Gary McGivern
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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 of the State of New York.
During his twelve years in office, NYS Governor Mario Cuomo granted a total of 33 clemencies. The 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 McGivern’s clemency in 1979 using the power of his office as ombudsman. Cuomo filed a lengthy investigative report about the case with then-Governor Hugh Carey. 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.
The district attorney of Ulster County who obtained the conviction and a life sentence in a third trial, Michael Kavanagh, opposed Cuomo’s clemency recommendation. This sparked a controversy which lasted over the next decade until McGivern’s release from prison in 1989 after he had served 22 years in prison.
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.
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[edit] Early Criminal History
Gary McGivern’s first serious brush with the law was marijuana possession in the Bronx. He became involved in crime with Charles Culhane and was sent to prison for the first time. Culhane was his codefendant in an armed robbery of a gas station in Pelham, New York in December of 1966. Instead of accepting a plea bargain in the case, McGivern went to trial in Westchester County. The court sentenced him to ten to twenty years in state prison. Sing Sing prison was McGivern's first destination and then upstate to Auburn Prison where he left for White Plains, New York, Westchester's county seat, on September 13, 1968 to appear as a witness in a court hearing for Culhane.
[edit] September 13, 1968
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. 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, formally 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 in 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 maintained it was a solo escape attempt by Bowerman who was responsible for killing Deputy Fitzgerald. The surviving deputy Joseph Singer claimed McGivern shot Fitzgerald and that the escape attempt involved all three prisoners.
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.
[edit] Three Trials in Ulster County, New York
The first trial in Kingston, New York in 1969 ended in a hung jury, an outcome associated with negative media coverage in Ulster County. “Editorials of the Air” were the trademark of a Kingston radio station managed by Harry Thayer, the son of the former commissioner of corrections of the State of New York, Dr. Walter N. Thayer Jr., who served the state from 1931 to 1936.
Harry Thayer broadcast controversial editorials of the air during all three Culhane-McGivern trials in Ulster County.
Whereas Harry Thayer’s father was corrections commissioner, his grandfather Walter N. Thayer was warden of Clinton Prison, located near the Canadian border. The elder Thayer distinguished himself in the news media by publicizing executions in the electric chair to prove the chair’s advance over other forms of executions.
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, 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 in the death house 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 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.
[edit] Executive Clemency
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. 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 parole violation, and was returned to prison. McGivern died of cancer in Albany Medical Hospital on November 19, 2001.
