Gary McGivern
Shifting public attitudes about innocence
Gary McGivern and Charles Culhane Trial
The way in which the case of Gary McGivern was handled is cited by many as a reason why New York State needs an Innocence Commission.
For more information, select this link. Also, Buffalo News editorial.
Gerald “Gary” McGivern (October 26, 1944–November 19, 2001) was the recipient on December 31, 1985 of what may be the most controversial grant of executive clemency signed by a governor in the case of a prisoner in New York State. His case was that of an attempted escape from custody on September 13,1968, in which he maintained his innocence and was tried three times in Ulster County court in the Hudson Valley of New York.
During his twelve years in office, NYS Governor Mario Cuomo granted a total of 33 clemencies. The Gary McGivern clemency was, by far, the most controversial of the clemencies granted by Cuomo during his administration.
Mario M. Cuomo, as Lieutenant Governor under Governor Hugh Carey,
formally recommended Gary McGivern’s clemency in 1979 using the
power of his office as ombudsman. And Cuomo offered to apear in the
Red Room of the state capitol to argue the case for McGivern's clemency
before Governor Hugh Carey.
Cuomo filed a lengthy investigative report about the case along with the recommendation for executive clemency. Cuomo’s legal assistant Fabian Palomino wrote the report which analyzed the legal history and referred to the results of two polygraph tests McGivern took and passed in 1979 under the auspices of the Lieutenant Governor's office.
Innocence was an issue from the very beginning.“All of us?” was McGivern's spontaneous declaration of innocence, noted in court, police records and appeals. His request for a lie detector test was denied. The main witness against him, the surviving deputy sheriff, Joseph Singer, repeatedly gave trial testimony which was confused and contradicted the evidence.
McGivern didn’t have a choice about being placed in a transport vehicle with no security screen separating the front and back seats while on the way to a court appearance with his co-defendant Charles Culhane. The other prisoner, Robert Bowerman, who attempted to escape from the vehicle that day, on Friday the thirteenth in September of 1968 had a long history of escape attempts from custody.
Fingerprints were lost through a mishandling of evidence when investigating
the case. Ballistic evidence was not recovered. Evidence was not collected.
Standard scientific tests were overlooked. Blood samples weren’t
solicited. Pivotal evidence was lost. Nitrates tests were performed
on Robert Bowerman, which were positive and documented he had fired
a gun, but no nitrates tests were performed on McGivern. This failure
to maintain a reasonable standard of care while conducting the investigation
of a serious crime --whether it’s due to negligence or deliberate
intent-- is a serious matter.
Gary McGivern, born in Manhattan, was the son of Gertrude Burke and
Thomas McGivern who were both born and raised in Belfast, Northern Ireland.
Gary McGivern lived in the Throgs Neck section of the Bronx with his
family. He attended Catholic schools and served in the U.S. Navy.
On September 13, 1968 McGivern, Culhane and a third prisoner Robert
Bowerman left Auburn prison with two deputies for a court hearing ordered
by Westchester County Judge John C. Marbach, a former district attorney
and trial lawyer. Marbach acted on Culhane’s corum nobis application
to determine the validity of Culhane’s claim of improper sentencing
in the Pelham Manor case. He approved a hearing on the matter.
Westchester County Sheriff Daniel F. McMahon sent two of his deputies
--Joseph Singer and William Fitzgerald-- to Auburn to pick up the three
prisoners and deliver them to court in White Plains: Culhane, McGivern
and Robert Bowerman. Sheriff McMahon was the former Public Safety Commissioner
of Yonkers and a former chief of the criminal division of the office
of the United States Attorney in New York. He had been elected Westchester’s
county sheriff the previous January in 1968.
Robert Bowerman, a jailhouse lawyer at Auburn, prepared the corum nobis
application for Culhane. Bowerman had a long history of escape attempts
documented in his prison record. Although he claimed in the legal papers
to have personal knowledge of Culhane’s case, Bowerman had never
been arrested in Westchester County and had no association with the
1967 robbery case. An assistant for the Westchester County DA’s
office, B. Anthony Morosco, opposed Bowerman attending the hearing.
The five men left Auburn Prison on the morning of Friday the 13th in
a 1967 blue Chevrolet owned by Deputy Fitzgerald. It was not equipped
with a security screen between the front and back seats. All five men
dressed in plainclothes. The vehicle headed south on the New York State
Thruway.
On three occasions before lunch, Robert Bowerman requested that the
deputies stop while he urinated along the side of the road. The deputies
allowed Bowerman to leave the vehicle. When the Chevrolet passed through
Ulster County on the Thruway in the early afternoon, Robert Bowerman
asked the deputies to stop the vehicle again. The sequence of what happened
next became the source of considerable dispute over the next three decades
during three trials, numerous appeals, the polygraph tests McGivern
passed, news coverage and controversy surrounding the grant of executive
clemency.
Deputy Sheriff William Fitzgerald and the prisoner Robert Bowerman died inside the car at Milepost 67.4. Culhane and McGivern testified at trial that it was a solo escape attempt by Bowerman who was responsible for killing Deputy Fitzgerald. Culhane and McGivern were indicted for felony murder, with attempted escape in the second degree as the underlying felony.
The Ulster County Legislature passed a resolution on June 3, 1971 (Resolution 129) “that the office of the Ulster County Attorney be empowered to conduct a detailed legal investigation of the facts surrounding this crime to determine if there is sufficient grounds for instituting a negligence action against Westchester County, the Westchester County Sheriff and the State of New York for its statutory obligation.”
Ulster County’s legislators expected to be reimbursed
for the cost of prosecuting the case, a crime which occurred within
Ulster’s borders on the Thruway. Ulster County’s attempt to
recoup damages was unsuccessful.
The juries in the Culhane-McGivern trials considered two versions of
eyewitness testimony. In the investigation following the incident, the
police didn’t conduct fingerprint tests on the weapons or other
forensic tests which might have strengthened one eyewitness version
of the account over the other. Following the hung jury in 1969, Kingston
radio personality Harry Thayer publicly admonished the first trial jurors
on the air for not returning a verdict in the Culhane-McGivern case.
Thayer viewed it as an example of “Lace Panty Justice,” a
term he coined to mean “soft on crime,”
A second trial in 1970 was more intense in terms of increased courtroom
security. A jury found the defendants guilty. Harry Thayer advocated
for the death penalty on the air. The defendants were sentenced to death
and sent to Death Row at Green Haven Correctional Facility, across the
Hudson River from Ulster County in Dutchess County; where they remained
under a death sentence for 33 months.
Defense attorneys filed an appeal brief citing negligence in the case
investigation, inconsistencies in the testimony of the prosecution’s
main witness, negative pretrial publicity, an unfair jury selection
process, and denials of motions for a change of venue.
In October of 1973 the New York State Court of Appeals unanimously overturned
the conviction and death sentence of McGivern and Culhane using questionable
jury selection as the grounds for the high court’s decision. The
decision noted that “Singer’s testimony. . .was inconsistent
as to certain particulars” and “... the prosecutor’s
evidence --taken in the context of this particular trial-- presented
substantial questions of credibility for the jury’s consideration.”
(October 23, 1973 decision, 33 N.Y. 2nd at 95 and n.1). The state Court
of Appeals also cited the prejudicial impact of the publicity and ordered
a new trial.
A third trial held in Ulster County in March of 1975 ended in a conviction
and a sentence of 25 years to life. The Culhane-McGivern Defense Fund
was sponsored by the folk singer Pete Seeger, the poet Allen Ginsberg
and the political commentator William F. Buckley Jr. The third trial
conviction was upheld on appeal. Dissent highlighted the judge’s
unfair charge to the jury and the suppression of Robert Bowerman’s
prior history of escape attempts. Appeals attempting to overturn the
third trial conviction were filed by attorneys Michael Tigar, William
Kunstler, Karen Peters, John Mage and John Privitera. The conviction
was upheld but not without dissent.
McGivern took and passed two polygraph tests in 1979 about his involvement
in the crime. The tests were administered by Charles Jones, a member
of the Case Review Committee of the American Polygraph Association and
Lincoln Zonn, who’d had his own company and polygraph institute
for the previous 30 years. Zonn’s clients included the U.S. government
and many law enforcement agencies.
On the basis of these findings, Lieutenant Governor Mario Cuomo recommended that NYS Governor Hugh Carey commute McGivern’s sentence. Carey didn’t act.
Mario M. Cuomo was elected governor of New York State in 1983. On December
31, 1985 Cuomo granted clemency to McGivern, an act that caused a firestorm
in New York which included fierce criticism from the state and national
Republican Parties because of the value of using a clemency for political
purposes. The state parole board waited to grant McGivern parole. He
was released from prison on March 17, 1989 after 22 years in prison.
On June 13, 1994 he was arrested for drug possession, a misdemeanor,
and was returned to prison. McGivern died of cancer in Albany Medical
Hospital on November 19, 2001.
Also check out:
Internet resources on wrongful convictions and innocence
Study Suspects Thousands of False Convictions
North Carolina is the first state in the U.S. to establish an innocence commission. The North Carolina Innocence Inquiry Commission was patterned after the one established in Britain in 1997.
seen as 'new civil rights movement'"
