this would be the last day that they had sex together. After they were divorced, they met in Wisconsin. At this time they tried to make love, but defendant began crying. Defendant “couldn't do anything” and “said he was afraid he was going more the other way.” She stated that, one night when she could not sleep, defendant came home and was startled to find her up watching television. Defendant then stated he had come into the house to get something, but left with nothing, and when she looked through the curtains she saw a young boy with blond hair get into the car. Defendant then drove off. She went out to the garage and discovered a blanket on the floor, and a red light and a mirror on the wall. She testified that during the marriage she had complained of the terrible smell emanating from the crawl space; that one time she went away for a few days, and when she returned the smell had gone, and defendant stated that he had poured concrete in the crawl space. She stated that defendant had a memory like an elephant and would be surprised if defendant ever forgot a face or a name. She stated that defendant planned to one day completely cement over the crawl space.

John Lucas, a gas station owner, testified that he serviced defendant's vehicles. He stated that, shortly before he was arrested, defendant came into the gas station and passed a bag with three rolled cigarettes to one of his employees. The employee showed Lucas the bag, and Lucas immediately turned the bag over to one of the policemen on the surveillance unit who was standing within 10 to 15 feet of them. Oscar Pernell, a prison guard, testified that one night after defendant was incarcerated, he saw him writing a letter. Two or three hours later, Pernell saw defendant lying underneath the bed with a towel wrapped around his neck. Pernell could not remember whether the towel was knotted or not, but he testified that no harm was done to defendant.

Other witnesses testified that defendant was boastful but not antisocial, that he was not a heavy drinker, and that he often had complained of physical ailments which did not appear to exist.

Two psychologists and two psychiatrists testified on behalf of defendant. Thomas Eliseo, a clinical psychologist, testified that defendant scored in the top 10% of the population on the Wechsler scale and had no major brain damage. However, he had confused thinking which “resembles to a large extent people who would be classified as schizophrenic * * *.” He diagnosed defendant as having borderline schizophrenia or borderline personality. When asked his opinion as to whether he was legally sane under Illinois standards, the People objected and a side bar was had. Outside the presence of the jury, it was established that Dr. Eliseo had not attempted to verify any of the facts that defendant had told him, read the police reports, talked to any of the people involved, or read any of the reports of the other psychologists or psychiatrists. It was explained that defense counsel had asked him not to review these materials so that the doctor could give “an independent evaluation.” The circuit court ruled that Dr. Eliseo could not base his opinion on defendant's statements, but Dr. Eliseo was allowed to answer a hypothetical question which included most of the pertinent facts concerning defendant's life which were shown by lay witnesses and defendant's confessions. Based on the facts and the hypothetical question, Dr. Eliseo stated that defendant suffered from a mental disease, paranoid schizophrenia, that this condition existed continuously and uninterruptedly in defendant between January 1, 1972, and December 21, 1978, and that because of this mental disease he lacked the substantial capacity to conform his conduct to the requirements of the law and appreciate the criminality of his conduct. On cross-examination, Dr. Eliseo stated that after defendant had committed the crime, he would understand that what he did was wrong, but at the times of committing the crimes, he was not aware of the criminality of his act. When asked how he could determine from one interview whether defendant was psychotic at certain points in time, Dr. Eliseo stated that he would determine the general personality characteristics and structure of defendant and then “project back. It is a guess.” On further redirect examination, Dr. Eliseo was allowed to answer, in narrative form, the question: “Would you explain exactly how you came to the decision or opinion that the condition of paranoid schizophrenia existed for the last six, eight years?”

Dr. Lawrence Freedman reviewed all the police reports, all of defendant's statements, newspaper articles from the very inception of the case, defendant's criminal history, the reports from other psychiatrists and psychologists, and the book Jeffrey Rignall wrote concerning defendant's assault upon him. Dr. Freedman spent more than 50 hours examining defendant. Dr. Freedman also interviewed defendant's younger sister and his mother and spoke with the interviewers who were attempting to contact defendant's friends and neighbors. He reviewed all of the medical reports on defendant. Dr. Freedman diagnosed defendant as a pseudo-neurotic paranoid schizophrenic. Dr. Freedman explained that defendant had a psychotic core, but that this psychotic core was concealed by defense mechanisms which resemble neuroses. Dr. Freedman opined that defendant had neurotic and psychosomatic illnesses from early childhood, and that the shift from a serious neurosis to the beginnings of a psychosis probably occurred about the time of Christmas of 1969 when he was incarcerated at Anamosa for sodomy, and his father died and defendant was unable to go to his father's funeral. Defendant, Freedman explained, was at a very low point in his life, as he was a failure as his father had always predicted, and he would no longer be able to redeem himself. Dr. Freedman explained that during the homosexual encounters with his victims, he projected his own anxieties about himself onto his victims, thinking that they, and not he, were “trash.” He stated that all the boys were in a certain age group and of a certain build because these boys represented the fit and trim build he was unable to attain as a youth. Dr. Freedman testified that his diagnosis was consistent with a diagnosis of borderline personality and that the schizophrenic process was at the borderline and “breaks out in flowered symptomatology from time to time when the stress gets too high.” On cross-examination, Dr. Freedman stated that defendant could not control when the outcroppings would occur. When asked why these “outcroppings” only occurred at night and when no one else was around, Dr. Freedman explained that these hours were the hours in which boy prostitution flourished, defendant was engaged in other activities during the rest of the day, and that defendant “was, in fact, concerned with not being detected.” Dr. Freedman declined to give an opinion as to whether defendant was legally insane at the time of the murders, explaining that he believed the Illinois definition of sanity called for a legal conclusion, not a psychiatric conclusion.

Dr. Robert Traisman, a clinical psychologist, spent 3 1/2 hours examining defendant and several more hours reviewing the results of the tests he administered to defendant. Dr. Traisman administered the Wechsler adult intelligence scale, the Bender-Gestalt visual motor test, the Rorschach ink blot test, the Draw-a-Person test, and the Thematic Apperception test on request by Dr. Richard Rappaport. Traisman noted that there was an unusual and significant disparity between defendant's verbal and nonverbal scores on the Wechsler test. Defendant's responses to the Rorschach test, Dr. Traisman explained, indicated that he was a paranoid schizophrenic who had homosexual conflicts, marked feelings of masculine inadequacy, a lack of feeling for other people, and an alarming lack of emotional control or ego control when under stress. Dr. Traisman noted that the defendant saw flowers in many of the ink blots and birds or insects which were entering in to siphon the pollen, a response which was inappropriate to the card. Dr. Traisman explained defendant's responses to the Thematic Apperception test and the Draw-a-Person test and explained how defendant's responses were consistent with his finding concerning the Rorschach test. For example, on the Draw-a-Person test, defendant was told he could draw anything he wished, and he drew his house in great detail. On cross-examination, Dr. Traisman agreed that it would be correct to say that defendant was a very severely disturbed man “but who reflects sufficient awareness of any aggressive destructive behavior * * * [and] * * * knows the nature of any antisocial acts he might perform and * * * would be quite cognizant of whether or not they are right or wrong on a moral level.” On redirect examination Dr. Traisman stated that because of defendant's paranoid schizophrenia, he had a minimal amount of control over his actions and that his disease “is related to the acting out and loss of control * * *.”

Dr. Richard Rappaport, a psychiatrist, testified that defendant was “borderline” with the psychosexual disorders of fetishism, homosexuality, sexual sadism, and necrophilia. The “subtypes” of narcissistic and antisocial borderline personalities were also part of the same characterization. Dr. Rappaport testified that defendant would have brief psychotic episodes which would occur as a result of rage where “he thought these boys were him and he was the father” and the unmanageable rage he felt was actually against himself. Dr. Rappaport theorized that defendant placed the bodies in the basement because his father had placed “his junk or * * * paraphernalia” down in the basement. Dr. Rappaport testified that defendant was sufficiently in touch with reality so that he realized that “he had to provide for his habits, he had to provide a receptacle for getting rid of these [shells] of people.” On cross-examination, he stated that he used the psychoanalytic approach in examining patients and that there are a significant number of psychiatrists who neither use nor place reliance in this approach. When asked how to reconcile the fact that the last five bodies were thrown into the Des Plaines River with his theory that the dead bodies were “love objects,” Dr. Rappaport conceded that this was difficult to explain, but that there would be some explanation that he had not yet come to understand. He stated that he did not believe that there was not a psychoanalytic answer for the 33 murders committed by defendant. When asked whether defendant's explanations of why he murdered the victims, e.g., because they asked for more money or threatened to reveal his homosexuality, were inconsistent with the theory of projection espoused by Dr. Freedman and Dr. Rappaport, Dr. Rappaport stated defendant may have “imposed those ideas on the individuals” or “tried to elicit behavior on their part to conform to his idea that they were bad people. That was part of the projective identification that I was explaining before.” Dr. Rappaport consulted with Dr. Cornelia Wilbur, a known authority in the field of multiple personalities, and she confirmed his conclusion that this was not a case of multiple personality. Dr. Rappaport believed defendant spoke of “Jack Hanley” as an alias. On cross-examination, it was brought out that after these intense expressions of hostility, defendant could justify his behavior as conforming to his private code of morality, even though he recognized that his behavior would not be considered socially acceptable. He stated that defendant's antisocial personality helped him forget his criminal acts.

In rebuttal, the State presented witnesses who testified to homosexual attacks and encounters with defendant while he was living in Iowa. R.E. Schroeder testified that defendant had hired him to beat up Donald Vorhees, defendant's Iowa sodomy victim, so that he would not testify in court against defendant. Richard Westphal, who worked for defendant when defendant was the manager of several Kentucky Fried Chicken stores in Iowa, testified that defendant allowed him to sleep over at his home one night, that defendant told him he could sleep with his wife in exchange for a “blow job,” that defendant's first wife came in to the room where he was sleeping and made love to him, and that defendant walked in and stated, “See, I caught you, now you owe me a blow job.” Defendant then forced Westphal to comply with the agreement. Edward Lynch, a classmate of Donald Vorhees, testified that while he was at defendant's house in Iowa defendant threatened him with a carving knife and forced him into his bedroom. Lynch overpowered defendant, and defendant became very apologetic, bandaged Lynch's cut, and talked Lynch into watching a “stag film” downstairs. While watching the movies in the basement, defendant said, “Let me try something,” and chained Lynch's hands behind his back. He then moved behind Lynch, forced him onto a nearby mattress, and choked him until he stopped moving. While Lynch was lying still, defendant rolled him onto his side, and unlocked his hands. When Lynch got up, defendant said, “Well, are you okay?” and then at Lynch's request, took him home.

The People presented several witnesses who described defendant's conduct while incarcerated at Anamosa in Iowa. These witnesses testified that defendant functioned very well while in prison, that he was able to attain positions of importance in organizations such as the prison chapter of the Jaycees, and, because of his work in the prison's kitchen, was able to trade food for favors. Defendant told his counselor, and other inmates, that he was in prison for showing porno films to adolescents, and showed disdain for homosexuals. These witnesses also recounted that defendant experienced episodes of what appeared to be heart attacks.

Steve Pottinger, a former friend of defendant's from Waterloo, Iowa, testified that there was no change in defendant's behavior before and after he was in the penitentiary. Charles Hill, another friend from Waterloo, Iowa, testified that while defendant was in prison he vigorously professed innocence to the crimes with which he was charged, and when he was released stated, “I'll never go back to jail.”

Robert Donnelly testified that he was walking in Chicago when defendant approached him in his black car (which had spotlights on both sides) and asked for identification. Thinking that defendant was a policeman, Donnelly approached the car. Defendant threatened Donnelly with a gun and told him to get into the car. Donnelly was then handcuffed and told to lie on the floor of the car. Defendant brought Donnelly into his home, into a room which had a bar, and told Donnelly that “he was an important person” and that “still he didn't get the respect he deserved * * *.” Defendant offered Donnelly a drink, and when Donnelly refused, defendant threw the drink in his face. Defendant later offered another drink, which Donnelly refused, and defendant told him that he was a guest and that he should accept defendant's hospitality, and then held Donnelly's mouth open and poured the drink down his throat. Defendant then took the handcuffs off, asked Donnelly for his wallet, examined the wallet, and then told him to put the handcuffs back on. After he did, defendant slapped Donnelly with the back of his hand, shoved Donnelly on the couch, and grabbed his hair. When Donnelly screamed, defendant pushed his face into the couch. He then removed Donnelly's pants and anally raped him. Donnelly passed out. When he regained consciousness, defendant took him into the bathroom, shoved Donnelly's head against the wall, then placed something around Donnelly's neck and started twisting it. He told Donnelly, “My, aren't we having fun tonight?” He then forced Donnelly's head into the bathtub, which was filled with water, and held it there until Donnelly passed out. When Donnelly regained consciousness, he discovered that his clothes had been removed and the handcuffs had been moved so that his hands were now cuffed behind his back.

Defendant held Donnelly's head under water again until he passed out, and when he regained consciousness he repeated this procedure once more. When Donnelly again regained consciousness, defendant urinated all over Donnelly. He then showed Donnelly nude magazine pictures of girls, asked him if he liked them, and when Donnelly said yes, told Donnelly that he was sick. Defendant then punched Donnelly, and once again held his head in the bathtub until he passed out. When Donnelly again regained consciousness, defendant picked him up from the bathroom floor and brought him back into the room with the bar. He said, “You're just in time for the late show” and turned on a projector and showed a “gay” pornographic film on the wall of the room. After the movie, defendant stuck his foot in Donnelly's stomach, put a gun to Donnelly's head, and played “Russian roulette.” He pulled the trigger between 10 and 15 times, spinning the chamber between pulls of the trigger, until the gun finally went off. The gun contained a blank. Defendant told Donnelly that he had killed girls before, but that he had stopped doing this, because he found killing “guys” to be more interesting. He then choked Donnelly until he lost consciousness. When Donnelly regained consciousness, his hands were cuffed behind his back, his ankles were bound, and there was a gag in his mouth. Defendant then inserted some sort of object into Donnelly's rectum and he passed out. When he regained consciousness, the object that was placed in his rectum was still there. When Donnelly regained consciousness, defendant removed the gag from Donnelly's mouth, and Donnelly told him that if he was going to kill him, to just do it and get it over with. Defendant placed the gag back in Donnelly's mouth, and started “playing around with” the object which was inserted in Donnelly's rectum. Defendant then told Donnelly to dress, put Donnelly in his car, and told him it would be his last ride. He asked Donnelly “How's it feel knowing that you're going to die?” but then released Donnelly near Marshall Field's, where Donnelly worked. He told Donnelly that he was going to die later, but not to tell anyone, because they would not believe him.

Officer Ted Janus was assigned to Donnelly's case. When Janus arrested defendant, he advised him that he was under arrest for kidnapping and deviate sexual assault. At Area 6 police headquarters, after twice being advised of his rights, defendant told Janus that he had offered Donnelly a ride, that while riding together the conversation turned to performing sex acts for money, to which Donnelly agreed, that they went to defendant's house, performed “slavery sex” “where they bound each other with handcuffs and chains, watched pornographic movies, committed acts of deviate sexual assault upon each other and used candles and dildos, also.” Defendant told Janus that he then drove Donnelly to Marshall Field's, his place of employment, but did not pay Donnelly the money.

The People's experts all testified that defendant was suffering only from a personality defect, that he was never psychotic, and that he was legally responsible for his criminal acts under the Illinois standard.

Dr. Leonard Heston, currently Professor of Clinical Psychiatry at the University of Minnesota, testified that while at the University of Iowa he examined defendant in 1968 pursuant to court order issued on a joint application of defendant and the State of Iowa. At that time he was diagnosed as having antisocial personality. Dr. Heston opined that the diagnosis “pseudo-neurotic paranoid schizophrenic” was not a recognized diagnosis and “is not taken very seriously right now.” Dr. Heston found that there was “grossly insufficient evidence to support” the psychoanalytic scenario concerning how defendant” went about committing these killings,” and that the diagnosis of paranoid schizophrenic was based on “pure inference.” Even assuming that Dr. Freedman's clinical findings were correct, Dr. Heston explained, Dr. Heston still would not be able to conclude that defendant could not conform his conduct to the requirements of law, because he was unable to find a causal link. He testified that “borderline” appeared for the first time in psychiatric nomenclature in Diagnostic Statistical Manual III (DSM III), that the diagnosis was quite controversial, and that “it is our single outstanding problem.” He stated that the purpose of DSM III is to allow psychiatrists to understand each other. He testified that the problem with psychoanalytic theory is that it requires an inference about mental processes which is not susceptible to proof. He explained that if the theory was correct, it should lead to treatments which work, but since effective treatments had not resulted from the theory, the theory was not correct.

Dr. A. Arthur Hartman, a clinical psychologist, was called to examine defendant by Dr. Robert Reifman, a psychiatrist, at the inception of the case due to the seriousness of the charges. He diagnosed defendant as having an antisocial personality. Dr. Reifman diagnosed defendant as having a personality disorder-narcissistic type. He explained that the description of narcissistic personality contains many of the elements of the antisocial personality, and that the antisocial personality is a sub-type of narcissistic personality. Dr. Reifman explained that psychoanalysis was a theory of behavior, a form of research, and a form of treatment, but that it “is not related to legal responsibility at all.” Dr. Reifman stated that defendant could not be a pseudoneurotic paranoid schizophrenic because if he had such a defect he would have so many symptoms that he would be “an extremely impaired person” and would be “bothered in every area of his life.” He ruled out the possibility of 33 brief psychotic episodes because, “in each instance that I am aware of, at no time was Mr. Gacy out of touch with reality.” He explained that the process of tricking his victims into the handcuffs and tying intricate knots on the ligatures used for the “rope trick” required “cognition, thoughtfulness, reasonable behavior.” Dr. Reifman did not believe that defendant's speech was characterized with “loose associations,” but rather was the result of his overt lying. He stated that defendant was feigning being crazy, and attempted to fake a multiple personality defect. When asked on cross-examination whether defendant was indistinct or contradictory, Dr. Reifman replied: “He tries to obfuscate, or tries to present a picture that is not clear.” Dr. Reifman explained that the difference between a diagnosis of antisocial personality and a diagnosis of narcissistic personality is the difference in emphasis, and that he found that the diagnosis of antisocial personality did not take into consideration defendant's accomplishments in other areas.

Dr. Richard Rogers, a clinical psychologist, administered the Schedule of Affective Disorders and Schizophrenia test (SADS) on defendant. He stated that this test was relatively new and not currently in widespread use, but that reliability studies showed that experts agreed on their diagnoses of the same patient 88% of the time. Dr. Rogers explained that in regard to the MMPI test administered by Dr. Eliseo, there was evidence that defendant was attempting to make himself look worse than he really was. Dr. Rogers testified that there were empirical studies which proved that the Draw-a-Person test does not work, and generally disparaged the interpretation of other test results which Dr. Traisman reached.

Dr. James Lewis Cavanaugh, a psychiatrist, testified that, when he went to interview defendant, defendant insisted that he sign a document which precluded the use of his notes by the court or by lawyers. Dr. Cavanaugh stated that this indicated a degree of sophistication, and that defendant insisted that the experts had to play the game by his rules. He expressed the opinion that defendant was suffering from pervasive narcissism, with an obsessive compulsive quality, an antisocial quality, and a hypomaniac quality, all of which were components of his mixed personality disorder. Dr. Cavanaugh, who used an eclectic approach to psychiatry, believed that the psychoanalytic approach was useful in diagnosing the cause of a patient's problem, but that the approach was not useful in assessing criminal responsibility. Dr. Cavanaugh explained that the psychoanalytic approach was “highly deterministic” in that it is premised on the belief that certain types of behavior patterns, thoughts, feelings, or fantasies could be predicted by reconstruction of past experiences. Dr. Cavanaugh further explained that there was an inherent conflict between a determinant psychological theory which explains everything on the basis of a person's earlier development and a legal system premised on the concept of free will. Legally, Dr. Cavanaugh explained, a person could escape responsibility only when “an extreme situation arises” where the person's ability to form an intent is questioned. Dr. Cavanaugh ruled out the possibility of schizophrenia because defendant's general level of functioning was too high and because “the sum total of his life up to this point in time” negated the existence of the basic elements of schizophrenia. On cross-examination, Dr. Cavanaugh explained that he had used psychoanalytic theory to explain the causes for defendant's behavior, and that defendant was suffering from a major psychiatric disorder. Dr. Cavanaugh expressed the opinion that defendant understood his behavior sufficiently to control it, or at least get help, but Dr. Cavanaugh conceded that defendant's ability to control his behavior was impaired in the sense that it was below that of the average person.

The defense called two other psychiatrists. Dr. Tobias Brocher, a neurologist and a psychiatrist, agreed with Dr. Rappaport's theory that parts of defendant “split off” and he projected these bad parts onto his victims, and then destroyed the victims, believing he was doing a service to society by ridding it of “human trash.” Because the “splitting off” process and projection of a repressed part is an unconscious process, Dr. Brocher opined, “My diagnosis proves the psychotic process because only persons who are psychotic can split off so far that they negate reality.” Dr. Brocher did not state an opinion whether under Illinois standards defendant was responsible for his criminal acts. On cross-examination, Dr. Brocher was asked if he realized that the “reason for the motive that someone does something has nothing to do with [the Illinois] standard [for insanity]?” Dr. Brocher replied: “Well, that's maybe a legal viewpoint; it's not a psychiatric viewpoint, because in psychiatry you have to understand the motivation why somebody is doing something. Otherwise, he can't understand any kind of illness.” When asked whether he agreed with the statement to the effect that psychiatrists do not belong in the courtroom because they could not function effectively in a courtroom, Dr. Brocher replied, “ * * * my experience * * convinced me the opposite is true, that most people in the legal profession don't understand psychiatry.” Dr. Helen Morrison, a psychiatrist, diagnosed defendant as having a mixed psychosis or an atypical psychosis. Dr. Morrison believed that defendant suffers from psychological hallucinations where he would see parts of him which were split off in his victims. She was of the opinion that defendant was not legally responsible for his actions under the Illinois standard, and that defendant would have killed his victims even if a police officer had been present at the time of the murder.

In rebuttal, Dr. Jan Fawcett, a psychiatrist, also opined that the problem with psychodynamic or psychoanalytic theory in determining criminal responsibility is that it was used to explain behavior retrospectively as if no other outcome could occur. Additionally, he explained, the psychodynamic theory tends to be used as if it is actual fact when it is really inference and theory, and inferences or assumptions upon which psychodynamic theory is based do not in themselves explain an individual's behavior in the sense of causation. When questioned concerning Dr. Brocher's diagnosis, Dr. Fawcett explained why he disagreed with that diagnosis, and also explained that even if this diagnostic evaluation were to be accepted, there still was not causal relationship between his diagnostic theory and any possible inability of defendant to either appreciate the criminality of his conduct or conform his conduct to the requirements of law. When questioned concerning Dr. Morrison's diagnosis of atypical psychosis, Dr. Fawcett found no factual basis, and that the term “psychological hallucination,” in his opinion, did not meet the criteria for the type of hallucination that is used in the criteria for the diagnosis of a psychosis.

Defendant contends that the People failed to prove beyond a reasonable doubt that defendant was sane at the time of the alleged offenses. Defendant argues that “the defense evidence on the sanity question was by and large consistent and credible, while the State's evidence was contradictory and unconvincing * * *.” Defendant, in his brief, examines at length both the expert and lay testimony concerning defendant's insanity defense and concludes that because all the defense experts arrived at consistent diagnoses, and the People's experts did not, the People failed to meet their burden.

The People argue that defendant has offered no evidence which raises a reasonable doubt as to his sanity at the time of the alleged crimes; “that even assuming that the issue was adequately raised, the proof of Gacy's sanity during the murders was overwhelming; and that as a matter of law, the jury's determination should not be disturbed.”

There is little conflict in the evidence, and the question presented was what inference could appropriately be drawn therefrom. “ ‘The record presents a question of fact to be determined by * * * [the fact finder]. Its decision will not be reversed unless the determination is so improbable or unsatisfactory as to raise a reasonable doubt as to defendant's sanity.’ ” (People v. Carlson (1980), 79 Ill.2d 564, 580, 38 Ill.Dec. 809, 404 N.E.2d 233, quoting People v. Ward (1975), 61 Ill.2d 559, 568, 338 N.E.2d 171.) On this record the jury was not required to draw the inference that defendant was insane, and the evidence amply supports the verdict.

Defendant contends next that the circuit court erred in its ruling “that expert witnesses for the State would be allowed to recount statements made to them by John Gacy, but that defense expert witnesses could not do so * * *.”

In determining that an expert psychiatrist or psychologist may be precluded from repeating a defendant's self-serving statements, the circuit court relied primarily on People v. Hester (1968), 39 Ill.2d 489, 237 N.E.2d 466. In Hester, a defense psychiatrist was precluded from giving his opinion “of the defendant's susceptibility to a dictated confession which would have been based on a complete case history given by [defendant] to the psychiatrist during their second interview.” (39 Ill.2d 489, 509, 237 N.E.2d 466.) The court, noting the rule that only treating physicians could testify “as to [their] medical opinions based upon subjective symptoms described by the patient,” held that it was not an abuse of discretion for the trial court to so limit the psychiatric testimony. Noting that “doubt is cast upon the trustworthiness of the patient's statements” when those statements are made to an examining expert in contemplation of trial, and that “most courts refuse to permit the physician to act as the patient's conduit for narrative declarations,” the court found no reversible error. In People v. Noble (1969), 42 Ill.2d 425, 432-35, 248 N.E.2d 96, the court held that psychologists could testify as to the psychological tests they administered, such as the Bender visual motor test, the Rorschach test, and the Thematic Apperception test, and could testify as to the results of those tests. The court reasoned, inter alia, that since psychiatrists used psychologists as one of their “tools” for diagnosing a patient, it would be an anomaly to refuse to allow the psychologist to explain the nature of the tests administered by him and the results of those tests. 42 Ill.2d 425, 435-36, 248 N.E.2d 96.

There are authorities which hold that the statements made by the accused to the examining psychiatrist should be admitted. (See 2 Wharton, Criminal Evidence sec. 312 (13th ed. 1972); United States v. Baird (2d Cir.1969), 414 F.2d 700.) The rationale as stated in State v. Whitlow (1965), 45 N.J. 3, 15-19, 210 A.2d 763, 769-71, is: “It is obvious, even to the layman, that in all probability a psychiatrist would require more than a mere physical examination of a defendant in order to reach a conclusion of his sanity or insanity. The very nature of the psychiatric study would seem to call for utterances or answers through conversation with the alleged incompetent. The psychiatric interview is the basic diagnostic tool. * *

There seems to be a tendency elsewhere in insanity cases to allow the defense psychiatrist to recount the full history obtained from the defendant regardless of its hearsay or self-serving quality, so long as the doctor regards it as essential to the formulation of his expert opinion. If he so regards the history, the test of admissibility is satisfied. The thesis is that such conversations with and statements by the defendant, whether or not they relate to the crime itself, are verbal acts; circumstantial evidence for or against the claim of insanity. They do not come in as evidence of the truth of the facts asserted but rather, and only, as part of the means employed by the doctor in testing the accused's rationality, mental organization and coherence. They are object-like factors used to ascertain mental abnormality or the reverse.”

We need not, however, decide the question here for the reason that our review of the record shows that defendant's experts were not precluded by the circuit court's ruling from stating, or explaining to the jury, the basis for their conclusions. As the circuit court noted, “as a practical matter, your statements [defendant's statements to defendant's experts] are actually going in anyway * * *.”

The circuit court's first application of its ruling that defendant's experts could not testify to “self-serving” statements made by defendant occurred during the testimony of Dr. Eliseo. Dr. Eliseo had been asked by defense counsel to examine defendant and make a diagnosis without reviewing any of the information thus far gathered in the case, ostensibly for the reason that they did not wish him to be “prejudiced” by this information. Dr. Eliseo was, however, permitted to give his opinion based on a hypothetical question propounded by defense counsel, and thus expressed his opinion to the jury. In any event, Dr. Eliseo was permitted to explain in narrative form “exactly how [he] came to the decision or opinion that the condition of paranoid schizophrenia existed for the last 6, 8 years.”

Dr. Freedman, whose qualifications spanned over 30 pages of transcript, reviewed defendant's statements in explaining his diagnosis to the jury. After stating his diagnosis, Dr. Freedman explained how he reached his conclusions. He was allowed to testify, without objection, that defendant described to him the conditions under which Robert Piest was killed and that while describing this murder in great detail he showed no “ordinary manifestations of human feeling,” that defendant exhibited a “certain amount of pride” in being able to use his cunning to overcome the strength of the “young and stupid” “muscular youths,” and that defendant was very disturbed by the fact that Dr. Freedman's books were piled up in his office in a disorderly fashion. While Dr. Freedman was not permitted to testify as to defendant's exact statements without quoting defendant directly, he explained the contents of those statements. He testified concerning defendant's anxiety regarding his sexual identification and his anger at being called a homosexual, and that defendant showed no emotional affect when he described the stabbing of his first victim.

Dr. Traisman described defendant's response to the various tests he administered. Dr. Rappaport testified that he administered sodium amytal to defendant to induce a deep hypnotic condition. While Dr. Rappaport was precluded from testifying concerning defendant's description, while under the influence of this drug, of his early life he testified that defendant had not told him any “new memories” that he had not told “in his waking state,” but that he had described events in greater detail. Although Dr. Rappaport was precluded from testifying concerning statements made by defendant about his life history or why he behaved in a particular manner, he explained, in a narrative form, defendant's developmental history as compiled in police reports and interviews with defendant's relatives and childhood friends and how events have influenced his development. Dr. Rappaport testified concerning speech patterns which demonstrate “loose associations” or inappropriate affect, and despite objections by the prosecution, in many instances Dr. Rappaport repeated defendant's statements to him.

Defendant asserts that defense counsel were required to bring out defendant's statements in cross-examination of the People's experts because they “had to keep in mind that the judge had repeatedly ruled that the State experts could refer to statements made by the defendant to justify their conclusions.” Appellate counsel concedes, apparently, that defense attorneys were permitted to bring out “during cross-examination those statements made by Gacy to the State experts which tend to contradict or rebut their conclusions.” Defendant concludes, however, that the State experts were allowed to explain their conclusions, but the defense experts could not. Defendant asserts that there is no way of determining the stifling effect the judge's ruling had on the defense experts.

The record does not support defendant's assertions. The record is replete with examples of defendant's experts explaining the bases of their determinations although not quoting verbatim his statements. Moreover, defense experts were able to explain how the events of defendant's childhood and adolescence, as corroborated by numerous friends and relatives of defendant, affected defendant's development. Because no offers of proof were made concerning the testimony which would have been elicited from defendant's experts, it is impossible to determine the adverse effect, if any, of the alleged error.

Defendant next asserts that he was denied his fifth amendment right against self-incrimination when his statements to the People's experts were disclosed to the jury. Defendant argues that the jury was not instructed that it could consider these statements only as to defendant's mental state and that, even if such an instruction were given, it would “inevitably be ineffectual, and that the defendant's rights can therefore only be protected by a blanket rule prohibiting experts from recounting the defendant's statement.” We consider this contention to be without merit. We note that it was defendant who sought to introduce these statements into evidence. Furthermore, since there was no question at trial other than defendant's sanity, no prejudice could have occurred. Defendant, in his reply brief, asserts that he never abandoned his claim of innocence because “at jury selection and at the time of jury instructions the jury was informed that there were two issues to be resolved: guilty and sanity.” This contention is difficult to accept in light of defense counsel's statement in opening argument that the insanity defense “is the only defense that we could use here,” the defense experts' admission that defendant had committed the acts, and the lack of any evidence in the record which would tend to dispute the charge that defendant had committed the murders.

Defendant also argues that failure to instruct the jury that defendant's statements to the People's experts could be used only with regard to the issue of sanity deprived him of a fair sentencing hearing, because many of the statements could be used as factors in aggravation. This issue was waived. Not only did defendant fail to object to the use of these statements, he stipulated to their use and, at least in part, relied on them in arguing that his mental defect constituted a factor in mitigation which should preclude the death penalty. To review this issue would permit defendant to inject error into his own case. Appellate counsel's suggestion that trial counsel's failure to pose an objection is indicative to incompetence of trial counsel is also without merit. Not only was the emphasis of this mitigating factor an acceptable choice of trial strategy, it appears to have been the only strategy available to trial counsel.

Defendant next argues that his fourteenth amendment right to due process was violated because Dr. Cavanaugh testified that if defendant were acquitted it would be impossible to guarantee that he could be confined to a hospital for the rest of his life. At voir dire, defense counsel requested that prospective jurors be instructed concerning civil commitment. As previously noted, defense counsel, in opening argument, twice suggested that defendant should be committed to a hospital for the rest of his life. During direct examination of Dr. Cavanaugh, the assistant State's Attorney asked, without objection, whether it was possible to guarantee confinement in a mental hospital for the rest of a patient's life. Dr. Cavanaugh stated that it was impossible to guarantee confinement in a mental institution because the legal standards for confinement to an insane asylum were constantly changing. Defense counsel objected, a side bar was had, and the court told defense counsel that the objection was not timely. The court stated that it thought that defense counsel wanted to “try [the answer] out for a while” and interposed an objection only when it became obvious that the answer was unfavorable to defendant's case. The circuit court ruled that nothing further should be said on the matter. Despite this, defense counsel asked Dr. Cavanaugh whether defendant, if he were acquitted, could be civilly committed. Dr. Cavanaugh testified that he could not if the law were followed. The court stated that neither side could raise an irrelevant issue and instructed the jury to disregard the colloquy because it was irrelevant to the issues of the case. The question raised could serve only to divert the jury's attention from the issues in the case (People v. Yates (1983), 98 Ill.2d 502, 539, 75 Ill.Dec. 188, 456 N.E.2d 1369), and the court correctly instructed the jury to disregard the testimony and the comments. On this record the instruction was sufficient to render harmless any effect which the testimony may have caused, and we find no error which warrants reversal.

Defendant contends next that the circuit court erred in permitting certain experts to testify that they had found defendant fit to stand trial. Several of the experts were permitted to testify that they had found defendant fit to stand trial, and in each instance the witness also explained the difference between fitness to stand trial and the insanity defense. The People argue that an expert's finding that the defendant was fit to stand trial was relevant to the question of defendant's sanity at the time of the crime. While there may be instances where such evidence is relevant, we fail to see its relevance here. We hold, however, that the introduction of this evidence did not constitute reversible error. The defense theory was that defendant was able to function well in society except when stress levels rose so high that he experienced something akin to a psychotic episode and that defendant was fit to stand trial was consistent with his defense. Since the difference between fitness for trial and sanity was clearly and repeatedly explained to the jury, we do not believe that the jury was confused by the introduction of this testimony and the error was harmless.

Defendant next complains of three instances where counsel was allegedly improperly restricted in his examination of several experts. First, defense counsel asked Dr. Rappaport a series of questions concerning how “substance use disorders” fit into Dr. Rappaport's diagnosis. Objections were sustained to any questions concerning substance use or substance abuse, apparently for the reason that there was no evidence of this in the record. We find, however, that the error, if any, was harmless for the reason that objections to the questions were sustained after Dr. Rappaport had answered them. Furthermore, Dr. Freedman testified concerning large intakes of valium, alcohol and marijuana which accompanied the episodes where the “most acute and dangerous paranoia” emerges. The jury was informed that Dr. Cavanaugh's and Dr. Fawcett's reports referred to alcohol and drug abuse. Second, defendant asserts that the circuit court erred when it refused to permit defense counsel to question Dr. Hartman concerning whether he had diagnosed anyone as “borderline” in the previous 28 years. We agree with the People that this question was improper. The testimony shows that “borderline personality disorder” was given that designation for the first time in DSM III (Diagnostic Statistical Manual III), which was approved and adopted by the American Psychiatric Association while this case was being tried. While defendant asserts in his reply brief that “borderline personality” is only a new label for a diagnosis which has existed for a long time, and Dr. Hartman could have explained this, we are of the opinion that the objection to the form of the question was properly sustained. The question specifically asked if Dr. Hartman had diagnosed anyone in the last 28 years as “borderline.” If defense counsel wished to inquire whether Dr. Hartman had ever diagnosed a patient using one of the previous labels for this condition, he could have done so. Third, defendant complains because he was not allowed to ask Dr. Hartman: “In a borderline, a person suffering from borderline personality organization manifests many, many characteristics of the sociopath, isn't that right?”

We agree with the People that his question was vague and ambiguous. Defense counsel could have questioned the expert as to particular symptoms and then asked if that was consistent with the diagnosis of “borderline.” It was not improper for the circuit court to preclude the asking of the question which might require a variety of answers depending on how it was interpreted. We conclude that these three alleged errors, in a transcript containing more than 5,500 pages, could not have deprived defendant of a fair trial.

Defendant next argues that it was improper for Dr. Garron, called by the People, to state an opinion concerning whether defendant suffered any nonorganic brain disorders when he had been asked as a neuropsychologist to examine defendant for the purpose of determining whether there were any organic brain disorders. Defendant argues that an expert may not state an opinion when there is no factual basis to support his finding, and since Dr. Garron specifically testified that he was not asked to examine defendant for nonorganic brain disorders, no factual basis existed. The People argue that there was a factual basis for his opinion since Dr. Garron administered a Rorschach test, that Dr. Garron had used this test to evaluate defendant's “mood, emotional state, and emotional organization,” and that in any event Dr. Garron's testimony was admissible to rebut Dr. Traisman's statement that any experienced clinical psychologist would interpret the results of a Rorschach test in the same manner. We need not address all these assertions, as we find that Dr. Garron had a sufficient factual basis for his opinion. The Rorschach test was used by almost every expert testifying in this trial, and each expert testified that it was useful to some degree in formulating a diagnosis. The fact that this was the only test given which related to nonorganic brain damage and that Dr. Garron did not examine defendant for the purpose of diagnosing nonorganic brain disorders affects the weight, not the admissibility, of his testimony.

Defendant next argues that the People improperly impeached Dr. Freedman. Dr. Freedman did not state an opinion whether defendant was legally insane at the time of the crimes because he believed that such a determination was outside the field of his expertise. On cross-examination, Dr. Freedman stated that he had given such an opinion in the Simon Peter Nelson case. On redirect examination, Dr. Freedman stated that he gave an opinion in that case because he was with Mr. Nelson and saw “a total reenactment under my eyes of a dissociated state by psychotic episode in which this man killed his beloved six children * * *.” Defense counsel asked if he actually witnessed this, and Dr. Freedman replied: “I have, the tape which I have played to many experts, and no one doubts * * *.” On re-cross-examination, the following colloquy occurred: “Q. The jury doubted you, didn't they? A. I don't think so. Q. They found him guilty, didn't they? MR. AMIRANTE: Objection. THE WITNESS: And they advised the judge against capital punishment because of his emotional state.”

The objection was sustained and the court instructed the jury: “Ladies and gentlemen, what happened in another case certainly won't help us decide this case, so any reference to results of another case is improper consideration.

The People argue that this was proper impeachment because the jury could have inferred that what “no one doubted” was that Dr. Freedman was correct in his opinion concerning whether Simon Peter Nelson was legally sane or not, and not whether he was with Nelson when he had a recurrence of his psychotic episode. We find it unnecessary to address this question, because even if this alleged impeachment were improper, it was not damaging to defendant's case. From the fact that the jury in that case had found Nelson guilty but advised against capital punishment because of defendant's emotional state, the jury in this case would no doubt infer that the jury in that case believed that Dr. Freedman's observation of the psychotic episode was indeed correct. Additionally, a cautionary instruction was immediately given and the jury was instructed to disregard the entire line of questions.

Defendant also complains that the People improperly bolstered Dr. Cavanaugh's testimony. During the People's case in rebuttal, the following colloquy occurred: “MR. KUNKLE: Q. Now, with respect to the [Isaac Ray Center] statistics, did you in fact keep statistics and publish them in your first annual report at that time, 35 evaluations having been completed through the court system? You keep statistics as to any corrolation with your decision as to what the ultimate factfinders find? A. Yes. In that first annual report, the coefficient corrolation which really means the degree of agreement between our opinion and the factfinder, the judge or jury's opinion was .8, which basically means eight out of ten times our finding- MR. MOTTA: Objection to this, Judge. THE COURT: Objection sustained.”

Defendant concedes that an objection was sustained, but that the damage to the defendant is so great that the error cannot be considered harmless. The People respond that in this case the evidence was relevant since “the validity and reliability of various schools of psychiatric diagnosis were attacked by both sides” and that “any information on the reliability of Dr. Cavanaugh's technique was a proper matter for the jury's consideration.” We agree with the circuit court that what other juries decide in other cases is not relevant and that the percentage of diagnoses accepted by the finder of fact is not necessarily indicative of the reliability of that expert's techniques. It was within the province of the trial court to determine that whatever probative value this information had was outweighed by the danger of the defendant's being convicted by statistics rather than by the evidence in the case. In view of the sustained objection, we hold that defendant was not prejudiced.

Defendant next argues that the People's cross-examination of Dr. Rappaport was improper. At the beginning of the cross-examination of Dr. Rappaport, the following colloquy occurred: “Q. Let me ask you this: did you or anyone from your office call more than one television station last night- MR. MOTTA: Objection, Judge. MR. KUNKLE: Q. -indicating your willingness to be interviewed in the midst of your testimony? A. No. Q. You didn't? A. No. Q. You didn't walk out here in the hall with the press people and indicate that you were available for interviews? MR. AMIRANTE: Objection: Judge, he was- THE WITNESS: A. No. MR. AMIRANTE: -with me when he walked out, we didn't talk to the press.”

The circuit court immediately instructed the jury that it was not to imply that this in fact occurred. Later, at a side bar, the court asked Dr. Rappaport if he had attempted to contact the news media in any way. Dr. Rappaport explained that he had not contacted the news media nor did he know of anyone who had. Defense counsel insisted that the jury could draw an inference from the prosecutor's question that Dr. Rappaport had violated the court's order forbidding attorneys, experts and other parties from talking to the press about the case. The assistant State's Attorney stated that he had the name of an “interviewer” who was told by Dr. Rappaport that he was available for an interview, but would not disclose the name unless instructed by the court to do so. Acknowledging that the People would have to call these newsmen on rebuttal, and that there might be some problem with “the newsmen privilege,” the court ruled: “I feel that it is on such an insignificant point that it would not be worth the legal ramifications of attempting to put in that rebuttal, so I would instruct the State not to put in that rebuttal, and I will instruct the jury to disregard anything regarding that.” The court then instructed the jury to disregard any remarks concerning this matter. Citing People v. Steptore (1972), 51 Ill.2d 208, 216, 281 N.E.2d 642, and People v. Pfanschmidt (1914), 262 Ill. 411, 104 N.E. 804, defendant argues that a witness may not be impeached on a collateral matter and that “the test of collateralness is whether the fact for which the testimony is offered in contradiction of a witness' testimony could have been shown in evidence for any purpose independent of the alleged contradiction.” Citing People v. Pumphrey (1977), 51 Ill.App.3d 94, 9 Ill.Dec. 176, 366 N.E.2d 433, defendant argues if the sole purpose of the impeaching evidence is to contradict the witness and if it is not relevant for any other purpose, it is inadmissible.

We note that it was defense counsel who injected the issue of bias of the expert witnesses into this trial with the remarks in opening argument that the People's experts were “mechanics for the State” or had “inflexible biases.” The People's response to this bias argument, at least as far as Dr. Rappaport is concerned, appears to be that, as a private practitioner, Dr. Rappaport would rely heavily on defense attorneys and criminal defendants for business. The witness' use of this trial for publicity would be relevant to the inference that he had a motive to testify for the defense. The People had the right to cross-examine the witness concerning his bias, prejudice or interest in the outcome of the suit (People v. Sampson (1953), 1 Ill.2d 399, 404, 115 N.E.2d 627), but we agree with the circuit court that the matter was insignificant and, in view of the instruction to the jury to disregard it, was not prejudicial.

Defendant contends next that the People improperly insinuated that defense counsel and defendant had concocted the insanity defense the night before defendant's arrest. On direct examination of Detective Michael Albrecht, the following colloquy occurred: “MR. KUNKLE: He said he had four Johns and he doesn't know all of the personalities. Q. Now, this was after he had been to his lawyers' the night before, is that right? A. That is correct.”

Defense counsel immediately objected and asked for a side bar. Mr. Amirante stated: “That's a direct attack on defense counsel's integrity. It calls for a mistrial, I'm making a motion for mistrial.” The court stated: “I myself didn't interpret it that way. Number 1, he goes to his lawyer, it doesn't necessarily follow that the lawyer is suggesting he's going to a lawyer and he's coming up with this.” Defense counsel insisted that the insinuation was “obvious,” and the court reiterated that it did not necessarily interpret the question in that manner and that “it better not be argued that way” and that the assistant State's Attorney “better tell whoever is going to argue not to argue that.” We cannot agree with defendant that the People's questions admit to only one inference. The People did not argue that Mr. Amirante concocted the multiple-personality defect and told defendant to use it. The People were entitled to argue, however, that defendant's visiting his attorneys the day before he was arrested and telling the police that there were “four Johns” tended to establish that defendant had concocted the multiple-personality defect and was attempting to use it to avoid responsibility for his crimes.

Defendant cites United States ex rel. Macon v. Yeager (3d Cir.1973), 476 F.2d 613, 615-16, and other cases, and argues that the People's reference to defendant's exercise of his right to counsel is a violation of the sixth amendment. In Yeager, the defendant, after a shooting incident, drove away from the scene with his friends and instructed his friends “to give no statements and to take no action until he had consulted his attorney.” (476 F.2d 613, 614.) The next morning he telephoned his lawyer and was later arrested. During closing argument, the prosecutor argued: “He goes home and puts the shirt down in the chest, a torn shirt. Then he goes to bed. He says he had trouble sleeping. He gets up the next morning and lo and behold, what does he do? He calls his lawyer. These are acts of innocence? (Emphasis added.)” (476 F.2d 613, 614.)

We find Yeager distinguishable. In Yeager, the prosecutor argued to the jury that they could infer defendant was guilty because he consulted his attorney after the alleged criminal act had occurred. Here, however, the inference which the assistant State's Attorney was asking the jury to draw was that defendant's consultation with his attorneys prior to making statements to police concerning multiple personalities supported the experts' conclusions that defendant was attempting to fake an insanity defense. That he confessed to 30 murders also supports the inference that he was aware that his conduct was criminal. We note, also, that the evidence that defendant had confessed to 30 murders to his attorneys came from Cram's statement that defendant told him that he had told his attorneys that he had killed 30 people.

Defendant next argues that the introduction of certain improper evidence and argument based on that evidence denied him a fair trial. Defendant argues that the following information was irrelevant and prejudicial: that Robert Piest was of good character; that Darryl Samson, Russell Nelson and William Kindred had planned to marry; that Robert Gilroy and John Mowery had planned on furthering their education; that Piest had been on the honor roll, the gymnastics team, and was “two badges away from making Eagle Scout, a badge which Robert had wanted badly”; that Nelson had graduated with honors and won a scholarship to the University of Minnesota and that Nelson and his future wife had the names of their children already chosen. Defendant also complains that Mary Jo Melanie Paulus had testified with a brace on her neck despite defendant's offer to stipulate to her testimony.

The People respond that all this information was relevant to defendant's assertion that his victims were “street hustlers,” “homosexuals” and “human trash.” The People note that defense counsel, during opening argument, asserted that all the victims shared “certain sexual preferences.” The People also note that defendant, in his confessions to the police, asserted “that all of the victims had been homosexual, bisexual, and that all had come to Gacy's house expecting to be paid for sex,” that “all of the victims were hustlers, mostly from Bughouse Square,” that “he never bothered straight people,” that “the victims had killed themselves because they had sold their bodies for $20,” and that “his victims were all male prostitutes.” The People assert that the defense experts repeatedly suggested that defendant “regarded the boy prostitutes he picked up as trash,” and that defendant “thought that he was performing a service to society by disposing of human trash, namely homosexual prostitutes.”

We agree with the People that evidence concerning the victims' sexual preferences was relevant to negate the assertion that all the victims were homosexual prostitutes. Moreover, the evidence concerning Piest's activities in school and outside of school was relevant to defendant's statement to Officer Bettiker that Piest stated he would do almost anything for a great deal of money and the suggestion of a possible exchange of money for sex acts involved in the Piest murder. We fail to see the relevance, however, of evidence that Russell and his future wife had the names of their children already picked out and that Mrs. Nelson would not divulge the name of Russell's girl friend because she was trying to make a life of her own and was very upset about what had happened. Additionally, we also fail to see the relevance in the evidence of the victims' surviving siblings or that Piest wanted to make Eagle Scout “badly” and similar information. Moreover, we agree with defendant that the prejudicial nature of this information was compounded by reference to it in closing argument. For example, the prosecution stated: “Thirty-three boys were dead and the lives of parents, brothers and sisters, fiancees, grandmothers, friends were left shattered.” This court has found reference to the ages of the decedents' children to be highly inflammatory, requiring reversal even in the absence of an objection because the “highly prejudicial nature of such evidence is so well established * * * that it was the duty of the court in a murder case to have refused it on its own motion.” (People v. Bernette (1964), 30 Ill.2d 359, 372, 197 N.E.2d 436.) However, we conclude that reversal is not required under the facts of this case. It has been recognized that the effect of prejudicial or inflammatory evidence depends upon the circumstances of the case. In People v. Jones (1982), 94 Ill.2d 275, 68 Ill.Dec. 903, 447 N.E.2d 161, the jury was informed that the defendant had been involved in numerous murders and had assaulted a couple living in East St. Louis, slashed the woman's throat, bludgeoned her face and head, cut deep gashes in her hands and arms, decapitated her husband, and carried the head of the husband and later discarded it. Rejecting an argument that certain photographs were prejudicial and inflammatory, this court stated:

“It is unlikely that at this point in the proceedings the photographs would have created more revulsion in the jurors toward defendant than was already present. Since the jury deliberations took approximately 20 minutes it is clear that there was little difficulty in deciding that the death penalty was warranted, and we do not believe that the admission of these photographs at this late date in the proceedings deprived defendant of the right to be sentenced by a rational tribunal.” (People v. Jones (1982), 94 Ill.2d 275, 293-94, 68 Ill.Dec. 903, 447 N.E.2d 161.)

In this case, the evidence which might create revulsion in the jurors toward defendant included the sadistic torture of Rignall and Donnelly, his record-breaking number of murders, his homosexual assault on some of the victims before their murders, and other facts too numerous to mention. Considering that after a lengthy trial the jury required approximately 1 hour and 45 minutes to reject defendant's insanity defense, we conclude that defendant was not deprived of the right to be convicted by a “rational tribunal.”

Defendant next contends that there were many instances where the People engaged in improper closing argument. Defendant argues that the assistant State's Attorney misstated the test for insanity when he stated: “But because he is abnormal doesn't mean that he doesn't know the difference between right and wrong. If he does, he is legally responsible.” The assistant State's Attorney repeatedly stated the proper test, and the jury was not misled by this one statement. Second, defendant argues that the assistant State's Attorney improperly discredited Dr. Freedman's testimony by exaggerating the significance of DSM III and intentionally misrepresenting “the doctor's testimony regarding his diagnosis in relation to the manual.” In closing argument, the assistant State's Attorney argued: “He [Dr. Freedman] used terms that are nonexistent in DSM III. Now I'm not going to talk to you in detail about the diagnoses that are in DSM III. I know you have heard more of that than you want to hear anyway. But if psychiatrists themselves cannot agree on what the terms are, on what the language means, then how can they communicate with each other, and, more important, how can they possibly communicate with us?”

Defendant asserts that the assistant State's Attorney's attack on Dr. Freedman was not justified by the evidence. Defendant argues that equivalent diagnoses were contained in earlier drafts of DSM I and DSM II. Defendant's argument, however, concerns the persuasiveness of the assistant State's Attorney's argument, not its impropriety. We find no error. Third, defendant argues that the assistant State's Attorney improperly distorted the testimony of Dr. Rappaport and Dr. Eliseo. We have reviewed defendant's contentions, and are of the opinion that the assistant State's Attorney did not transcend the bounds of proper argument by characterizing Dr. Rappaport's testimony as he did or in drawing the inferences he believed were proper from that testimony. Defense counsel was free to argue that the evidence did not support the assistant State's Attorney's conclusions but rather supported the conclusion suggested by him. We find no error. Fourth, defendant argues that the assistant State's Attorney improperly implied that the success of defendant's expert witnesses' private practices depended upon finding defendants insane where there was no evidence to support this implication. The assistant State's Attorney argued:

“Well, let me ask you something, consider something about privately retained psychiatrists who practice in the legal field. If a psychiatrist's only business comes from defense lawyers, if that is where his referrals come from, how many referrals do you think he is going to get back from that lawyer, or that lawyer's firm if he keeps finding people sane at the time of the crime?”

Defendant did not object to this argument and any alleged error is waived. Defendant contends that it was improper for the assistant State's Attorney to impugn the integrity of Dr. Morrison by commenting that she had the “nerve” to submit a bill for $9,000. No objection was made to this argument, and the issue is therefore waived. Defendant argues that the assistant State's Attorney improperly stated that Dr. Heston had not been compensated for examining the defendant. Defendant argues that because at the time he examined defendant, Dr. Heston was employed by the University of Iowa Medical School, he was receiving compensation since he examined defendant “as part of his job.” No objection was made to this argument, so it too is waived. Defendant argues that the assistant State's Attorney's statement “that the psychiatric institute testified on behalf of defendants 75% of the time” was not based on facts in evidence. The assistant State's Attorney stated: “I don't know what the detailed statistics of the psychiatric institute are. But if they aren't 75 to 25 for the defendants, it would certainly surprise me.”

No objection was made to this, so the issue was waived on appeal. Moreover, since Dr. Reifman testified that he testified on behalf of defendants about 60% of the time, even if the estimate is inaccurate, it was not totally unwarranted.

Defendant argues that it was error for the circuit court to refuse this instruction: “You are instructed that you are not bound by medical labels, definitions, or conclusions as to what is or is not a mental disease.”

The court in refusing the instruction, explained: “I have indicated that I would not give that unless the defense-unless the State argued that in order to be a mental disease, it would have to be in the DSM III which they have not argued.”

Defendant argues that the State did in fact argue this when it argued that Dr. Freedman used terms that were not in DSM III. The People respond that the instruction was unnecessary as every medical expert who testified placed a “medical label” on defendant's condition, that there was little agreement as to which medical label was appropriate, and no one contended that in order to be valid, it was required that the medical label be listed in DSM III. The People argue further, citing People v. Williams (1967), 38 Ill.2d 115, 230 N.E.2d 224, and People v. Miller (1965), 33 Ill.2d 439, 211 N.E.2d 708, that the instruction was properly refused because it did not contain a correct statement of law, as Illinois does not recognize a “mere personality disorder” as meeting the test for insanity. The People argue that the proposed instruction was improper in that it “singled out a particular item of expert testimony” contrary to People v. Speck (1968), 41 Ill.2d 177, 196-97, 242 N.E.2d 208, and was correctly refused because it was argumentative.

We are of the opinion that the instruction was properly refused. Contrary to defendant's assertion, the People did not argue that in order to be a mental disease, the disease must be listed in DSM III. The People argued that if Dr. Freedman did not use a term which is listed in the current diagnostic and statistical manual, and if the psychiatrists could not agree on which terms to use and what those terms mean, then it would be difficult or impossible for them to communicate with each other and, more importantly, with the jury. The jury was properly instructed concerning the credibility of witnesses (Illinois Pattern Jury Instruction (IPI), Criminal, No. 1.02 (1968)) and on the insanity defense (IPI Criminal No. 24.01), and defendant's instruction was unnecessary.

Defendant next argues that he was denied effective assistance of counsel because trial counsel indicated to the jury that evidence would be forthcoming which was never presented; because defense counsel repeatedly failed to object to misconduct by the prosecutors, and because they failed to tender a needed instruction. As indicated above, at opening argument defense counsel stated that four psychiatrists would testify for the defense. Defense counsel stated: “We have four psychiatrists who will testify in court * * *,” and then listed them. Several pages later in the transcript, defense counsel stated, in the middle of a paragraph explaining the relation between the defendant's alleged mental disease and the question of whether he lacked substantial capacity to conform his conduct to the requirements of the law: “And again, those psychiatrists will testify that he was unable to fully and consciously control his acts, which are motivated by overwhelming and uncontrollable primitive drives.”

From these statements, defendant concludes that the jury was expecting to hear four psychiatrists render an opinion that defendant was insane and that “the jury could not help but be skeptical of the defense” when they discovered that two psychiatrists would not state an opinion whether, under Illinois law, defendant was legally insane. The People argue that the comment neither stated nor implied that all the defense psychiatrists would render an opinion as to whether defendant would meet the statutory requirements for legal insanity and that, in any event, it is unlikely that the jury would have even remembered this comment in opening statement after hearing a month of complex and conflicting psychiatric testimony. We agree with the People on both contentions and reject defendant's argument.

Defendant's other citations to trial counsel's alleged incompetence are without merit. Defendant argues that trial counsel failed to tender an instruction to the effect that the jurors could only consider defendant's statements made to the examining expert witnesses with reference to his mental condition. As we have already noted, since there never was a question concerning whether defendant actually committed the 33 murders, the instruction was unnecessary, and thus there was no reason for defense counsel to tender such an instruction. There is no merit to the contention that the prosecutor misstated the legal test for insanity in closing argument; thus there was no reason to interpose an objection, and trial counsel's failure to object to certain evidence concerning the victims does not constitute incompetence. Rather, this voluminous record is replete with indications that trial counsel expended considerable effort in seeking out expert witnesses for defendant and preparing for the cross-examination of the People's experts. Trial counsel presented numerous pretrial motions and vigorously objected to perceived errors throughout the trial. Defense counsel obviously made extensive efforts to research defendant's family history and early adult life. There is no merit to the assertion that their representation was ineffective.

Defendant argues that the murder of Timothy O'Rourke was not proved beyond a reasonable doubt and that this erroneous conviction necessitates a remand for a new sentencing hearing. Defendant's assertion that this murder was not proved beyond a reasonable doubt rests upon a distortion of the record. The doctor performing the autopsy listed the cause of death as “apparent drowning.” The body was too badly decomposed to determine the cause of death with reasonable certainty, and the doctor performing the autopsy stated that he was unable to determine whether O'Rourke was dead when placed in the water. No gross amount of water was found in his lungs, which suggests that he might not have drowned. Although defendant asserts that there “were no signs of any trauma,” the doctor performing the autopsy testified that strangulation could not be ruled out as a possible cause of death. Defendant's assertion that there was no evidence to connect Timothy O'Rourke with him is contrary to the record. O'Rourke was an admitted homosexual living with a transsexual lover on the north side of Chicago. The transexual lover testified that O'Rourke had gone out to get cigarettes one night and never returned. Defendant had confessed that he had picked up one of the young men whose body was found in the river at Clark and Lawrence in Chicago, one block from where O'Rourke and his transsexual lover were living. When O'Rourke's body was found in the Des Plaines River in Grundy County, it was naked and bloated. This physical evidence indicated that the body had been in the river a long time and that the victim may have been involved in a sexual murder. In view of the fact that defendant stated he threw five bodies from the I-55 bridge and all five bodies were found in the same general vicinity, a reasonable inference to be drawn was that O'Rourke was one of defendant's victims. We are of the opinion that the testimony concerning O'Rourke's disappearance, when considered with defendant's statement as to where he picked up one of his victims, the location of the body in the Des Plaines River, the physical condition of the body when found, and defendant's statement that he threw five bodies in the river, in light of all the evidence in this case, was sufficient to permit the jury to conclude that defendant had murdered Timothy O'Rourke and the People had proved this beyond a reasonable doubt.

Defendant next asserts that he was not proved guilty beyond a reasonable doubt of committing indecent liberties and deviate sexual assault on Robert Piest as there was no corpus delicti for these offenses. Defendant also asserts that he cannot simultaneously be convicted of deviate sexual assault and indecent liberties on Robert Piest. The People respond that since no sentence was imposed on either charge the issue is moot. The People also assert that defendant's confession to deviate sexual assault and indecent liberties on Piest was sufficiently corroborated. Citing People v. Willingham (1982), 89 Ill.2d 352, 360, 59 Ill.Dec. 917, 432 N.E.2d 861, the People argue that they need not prove the corpus delicti beyond a reasonable doubt, but only introduce some evidence to corroborate the defendant's confession that a crime occurred. The People argue that the following evidence sufficiently proves a corpus delicti: Piest's body was recovered naked except for a pair of socks, the handcuffs used on Piest were recovered, there was no conceivable motive for killing Piest unless defendant was trying to cover up a deviate sexual assault, and the pattern of killing by defendant supports a contention that a deviate sexual assault occurred.

We find it unnecessary to address these contentions. Since no sentences were imposed on these convictions, the remaining question is whether the convictions, if improper, would have affected the sentencing jury. As the People point out, with or without the convictions, the jury still would have been exposed to defendant's confession which detailed the assault on Piest. Moreover, considering the enormous amount of evidence establishing aggravating factors against defendant, we cannot say that these convictions, even if improper, deprived defendant of a fair sentencing hearing.

Defendant next argues that his representation at the death penalty hearing was incompetent. Defendant cites four factors that allegedly demonstrate the low level of his representation. The factors are: failure to prepare for the hearing, failure to present any evidence on the statutory mitigating factor of extreme mental or emotional disturbance, failure to present other mitigating evidence, and failure to make a competent closing argument.

Defendant contends that his trial counsel should have requested a continuance to prepare for the sentencing hearing. From what appears to be counsel's plan, however, no lengthy preparation was necessary. Trial counsel stipulated to the admission at the sentencing hearing of all the evidence presented at trial. Since counsel's plan seems to have been to limit his presentation at the sentencing hearing to a plea for mercy, counsel may have decided that any continuance in a trial which has already lasted more than one month, with a jury in sequestration, would serve only to antagonize the jury toward the party requesting the continuance. Thus, assuming that trial counsel's strategy for the sentencing hearing was reasonable, there was no need for him to request a continuance before the hearing.

Defendant next complains that his trial counsel was incompetent for failing to present any evidence on the statutory mitigating factor of extreme mental or emotional disturbance. Defendant argues that any of the expert witnesses who testified for either side should have been examined at the sentencing hearing on this point. Trial counsel, however, chose not to recall any of the expert witnesses, but by using their previous testimony, which had been admitted by stipulation in the sentencing hearing, argued to the jury that the previous expert testimony was sufficient to show this mitigating factor. We cannot say that it was incompetent for trial counsel to make this choice and to possibly avoid antagonizing the jurors by subjecting them to psychiatric testimony which may have sounded repetitive to them. Alleged incompetency arising from a matter of trial tactics or strategy will not support a claim of ineffective representation. People v. Haywood (1980), 82 Ill.2d 540, 543-44, 45 Ill.Dec. 932, 413 N.E.2d 410.

Defendant next contends that his trial counsel was incompetent since he failed to present other mitigating evidence. Defendant contends that such evidence could have included his childhood experiences, his family relationships, his business career, and his charitable and civic work. As in the prior argument where defendant contends that psychiatric testimony could have been repeated at the sentencing hearing, trial counsel may also have made the tactical choice not to repeat the suggested mitigating evidence of such matters as his family relationships and civic work which were already presented at trial. As before, we will not question what appears to be, on these facts, a tactical decision.

Defendant also complains that his trial counsel made an incompetent closing argument. We cannot agree. Counsel, pointing to the psychiatric testimony introduced at trial, first argued that defendant acted under an emotional disturbance. Next, in the main theme of counsel's closing argument, he proposed that it would be better to study defendant than to have him executed in an act of revenge. We must judge the remarks in their setting and against the background of the jury's verdicts. Trial counsel could have made the decision that it would be better to argue against the death penalty itself than to try to explain that there were mitigating factors sufficient to avoid the death penalty in light of the 12 murders of which defendant had been convicted and for which defendant was eligible for the death penalty. The same jury had also convicted defendant of 21 other murders and of indecent liberties with a child and deviate sexual assault. The jury was also aware of the brutal nature of many of the murders and of the youth of many of the victims. Trial counsel could not controvert these facts; he could not change them; he was confronted with the task of making an extremely difficult argument. We cannot say that the argument showed professional incompetence. See People v. Gill (1973), 54 Ill.2d 357, 364-65, 297 N.E.2d 135.

Defendant next complains that the prejudicial arguments of the assistant State's Attorneys denied him a fair sentencing hearing. Defendant first argues that the following remark helped to deny him a fair sentencing hearing: “I will be frank with you, ladies and gentlemen, as a citizen of the State of Illinois myself, I don't want to pay this guy's rent for the rest of his life.” We agree that the remark was improper as it tended to inject the “cost factor” and the assistant State's Attorney's personal beliefs into the jury's deliberations. It is clear, however, that the remark was merely a sarcastic assertion that life imprisonment for defendant to allow him to be studied was an inadequate punishment. In the context in which it was made, and on this record, we hold that the error in failing to sustain the objection to the remarks of the assistant State's Attorney was harmless. We also note that the objection to the assistant State's Attorney's statement about rent was posed as follows: “Objection, Judge. Then let Mr. Kunkle pull the switch.” The court may have decided that an objection made in that form should pass without further comment.

Defendant next complains that the following argument was improper: “The evidence will show that John Gacy is plainly and simply an antisocial person. That only means that he will murder and murder and murder again and again, if you allow him to do so.” While defendant argues that the insinuation that if he were sentenced to life imprisonment he would kill again was improper because it was not supported by the record, we cannot agree in light of the fact that defendant was convicted of 33 murders. We also note that the inference may be drawn that defendant's prior imprisonment had failed to deter him from committing further crimes.

Defendant contends that the assistant State's Attorney argued to the jury that if it did not sentence defendant to death, it would not have followed the law, it would have failed to do its duty, it would have ignored the mandate of the citizens of Illinois, and it would have made a mockery of the law and the concept of justice. Defendant asserts that the statements, in effect, directed a verdict of death and stripped the jury of its duty to weigh the evidence fairly and dispassionately decide on the proper sentence. We cannot agree. From the context of the statements, we find that the assistant State's Attorney was merely arguing that the People had proved their case, and were entitled to a decision in their favor. Any implication that a death sentence was mandatory was negated by the jury instructions.

Defendant also argues that the assistant State's Attorney's opening statement at the death penalty hearing was improper because, when commenting on the statutory mitigating factor that the murders were committed while the defendant was under the influence of extreme mental or emotional disturbance, he told the jurors that they had flatly rejected that factor when they found defendant guilty and that the mitigating factors were simply statutory guidelines, and not loopholes for the defendant. It appears, from our reading of the record, that the assistant State's Attorney was arguing that defendant's expert testimony would not show the mitigating factor that the murders were committed while defendant was under the influence of extreme mental or emotional disturbance just as the expert testimony had not shown that defendant should be found not guilty by reason of insanity. We note further that defendant made no objection to this portion of the argument, which waives the issue on appeal. People v. Jackson (1981), 84 Ill.2d 350, 358-59, 49 Ill.Dec. 719, 418 N.E.2d 739.) Defendant's objection to the characterization of mitigating factors as statutory guidelines was also not error here, as it fairly described the function of the statutory mitigating factors. (People v. Jones (1982), 94 Ill.2d 275, 282-86, 68 Ill.Dec. 903, 447 N.E.2d 161.) We also note that when the assistant State's Attorney began to comment further upon the law in regard to mitigating factors, defendant promptly made an objection which was sustained. In sum, we conclude that all the alleged errors during argument, as reviewed together, would not constitute reversible error.

Defendant next complains that the jury was improperly instructed before its deliberations in the death penalty hearing when the court misstated one of the instructions as follows: “If, after your deliberations, you unanimously conclude there are mitigating factors sufficient to preclude imposition of the death penalty, you must sign the verdict form directing a sentence of imprisonment.”

The instruction as tendered to the jury in written form, read: “If, after your deliberations, you are not unanimous in concluding that there are no mitigating factors sufficient to preclude imposition of the death sentence, you must sign the verdict form directing a sentence of imprisonment.”

Not only was the jury given the correct version in the written instruction, but the verdict form also gave the correct version of the law, as did oral instructions before argument on the death sentence, and in another portion of the oral instructions to the jury before their deliberations. Thus, none of the written instructions were incorrect, but a discrepancy existed in the oral instructions. We note that defendant did not attempt to correct the judge when the incorrect version of the instruction was read. Defendant cites the cases of People v. Kubat (1983), 94 Ill.2d 437, 69 Ill.Dec. 30, 447 N.E.2d 247; People v. Haywood (1980), 82 Ill.2d 540, 45 Ill.Dec. 932, 413 N.E.2d 410, and People v. Jenkins (1977), 69 Ill.2d 61, 12 Ill.Dec. 728, 370 N.E.2d 532, in support of his contention that the giving of conflicting instructions to the jury was reversible error. In Haywood and Jenkins, this court reversed the judgments because conflicting written instructions were given to the jury. We do not find these cases controlling, however, because here defendant does not complain that any of the written instructions were incorrect, only that one of the readings of one of the instructions was misstated. In Kubat, the court upheld a sentence of death although the jury had been given conflicting written instructions on the precise issue involved here. While defendant has attempted to distinguish Kubat by arguing that the defendant in that case had waived his right to complain about the conflicting instructions because no objection was made to them, we find the circumstances here more compelling to hold that the error was harmless since the instruction was incorrect in only one of the readings and in none of the written forms. In view of the fact that the jury was instructed correctly as to the law on this point four separate times, all of the written instructions being correct, we fail to see how the jury was left with a mistaken interpretation of the law, or that it was confused on this point.

Defendant contends next that the court should have determined that defendant knowingly and intelligently agreed to a stipulated sentencing hearing. The People and defendant stipulated that all the evidence heard at the trial could be considered by the jury at the death penalty hearing. Defendant argues that such a stipulation was the functional equivalent of a guilty plea and defendant should have been personally addressed to ascertain his understanding of the stipulation and its consequences. We find, however, that since the jurors, in the absence of a stipulation, could consider all the evidence presented at trial in their deliberations upon the death penalty, it was not necessary to obtain defendant's permission for them to do so. Ill.Rev.Stat.1979, ch. 38, par. 9-1(c); People v. Lewis (1981), 88 Ill.2d 129, 146-47, 58 Ill.Dec. 895, 430 N.E.2d 1346; People v. Carlson (1980), 79 Ill.2d 564, 589-90, 38 Ill.Dec. 809, 404 N.E.2d 233.

Defendant also complains that a knowing and intelligent waiver of his right to have time to prepare for sentencing should have been placed on the record. We have already considered the reasoning behind immediately proceeding to a sentencing hearing, and we decline to further discuss it here. We note that a defendant normally speaks through his attorney, who stands in the role of agent, and defendant, by permitting his attorney, in his presence and without objection, to immediately proceed to a sentencing hearing is deemed to have acquiesced in, and to be bound by, his actions. People v. Sailor (1969), 43 Ill.2d 256, 260, 253 N.E.2d 397; People v. Novotny (1968), 41 Ill.2d 401, 410, 244 N.E.2d 182.

Defendant next argues that “because of the significant mitigating evidence contained in this record, the sentence of death imposed upon John Gacy must be vacated * * *.” Defendant asserts that “virtually all of the expert witnesses for both sides support the proposition that defendant was acting under an ‘extreme mental or emotional disturbance,’ ” a statutory mitigating factor. (See Ill.Rev.Stat.1979, ch. 38, par. 9-1(c)(2).) Defendant also argues that the evidence of extreme disturbance was not the only mitigating evidence in the record, and that evidence which showed that defendant “was a good husband and stepfather * * *, a good friend to many * * *, a loving son and brother * *, a successful businessman * * *, a civic leader active in charitable work and politics * * *,” and while awaiting trial, “an ideal prisoner,” also constituted mitigating evidence.

Citing People v. Brownell (1980), 79 Ill.2d 508, 38 Ill.Dec. 757, 404 N.E.2d 181, the People argue that the decision at sentencing in a capital case is a balancing process in which the seriousness of the crime must be weighed against whatever mitigating factors exist. The People then detail the heinous nature of defendant's crimes both with the living victims and those who did not survive. The People assert that it is “just not true” that the People's expert witnesses claimed that defendant suffered from an extreme emotional disturbance. Rather, the People assert, all of the People's experts stated that he was suffering “from a mere personality or character disorder.”

We need not address the argument whether the jury was required to accept that the collective expert testimony in this case established that defendant was suffering from an extreme mental or emotional disturbance. As the People correctly pointed out, the decision at sentencing in a capital case is a balancing process. (People v. Brownell (1980), 79 Ill.2d 508, 38 Ill.Dec. 757, 404 N.E.2d 181.) While many labels were placed on defendant's mental condition, all of the People's experts characterized defendant's defect as a personality or character disorder. In light of the number of victims in this case, their age, the sadistic sexual torturing of Rignall and Donnelly, the attacks on other victims both in Illinois and Iowa, and the other aggravating factors, we cannot say that the jury was required to determine that whatever emotional disturbance defendant suffered precluded the sentence of death. Furthermore, much of the mitigating evidence to which defendant points is questionable. Many witnesses indicated that the only reason defendant was involved in charitable or political work was in order to manipulate others or gain advantage for himself. For example, there was evidence in the record that defendant liked to “play clown” because he could grab the breasts of women in a crowd watching a parade and get away with it. Defendant may have been a good husband and stepfather to his second wife and her children, but the evidence concerning his former marriage is anything but mitigating. The evidence established that defendant offered his wife to adolescent boys in exchange for oral sex. Apparently he has not seen his own children since he left Iowa. The evidence of defendant's “horribly troubled childhood” is questionable. While the evidence indicated that defendant's father was an alcoholic, was disapproving, and physically abusive to both defendant and his mother, defendant did have a loving mother and loving siblings. Defendant's mother was conscientious concerning defendant's education, and was supportive of defendant in his childhood and even in his adult life when defendant returned to Chicago. A disapproving father does not excuse 33 homosexually related murders and numerous other incidents of sexual torture and physical abuse. We decline to disturb the jury's determination.

Defendant also complains that a second jury should have been impaneled for the death penalty hearing since the original jury allegedly confused the statutory mitigating factor of extreme emotional or mental disturbance with the issue of insanity. Defendant alleges that if a different jury had been impaneled its attention would have been focused solely on aggravation and mitigation without the distraction of the insanity determination. Defendant contends that the jury was confused as to the requirements of the mitigating factor as differentiated from the defense of insanity and that this was evidenced by the confusion shown by the attorneys in their arguments in the death penalty hearing.

We cannot determine on this record that the jury was confused. The record shows that the defense attorneys were sufficiently able to distinguish between the defense of insanity and the mitigating factor of extreme mental or emotional disturbance. Even if it could be shown that the jury was confused, we do not believe that that would constitute sufficient “good cause” to warrant a second jury. (Ill.Rev.Stat.1979, ch. 38, par. 9-1(d)(2).) In People v. Lewis (1981), 88 Ill.2d 129, 58 Ill.Dec. 895, 430 N.E.2d 1346, the defendant advanced similar arguments, contending that a second jury would not have preconceived notions that the death penalty should be imposed. We rejected the defendant's arguments in that case, and find that case apposite here.

Defendant next contends that the failure of the death penalty statute to require that the People prove beyond a reasonable doubt the absence of mitigating factors sufficient to preclude the death penalty makes that statute unconstitutional. We rejected this contention in People v. Eddmonds (1984), 101 Ill.2d 44, 68, 77 Ill.Dec. 724, 461 N.E.2d 347, and we decline to reconsider it here.

Defendant also contends that the unlimited introduction and consideration of nonstatutory aggravating factors renders the death penalty statute unconstitutional. Defendant relies upon Henry v. Wainwright (5th Cir.1981), 661 F.2d 56, vacated and remanded (1982), 457 U.S. 1114, 102 S.Ct. 2922, 73 L.Ed.2d 1326, aff'd on remand (5th Cir.1982), 686 F.2d 311, vacated and remanded (1983), 463 U.S. 1223, 103 S.Ct. 3566, 77 L.Ed.2d 1407, in support of his argument. We have rejected defendant's contention, and the applicability of Henry thereto in People v. Davis (1983), 95 Ill.2d 1, 38, 69 Ill.Dec. 136, 447 N.E.2d 353, and in People v. Free (1983), 94 Ill.2d 378, 427, 69 Ill.Dec. 1, 447 N.E.2d 218, and decline to reconsider it here. We also note that the Supreme Court has upheld a death sentence notwithstanding the consideration by the sentencing court of a nonstatutory aggravating factor. Barclay v. Florida (1983), 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134.

Defendant also contends that the death penalty statute is vague since it does not define the term “extreme mental or emotional disturbance.” In Proffitt v. Florida (1976), 428 U.S. 242, 255-58, 96 S.Ct. 2960, 2968-69, 49 L.Ed.2d 913, 924-26, the Supreme Court rejected this argument with respect to similar wording in a Florida statute. In People v. Brownell (1980), 79 Ill.2d 508, 528-36, 38 Ill.Dec. 757, 404 N.E.2d 181, we considered whether the sentencing standards of our death penalty statute are vague, and found them to be sufficiently specific. We decline to reconsider that decision on the basis of defendant's argument here. Defendant has also argued that the use of the term “extreme” renders the statute unconstitutional as it improperly limits the jury's consideration of any level of mental or emotional disturbance as a mitigating factor. We find this portion of defendant's argument to be without merit as the jury was specifically instructed to consider “any other facts or circumstances that provide reasons for imposing less than the death penalty.”

Defendant also argues that the death penalty statute is unconstitutional for failing to require that the jury specify whether it has found mitigating factors to be present. We rejected this argument in People v. Gaines (1981), 88 Ill.2d 342, 383, 58 Ill.Dec. 795, 430 N.E.2d 1046, and decline to reconsider it here. See also People v. Brownell (1980), 79 Ill.2d 508, 541-44, 38 Ill.Dec. 757, 404 N.E.2d 181.

Defendant has also contended that the sentence discretion vested in the prosecution by the death penalty statute is an unconstitutional delegation of legislative and judicial authority. This court rejected that argument in People ex rel. Carey v. Cousins (1979), 77 Ill.2d 531, 34 Ill.Dec. 137, 397 N.E.2d 809, and adhered to its holding in later decisions, e.g., People v. Eddmonds (1984), 101 Ill.2d 44, 69, 77 Ill.Dec. 724, 461 N.E.2d 347; People v. Lewis (1981), 88 Ill.2d 129, 146, 58 Ill.Dec. 895, 430 N.E.2d 1346.

Defendant contends that it was error to permit the People to both open and close final arguments at the death penalty hearing. We have considered this question in People v. Eddmonds (1984), 101 Ill.2d 44, 66, 77 Ill.Dec. 724, 461 N.E.2d 347, in the context of whether in failing to object to the procedure counsel failed to render effective assistance. We held that since the People are the moving party in a death penalty proceeding they are entitled to rebuttal argument. (Ill.Rev.Stat.1979, ch. 38, par. 9-1(d); see Liptak v. Security Benefit Association (1932), 350 Ill. 614, 183 N.E. 564.) The fact that defendant, in effect, stipulated to the statutory aggravating factor which the People were required to prove beyond a reasonable doubt does not alter that requirement. The circuit court did not err in permitting the People to open and close the arguments at the sentencing hearing.

Defendant has also argued that the death penalty statute is unconstitutional because it fails to provide adequate comparative review procedures. We have rejected this contention (People v. Brownell (1980), 79 Ill.2d 508, 541-44, 38 Ill.Dec. 757, 404 N.E.2d 181) and will not reconsider it here.

Defendant next argues that the death penalty statute requires that where a defendant is convicted of more than one murder, but the deaths occurred in unrelated acts, no aggravating factor exists unless it is proved that these acts were premeditated. Our statute provides that a defendant may be sentenced to death if he “has been convicted of murdering two or more individuals * * * regardless of whether the deaths occurred as the result of the same act or of several related or unrelated acts so long as the deaths were the result of either an intent to kill more than one person or of separate premeditated acts * *.” (Ill.Rev.Stat.1979, ch. 38, par. 9-1(b)(3).) Defendant argues that since any premeditated murder encompasses an intent to kill, the General Assembly must have intended to require that when the deaths occur in the same or related acts, the People must prove only an intent to kill more than one person and when the deaths occur in unrelated acts, it must be proved that these killings were premeditated. Defendant argues that any other interpretation would make the phrase “premeditated acts” meaningless and superfluous. These contentions were considered and rejected in People v. Davis (1983), 95 Ill.2d 1, 34-36, 69 Ill.Dec. 136, 447 N.E.2d 353, and will not be reconsidered here.

Defendant has also contended that his sentences must be vacated and the cause remanded for resentencing because the court sentenced him without the benefit of a presentence investigation report. Defendant concedes that this court in People v. Gaines (1981), 88 Ill.2d 342, 372-74, 58 Ill.Dec. 795, 430 N.E.2d 1046, held that a presentence investigation report is not required in capital murder cases. Defendant also argues, however, that his natural life sentences for the 21 counts of murder which occurred prior to the effective date of the death penalty statute required a presentence investigation report. Defendant has not shown, however, how he was prejudiced by the lack of such a report. We also note that the examination of the history, background and mental state of defendant was quite thorough at trial, and that the information derived therefrom substantially fulfills the requirements (Ill.Rev.Stat.1979, ch. 38, par. 1005-3-2(a)) of the presentence investigation report. We see no additional purpose to be served by a formal presentence investigation report under the facts of this case. Defects in a presentence investigation report may be waived (People v. Godinez (1982), 91 Ill.2d 47, 56-57, 61 Ill.Dec. 524, 434 N.E.2d 1121; People v. Meeks (1980), 81 Ill.2d 524, 533-34, 44 Ill.Dec. 103, 411 N.E.2d 9), and no objection was raised when the court proceeded to immediate sentencing on all the charges. In fact, one of the attorneys for the defendant stated on the record, outside the defendant's presence, that it was the defendant's request that he be sentenced immediately, without the benefit of a presentence investigation report. We see no basis upon which to find that a formal written presentence investigation report would alter the judge's determination on the facts of this case.

Defendant's last contention is that his rights were violated when he was not permitted to be present when his attorneys made the motion for a new trial. We fail to see how defendant was prejudiced by his absence from this portion of the proceedings. Although the motion made on his behalf was denied, it preserved all alleged errors on appeal, and thus inured to his benefit. While defendant has a fundamental right to be present at any critical stage of the proceedings against him, he does not have an absolute right to be present also at the argument of motions subsequent to verdict. (People v. Woods (1963), 27 Ill.2d 393, 395, 189 N.E.2d 293; United States v. Lynch (3d Cir.1942), 132 F.2d 111, 113; see also Snyder v. Massachusetts (1934), 291 U.S. 97, 106-08, 54 S.Ct. 330, 332-33, 78 L.Ed. 674, 678-79.) Defendant argues that he should have been permitted to present his own arguments in support of the motion for a new trial. Defendant was, however, represented by counsel and until his appearance in this court had made no request to be permitted to defend himself. On these facts, we must conclude that defendant waived his right to personally argue the motion for a new trial. (People v. Ephraim (1952), 411 Ill. 118, 122-23, 103 N.E.2d 363.) Defendant also contends that he should have been present when the record was corrected to show that on March 13, 1980, when the death penalty verdict was returned, defendant waived his right to a presentence investigation and requested the immediate imposition of sentence. Defendant's presence, however, was not necessary for a correction of the record. (People v. Hirschberg (1951), 410 Ill. 165, 168, 101 N.E.2d 520.) Defendant has also complained that he should have been allowed to hear in person why the court imposed natural life sentences upon him and also to witness the summary denial of his motion for a new trial. On these facts we cannot see how defendant was prejudiced in this regard.

In their brief, amici curiae, 60 in number, argue that the death penalty is per se unconstitutional. Amici argue, inter alia, that in order to deprive someone of a fundamental right, life, the People must prove that the death penalty is necessary to further some compelling State interests. Amici concede that deterrence is a compelling State interest but, citing statistical studies, argue that the death penalty does not deter. The People respond that the statistical studies upon which amici rely are “based on obsolete data interpreted in a crude and misleading manner.” The People contend that the application of more advanced statistical techniques, such as regression analysis, yields results contrary to the studies cited by amici. Moreover, the People assert, the studies cited by amici do not cite the statistical significance of particular death statutes and particular types of homicide, but rather categorize all homicides and all death penalty statutes in one category. The People contend that while the death penalty may not deter a crime of passion, the death penalty in Illinois is not applicable to such a crime, but may very well provide the deterrence for a criminal who wishes to eliminate potential witnesses, the murderer who kills people in exchange for money, and other premeditated murderers. The People contend that the Supreme Court has already rejected amici's argument: “Statistical attempts to evaluate the worth of the death penalty as a deterrent to crimes by potential offenders have occasioned a great deal of debate. * * *

Although some of the studies suggest that the death penalty may not function as a significantly greater deterrent than lesser penalties, there is no convincing empirical evidence either supporting or refuting this view. We may nevertheless assume safely that there are murderers, such as those who act in passion, for whom the threat of death has little or no deterrent effect. But for many others, the death penalty undoubtedly is a significant deterrent. There are carefully contemplated murders, such as murder for hire, where the possible penalty of death may well enter into the cold calculus that precedes the decision to act. And there are some categories of murder, such as murder by a life prisoner, where other sanctions may not be adequate.

The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts.” Gregg v. Georgia (1976), 428 U.S. 153, 184-86, 96 S.Ct. 2909, 2930-31, 49 L.Ed.2d 859, 881-82.

Because we are of the opinion that they are not presented to the proper forum, we do not address the merits of amici's arguments. Amici's central argument is premised on the accuracy of the statistical data which they cite in support of their contentions. Although amici assert that “there is virtually no serious study that indicates the death penalty is a deterrent above and beyond imprisonment * * *,” the People cite recent studies which reach the opposite conclusion. As noted in Gregg, the determination of whether capital punishment is a deterrent to certain types of murders such as those enumerated in the Illinois death penalty statute is an issue the resolution of which properly rests with the General Assembly. We decline to usurp the legislative function.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed. The clerk is directed to enter an order setting Wednesday, the 14th day of November, 1984, as the date on which the sentence of death entered by the circuit court of Cook County shall be executed. The defendant shall be executed by a lethal injection, in the manner provided by section 119-5 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1983, ch. 38, par. 119-5). A certified copy of this order shall be furnished by the clerk of this court to the Director of the Department of Corrections, to the warden at Stateville Correctional Center, and to the warden of the institution wherein the defendant is confined.

Judgment affirmed.

SIMON, J., concurring in part and dissenting in part.

I agree that the convictions of murder should be affirmed in this case. However, for the reasons set forth in my separate opinions in People v. Lewis (1981), 88 Ill.2d 129, 179, 58 Ill.Dec. 895, 430 N.E.2d 1346 (Simon, J., dissenting), and in People v. Silagy (1984), 101 Ill.2d 147, 184, 77 Ill.Dec. 792, 461 N.E.2d 415 (Simon, J., concurring in part and dissenting in part), I believe that the Illinois death penalty statute is unconstitutional and that the death sentence should be vacated.

People v. Gacy, 125 Ill.2d 117, 530 N.E.2d 1340 (Ill. 1988). (PCR)

Justice CLARK delivered the opinion of the court:

This case involves the petition of the defendant, John Wayne Gacy, under the Post-Conviction Hearing Act (Ill.Rev.Stat.1985, ch. 38, par. 122-1 et seq.), challenging his convictions and sentences. In the circuit court of Cook County, after a trial by jury, the defendant was tried and convicted of murdering 33 boys and young men. He was also found guilty of one count of deviate sexual assault, and a second count of indecent liberties with a child. For 12 of these murders, the State sought and obtained the death penalty, the jury finding the existence of one or more of the statutory aggravating circumstances and that no mitigating circumstances precluded the imposition of death (Ill.Rev.Stat.1979, ch. 38, par. 9-1). The defendant was sentenced to imprisonment for his natural life on the remaining murder charges. On direct appeal to this court, his convictions and sentences were affirmed (103 Ill.2d 1), 82 Ill.Dec. 391, 468 N.E.2d 1171 and his petition for writ of certiorari was denied by the Supreme Court of the United States (470 U.S. 1037, 105 S.Ct. 1410, 84 L.Ed.2d 799). His subsequent petition for post-conviction relief was dismissed without an evidentiary hearing in the circuit court of Cook County, and this appeal followed (107 Ill.2d R. 651).

The factual background of this case is recited at length in the defendant's direct appeal, and need not be repeated here. On this appeal the defendant raises five principal claims of error: (1) that his trial counsel's failure to present any evidence in mitigation deprived him of the effective assistance of counsel at his sentencing hearing, (2) that his trial counsel's failure to make offers of proof as to which of the defendant's statements to his expert psychiatric witnesses would have been offered into evidence had not the trial court precluded the defendant from doing so deprived the defendant of the effective assistance of counsel, (3) that the trial judge erred by precluding the defendant's psychiatric witnesses from testifying as to the defendant's statements to them, (4) that his trial counsel's failure to request that the jury be sequestered during the five- to nine-day period after their selection and before trial deprived the defendant of the effective assistance of counsel, and (5) that his death sentence is unconstitutional on account of a variety of facial deficiencies in the Illinois death penalty statute. Acting pro se, the defendant has also filed a supplementary petition for post-conviction relief, to which are attached two letters which list 43 (numbered “1” to “43A,” with no number “33”) additional issues he claims entitle him to post-conviction relief. As to each claim he maintains that the circuit court erred by dismissing his petition without any evidentiary hearing.

The State claims that all of these allegations of error were decided against the defendant on his direct appeal and are therefore barred on his post-conviction petition by res judicata. (See People v. Kubat (1986), 114 Ill.2d 424, 436, 103 Ill.Dec. 90, 501 N.E.2d 111.) Since, however, this is a death case, and since in any case we find no merit in any of the defendant's allegations, we need not consider whether they are barred.

Under the Post-Conviction Hearing Act, a defendant is only entitled to an evidentiary hearing if the allegations of his petition, together with the record of his trial and supporting affidavits, make a substantial showing of a violation of his constitutional rights. ( People v. Silagy (1987), 116 Ill.2d 357, 365, 107 Ill.Dec. 677, 507 N.E.2d 830.) We find that the defendant has not made such a showing as to any of his allegations.

The defendant first argues that his defense counsel's failure to present any mitigating evidence at his sentencing hearing denied him the effective assistance of counsel. We find no merit in this argument. The standard for ineffective assistance at a sentencing hearing is the two-prong standard enunciated in Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693. Under this standard, the defendant must prove: (1) that his counsel's representation was so deficient that his counsel was not functioning as the “counsel” guaranteed the defendant by the sixth amendment, and (2) that this deficient performance so prejudiced the defendant as to deprive him of a fair hearing. The defendant's petition does not adequately allege either deficiency or prejudice.

The standard for assessing claimed deficiencies in an attorney's performance is that of “reasonably effective assistance,” which is within the “range of competence demanded of attorneys in criminal cases.” The standard is one of objective reasonableness, under “prevailing professional norms.” (466 U.S. at 687-88, 104 S.Ct. at 2064-65, 80 L.Ed.2d at 693-94.) To establish a deficiency, the defendant must overcome the strong presumption that the challenged action or lack of action might be the product of “ ‘sound trial strategy.’ ” (466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95.) At death sentencing hearings, decisions not to present mitigating evidence will not be deemed incompetent if they stem from a theory of defense which does not require the use of mitigating evidence (466 U.S. at 699, 104 S.Ct. at 2070, 80 L.Ed.2d at 700-01 (reliance upon extreme emotional distress mitigating circumstance)), or from a theory which might be adversely affected by the use of such evidence ( Burger v. Kemp (1987), 483 U.S. 776, ----, 107 S.Ct. 3114, 3125-26, 97 L.Ed.2d 638, 656-57).

We acknowledge that there may be cases in which counsel's failure to present mitigating evidence does not flow from a reasonable alternative strategy and will therefore be deemed incompetent. (Compare People v. Gaines (1984), 105 Ill.2d 79, 85 Ill.Dec. 269, 473 N.E.2d 868; People v. Kubat (1983), 94 Ill.2d 437, 69 Ill.Dec. 30, 447 N.E.2d 247, and People v. Lewis (1981), 88 Ill.2d 129, 58 Ill.Dec. 895, 430 N.E.2d 1346, with Gaines v. Thieret (N.D.Ill.1987), 665 F.Supp. 1342, rev'd on other grounds (7th Cir.1988), 846 F.2d 402, United States ex rel. Kubat v. Thieret (N.D.Ill.1988), 679 F.Supp. 788, and Lewis v. Lane (7th Cir.1987), 832 F.2d 1446; see also Blake v. Kemp (11th Cir.1985), 758 F.2d 523.) This, however, is not such a case.

The evidence which the defendant now claims should have been presented in mitigation includes both statutory and nonstatutory mitigation. In support of the statutory mitigating factor of extreme mental or emotional disturbance, the defendant now claims that his attorney should have recalled the psychiatric witnesses who testified at trial, and who indicated their belief that the defendant murdered while under extreme mental or emotional disturbance. The defendant also claims that his trial counsel should have introduced evidence of nonstatutory mitigation, including evidence of his traumatic childhood, warm relationships with family members and friends, success in business, political, and civic affairs, and his good behavior while in prison awaiting trial. In addition, he claims that a relative of one of the deceased victims wrote a letter forgiving him, which might also have been presented in mitigation.

Both claims are substantially weakened by the fact that much of this evidence was actually presented at trial, and all evidence at trial was admitted by stipulation at the death penalty hearing. In fact, in his closing argument at the sentencing hearing, trial counsel used the psychiatric evidence to argue that the defendant had acted while under extreme mental or emotional disturbance. As we stated on the defendant's direct appeal, we believe that counsel could reasonably have believed that the jurors would not have been impressed, and might actually have been irritated, by a pointless rehash of the lengthy testimony they had already heard at trial.

In response, the defendant argues that consideration of the jury's reaction to the repetition of this testimony is “unwarranted speculation,” and somehow usurps the jury's function of hearing evidence. This argument misses the point. The burden of proving incompetence, and of overcoming the presumption that an attorney's decision is the product of “sound trial strategy,” rests upon the defendant, not the State. Trial strategy is less a science than an art. An attorney is entitled to speculate as to how a jury will react to the presentation of evidence. An attorney's reasoned judgment that a jury will be bored or fatigued by unnecessary repetition is both natural and commonplace. The State is not obligated to prove that such a judgment is correct. Nor has the defendant provided any argument as to why we should consider such a judgment unreasonable.

The defendant's argument with respect to nonstatutory mitigation is similarly unavailing. Again, a reasonable attorney might have concluded that the jury would be irritated by the repetition of this evidence, most of which it had heard already at trial. The fact that defense counsel did not refer to this evidence in closing argument does tend to suggest that he did not believe that it would have much value as mitigation. But even this judgment would not have been unreasonable. As we pointed out on defendant's direct appeal, albeit in a different context, much of this evidence was “questionable.” (103 Ill.2d at 102, 82 Ill.Dec. 391, 468 N.E.2d 1171.) Evidence that the defendant led a double life, engaging in charitable and political activities at the same time he was committing a series of sadistic torture murders, might have been reasonably viewed by counsel as tending to exacerbate rather than mitigate his offense in the minds of the jurors. The same could be said of evidence that the defendant was a good husband and stepfather to his second wife and their children. Moreover, even this evidence was not unambiguously helpful: many witnesses testified that the defendant's business and social activities were motivated by a desire to manipulate others and gain an advantage for himself. Similarly, counsel might reasonably have feared that testimony as to the defendant's unhappy childhood could be viewed as a vain attempt to excuse or justify these horrendous crimes.

Our determination is influenced by the fact that counsel's closing argument tends to suggest that his failure to dredge up these facts or make use of them was based not on laziness or incompetence but upon a reasonable strategic choice. Instead of arguing that the “good” aspects of the defendant's character and actions made death an inappropriate penalty for a series of torture murders, the defendant's counsel chose to focus instead on other things. By arguing that the defendant acted under the influence of extreme emotional disturbance, he implied that the defendant's acts were not the kind which could be deterred by the imposition of death. By proposing that the societal interest in keeping the defendant alive for scientific study outweighed its interest in taking revenge, he suggested a principled basis upon which even a juror who was unsympathetic to the defendant might find mitigating factors sufficient to preclude the imposition of death. Given the horrific character of the crimes and the age of some of the victims, the decision to make these arguments, rather than to “call * * * one witness to attempt to ‘pull at the heartstrings' of the only-one-juror necessary to vote for no-death,” was not unreasonable.

For these reasons, the decision of Blake v. Kemp (11th Cir.1985), 758 F.2d 523, heavily relied upon by the defendant, is distinguishable. In that case defense counsel testified that he made no preparation for the penalty phase of the trial because he believed that the defendant would be found not guilty by reason of insanity. Counsel further admitted that he made no effort even to ascertain whether mitigating evidence was available. (758 F.2d at 533-35.) Here, in contrast, counsel's decision to proceed with the sentencing hearing without asking for a continuance, and not to present mitigating evidence, appears to have stemmed from his reasonable decision to rely upon mitigating evidence already presented and not from a belief that the defendant would be found not guilty.

For similar reasons, Gaines v. Thieret (N.D.Ill.1987), 665 F.Supp. 1342, rev'd on other grounds (7th Cir.1988), 846 F.2d 402, United States ex rel. Kubat v. Thieret (N.D.Ill.1988), 679 F.Supp. 788, and Lewis v. Lane (7th Cir.1987), 832 F.2d 1446, are also distinguishable. (While none of these cases are mentioned in the defendant's brief, the defendant did rely on Gaines in oral argument; similar issues were raised in Lewis and Kubat.) In Gaines, unlike here, the defendant presented no evidence at his trial. (See People v. Gaines (1981), 88 Ill.2d 342, 348, 58 Ill.Dec. 795, 430 N.E.2d 1046.) Rather than presenting an alternative theory of mitigation, counsel gave a one paragraph argument which merely asked the jury not to “kill Dickey Gaines.” ( Gaines, 665 F.Supp. at 1365.) In Kubat, similarly, the defendant relied at trial on a defense of alibi (679 F.Supp. at 805), which would not aid in the establishment of mitigation. The defendant's counsel also compounded his failure to present available mitigation evidence by also failing to object to erroneous jury instructions and by presenting a “rambling, incoherent discourse” in closing argument. (679 F.Supp. at 812-14.) In Lewis, defense counsel's principal error lay in failing to object to the admission of the erroneous statement that the defendant had four previous felony convictions (832 F.2d at 1458), and, as in Gaines, the defendant did not present any evidence at trial (88 Ill.2d at 141, 58 Ill.Dec. 895, 430 N.E.2d 1346).

Even were we to assume that counsel's performance was deficient, we do not believe that the defendant has adequately alleged prejudice. Under Strickland, a defendant who proves that his counsel's performance fell below prevailing professional norms must also prove that there is a “reasonable probability that, absent the errors, the sentencer * * * would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” (466 U.S. at 695, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.) The defendant appears to argue that if presentation of some of the mitigating evidence “ might have convinced the jury that [the defendant] was not the totally reprehensible person they thought he was” (emphasis in original), prejudice has been shown. The defendant is mistaken. The Strickland standard requires a reasonable probability of a different result, not merely a possibility. This standard is not easy to apply to capital sentencing hearings, where the jury is being asked to weigh aggravation and mitigation so as to determine whether the defendant deserves death. But given the dubious character of the unpresented mitigating evidence and the overwhelming nature of the aggravating evidence, we cannot conclude that the jury's decision would have been any different had the defendant's counsel acted as the defendant now wishes that he had.

The defendant's next two points both relate to expert psychiatric testimony at trial. They are most easily considered together. Relying on People v. Hester (1968), 39 Ill.2d 489, 237 N.E.2d 466, the trial judge ruled that the expert witnesses for the State would be allowed to recount statements made to them by the defendant, but the defendant's expert witnesses would not. The rationale for the Hester rule was to prevent the defendant's experts from becoming conduits by which the defendant's self-serving hearsay declarations might be conveyed to the jury. In our opinion on the defendant's direct appeal, we noted that, despite the trial court's ruling, the defendant's experts were permitted to testify in substance as to what the defendant said to them. While the experts were generally not allowed to quote the defendant directly, they were often permitted to convey the substance of his statements through paraphrases, answers to hypothetical questions, and narrative recitation of information provided by the defendant in their conversations with him. Other statements of the defendant were introduced through cross-examination of the State's experts. While noting that Hester's validity was questionable (103 Ill.2d at 70-73, 82 Ill.Dec. 391, 468 N.E.2d 1171), we concluded that the substantial admission of the defendant's statements in so far as they were needed to explain the basis upon which his experts formed their opinions precluded us from considering whether the trial judge's ruling was in error. In other words, we determined that any possible error was harmless.

Since our holding in the defendant's direct appeal, we have overruled Hester and held that a psychiatric expert may not be precluded from relating statements made to him by the defendant which figure in his diagnosis. ( People v. Anderson (1986), 113 Ill.2d 1, 12-13, 99 Ill.Dec. 104, 495 N.E.2d 485.) It is thus now clear that the trial judge's ruling was in error. It is still not reversible error, however, because, for the reasons just given, it did not prevent the defendant's psychiatric witnesses from providing the basis for their opinions. Therefore the defendant's contention that this error mandates the granting of his petition is without merit.

In a related contention, the defendant asserts that his trial counsel's failure to make any offer of proof as to which of the defendant's statements his experts would have related had they been allowed to do so deprived him of the effective assistance of counsel. It is true that our finding of harmlessness was partially premised upon defense counsel's failure to make such an offer. But the difficulty with this argument is that the defendant has still not specifically alleged or demonstrated by affidavit which statements should have been included in the offer of proof. Without knowing the content of these statements, it is impossible to determine whether the failure to make an offer of proof constituted ineffective assistance under the Strickland standard. Therefore, the defendant has failed to make a substantial showing of a violation of his constitutional rights sufficient for an evidentiary hearing.

In his fourth argument, the defendant contends that the failure of the trial court to sequester the jury between the time of their selection and the beginning of the trial deprived him of a fair and impartial jury. Alternatively, he argues that his attorney's failure to request such sequestration deprived him of the effective assistance of counsel. These arguments were made on the defendant's direct appeal, and they have not improved with age. As on his direct appeal, defendant asserts that the jurors might have been exposed to prejudicial publicity during this short period but provides no specific instance of such publicity. In any case, the decision as to whether to sequester a jury rests within the sound discretion of the trial judge, and will not be questioned absent a showing of prejudice. ( People v. Brisbon (1985), 106 Ill.2d 342, 355, 88 Ill.Dec. 87, 478 N.E.2d 402.) The fact that other States provide in capital cases for mandatory sequestration upon the defendant's request is not pertinent. Since immediate sequestration would have placed a great burden on the jurors, who were being asked to leave Winnebago County for a lengthy trial in Cook County, it was not unreasonable for defense counsel to decide not to seek such sequestration. Since counsel's performance was not deficient, the first prong of the Strickland test has not been met, and this allegation also is without merit.

In his fifth argument, the defendant reraises a number of challenges to the constitutionality of the Illinois death penalty statute which have been rejected many times in the past. We have previously held that the statute is not unconstitutional on account of allegedly inadequate safeguards against the arbitrary or capricious imposition of death ( People v. Shum (1987), 117 Ill.2d 317, 111 Ill.Dec. 546, 512 N.E.2d 1183), improper placement of the burden of proof at the second stage of the death penalty hearing ( People v. Whitehead (1987), 116 Ill.2d 425, 108 Ill.Dec. 376, 508 N.E.2d 687), and the absence of a requirement that the jury specifically find death to be an appropriate punishment ( People v. Christiansen (1987), 116 Ill.2d 96, 107 Ill.Dec. 198, 506 N.E.2d 1253). Nothing in the defendant's brief provides any ground for reconsideration which has not been considered and rejected before.

We now come to the 43 additional claims of error which are raised by the defendant pro se. In the evaluation of these claims we have been handicapped by the reluctance of the attorneys representing the State and the defendant to comment upon or respond to them. The defendant's counsel's brief, in its sixth point, states that “some of those issues would have entitled [the defendant] either to an evidentiary hearing or other post-conviction relief,” but does not identify which issues counsel believes meritorious or provide any authority in support of them. At oral argument, defendant's counsel admitted that some of these allegations were “preposterous,” but maintained that others-he cited specifically the allegations which the defendant has numbered 1, 3, and 10-were in his opinion meritorious. The attorney for the State in his brief also has declined to address any of the pro se claims, maintaining that these issues have been waived by defense counsel's failure in his brief to cite any authority in their support or to argue otherwise in their favor. The State also argues generally that the allegations in the pro se letters are “devoid of argument, devoid of citations of authority, and for the most part devoid of specific factual allegations.” Like defense counsel, the attorney for the State has declined to address the merits of any these issues in his brief, although he did respond briefly to some of them in oral argument.

Keeping in mind that the defendant's life is at stake, we do not believe that it would be wise for us to follow the course charted by the attorneys for the defendant and the State. While it might be argued that these claims have been waived on appeal by defense counsel's perfunctory endorsement of them in his brief, it is not true, as the counsel for the State argues, that all of the issues raised in the pro se letters are devoid of argument, authority, and specific factual allegations. Some of the allegations contain citations to authority. Others refer to cases whose identity is clear from the context even in the absence of citation. All of the arguments are without merit, but not all are frivolous or inconsequential. And while in some instances the factual allegations are so lacking in specificity as to justify dismissal of the defendant's petition on that basis alone, others contain the proper measure of factual detail. We therefore consider the pro se allegations, grouping them together into appropriate categories.

A number of the defendant's allegations concern alleged “conflicts of interest” on the part of his trial counsel. While most of these are in reality claims of incompetence, one, in particular does genuinely relate to a supposed conflict of interest. This is the claim (No. 3) that his attorney “was offered a book deal in April 1979, [and that] even while he refused to accept this offer the seed was planted as to how much money was or could be made. The offer was six million for book rights. From that point forward, [trial counsel's] main concern was making and keeping records, as he called it; ‘To preserve the record for a book.’ Tapes were made on all previously covered conversations, all writing by the defendant was taken and kept by the defense attorney even after trial. He was more concern[ed] with that then preparation for the defense.”

Had trial counsel actually accepted this alleged “book offer,” this claim would be worthy of serious consideration. Under our Rule 5-104(b) (107 Ill.2d R. 5-104(b)): “Prior to the conclusion of all aspects of the matter giving rise to his employment, a lawyer shall not enter into any arrangement or understanding with a client or a prospective client by which he acquires an interest in publication rights with respect to the subject matter of his employment or proposed employment.”

The rationale for this rule is that the acquisition of financial rights creates a situation in which the attorney may well be forced to choose between his own pocketbook and the interests of his client. Vigorous advocacy of the client's interest may reduce the value of publication rights; conversely, ineffective advocacy may result in greater publicity and greater sales. In fact, it has been held that the acquisition of such book rights by a defendant's attorney constitutes a conflict of interest which may so prejudice the defendant as to mandate the reversal of a conviction. (See People v. Corona (1978), 80 Cal.App.3d 684, 145 Cal.Rptr. 894.) In Corona the defendant retained a private attorney who, in exchange for his services, obtained exclusive rights to the defendant's life story and a waiver of the attorney-client privilege. The income derived from publication was to go solely to the attorney. The court in Corona held that reversal was warranted because the attorney deliberately decided not to develop viable incompetence, insanity and irresponsibility defenses so as to insure that the publication rights would retain their value. The defendant thus suffered actual prejudice from the conflict.

Under our precedents such a showing would not be necessary, because we have held that the acquisition by an attorney of a financial stake in litigation directly adverse to that of his client is a per se conflict, which warrants reversal even in the absence of prejudice. (See, e.g., People v. Washington (1984), 101 Ill.2d 104, 77 Ill.Dec. 770, 461 N.E.2d 393; People v. Coslet (1977), 67 Ill.2d 127, 7 Ill.Dec. 80, 364 N.E.2d 67; People v. Stoval (1968), 40 Ill.2d 109, 239 N.E.2d 441.) In such cases, defense counsel's “tie to a person or entity * * * which would benefit from an unfavorable verdict for the defendant * * * might ‘subliminally’ affect counsel's performance in ways difficult to detect and demonstrate.” Moreover, such a conflict might subject the attorney to later charges that his representation was less than faithful. (People v. Spreitzer (1988), 123 Ill.2d 1, 16, 17, 121 Ill.Dec. 224, 525 N.E.2d 30.) However, the mere fact that the defendant's attorney was offered, and refused to accept, a contract for publication rights does not constitute a “tie” sufficient to engender a per se conflict. We could not therefore reverse on the basis of this alleged conflict without some showing of prejudice- i.e., without a showing that the alleged conflict caused specific, identifiable deficiencies in defense counsel's performance. The allegation that defense counsel kept careful records of his transactions with the defendant proves nothing-careful records would be valuable for many legitimate purposes relevant to the conduct of the defendant's case. The general allegation that defense counsel neglected the defendant's case in favor of keeping records for a later book sale is, without more, meaningless. Because the defendant has not pointed to specific actions not taken because of too much attention to careful record-keeping, he has not sufficiently alleged prejudice.

In a related series of contentions, the defendant now claims that, after a dispute with his attorney over the proper conduct of his defense, he requested a different attorney but was thwarted from obtaining one by his attorney's alleged machinations. More specifically he claims that his attorney “blocked this by not letting me talk with, call or write anyone, unless it was censored by [defense counsel]” (No. 4), that his attorney failed to secure a well-known, out-of-State, defense attorney as the defendant's counsel (No. 5), and that he obtained by subterfuge the defendant's signature on a motion to have counsel appointed for him (No. 22).

To believe these contentions we would have to believe that during a lengthy period leading up to, during, and following the defendant's trial, his counsel single-handedly kept the defendant incommunicado. This is preposterous. Nothing prevented the defendant from writing to F. Lee Bailey, his relatives, or, for that matter, the trial judge and expressing his desire for another attorney. The defendant is not illiterate and is perfectly capable of understanding a motion for appointment of counsel by the court.

Allied to these claims are a number of others which relate to supposed disagreements between the defendant and his attorney over the proper course of his defense. Thus the defendant claims that he did not want to agree to joinder of all the charges against him (Nos. 6, 27) and was inadequately advised and misled as to the consequences of raising the affirmative defense of insanity (No. 21). If these are claims that the defendant has a right to micro-manage all aspects of his defense, they must fail because no such right exists. If they are claims that his attorney was incompetent for failing to object to joinder or for raising the defense of insanity, they are frivolous. The defendant has not given any legal argument, and we know of none, for the proposition that the counts should have been severed and the State forced to conduct separate trials on each of 33 charges of murder. Therefore, under Strickland, the defendant has not demonstrated a reasonable probability that the outcome would have been different. The defendant is also not correct in his statement that a plea of insanity constitutes an “admission of guilt on all counts.”

The defendant also claims that his attorney was incompetent because he lacked experience in “mass-murder” cases and because the attorney's son was in the hospital at the time of the defendant's arrest (No. 1). Both of the claims are meritless. In United States v. Cronic (1984), 466 U.S. 648, 665, 104 S.Ct. 2039, 2050, 80 L.Ed.2d 657, 672, the United States Supreme Court specifically rejected the use of “inexperience” as a per se indicium of incompetence: “The character of a particular lawyer's experience may shed light in an evaluation of his actual performance, but it does not justify a presumption of ineffectiveness in the absence of such an evaluation.” The notion that a lawyer would need a special “mass-murder” expertise in order competently to represent the defendant is therefore without merit. The defendant has also not identified any particular action taken or not taken by his attorney as a result of the illness of the attorney's son.

Many of the defendant's claims of incompetence also relate to the defendant's supposed desire not to plead insanity but, rather, to plead not guilty to all the charges and prove a defense of alibi. The defendant claims that his attorney failed to: investigate a possible alibi defense (No. 10) or “potential defense of Not Guilty” (No. 23), subpoena employment records which would have demonstrated such a defense (No. 13), investigate unstated “evidence establishing innocence, or conspiracy” (No. 12), “challenge and attack the case in chief” and make objections to the admission of unspecified evidence (No. 24). He also claims that his attorney was ineffective because he kept replacing unnamed “investigators because they kept finding evidence showing others may have committed the crime, because it didn't fit into the Insanity defense” (No. 14).

All of these claims of incompetence must fail, for two reasons. First, under Strickland, an attorney's “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” ( Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.) In this case, the attorney's decision not to investigate supposed evidence of alibi but to rely instead on the insanity defense was not unreasonable. We will not rehash the overwhelming evidence-including the 29 bodies recovered from the crawlspace under the defendant's home and the defendant's detailed confessions-which proved that the defendant had committed the acts with which he was charged. (103 Ill.2d at 45-50, 82 Ill.Dec. 391, 468 N.E.2d 1171.) But given this evidence, it was not unreasonable for the defendant's attorney to choose an insanity defense, and to forgo vain attempts to prove that the victims were killed by some other person. The different factual context distinguishes this case from United States ex rel. Green v. Rundle (3d Cir.1970), 434 F.2d 1112, cited by the defendant, in which alibi was the only plausible defense. Indeed, had the defendant's attorney taken the opposite tack, and neglected the insanity defense in favor of futile attacks on the State's case in chief, the defendant would now have a much more plausible claim of incompetence. The same reasoning, together with the absence of factual detail in the defendant's claims, militates against a finding of a reasonable probability of a different outcome had the defendant's attorney taken the actions which the defendant now wishes that he had taken.

Similar reasoning dictates rejection of claims that the defendant's trial attorney made a number of other errors, including: “failing to interview state witness prior to taking the stand” (No. 7), “failure to interview or call [character] witnesses” at trial (No. 11), failing to object to the prosecution's use of large “billboard” exhibits (No. 16), failure to object to the “limited” voir dire of the jury (No. 17), and failure to “bring” perjury charges against three unnamed prosecution witnesses (No. 43) or to raise the “issue” of perjury (No. 43-A). In all of these cases, the defendant's claims are either so unspecific as to be unintelligible or relate to such minor issues that they cannot support a finding of a reasonable probability of a different outcome.

A number of other claims of incompetence were actually raised by the defendant's attorney on this appeal and do not need to be separately considered. These include claims that the defendant's attorney lacked “tactical or strategic justification for his conduct at the sentencing hearing” (No. 19), failed to raise extreme emotional disturbance as a mitigating factor (No. 20), failed to present evidence at the hearing and gave a casual or perfunctory closing statement (No. 25), and failed to request that the jury be sequestered sooner (No. 30). The only novel aspect to the defendant's charges of incompetence at the sentencing hearing is that he specifically mentions defense counsel's failure to use the defendant's “drug problem” in his closing argument at trial or at the sentencing hearing (No. 39). As we have stated with regard to other mitigating evidence, the defendant's use of drugs was brought to the jury's attention during trial, and was introduced at the sentencing hearing by stipulation. We cannot say to a reasonable probability that more emphasis upon this circumstance by defense counsel would have changed the outcome of the hearing or trial.

Several other of the defendant's claims against his attorney concern matters which, whether or not they are true, have no bearing upon defendant's case. For the purposes of this appeal, it does not matter whether it is true, as the defendant claims, that a valuable television set mysteriously disappeared from the defendant's attorney's office (No. 28). This is not relevant here. Similarly, an unsupported allegation that defense counsel “leaked” confidential information (No. 29) is meaningless without a statement of what information was disclosed and how it damaged the defendant.

A final set of claims of incompetence relate to his attorney's supposed lack of vigor in attempting to exclude or suppress various pieces of evidence. The defendant argues, for example, that his attorney failed to “challenge weaknesses in the prosecution's search warrants” (No. 2), failed to challenge the admission of defendant's statements even though the defendant was supposedly the victim of the “ ‘Christian Burial ploy’ ” (the defendant is apparently referring to the interrogation technique which consists of asking a murder suspect to provide the location of a missing body so that it can receive a “Christian burial” (see, e.g., Brewer v. Williams (1977), 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424)) and was denied access to his attorney (No. 9), failed to “void” the defendant's supposedly illegal arrest (No. 18), and failed to challenge the accuracy of the inventory of items seized in the search of defendant's home (Nos. 41, 42). In connection with these claims, the defendant also reraises his substantive challenges to the validity of the search warrants (Nos. 35, 36). In most of these instances, defendant's claims must fail for the simple reason that challenges to the admission of these items of evidence would have failed, and, in some cases, did fail-not because of any lack of vigorous advocacy but because of lack of legal merit. In our opinion on direct appeal, we have already stated why the search warrants used in the case were valid and that they identified the items to be seized with sufficient particularity. (103 Ill.2d at 24-28, 82 Ill.Dec. 391, 468 N.E.2d 1171.) We have also stated why the defendant's confessions were properly admitted and why we do not believe that he invoked his right to counsel before being interrogated. (103 Ill.2d at 28-29, 82 Ill.Dec. 391, 468 N.E.2d 1171.) Absent an allegation that the defendant was not given his Miranda warnings, the police were entitled to use “the Christian burial ploy” as a means of interrogation. The claim that the police had no probable cause to arrest the defendant after finding 29 bodies in the crawlspace under his house is frivolous. The defendant's claim that his insanity defense would have benefited from a more accurate inventory of the drugs found at his house during the search is, to say the least, bizarre. We have already stated why more or better evidence of the defendant's drug-taking was not likely to change the outcome of his trial. The argument that his counsel was incompetent for failing to object to an instruction telling the jury not to consider “sympathy” in their deliberations must also fail because, as is now clear, the instruction was proper. People v. Spreitzer (1988), 123 Ill.2d 1, 41-43, 121 Ill.Dec. 224, 525 N.E.2d 30.

Some other claims raise substantive issues which were either considered on direct appeal or lack merit. Those which were rejected on direct appeal include claims of prosecutorial misconduct on summation (Nos. 32, 40) (see 103 Ill.2d at 96-98, 82 Ill.Dec. 391, 468 N.E.2d 1171), and the prejudicial effect of inflammatory and irrelevant comments of a witness (No. 34) (see 103 Ill.2d at 74-75, 82 Ill.Dec. 391, 468 N.E.2d 1171). We see no need for reconsideration, and the defendant has presented no more cogent arguments in support of his contentions than he did on his direct appeal. The claim that the defendant, who is white, was prejudiced by the alleged exclusion of black veniremen from his jury (No. 38) has no merit. (See People v. Holland (1987), 121 Ill.2d 136, 157, 117 Ill.Dec. 109, 520 N.E.2d 270.) The defendant's point which is labeled “No. 41” contains only a list of constitutional provisions which is intended to support other points. There is no point numbered “33.”

It remains only to consider those points numbered 8, 15, and 31. These claim, in essence, that the defendant was denied his right against coerced self-incrimination by the admission of statements he made to the State's examining psychiatrists, statements which were garnered without first providing him with Miranda warnings. These claims, and the ancillary claim of incompetence which is made in connection with them, are meritless. It is true that, under Estelle v. Smith (1981), 451 U.S. 454, 468, 101 S.Ct. 1866, 1876, 68 L.Ed.2d 359, 372, “[a] criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.” (Emphasis added.) Where, however, the defendant does attempt to introduce such evidence, Smith is inapplicable. ( Buchanan v. Kentucky (1987), 483 U.S. 402, ----, 107 S.Ct. 2906, 2918, 97 L.Ed.2d 336, 356.) Here, the defendant's entire defense strategy was premised upon a plea and proof that the defendant was not guilty by reason of insanity. Therefore, this claim is without merit.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed. The clerk is directed to enter an order setting Wednesday, the 11th day of January, 1989, as the date on which the sentence of death entered by the circuit court of Cook County shall be executed. The defendant shall be executed by lethal injection in the manner provided by section 119-5 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1983, ch. 38, par. 119-5). A certified copy of this order shall be furnished by the clerk of this court to the Director of Corrections, to the warden at Stateville Correctional Center, and to the warden of the institution where the defendant is confined. AFFIRMED.

Gacy v. Welborn, 994 F.2d 305 (7th Cir. 1993)

Following affirmance of murder convictions and death sentence, 103 Ill.2d 1, 82 Ill.Dec. 391, 468 N.E.2d 1171, petition for writ of habeas corpus was filed. The United States District Court for the Northern District of Illinois, Eastern Division, John F. Grady, J., denied petition. Petitioner appealed. The Court of Appeals, Easterbrook, Circuit Judge, held that: (1) jury was sufficiently instructed as to what to do in event of disagreement on mitigating circumstances; (2) written instruction on mitigating circumstances was satisfactory; and (3) counsel was not ineffective. Affirmed.

EASTERBROOK, Circuit Judge.

John Wayne Gacy is a serial killer. Between 1972 and 1978 he enticed many young men to his home near Chicago for homosexual liaisons. At least 33 never left. Gacy tied up or handcuffed his partners, then strangled or choked them. Twenty-eight of the bodies were dumped into the crawl space under the Gacy residence; one was entombed under the driveway; the rest were thrown into the Des Plaines River. Gacy, who operated a construction business, had his workers dig trenches and throw lime into the crawl space. Gacy's wife complained about an “awful stench.” But the slaughter continued until the disappearance of 15 year old Robert Piest on December 11, 1978. Piest vanished after telling his mother that he was going to see a building contractor about a summer job. The presence of Gacy's truck outside the place where Piest was to meet his potential employer led to Gacy's arrest within two days.

The discovery of so many skeletons, several with rags stuffed in the victims' mouths, created a national sensation. Gacy regaled the police with stories about his exploits, which he attributed to “Jack,” an alternative personality. A jury convicted Gacy in March 1980 of 33 counts of murder, rejecting his defense of insanity. The same jury sentenced Gacy to death for 12 of these killings, the only 12 that the prosecution could prove had been committed after Illinois enacted its post- Furman death penalty statute. The Supreme Court of Illinois affirmed. People v. Gacy, 103 Ill.2d 1, 82 Ill.Dec. 391, 468 N.E.2d 1171 (1984), cert. denied, 470 U.S. 1037, 105 S.Ct. 1410, 84 L.Ed.2d 799 (1985). That court also rejected a collateral attack, 125 Ill.2d 117, 125 Ill.Dec. 770, 530 N.E.2d 1340 (1988), cert. denied, 490 U.S. 1085, 109 S.Ct. 2111, 104 L.Ed.2d 671 (1989). A United States district court has decided that Gacy is not entitled to collateral relief. 1992 WL 211018, 1992 U.S.Dist. LEXIS 12498 (N.D.Ill.), motion to suspend judgment denied, 1992 WL 358851, 1992 U.S.Dist. LEXIS 18073. Opinions in this case already exceed 200 pages. We spare readers further recapitulation and turn directly to the four arguments Gacy has culled from more than 100 raised at one or another stage of this litigation, now 14 1/2 years old. Gacy has in this sense already escaped the 12 judgments of execution, for judge and jury cannot decide whether a murderer will die, but only how soon.


Illinois commits the capital sentencing decision to the jury. If the jury convicts a defendant of a capital offense, there is a sentencing proceeding. At this proceeding the prosecution bears the burden of establishing the existence of defined aggravating circumstances. If the jury unanimously decides that there is at least one aggravating circumstance, the defendant becomes eligible for a death sentence. Section 9-1(g) of the Illinois statute (Ill.Rev.Stat. ch. 38 ¶ 9-1(g) (1979), now 720 Ill.Comp.Stat. § 5/9-1(g)) spells out what happens next:

If the jury determines unanimously that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death. Unless the jury unanimously finds that there are no mitigating factors sufficient to preclude the imposition of the death sentence the court shall sentence the defendant to a term of imprisonment under Chapter V of the Unified Code of Corrections.

The second paragraph means that a single juror's belief that the defendant has demonstrated the existence of a single mitigating factor precludes the death sentence. Such a rule surprises some judges, who are accustomed to telling jurors that decisions must be unanimous. For example, in Kubat v. Thieret, 867 F.2d 351 (7th Cir.1989), the judge instructed the jury: “If, after your deliberations, you unanimously conclude that there is a sufficient mitigating factor or factors to preclude imposition of the death sentence, you should sign the form which so indicates.” The court did not tell the jury that a single juror could block capital punishment, and we held the instruction violated the Constitution. 867 F.2d at 371-74. Cf. Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988); McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). When the jury knows about its full options, however, the Illinois system comports with all constitutional requirements. Silagy v. Peters, 905 F.2d 986, 997-1001 (7th Cir.1990); Williams v. Chrans, 945 F.2d 926, 935-38 (7th Cir.1991).


At the close of Gacy's penalty proceeding, Judge Garippo instructed the jury: If, after your deliberations, you unanimously determine that there are no mitigating factors sufficient to preclude the imposition of the death sentence on the Defendant, you should sign the verdict form directing a sentence of death. If, after your deliberations, you are not unanimous in concluding that there are no mitigating factors sufficient to preclude imposition of the death sentence, you must sign the verdict form directing a sentence of imprisonment.

As Judge Grady, who denied Gacy's petition for a writ of habeas corpus, remarked: “This written instruction is completely accurate.” The jurors had this instruction, like the others in the three-page charge, during their deliberations. Unfortunately, Judge Garippo did not read the instruction to the jury as written-or at least the court reporter did not take down the same words that appear in the written instructions. The transcript has it that the second sentence of this instruction was delivered as: “If, after your deliberations, you unanimously conclude there are mitigating factors sufficient to preclude the imposition of the death penalty, you must sign the verdict form directing a sentence of imprisonment.” This sentence, Gacy submits, carries the same defect as the instruction in Kubat and vitiates the death sentences.

Gacy's jury was told that if it is unanimous in finding a mitigating circumstance, it must return a verdict of imprisonment. The oral version of the instruction is accurate, as far as it goes. But the instruction did not give the jury the whole truth, because it did not tell the jurors what to do in the event of disagreement. Mills and McKoy, the closest decisions from the Supreme Court, dealt with instructions telling the jury that only unanimous agreement, on a particular mitigating factor, would permit the jury to return a verdict of imprisonment. Such an instruction creates a risk that even though every juror believes that there is some mitigating factor, the jurors' inability to agree on a particular factor would lead to the defendant's execution. No such problem infects the oral instruction to Gacy's jury. Kubat dealt with a related question: what if the jury is ignorant of the power of a single juror to block the death penalty under state law? Both oral and written instructions in Kubat's case dealt only with unanimous verdicts, and a reasonable jury might well have thought that it was supposed to continue deliberating until it reached agreement-just as it had done at the guilt phase of the trial.

Like Judge Grady, we conclude that reasonable jurors would not have been under the misapprehension that they had to reach unanimous agreement. Judge Garippo opened the sentencing phase of Gacy's trial by describing to the jurors the findings they would need to make. The judge said, among other things: If you cannot unanimously agree that there are no sufficient mitigating factors to preclude the imposition of the death penalty, you will sign that verdict so indicating, and the Court will sentence the Defendant to imprisonment.

The final instructions came close on the heels of the preliminary set, for the jury did not receive fresh evidence; instead the lawyers presented arguments based on the evidence at the five-week trial. Defense counsel emphasized during these arguments that unanimity was unnecessary: [T]he only way that you can impose the death penalty on Mr. Gacy, and His Honor will instruct you, it is a unanimous decision, all 12 of you have to agree to give Mr. Gacy the death penalty. If there is just one of you who feels that he was acting under an emotional disturbance, or if there is just one of you who feels it would not be the right thing to do, if there is one of you who feels that he should be studied for any reason at all, if there is one of you, then you must sentence him or direct the court to sentence him to a term of imprisonment.

This argument, an accurate statement of Illinois law, was presented without objection from the prosecutor. For his part, the prosecutor did not urge the jury to seek unanimity on mitigating factors.

What we have, in sum, is a slip of the judicial tongue. No one noticed at the time; defense counsel did not object to the misreading of the written instruction. The complete, and completely accurate, instructions were available to the jurors during their deliberations. The text was short; vital information did not drown in a sea of words. If the jurors wondered about the consequences of disagreement, they had correct answers at their elbows. Within two hours, the jurors brought back death verdicts on all 12 counts. This is too little time to reach unanimous agreement on aggravating factors and beat down even a single holdout on mitigating factors. So the question at hand probably did not arise in the jury's deliberations; they must have been in agreement from the outset. These circumstances “rule out [any] substantial possibility that the jury may have rested its verdict on the ‘improper’ ground”. Mills, 486 U.S. at 377, 108 S.Ct. at 1867. “Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.” Boyde v. California, 494 U.S. 370, 380-81, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990).


This assessment supposes that the written instruction is satisfactory. Although we have twice (in Silagy and Williams ) rejected constitutional challenges to this instruction, a district court, relying on research by the late Hans Zeisel, has concluded that jurors do not understand such instructions, which therefore violate the Constitution. Free v. Peters, 806 F.Supp. 705 (N.D.Ill.1992). The district judge, concluding that Silagy and Williams depend on mistaken beliefs, has refused to carry out the holdings of those cases. Id. at 731. If we conclude (as we have) that the validity of his sentence depends on the written instruction, Gacy submits, we should remand so that he may present to Judge Grady the same evidence that persuaded Judge Aspen in Free.

Gacy filed a post-judgment motion in the district court asking for such a hearing. The district court denied this motion, and Illinois asks us to treat the subject as waived. It would have been within the district court's discretion to treat the argument as untimely. Instead the court wrote that, because Free would govern the outcome of this case, Gacy could raise the question in a new collateral attack, which would abide the outcome of Free. After McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), however, prisoners cannot wage a series of collateral attacks, adding new issues each time. There will be only one federal adjudication of Gacy's claims. Those not made now are lost. Gacy has been attacking the jury instructions from the beginning, and it is best to consider all of the contentions he presses on us.

Putting Gacy's case on ice while another panel of this court considers the appeal of Free would be inappropriate. Implementation of Gacy's sentences has been stayed by federal litigation since 1989, and we have been told to resolve capital appeals expeditiously. In re Blodgett, 502 U.S. 236, ----, 112 S.Ct. 674, 676, 116 L.Ed.2d 669 (1992). The district judge in Free has asked a magistrate judge to inquire into claims that the defendant misled the court about the provenance of the study. All other proceedings in Free have ground to a halt, and we cannot tell how long it may be before the appeal in that case will be resolved (or even which side will turn out to be the appellant). Both Gacy and the State of Illinois are entitled to decision without indefinite delay.FN1

FN1. Because the decision in Gacy's case may affect many prisoners on Death Row in Illinois, we have accepted amicus briefs submitted by the MacArthur Justice Center and a representative of Prof. Zeisel, by Bernard Williams (of Williams v. Chrans, still litigating despite McCleskey ), and by Free himself. These briefs oddly do not explain or defend either the legal or the factual analysis in Free; instead they urge this court to wait for Free to wend its way here. There is, however, no principle that legal issues must be resolved for the first time on appeal in whatever case reached the district court first.

Professor Zeisel conducted a survey of persons reporting to a courthouse as potential jurors. He gave them the facts of a case and a set of instructions based on the 1987 Illinois Pattern Instructions for capital cases. (These instructions are similar, though not identical, to those given to Gacy's jury.) Then he asked a series of questions designed to test the subjects' comprehension of the instructions. The questions most pertinent to Gacy's argument follow:

Question 4. A juror decides that the fact that Mr. Woods was only 25 years of age when he committed the murder is a mitigating factor sufficient to preclude the death penalty. However the other eleven jurors disagree and insist that his age is not a mitigating factor. The one juror believes that she cannot consider a mitigating factor unless the entire jury agrees upon it and votes for the death penalty. She votes for the death penalty. Has that juror followed the judge's instructions?

One quarter of the subjects answered “yes”, leading Prof. Zeisel to conclude that as much as a third of the pool of jurors would not understand a critical feature of the instructions. Prof. Zeisel computed a confidence interval of 8.7%, leading to the calculation 25.0% ± 8.7% = 16.3% <==> 33.7%.

Question 5. A juror decides that the fact that Mr. Woods was good to his family is a mitigating factor sufficient to preclude the death penalty. However, the other eleven jurors disagree. The other jurors insist that no juror should consider the defendant's good relations with his family as a mitigating factor unless they all agree it is a mitigating factor. The one juror accepts this approach and votes for the death penalty. Has the juror followed the judge's instructions?

On this question, 36.5% answered “yes”, leading to the computation 36.5% ± 9.6% = 26.9% <==> 46.1% wrong answers. See 806 F.Supp. at 767. Gacy contends that these error rates demonstrate that the written instruction is confusing and thus could not have corrected the misimpression created by the oral instruction. The district court in Free concluded that the study as a whole “refut[es] the underlying judicial assumptions driving the decisions in Silagy and Williams [and shows] a reasonable likelihood that [the] jury (1) believed that only the statutory mitigating factors, or factors comparable to them, could preclude the imposition of the death penalty, and (2) was confused about (i) which side, if any, had a burden of persuasion, and (ii) the nature of that burden.” 806 F.Supp. at 731. The court's approach would require new penalty proceedings in almost all Illinois capital cases-although Free rejected the argument that the answers to Questions 4 and 5 show that there is an independent constitutional flaw in the unanimity instruction. Id. at 720-22.

As it did in Free, the state contends that the reported data are inaccurate. Illinois points out that although the jury instructions were read to the panel, the questions were administered in writing. Perhaps, then, the subjects grasped the instructions but misunderstood (or could not read) the questions. The questions are not free from ambiguity. For example, might a subject understand Question 5 as inquiring whether a juror legitimately may be persuaded by other jurors' arguments? Questions 4 and 5 also involve mitigating factors that were not on the list recited in the instruction. Some subjects may have understood these questions as asking whether a particular factor is appropriate, rather than whether the instructions require unanimity. Finally, the state reminds us that Prof. Zeisel was a zealous opponent of capital punishment and that the study was conducted under the auspices of the MacArthur Justice Center, an organization devoted to the defense of capital litigation, which may have influenced the findings no matter how careful the principal investigator sought to be.

If we believed that the validity or soundness of Prof. Zeisel's work were controlling, we would give Gacy the hearing he requests. We conclude, however, that even taken for all it could be worth, Prof. Zeisel's study does not assist Gacy.

Free refused to follow two opinions of this circuit, claiming the support of “empirical evidence refuting the underlying judicial assumptions driving” our cases. 806 F.Supp. at 731. Although Prof. Zeisel's work may persuade us to reexamine Silagy and Williams, it does not permit district courts to disregard those decisions. Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 1921, 104 L.Ed.2d 526 (1989); Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 103 S.Ct. 1343, 75 L.Ed.2d 260 (1983); United States v. Burke, 781 F.2d 1234, 1239 n. 2 (7th Cir.1985). Ours is a hierarchical judiciary, and judges of inferior courts must carry out decisions they believe mistaken. Hutto v. Davis, 454 U.S. 370, 375, 102 S.Ct. 703, 706, 70 L.Ed.2d 556 (1982). A district judge who thinks that new evidence or better argument “refutes” one of our decisions should report his conclusions while applying the existing law of the circuit. Panels of three appellate judges establish rules for the approximately 100 judicial officers of this circuit, and for the approximately 22 million persons living within its boundaries. Some of these decisions are bound to be erroneous, or at least to depart from those the many other judges who are not on a given panel would have reached. Illinois litigated and won Silagy and Williams; it need not re-litigate them prisoner by prisoner, district judge by district judge. Cf. Steven G. Calabresi & Gary Lawson, Equity and Hierarchy: Reflections on the Harris Execution, 102 Yale L.J. 255, 273-79 (1992).

Now that the question is here, we must decide whether Prof. Zeisel's work justifies overruling two carefully thought out opinions. Silagy and Williams were expressed as decisions on questions of law, not as predictions about the findings of future survey research. Legal developments since 1991 do not call those opinions into question. To the contrary, the Supreme Court has reiterated that the choice between judge and jury in sentencing, and the allocation of burdens of production and persuasion after the prosecutor establishes aggravating circumstances, are questions of state rather than constitutional law. E.g., Delo v. Lashley, 507 U.S. 272, 113 S.Ct. 1222, 122 L.Ed.2d 620 (1993).

At all events these cases are immune from overruling on collateral attack. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), holds that federal courts may not apply rules of constitutional law devised or altered after the conclusion of the prisoner's direct appeals. Silagy and Williams show that when Gacy's direct appeal ended in 1984 no constitutional problem was apparent in the sentencing instructions. Discarding two recent decisions of this circuit necessarily would establish a “new rule” for purposes of Teague. None of the exceptions to Teague is available to Gacy. Overruling Silagy and Williams would not place any conduct beyond the power of law to proscribe or establish a new category of fundamental constitutional norms. 489 U.S. at 307, 109 S.Ct. at 1073.

In an effort to explain why he should be allowed to raise new arguments in federal court despite not having presented comparable contentions in state court, Gacy (like Free) points to the novelty of Prof. Zeisel's research. Arguments based on his work were unavailable at the time of Gacy's direct appeal, and hence, Gacy contends, he has “cause” for not presenting the claim to the state court.FN2 This follows the path of Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), which held that prisoners have “cause” for not presenting arguments so novel or so inconsistent with established law as to be “unavailable.” After Teague, however, this stratagem to avoid Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), does nothing except plead the petitioner out of court. Any claim sufficiently novel that it was unavailable during the state proceedings must be a “new rule” under Teague. Prihoda v. McCaughtry, 910 F.2d 1379, 1385-86 (7th Cir.1990). See also Joseph L. Hoffman, The Supreme Court's New Vision of Federal Habeas Corpus for State Prisoners, 1989 Sup.Ct.Rev. 165, 183. Cf. Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992) (defendant who is “eligible” for capital punishment, as Gacy is, may not use the “actual innocence” exception to Sykes, and presumably not the “actual innocence” exception to Teague either). And calling the Zeisel study “new evidence” does nothing to break the grip of Teague and Sykes-not only because it is not new evidence about Gacy's guilt (as opposed to the factual underpinning of a legal argument) but also because of cases such as Keeney v. Tamayo-Reyes, --- U.S. ----, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), and Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993).

FN2. Although Prof. Zeisel's study of the Illinois pattern instructions postdates Gacy's conviction, studies of other jury instructions, reaching similar conclusions, were published in the 1970s. See Robert P. Charrow & Veda R. Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions, 79 Colum.L.Rev. 1306 (1979); Amiram Elwork, Bruce Sales & James Alfini, Juridic Decisions: In Ignorance of the Law or in Light of It, 1 L. & Human Behavior 163 (1977). That jurors had trouble coping with gobbledygook in instructions is no news. Strangely, the parties make nothing of these studies predating Gacy's trial.

Whatever power to revisit Silagy and Williams we may possess, we shall not exercise. The Zeisel study does those cases no damage. To see why, consider the question: Is an error rate of 25.0% ± 8.7% large or small? Such a question has no answer. Large or small, compared to what? Presumably compared with some lesser error rate, reflecting greater comprehension achieved by changing the instructions to the jury. That is, actual levels of comprehension must be compared with achievable levels of comprehension, not with ideal levels. Yet Prof. Zeisel did not test jurors' comprehension of instructions worded differently. Nothing in his work shows that some other set of instructions would do better.FN3

FN3. By contrast, the studies cited in note 2 tried out variations of the instructions to determine which were more comprehensible and the degree of improvement attainable from rewording.

To put this differently, there are many potential reasons why jurors might not grasp what a judge tells them. Think of just a few: (1) The instructions may be poorly drafted, with needlessly big and technical words and ambiguous constructions; (2) The instructions may convey rules of some complexity, which cannot be mastered on first exposure; (3) The instructions may use concepts that are inherently complex; (4) Jurors may be unable to grasp thoughts unfamiliar to them.

If explanation (1) is at work, then the State of Illinois is responsible and may be called on to improve things (although, as we explain below, the Constitution has but a limited role to play even here). Explanation (2), by contrast, attributes misunderstanding to a mixture of state law with the constitutional obligations announced by the Supreme Court. Cases beginning with Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), have established a set of increasingly reticulated rules for capital sentencing, including shifting burdens, unanimity on some issues but not on others, and consideration of mitigating factors that do not appear in state statutes. Justices of the Supreme Court occasionally complain that these rules are too complex, e.g., Graham v. Collins, 506 U.S. 461, ---- - ----, 113 S.Ct. 892, 906-13, 122 L.Ed.2d 260 (1993) (Thomas, J., concurring); Walton v. Arizona, 497 U.S. 639, 656-74, 110 S.Ct. 3047, 3058-68, 111 L.Ed.2d 511 (1990) (Scalia, J., concurring in part)-and the high reversal rate in capital cases supports this perspective. Yet if the Constitution requires this convoluted set of rules, then the attendant confusion is a regrettable cost rather than a reason why the Constitution's own norms are, in application, un-constitutional.

Explanation (3), the complexity of the concepts, also plays a role. Burdens of proof and persuasion are hard to explain (one reason why this court strongly discourages efforts to define “reasonable doubt”, see United States v. Glass, 846 F.2d 386 (7th Cir.1988)). Learned Hand confessed that, after a lifetime in the law, he still did not understand the shadings among burdens of persuasion. United States v. Feinberg, 140 F.2d 592, 594 (2d Cir.1944). See also Flamm v. Eberstadt, 814 F.2d 1169, 1173-74 (7th Cir.1987). That subjects being peppered with questions about a complex concept they have encountered for the first time will not give answers satisfactory to lawyers is no surprise. It cannot be that the Constitution, which requires judges to tell juries to use these elusive concepts, is self-destructive because lay persons will experience difficulty in answering questions about what they have been told. Confusion and misunderstanding attributable to the Constitution of the United States does not yield a violation of that document.

Then there is explanation (4): Human shortcomings. Difficulty in coping with abstract concepts (most jurors spend their lives in the world of the concrete) explains why we have lengthy arguments, why judges give instructions orally as well as in writing (and reinstruct juries that ask questions), why juries deliberate. Jurors who “don't get it” on first hearing may do better as the process continues. Professor Zeisel himself concluded as much. Harry Kalven, Jr., & Hans Zeisel, The American Jury 149-62 (1966). See also Reid Hastie, Steven D. Penrod & Nancy Pennington, Inside the Jury 81 (1983) (concluding that jurors collectively remember 90% of the evidence and 80% of the instructions). In sum, it is inadmissible to use inaccurate answers attributable to explanations (2), (3), and (4) as reasons to condemn a jury instruction. The Constitution establishes a system of jury trials, which necessarily tolerates the shortcomings of that institution. Pointing to one of these shortcomings, no matter how vivid, does nothing to undercut the Constitution's own method.FN4

FN4. We are of course aware that the Constitution does not require Illinois to use juries in capital sentencing decisions. Still, the assumptions undergirding the use of juries in trials are no less appropriate when states elect to give juries a role in sentencing.

Professor Zeisel did not try to isolate the effect of the state's drafting choices. For all we can tell, the best conceivable exposition would have reduced the misunderstanding rate on Question 4 from 25% to 24%, with comparably paltry changes on other questions. The study thus does not justify chastising the state, as opposed to the Supreme Court or the institution of the jury or the failings of the species.

If the study enabled us to lay some responsibility at the state's doorstep, this still would not permit a federal court to take a blue pencil to a state's jury instructions. For as long as the United States has been a nation, judges have been using legalese in instructing juries, with an inevitable adverse effect on the jury's comprehension. We do not think that traditional forms of jury instruction are now, and always have been, unconstitutional because of this.

One enduring element of the jury system, no less vital today than two centuries ago, is insulation from questions about how juries actually decide. Jurors who volunteered that they did not understand their instructions would not be permitted to address the court, and a defendant could not upset a verdict against him even if all of the jurors signed affidavits describing chaotic and uninformed deliberations. E.g., McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915); Hyde v. United States, 225 U.S. 347, 381-84, 32 S.Ct. 793, 807-09, 56 L.Ed. 1114 (1912); United States v. Schwartz, 787 F.2d 257, 261-62 (7th Cir.1986); Fed.R.Evid. 606(b). Instead of inquiring what juries actually understood, and how they really reasoned, courts invoke a “presumption” that jurors understand and follow their instructions. As Rule 606(b) shows, this is not a bursting bubble, applicable only in the absence of better evidence. It is a rule of law-a description of the premises underlying the jury system, rather than a proposition about jurors' abilities and states of mind. See Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 2139, 60 L.Ed.2d 713 (1979) (plurality opinion) (“A critical assumption underlying [the] system [of trial by jury] is that juries will follow the instructions given them by the trial judge. Were this not so, it would be pointless for a trial court to instruct a jury, and even more pointless for an appellate court to reverse a criminal conviction because the jury was improperly instructed.”); Jackson v. Denno, 378 U.S. 368, 382 n. 10, 84 S.Ct. 1774, 1783 n. 10, 12 L.Ed.2d 908 (1964); Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 165, 99 L.Ed. 101 (1954). Cf. Sparf & Hansen v. United States, 156 U.S. 51, 80, 15 S.Ct. 273, 284, 39 L.Ed. 343 (1895). Cases doubting jurors' ability to put out of their minds events vividly described in court have not expressed equivalent doubts about jurors' ability to follow instructions on the law. Compare Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), with Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 1709, 95 L.Ed.2d 176 (1987). See also, e.g., Francis v. Franklin, 471 U.S. 307, 324-25 n. 9, 105 S.Ct. 1965, 1976 n. 9, 85 L.Ed.2d 344 (1985).

Social science has challenged many premises of the jury system. See generally Symposium, Is the Jury Competent?, 52 L. & Contemp. Prob. (Aut.1989); Symposium, The Selection and Function of the Modern Jury, 40 American L.Rev. (Win.1991). Students of the subject believe, for example, that jurors give too much weight to eyewitness evidence and not enough weight to other kinds. See Credibility Assessment (Yuille ed. 1989); Elizabeth F. Loftus, Eyewitness Testimony: Psychological Research and Legal Thought, 3 Crime and Justice 105 (1981). Cf. Lea Brilmayer & Lewis Kornhauser, Quantitative Methods and Legal Decisions, 46 U.Chi.L.Rev. 116, 135-48 (1978). Still, the ability of jurors to sift good evidence from bad is an axiom of the system, so courts not only permit juries to decide these cases but also bypass the sort of empirical findings that might help jurors reach better decisions. See Krist v. Eli Lilly & Co., 897 F.2d 293, 296-99 (7th Cir.1990); United States v. Hudson, 884 F.2d 1016, 1024 (7th Cir.1989). Juries have a hard time distinguishing “junk science” from the real thing, but aside from some tinkering with the expert testimony admitted at trial, this shortcoming has been tolerated. Compare Carroll v. Otis Elevator Co., 896 F.2d 210, 215-18 (7th Cir.1990) (concurring opinion), with Christophersen v. Allied-Signal Corp., 939 F.2d 1106 (5th Cir.1991) (in banc). Cf. Daubert v. Merrell Dow Pharmaceuticals, Inc., 951 F.2d 1128 (9th Cir.1991), cert. granted, 506 U.S. 914, 113 S.Ct. 320, 121 L.Ed.2d 240 (1992). Jurors reach compromise verdicts, although they aren't supposed to. Juries return inconsistent verdicts, representing irrational behavior or disobedience to their instructions. United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). Juries act in ways no reasonable person would act. This is the standard for granting judgment notwithstanding the verdict in a civil case, or acquittal after verdict in a criminal case, or reducing an award of damages, and there are plenty of occasions for these post-verdict correctives. Yet for all of this, courts do not discard the premises of the jury system, postulates embedded in the Constitution and thus, within our legal system, unassailable. This shows up in a striking fact about the Supreme Court's treatment of social science: of the 92 cases between 1970 and 1988 addressing issues of evidence and trial procedure, not one relied on the extensive body of evidence about jurors' conduct. J. Alexander Tanford, The Limits of a Scientific Jurisprudence: The Supreme Court and Psychology, 66 Ind.L.J. 137, 139 (1990).

None of this is to suggest that judges ought to be indifferent to the way they write instructions. Polysyllabic mystification reduces the quality of justice. One of the Illinois 1987 pattern instructions is a quadruple negative: “If you do not unanimously find from your consideration of all the evidence that there are no mitigating factors sufficient to preclude imposition of a death sentence, then you should sign the verdict requiring the court to impose a sentence other than death.” Things seem to have gone downhill since Gacy's jury was charged in 1981 (his jurors got the same information with only three negatives). Modern pattern instructions use simple words in short, concrete, declaratory sentences. E.g., Federal Judicial Center, Pattern Criminal Jury Instructions (1987) (including an appendix of suggestions for making instructions more understandable). Would it not be better for all concerned to give a charge such as: “If after full discussion any one of you believes that a mitigating factor makes death an excessive punishment, then you must return a sentence of imprisonment.”? For reasons we have discussed, even this “simplified” charge would leave many jurors dumbfounded; the underlying ideas are not at all simple, and words such as “mitigating” and “excessive” are foreign to jurors' daily discourse.

As there are no perfect trials, so there are no perfect instructions. How best to convey the law to lay persons sitting on juries is in the end a question for state legislatures and trial courts to resolve, and not for the federal kibitzers in collateral attacks many years later. The jury is a means to resolve disputes, not a waystation by which the controversy at trial is transported to a higher level of generality as a social science dispute about juries. Gacy's jury was instructed within the wide bounds set by the Constitution.


Gacy's remaining arguments require less discussion. Each received extended treatment by Judge Grady, whose opinion withstands all challenges.


Because comment in the media was especially intense in Chicago, the court chose a jury in Rockford. During the four days devoted to screening potential jurors, the court put many questions to candidates. The judge asked, for example, whether the pretrial publicity made it impossible to approach the subject with an open mind, and whether Gacy's homosexuality (and the sexual nature of the crimes) would affect their judgment. The judge declined, however, to ask members of the venire exactly what they had read in the papers and exactly what they thought about homosexuals. Gacy contends that the judge's refusal to ask the questions his lawyer proposed deprived him of a fair trial.

The Constitution does not require a judge to use the defendant's preferred screening questions. Mu'Min v. Virginia, 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991). Before the trial began, court and counsel compiled an index of what had appeared in the media. The judge asked the jurors what they watched and read. This information, combined with the index, enabled Gacy's lawyers to know the allegations to which each juror had been exposed. As Judge Garippo concluded, it could have been counterproductive to require each juror to repeat the details, because this could have summoned up information that the juror otherwise would have forgotten-and in the process contaminated other members of the venire. The index, the questioning, and drawing the venire from Rockford were adequate to select an unbiased jury.

Invoking Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), Gacy contends that the judge's questions about homosexuality were inadequate. Judge Garippo asked general questions, such as: “Now, does the fact that the Defendant is charged with homosexual conduct prevent you from being fair to either side?” and “Could you put aside any feeling that you might have regarding homosexuality in rendering your verdict in this case?” These are inadequate, Gacy submits, because they invited bland “yes” or “no” answers and thus hid any subtle signs of bias. The questions his lawyer proposed, by contrast, called for potential jurors to describe their feelings about homosexuals. It may well be that the kind of questions proposed by the defense would have afforded greater entree into the jurors' attitudes, but Morgan does not require them. That case tells judges to ask about specific areas of bias rather than asking a general question such as “can you be fair and impartial?” Judge Garippo did what Morgan requires. To do more would have extended the jury-selection process considerably and left many jurors flustered and resentful, which in the end may have worked against the defendant. Defendants' safety lies in the size of the jury and in cautions from the court, not in extra questions posed in advance of trial. A long series of probing questions can anesthetize or offend the panel rather than enlighten judge and counsel. Experienced judges accordingly prune the list, omitting some that may look appropriate in isolation. Judge Garippo did just that-and proceeded to follow up with more pointed questions when appropriate. Judge Grady's opinion details several of these sequences, which we need not repeat.

Moreover, as Judge Grady pointed out, general questions about attitudes toward homosexuality were beside the point. Gacy admitted killing many persons. His defense was insanity. Gacy's lawyer did not ask the judge to propound questions along the line of “Do you believe that homosexuals are more likely than heterosexuals to be sane?” or “Are you disposed to convict an insane person whose murders were related to homosexuality, although the law and the evidence require acquittal?” Of course questions this blunt would have been useless, but Gacy's lawyer also did not propose ways to get at these subjects indirectly. Which is not to fault his lawyer: the subjects are not easy to broach. Even in hindsight it is not clear what more counsel, or the court, could have done. All that we need hold is that the trial judge was entitled to resist the invitation to turn voir dire into a trial of jurors' attitudes about homosexuality.


Gacy presented his defense of insanity through six expert witnesses: four psychiatrists and two psychologists. Judge Garippo declined to allow Gacy's lawyers to use these witnesses to relay to the jury verbatim statements Gacy made to them, ruling that these were hearsay when offered for the truth of the matter asserted. Gacy did not testify at trial, and the prosecutor used the hearsay objections to prevent Gacy from getting the more favorable portions of his story before the jury indirectly. The trial judge nonetheless permitted the expert witnesses to recount the substance of what Gacy had said. The prosecutor did not hesitate to ask these six witnesses, and the state's own experts, about Gacy's incriminating statements. These came in as admissions of a party opponent. Gacy contends that this one-sided use of his words violated his rights under the due process clause.

On direct appeal, the Supreme Court of Illinois concluded that Gacy had defaulted this claim by failing to make appropriate offers of proof. 82 Ill.Dec. at 420-22, 468 N.E.2d at 1200-02. On collateral review, however, that court addressed the merits of Gacy's contentions. In light of an intervening decision, People v. Anderson, 113 Ill.2d 1, 12-13, 99 Ill.Dec. 104, 495 N.E.2d 485 (1986), overruling People v. Hester, 39 Ill.2d 489, 237 N.E.2d 466 (1968), on which Judge Garippo had relied, the Supreme Court of Illinois held that Gacy's psychiatric experts should have been permitted to repeat his exact words to the jury, the better to illuminate their diagnoses. Nonetheless, the court concluded, exclusion of this testimony was harmless error in light of the fact that all six witnesses fully explained the bases of their diagnoses by paraphrasing what Gacy had said to them. 125 Ill.Dec. at 775, 530 N.E.2d at 1345. The Supreme Court of Illinois did not reiterate the procedural holding from the first case, which clears the way for Gacy to argue the merits in federal court. Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). After a painstaking review of the evidence, Judge Grady concluded that all six witnesses had presented the jury with full assessments of Gacy's condition and complete statements of their reasons. Nothing material was withheld, so the error was indeed harmless, just as the Supreme Court of Illinois had concluded.

Without detracting in any way from the care Judge Grady lavished on this issue, or the correctness of his decision that any error was harmless, we hold that there was no error at all-no constitutional error, that is. Anderson was based on state law. Beyond explicit rules such as the privilege against self-incrimination and the confrontation clause, none of which applies here, the Constitution has little to say about rules of evidence. Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). The hearsay rule and its exception for admissions of a party opponent are venerable doctrines; no serious constitutional challenge can be raised to them.

A challenge would lie if a state used its evidentiary rules to blot out a substantial defense. See Chambers v. Mississippi, 410 U.S. 284, 298-303, 93 S.Ct. 1038, 1047-50, 35 L.Ed.2d 297 (1973); Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979). These cases hold that states must permit defendants to introduce reliable third-party confessions when direct evidence is unavailable. No court has extended them to require a state to admit defendants' own out of court words. A defendant is available to himself as a witness. Nothing in the Constitution gives an accused the privilege of proffering, through hearsay, his self-serving statements while denying the state access to the rest of the story that could be got at by cross-examination. Gacy had a right to offer expert evidence. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). He did so, six times over. That these witnesses had to beat around the bush in order to avoid hearsay does not create a constitutional problem.


At last we reach the inevitable attack on trial counsel. It is, as Judge Grady concluded, unpersuasive. Gacy received a skillful, vigorous defense by lawyers who were prepared to the nines. Gacy's lead counsel, Sam Amirante, is now a judge of the court that conducted his trial.

For this appeal, Gacy's current legal team has discarded all but two objections. First comes the argument that Amirante raised the insanity defense over Gacy's objection, depriving him of the ability to control decisions vital to the defense. Second, Gacy insists that Amirante's loyalties were compromised by his pursuit of revenues from a book and other publicity. The lure of lucre led him to induce Gacy to confess, the argument goes, the better to get an interesting story-but with devastating effect on the defense. Although such claims could in principle raise problems, they fail for want of proof.

Let us start with the latter claim. Amirante filed an affidavit denying that he was pursuing profits from publicity. No book by Amirante or any of his associates appeared after the trial. Although an investigator may have leaked some tape recordings to Tim Cahill, author of Buried Dreams (1985), Amirante denied authorizing or knowing of this misconduct. A tape recording of a conversation between Gacy and Amirante 10 months before trial contains a brief discussion of publication possibilities. Amirante offered to refer Gacy to another lawyer to pursue that possibility-exactly the right thing to do, and the antithesis of a conflict of interest. All that remains is one paragraph in an order entered by the trial court requiring Gacy's lawyers to continue their work at public expense (Amirante had been retained privately at the outset):

That, over the objection of Defense Counsel, it is hereby ordered that Attorneys Amirante and Motta reimburse Cook County to the extent of fees received for services rendered from any royalties received as a result of book or movie rights hereafter acquired, excluding any professionally oriented works, lectures, treatises, or the like.

The record does not reveal who raised the subject of royalties (the prosecutor, the judge, or defense counsel), or the basis of the objection. For all we know, only the judge had movies on his mind. So Amirante asserted in his affidavit. In the absence of any contrary evidence, this is a blind alley.

As for the contention that counsel barged ahead with an unwanted insanity defense: again the evidence gets in the way. Gacy cooperated with extended interviews and tests by six experts for the defense and another six for the state, not the behavior you would expect of a person who wanted to stand on a plain denial of guilt. In mid-trial, Gacy threatened to stop cooperating with his attorneys, complaining: “I'm not running the trial.” When the judge asked what the problem was, Gacy continued: “I was against the insanity defense from the beginning.” This assertion, never heard again during the trial,FN5 has become the foundation for the attack on counsel. In an affidavit dated July 25, 1990, Gacy at last furnished a reason: “I couldn't believe that anyone could go insane 33 different times and then run a successful business, [and] if I didn't believe it how could [Amirante] expect 12 jurors to believe that”. Good question-but how did Gacy expect to persuade the jury to disregard his confessions, plus the damning evidence of the 28 skeletons under his house, a 29th under his driveway, and 4 more recovered from the river, not to mention the testimony of witnesses who barely survived their encounters with him? His current story, that he was out of town on every occasion, is unsupported by evidence and less plausible than his insanity defense.

FN5. Judge Garippo held a hearing. At its conclusion, Gacy answered “I don't know” to the question whether he stood by his assertion that he disagreed with his lawyers' strategy. The subject did not come up again until collateral attack.

As Judge Grady remarked, Gacy's only real choice was between an insanity defense and a guilty plea. It may be that Gacy could have obliged Amirante to desist from the insanity defense and conduct a defense limited to guilt, trying (as Amirante did not) to suppress the confessions and fob off the significance of the human remains. We say “it may be” because several of Gacy's experts testified that he was not competent to assist in his defense. Although Judge Garippo rejected that position and ordered Gacy to stand trial, the duties of counsel representing a client of borderline competence are not so clearly established as the duties of counsel representing a normal defendant. However that may be, Gacy did not tell Amirante to stop. A statement such as “I was against the insanity defense from the beginning” is some distance from “I directed Amirante to drop that defense, and he refused.” Being “against” a defense at the outset is consistent with yielding to the judgment of those who know better. Even the affidavit of 1990 does not assert that Amirante refused to carry out any direct instructions from his client. There is consequently no material dispute requiring an evidentiary hearing.