Gerald “Gary” McGivern (October 26, 1944 –
November 19, 2001) 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 16, 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 paroled three years later.
McGivern was born in Manhattan, 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.
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 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 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
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
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 York 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
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
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
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.
McGivern's and Culhane's paths now diverged. They
were sent to different prisons, McGivern to the Green Haven
Correctional Facility 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
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.