Evil Among Us
by Ken Driggs

Conclusion

[p.253] I am often asked what conclusions could be drawn from the foregoing events. Did Kleasen do it? Was he insane? Was the Texas Court of Criminal Appeals correct when they reversed the conviction in 1977? Was the district attorney wrong not to reprosecute in 1978? What can Mormons and members of other churches do, if anything, to prevent this sort of tragedy from happening again? Was Kleasen the serial killer that so many people believed he was?

Given the record, Kleasen’s story that Gary Darley and Mark Fischer are still alive but have secretly fled some sinister plot by the Mormon church is unbelievable. His alternative claim that the CIA is responsible for their deaths is also a fabrication. I believe Kleasen killed these two young missionaries. While much evidence has been lost since 1974, nothing suggests someone else did this. I admit, however, to still wondering what exactly motivated him. Kleasen was a man filled with rage and he certainly had a grudge against all authority figures in the LDS church.

But young missionaries were the one group of Mormons who consistently gave him the kind of attention he craved. So why kill them? Rage and impulse? Kleasen was mentally ill. His control mechanisms were so diminished that it took little to provoke him. There are indications that Kleasen’s illness was in an escalating state in late October 1974, giving him even less control over his dark impulses. The stealing was incidental. Kleasen was just a scavenger.

I suspect that the missionaries, probably Darley, the senior companion, went to Kleasen’s home having decided this would be the last visit. Darley’s missionary journals indicate he was growing weary of the man. In the course of the evening, they may have told Kleasen they could not return, that they were going to restrict or even end the rela-[p.254]tionship. That pushed one of Kleasen’s buttons and in a moment of rage he shot them. (If he shot them at his outdoor shooting range where Fischer’s name tag was found, this suggests some premeditation, not a sudden flash of anger.) From that moment on, it was a matter of covering up his crime, however ineptly.

Kleasen’s mental illness did not render him legally insane. Insanity, according to mental health experts, covers a wide range running to mostly shades of gray. It is a condition which fluctuates from day to day. It is the legal profession that imposes an artificial line of sane/not sane. Like many things the law does, it’s arbitrary and not always well connected to reality. In my opinion, Kleasen was capable of knowing right from wrong and, thus, was legally competent to stand trial.

The question of what he did with the bodies remains a mystery. Nothing has ever surfaced in spite of considerable effort by prosecutors and law enforcement to locate the remains. Kleasen’s denial is complete and he has never offered any clues. It seems evident, however, that he cut the heads up on the taxidermist’s band saw. This is one of the more compelling arguments for Kleasen’s being both mentally ill but legally sane. I have often thought of him holding a dead man’s head, especially the head of someone he knew, against the long blade of a band saw and cutting it up for disposal. Certainly, the gruesome horror of such an act points to someone whose control mechanisms are almost completely overridden by illness.

At the same time, Kleasen seems to have known that his actions were wrong for he apparently took steps to conceal them. If one is so ill he doesn’t appreciate the criminality of what he’s done, he doesn’t go to extreme lengths to hide the evidence of his crime. In spite of the evidence against him, Kleasen always denied any knowledge of the missionaries’ disappearance. Under the standards adopted by our legal system, he was sane enough to be responsible for his acts.

I still wonder why the bodies were apparently dismembered with so little care. Logically, because of his law enforcement background, Kleasen knew how to dispose of evidence to avoid being caught. With some damning evidence, like the bodies and fingerprints, he was successful. But what kind of person then squirrels away so much of the [p.255] personal property of the victims in and around his residence? The car tires and jack, the license plates, the watches with blood on them, and the religious teaching materials. How could Kleasen not think he would be a suspect and subject to a search?

Retired Buffalo police investigator Dick Murphy recalls being told of a comment Kleasen allegedly made: “no corpse, no case.” If Kleasen ever said that, or something like it, perhaps his sloppiness was simply overconfidence.

I’m not sure I share district attorney Bob Smith’s theory that Kleasen liked to keep trophies of his kills. And surely Kleasen appreciated the potential of the band saw as evidence.

For me, the best explanation is Kleasen’s mental state. While not legally insane, he surely was “nuts” in the colloquial sense. In my opinion, he was, and remains, a mentally ill person.

Was Kleasen a serial killer? Several people have since reported hearing that he was suspected in other killings and that various police agencies had found evidence of this. I looked for that evidence but never found any. Such gossip appears to be a natural human reaction to conduct which by itself is so horrible that it repels everyone. We sometimes feel a need to demonize such people even more, to attribute conduct to them that makes them less human, less like ourselves.

Besides, Kleasen was too unstable to get away with multiple killings, even for a short time. He was identified almost immediately as the suspect in the murders of Darley and Fischer and was so sloppy that he left plenty of evidence pointing directly to himself. I don’t believe he had the mental capacity to kill multiple victims and evade detection for long.

Dick Murphy, who probably knows more about Kleasen than anyone, disagrees with me. I’ve never met Kleasen, Murphy has had considerable contact with him. He also has a twenty-two-year law enforcement career to guide his conclusions. Murphy feels Kleasen is a serial killer with other victims in his wake. He believes the Wayne County, New York, victim was saved only because witnesses were present. Murphy also feels Kleasen was caught for the missionary murders because so many people were closely involved in the victims’ [p.256] lives. He agrees with Bob Smith that Kleasen kept trophies of human kills which accounts for the watches and other objects found in the trailer. Murphy believes other victims—as yet undiscovered—are people who did not have close ties to friends or family members who would have raised an alarm when they disappeared.

Was the Texas Court of Criminal Appeals right to reverse his conviction? Even as a committed defense lawyer, I see this case as a close call, but given the specifics of the search warrant, I think the reversal was justified. We must remember that in 1972 the U.S. Supreme Court had held the Texas death penalty law, as well as that of every other state, to be unconstitutional in Furman v. Georgia. Kleasen was tried in 1975 under a new death penalty law that still had not been heard by the Supreme Court. Many legal scholars believed the court would not find any death penalty statute constitutional. The court would not approve the Texas death penalty statute until 1976 in Jurek v. Texas. The Texas Court of Criminal Appeals heard Kleasen’s appeal against this uncertain legal backdrop. It is probable that they were bending over backwards to be cautious. That same court today is not at all defense-oriented and never relies on the Kleasen decision when considering search and seizure cases.

To my mind, the more troubling question is why a proper search warrant was not obtained. The state had sufficient information to support a search, they just neglected to make it part of the court record. I suspect that officers at the time still hoped to find the two boys alive and therefore rushed ahead because of that.

What about the decision not to retry Kleasen? The district attor­ney’s office has misplaced or lost the file so it is impossible to review their thinking and reasons. (A lost file this old on a crime that was last investigated in 1978 doesn’t necessarily suggest anything sinister.) After two decades, memories fade and people are unable to fully reconstruct the decision. A lot of intensely held views on this can still be found in the Austin Mormon and legal communities. (Assistant district attorney Richard Banks supervised a new search for the bodies in 1976, without success.) Other factors not generally discussed on the record very probably influenced the decision not to retry the case. [p.257] Kleasen was facing other prosecutions in cases that were easy “slam-­dunks” for the government and received unusually heavy sentences in those instances. Everyone knew he wasn’t going to walk away. Finally, the decision was a judgment call—one, I’m sure, made after much thought. To his credit, Ron Earle has always taken full re­sponsibility for his decision.

Some Mormons have asked me if I thought anti-LDS prejudice had anything to do with the decision not to retry Kleasen. I have seen nothing that suggests such a possibility. I have found considerable sympathy and respect for Mormons in the Travis County district attorney’s office. If anything, prosecutors looked to protect the church from what they saw as unsavory attacks on Mormons by Kleasen or his defense attorneys.

Could the Mormon church have done anything to prevent this tragedy? Frankly, no. Like many religious communities, Mormons consider themselves to be an evangelizing church. They send missionaries out to save souls and win converts. Unless the church takes the attitude that investigators must establish their fitness to become Latter-day Saints with background checks and fingerprints, they will encounter their share of predators. Even so, the LDS church did take clear steps to alert local Mormons of the need to look closely at Kleasen. No one at the local level acted improperly or recklessly. I don’t mean to suggest that these events could not have been avoided, because I believe they could have, but I realize this is possible to say only from the benefit of hindsight.

As I worked on this book, I struggled to find positive messages. This is, after all, a story of enormous tragedy. Not just the murders themselves, but the unsatisfying final result in the criminal justice system. I include Bob Kleasen in that list of tragedies, as unsavory as he may be. His life was something no one would ever want to experience.

Still, there were heroes in the midst of enormous pain. The parents of Mark Fischer, Cathy and Jim, and David K. Darley, Gary’s father, deserve our respect. Their great anguish has not left them; they shed many tears when they talk about their sons. Cathy Fischer once wrote me: “It’s difficult telling you about the Fischer family in 1974 because [p.258] that family doesn’t exist anymore.” But their loss has been tempered by their religious faith, their dignity, and their love of family. Never once did I detect even a trace of bitterness from any of them.

During an interview with the single surviving prosecutor, Austin attorney Charlie Craig, he turned from answering my questions to talking about what fine people the parents of both victims seemed to be. He asked me what the Mormon faith said on the death penalty. I explained that the LDS church does not object to the death penalty and that there is strong support for it in Mormon culture. My own personal opposition to capital punishment is unusual.

Craig then said he wondered because both sets of parents had been highly unusual family members in a murder case. The families of murder victims are normally intensely interested in exacting their pound of flesh, often demanding a death sentence. In public statements, “justice” often translates to revenge. Not the Fischers or the Darleys. They cooperated fully with prosecutors, but revenge never seemed to motivate them. Craig believed they had forgiven Kleasen even before his conviction.

At another point defense lawyer Pat Ganne remembers Cathy Fischer emotionally embracing Kleasen in the courtroom even while the evidence that he had murdered her son was being presented. Cathy does not recall this, but the fact that such a possibility sticks in Ganne’s memory is revealing of his impression of the family.

Rather than leave them alone in a hotel, former LDS bishop Frank McCullough and his wife put the Fischers up in their Austin home as events unfolded in 1974 and 1975. The Darleys stayed with Bruce Yarborough and his wife. McCullough still marvels at the spirituality of the Fischers. He also believes they had forgiven Kleasen while the rest of the Mormon community in central Texas had come to loathe him. The pain and sorrow remain, but the Fischers have never allowed the seeds of bitterness to take root.

Over the years, as Kleasen popped up in the news again, reporters tracked down the Fischers for interviews during his controversial New York parole. Not surprisingly, they were opposed to his release from prison, expressing concern that his untreated mental illness might lead [p.259] him to further violence. But still there was no bitterness. Cathy Fischer went out of her way to express her personal opposition to the death penalty, saying they had never wished for Kleasen’s execution.

It is not unusual for the parents of murdered children to divorce. It is an enormous blow to any marriage and parents often handle the grief in such different ways that it can destroy a relationship. The Fischers were not immune to such strains, but the same faith they drew upon in other areas preserved their marriage as well. Instead of surrendering to the tragedy, they continued to live lives centered on raising their ­children. After Mark was murdered, brothers Matthew and Michael served their church in Nevada and Hawaii. Jim was a stake missionary and served in a number of local ward callings over the years. Cathy taught Sunday school and junior Sunday school, and was Primary president. Daughter Melissa taught Primary along with her mother.

David Darley’s family reacted much the same way, sending other sons to serve LDS missions after Gary’s murder. Besides the Texas mission service of Gary’s older brother Kelle, younger brothers Todd and Bruce served. Todd was in Australia in 1982 and 1983, Bruce in Spokane, Washington, in 1984 and 1985.

Here are ordinary people visited by the worst kind of human tragedy for no reason whatsoever. Drawing upon their faith and personal integrity, they refused to give in to bitterness and blame. They held fast to the convictions which had guided their lives before tragedy struck and they were somehow enlarged as human beings. It is easy to display such virtue when faced with the kind of mild crises we all encounter in the routine course of our lives. But to live by forgiving principles in times of enormous loss and grief and pain demands complete faith.

As a final thought, I would like to quote from Maxwell Anderson’s 1946 play, Joan of Lorraine, which was paraphrased at Mark Fischer’s memorial service on November 23, 1974. In this closing scene, Joan of Arc bravely faces both her inquisitors and her imminent death by fire:

[I]f I give my life … I know this too now: Every man gives his life for what he believes. Every woman gives her life for what she believes. [p.260] Sometime people believe in little or nothing; nevertheless they give up their lives to that little or nothing. One life is all we have, and we live it as we believe in living it, and then it’s gone. But to surrender what you are, and live without belief—that’s more terrible than dying—more terrible than dying young. … To live your life without faith is more terrible than the fire.

No one can look at the lives of Mark Fischer and Gary Darley, compare them with that of Bob Kleasen, and not be struck by the contrast in values, accomplishments, and relationships.