Gary McGivern
Encyclopedia
Gerald “Gary” McGivern was a felon
found guilty in 1967 of the armed robbery
of a gas station
in Pelham Manor, New York
, during which two police officers were wounded. McGivern was tried with his partner in the robbery, Charles Culhane, and was sentenced to ten to twenty years in state prison. On September 13, 1968 McGivern, Culhane and a third convict, Robert Bowerman, were being transported by two deputies, from Auburn State Prison to a court hearing in White Plains
. During a rest stop along the New York State Thruway
, a deputy's gun was seized in an attempted escape. During the struggle inside the police car, a deputy and Bowerman were shot to death.
McGivern and Culhane contended that Bowerman acted alone in the escape attempt, and that Bowerman killed the deputy. Following one trial ending in a hung jury, a second trial in which they were sentenced to death, then a successful appeal of that death sentence, in a third trial they were found guilty of felony murder
and sentenced to 25 years to life. In a controversial New Year's Eve 1985 decision, New York Governor Mario Cuomo
granted McGivern clemency, and he was parole
d three years later.
, the son of Gertrude Burke and Thomas McGivern, who were both born and raised in Belfast
, Northern Ireland. He attended Catholic schools and served in the United States Navy
. He lived with his family in the Throgs Neck
section of the Bronx.
McGivern’s first serious brush with the law was for marijuana possession in the Bronx. Culhane was his codefendant in a robbery of a gas station in Pelham, New York in December 1966. Instead of accepting a plea bargain of five years in the case, McGivern chose to go to trial. The Westchester County 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.
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 coram nobis
application for Culhane. Bowerman had a history of escape attempts. 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 September 13 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 were shot to death 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.
in 1969 ended in a hung jury
. “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 on the air during all three Culhane-McGivern trials in Ulster County.
The juries in the Culhane-McGivern trials considered two versions of eyewitness testimony. In the investigation following the incident, the police did not 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 jurors on the air for not returning a verdict, calling it an example of “Lace Panty Justice,” a term meaning “soft on crime”.
In the second trial in 1970 a jury found the defendants guilty, and 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, 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 Singer, the prosecution’s main witness, negative pretrial publicity, an unfair jury selection process, and denials of motions for a change of venue.
In October 1973 the New York State Court of Appeals unanimously overturned the convictions and death sentences, saying that four jurors who had shown a bias in favor of conviction should have been excused. The decision also 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 Court ordered a new trial.
The third trial, in March 1975, ended in convictions and sentences 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.
and Culhane to the Attica Correctional Facility
, and elected to pursue different paths to gaining release.
McGivern took and passed two polygraph
tests in 1979 regarding 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 had 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. A group of religious leaders including the Green Haven prison chaplain
presented a petition seeking clemency for McGivern. Lieutenant Governor Mario Cuomo formally recommended that New York Governor Hugh Carey commute McGivern’s sentence. The district attorney of Ulster County, Michael Kavanagh, publicly opposed the clemency recommendation throughout its lifetime. Governor Carey declined to act on the recommendation.
Mario Cuomo, a Democrat, was elected governor of New York State in 1983. During his twelve years in office, he granted a total of 33 clemencies. On December 31, 1985 he granted clemency to McGivern, an act that brought a firestorm of criticism from Republicans at state and national levels as well as from law enforcement personnel. The parole board granted McGivern parole three years later, and he was released on March 17, 1989, after 22 years in prison.
On June 13, 1994 McGivern was arrested for drug possession, a parole violation, and he was returned to prison. He died of cancer in Albany Medical Hospital on November 19, 2001.
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
found guilty in 1967 of the armed robbery
Robbery
Robbery is the crime of taking or attempting to take something of value by force or threat of force or by putting the victim in fear. At common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear....
of a gas station
Filling station
A filling station, also known as a fueling station, garage, gasbar , gas station , petrol bunk , petrol pump , petrol garage, petrol kiosk , petrol station "'servo"' in Australia or service station, is a facility which sells fuel and lubricants...
in Pelham Manor, New York
Pelham Manor, New York
Pelham Manor is a village located in Westchester County, New York, USA. As of the 2010 census, the village had a total population of 5,486. It is located in the town of Pelham.- Demographics :...
, during which two police officers were wounded. McGivern was tried with his partner in the robbery, Charles Culhane, and was sentenced to ten to twenty years in state prison. On September 13, 1968 McGivern, Culhane and a third convict, Robert Bowerman, were being transported by two deputies, from Auburn State Prison to a court hearing in White Plains
White Plains, New York
White Plains is a city and the county seat of Westchester County, New York, United States. It is located in south-central Westchester, about east of the Hudson River and northwest of Long Island Sound...
. During a rest stop along the New York State Thruway
New York State Thruway
The New York State Thruway is a system of limited-access highways located within the state of New York in the United States. The system, known officially as the Governor Thomas E. Dewey Thruway for former New York Governor Thomas E. Dewey, is operated by the New York State Thruway Authority and...
, a deputy's gun was seized in an attempted escape. During the struggle inside the police car, a deputy and Bowerman were shot to death.
McGivern and Culhane contended that Bowerman acted alone in the escape attempt, and that Bowerman killed the deputy. Following one trial ending in a hung jury, a second trial in which they were sentenced to death, then a successful appeal of that death sentence, in a third trial they were found guilty of felony murder
Felony murder
The rule of felony murder is a legal doctrine in some common law jurisdictions that broadens the crime of murder in two ways. First, when an offender kills accidentally or without specific intent to kill in the course of an applicable felony, what might have been manslaughter is escalated to murder...
and sentenced to 25 years to life. In a controversial New Year's Eve 1985 decision, New York Governor Mario Cuomo
Mario Cuomo
Mario Matthew Cuomo served as the 52nd Governor of New York from 1983 to 1994, and is the father of Andrew Cuomo, the current governor of New York.-Early life:...
granted McGivern clemency, and he was parole
Parole
Parole may have different meanings depending on the field and judiciary system. All of the meanings originated from the French parole . Following its use in late-resurrected Anglo-French chivalric practice, the term became associated with the release of prisoners based on prisoners giving their...
d three years later.
History
McGivern was born in ManhattanManhattan
Manhattan is the oldest and the most densely populated of the five boroughs of New York City. Located primarily on the island of Manhattan at the mouth of the Hudson River, the boundaries of the borough are identical to those of New York County, an original county of the state of New York...
, the son of Gertrude Burke and Thomas McGivern, who were both born and raised in Belfast
Belfast
Belfast is the capital of and largest city in Northern Ireland. By population, it is the 14th biggest city in the United Kingdom and second biggest on the island of Ireland . It is the seat of the devolved government and legislative Northern Ireland Assembly...
, Northern Ireland. He attended Catholic schools and served in the United States Navy
United States Navy
The United States Navy is the naval warfare service branch of the United States Armed Forces and one of the seven uniformed services of the United States. The U.S. Navy is the largest in the world; its battle fleet tonnage is greater than that of the next 13 largest navies combined. The U.S...
. He lived with his family in the Throgs Neck
Throgs Neck
Throggs Neck is a narrow spit of land in the southeastern portion of the borough of the Bronx in New York City. It demarcates the passage between the East River , and Long Island Sound...
section of the Bronx.
McGivern’s first serious brush with the law was for marijuana possession in the Bronx. Culhane was his codefendant in a robbery of a gas station in Pelham, New York in December 1966. Instead of accepting a plea bargain of five years in the case, McGivern chose to go to trial. The Westchester County court sentenced him to ten to twenty years in state prison. Sing Sing
Sing Sing
Sing Sing Correctional Facility is a maximum security prison operated by the New York State Department of Correctional Services in the town of Ossining, New York...
prison was McGivern's first destination and then upstate to Auburn Prison
Auburn Prison
Auburn Correctional Facility is a state prison located on State Street in Auburn, New York, built on land that was once a Cayuga Indian Village. It is classified as a maximum security facility....
where he left for White Plains, New York
White Plains, New York
White Plains is a city and the county seat of Westchester County, New York, United States. It is located in south-central Westchester, about east of the Hudson River and northwest of Long Island Sound...
, Westchester's county seat, on September 13, 1968 to appear as a witness in a court hearing for Culhane.
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 coram nobisCoram nobis
Coram nobis or coram vobis also known as error coram nobis or error coram vobis is a legal writ issued by a court to correct a previous error "of...
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
United States Attorney
United States Attorneys represent the United States federal government in United States district court and United States court of appeals. There are 93 U.S. Attorneys stationed throughout the United States, Puerto Rico, the U.S. Virgin Islands, Guam, and the Northern Mariana Islands...
in New York. He had been elected Westchester’s county sheriff
Sheriff
A sheriff is in principle a legal official with responsibility for a county. In practice, the specific combination of legal, political, and ceremonial duties of a sheriff varies greatly from country to country....
the previous January in 1968.
Robert Bowerman, a jailhouse lawyer
Jailhouse lawyer
Jailhouse lawyer is a colloquial term in North American English to refer to an inmate in a jail or other prison who, though usually never having practiced law nor having any formal legal training, informally assists other inmates in legal matters relating to their sentence or to their conditions...
at Auburn, prepared the coram nobis
Coram nobis
Coram nobis or coram vobis also known as error coram nobis or error coram vobis is a legal writ issued by a court to correct a previous error "of...
application for Culhane. Bowerman had a history of escape attempts. 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 September 13 in a 1967 blue Chevrolet
Chevrolet
Chevrolet , also known as Chevy , is a brand of vehicle produced by General Motors Company . Founded by Louis Chevrolet and ousted GM founder William C. Durant on November 3, 1911, General Motors acquired Chevrolet in 1918...
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
New York State Thruway
The New York State Thruway is a system of limited-access highways located within the state of New York in the United States. The system, known officially as the Governor Thomas E. Dewey Thruway for former New York Governor Thomas E. Dewey, is operated by the New York State Thruway Authority and...
.
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 were shot to death 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
Felony murder
The rule of felony murder is a legal doctrine in some common law jurisdictions that broadens the crime of murder in two ways. First, when an offender kills accidentally or without specific intent to kill in the course of an applicable felony, what might have been manslaughter is escalated to 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
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
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.
Three trials in Ulster County, New York
In an atmosphere of negative media coverage, the first trial in Kingston, New YorkKingston, New York
Kingston is a city in and the county seat of Ulster County, New York, USA. It is north of New York City and south of Albany. It became New York's first capital in 1777, and was burned by the British Oct. 16, 1777, after the Battles of Saratoga...
in 1969 ended in a hung jury
Hung jury
A hung jury or deadlocked jury is a jury that cannot, by the required voting threshold, agree upon a verdict after an extended period of deliberation and is unable to change its votes due to severe differences of opinion.- England and Wales :...
. “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 on the air during all three Culhane-McGivern trials in Ulster County.
The juries in the Culhane-McGivern trials considered two versions of eyewitness testimony. In the investigation following the incident, the police did not conduct fingerprint
Fingerprint
A fingerprint in its narrow sense is an impression left by the friction ridges of a human finger. In a wider use of the term, fingerprints are the traces of an impression from the friction ridges of any part of a human hand. A print from the foot can also leave an impression of friction ridges...
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 jurors on the air for not returning a verdict, calling it an example of “Lace Panty Justice,” a term meaning “soft on crime”.
In the second trial in 1970 a jury found the defendants guilty, and Harry Thayer advocated for the death penalty on the air. The defendants were sentenced to death and sent to death row
Death row
Death row signifies the place, often a section of a prison, that houses individuals awaiting execution. The term is also used figuratively to describe the state of awaiting execution , even in places where no special facility or separate unit for condemned inmates exists.After individuals are found...
at Green Haven Correctional Facility across the Hudson River from Ulster 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 Singer, the prosecution’s main witness, negative pretrial publicity, an unfair jury selection process, and denials of motions for a change of venue.
In October 1973 the New York State Court of Appeals unanimously overturned the convictions and death sentences, saying that four jurors who had shown a bias in favor of conviction should have been excused. The decision also 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 Court ordered a new trial.
The third trial, in March 1975, ended in convictions and sentences of 25 years to life. The Culhane-McGivern Defense Fund was sponsored by the folk singer Pete Seeger
Pete Seeger
Peter "Pete" Seeger is an American folk singer and was an iconic figure in the mid-twentieth century American folk music revival. A fixture on nationwide radio in the 1940s, he also had a string of hit records during the early 1950s as a member of The Weavers, most notably their recording of Lead...
, the poet Allen Ginsberg
Allen Ginsberg
Irwin Allen Ginsberg was an American poet and one of the leading figures of the Beat Generation in the 1950s. He vigorously opposed militarism, materialism and sexual repression...
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
William Kunstler
William Moses Kunstler was an American self-described "radical lawyer" and civil rights activist, known for his controversial clients...
, Karen Peters, John Mage and John Privitera. The conviction was upheld but not without dissent.
Executive clemency
McGivern's and Culhane's paths now diverged. They were sent to different prisons, McGivern to the Green Haven Correctional FacilityGreen Haven Correctional Facility
Green Haven Correctional Facility is a maximum security prison in New York, United States. The prison is located in the Town of Beekman in Dutchess County. The New York State Department of Correctional Services lists the address as Route 216, Stormville, NY 12582...
and Culhane to the Attica Correctional Facility
Attica Correctional Facility
The Attica Correctional Facility is a maximum penitentiary in the town of Attica, New York, operated by the New York State Department of Correctional Services. After it was constructed in the 1930s, it held many of the most dangerous criminals of the time. A tear gas system is installed in the mess...
, and elected to pursue different paths to gaining release.
McGivern took and passed two polygraph
Polygraph
A polygraph measures and records several physiological indices such as blood pressure, pulse, respiration, and skin conductivity while the subject is asked and answers a series of questions...
tests in 1979 regarding 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 had 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. A group of religious leaders including the Green Haven prison chaplain
Chaplain
Traditionally, a chaplain is a minister in a specialized setting such as a priest, pastor, rabbi, or imam or lay representative of a religion attached to a secular institution such as a hospital, prison, military unit, police department, university, or private chapel...
presented a petition seeking clemency for McGivern. Lieutenant Governor Mario Cuomo formally recommended that New York Governor Hugh Carey commute McGivern’s sentence. The district attorney of Ulster County, Michael Kavanagh, publicly opposed the clemency recommendation throughout its lifetime. Governor Carey declined to act on the recommendation.
Mario Cuomo, a Democrat, was elected governor of New York State in 1983. During his twelve years in office, he granted a total of 33 clemencies. On December 31, 1985 he granted clemency to McGivern, an act that brought a firestorm of criticism from Republicans at state and national levels as well as from law enforcement personnel. The parole board granted McGivern parole three years later, and he was released on March 17, 1989, after 22 years in prison.
On June 13, 1994 McGivern was arrested for drug possession, a parole violation, and he was returned to prison. He died of cancer in Albany Medical Hospital on November 19, 2001.