Gerald "Gary" McGivern (October 26, 1944 – November 19, 2001) was a

felon A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "félonie") to describe an offense that resu ...

found guilty in 1967 of the

armed robbery Robbery is the crime of taking or attempting to take anything of value by force, threat of force, or by use of fear. According to common law, robbery is defined as taking the property of another, with the intent to permanently deprive the perso ...

of a

gas station A filling station, also known as a gas station () or petrol station (), is a facility that sells fuel and engine lubricants for motor vehicles. The most common fuels sold in the 2010s were gasoline (or petrol) and diesel fuel. Gasoline ...

Pelham Manor, New York Pelham Manor is an affluent village located in Westchester County, New York. As of the 2020 census, the village had a total population of 5,752. It is located in the town of Pelham. History The Bolton Priory, Edgewood House, and Pelhamdale are ...

, United States, 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 A legislator (also known as a deputy or lawmaker) is a person who writes and passes laws, especially someone who is a member of a legislature. Legislators are often elected by the people of the state. Legislatures may be supra-national (for ex ...

, from

Auburn State Prison Auburn Correctional Facility is a state prison on State Street in Auburn, New York, United States. It was built on land that was once a Cayuga village. It is classified as a maximum security facility. History Constructed in 1816 as Auburn Pris ...

to a court hearing in White Plains. During a rest stop along the

New York State Thruway {{Infobox road , state = NY , type = NYST , alternate_name = Governor Thomas E. Dewey Thruway , maint = NYSTA , map = {{maplink, frame=yes, plain=yes, frame-align=center, frame-width=290, type=line, stroke-width=2, type2=line, from2=New Yor ...

, 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 The rule of felony murder is a legal doctrine in some common law jurisdictions that broadens the crime of murder: when someone is killed (regardless of intent to kill) in the commission of a dangerous or enumerated crime (called a felony in s ...

and sentenced to 25 years to life. In a controversial New Year's Eve 1985 decision, New York Governor

Mario Cuomo Mario Matthew Cuomo (, ; June 15, 1932 – January 1, 2015) was an American lawyer and politician who served as the 52nd governor of New York for three terms, from 1983 to 1994. A member of the Democratic Party, Cuomo previously served as t ...

granted McGivern

clemency A pardon is a government decision to allow a person to be relieved of some or all of the legal consequences resulting from a criminal conviction. A pardon may be granted before or after conviction for the crime, depending on the laws of the ju ...

, and he was

parole Parole (also known as provisional release or supervised release) is a form of early release of a prison inmate where the prisoner agrees to abide by certain behavioral conditions, including checking-in with their designated parole officers, or ...

d three years later.

Early life

McGivern was born in

Manhattan Manhattan (), known regionally as the City, is the most densely populated and geographically smallest of the five boroughs of New York City. The borough is also coextensive with New York County, one of the original counties of the U.S. state ...

, the son of Gertrude Burke and Thomas McGivern, who were both born and raised in

Belfast Belfast ( , ; from ga, Béal Feirste , meaning 'mouth of the sand-bank ford') is the capital and largest city of Northern Ireland, standing on the banks of the River Lagan on the east coast. It is the 12th-largest city in the United Kingdo ...

, Northern Ireland. He attended Catholic schools and served in the

United States Navy The United States Navy (USN) is the maritime service branch of the United States Armed Forces and one of the eight uniformed services of the United States. It is the largest and most powerful navy in the world, with the estimated tonnage ...

. He lived with his family in the

Throgs Neck Throggs Neck (also known as Throgs Neck) is a neighborhood and peninsula in the south-eastern portion of the borough of the Bronx in New York City. It is bounded by the East River and Long Island Sound to the south and east, Westchester Creek on ...

section of the Bronx. McGivern's first serious brush with the law was for marijuana possession in the

Bronx The Bronx () is a borough of New York City, coextensive with Bronx County, in the state of New York. It is south of Westchester County; north and east of the New York City borough of Manhattan, across the Harlem River; and north of the New Y ...

. 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 Westchester County is located in the U.S. state of New York. It is the seventh most populous county in the State of New York and the most populous north of New York City. According to the 2020 United States Census, the county had a population o ...

court sentenced him to ten to twenty years in state prison.

Sing Sing Sing Sing Correctional Facility, formerly Ossining Correctional Facility, is a maximum-security prison operated by the New York State Department of Corrections and Community Supervision in the village of Ossining, New York. It is about north of ...

prison was McGivern's first destination and then upstate to

Auburn Prison Auburn Correctional Facility is a state prison on State Street in Auburn, New York, United States. It was built on land that was once a Cayuga village. It is classified as a maximum security facility. History Constructed in 1816 as Auburn Pri ...

where he left for

White Plains, New York (Always Faithful) , image_seal = WhitePlainsSeal.png , seal_link = , subdivision_type = List of sovereign states, Country , subdivision_name = , subdivision_type1 = U.S. state, State , su ...

, 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 A writ of ''coram nobis'' (also writ of error ''coram nobis'', writ of ''coram vobis'', or writ of error ''coram vobis'') is a legal order allowing a court to correct its original judgment upon discovery of a fundamental error that did not appear i ...

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 Yonkers () is a city in Westchester County, New York, United States. Developed along the Hudson River, it is the third most populous city in the state of New York, after New York City and Buffalo. The population of Yonkers was 211,569 as enu ...

and a former chief of the criminal division of the office of the

United States Attorney United States attorneys are officials of the U.S. Department of Justice who serve as the chief federal law enforcement officers in each of the 94 U.S. federal judicial districts. Each U.S. attorney serves as the United States' chief federal c ...

in New York. He had been elected Westchester's county

sheriff A sheriff is a government official, with varying duties, existing in some countries with historical ties to England where the office originated. There is an analogous, although independently developed, office in Iceland that is commonly transla ...

the previous January in 1968. Robert Bowerman, a

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 ...

at Auburn, prepared the

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 ( ), colloquially referred to as Chevy and formally the Chevrolet Motor Division of General Motors Company, is an American automobile division of the American manufacturer General Motors (GM). Louis Chevrolet (1878–1941) and ous ...

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

. 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

, 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 (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...

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 York Kingston is a Administrative divisions of New York#City, city in and the county seat of Ulster County, New York, United States. It is north of New York City and south of Albany, New York, Albany. The city's metropolitan area is grouped with t ...

, in 1969 ended in a

hung jury A hung jury, also called a deadlocked jury, is a judicial jury that cannot agree upon a verdict after extended deliberation and is unable to reach the required unanimity or supermajority. Hung jury usually results in the case being tried again. ...

. "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 A fingerprint is an impression left by the friction ridges of a human finger. The recovery of partial fingerprints from a crime scene is an important method of forensic science. Moisture and grease on a finger result in fingerprints on surfac ...

tests on the weapons or other

forensic Forensic science, also known as criminalistics, is the application of science to Criminal law, criminal and Civil law (legal system), civil laws, mainly—on the criminal side—during criminal investigation, as governed by the legal standard ...

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, also known as condemned row, is a place in a prison that houses inmates awaiting Capital punishment, execution after being convicted of a capital crime and sentenced to death. The term is also used figuratively to describe the state of ...

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 The New York Court of Appeals is the highest court in the Unified Court System of the State of New York. The Court of Appeals consists of seven judges: the Chief Judge and six Associate Judges who are appointed by the Governor and confirmed by t ...

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 Peter Seeger (May 3, 1919 – January 27, 2014) was an American folk singer and social activist. A fixture on nationwide radio in the 1940s, Seeger also had a string of hit records during the early 1950s as a member of the Weavers, notably ...

, the poet

Allen Ginsberg Irwin Allen Ginsberg (; June 3, 1926 – April 5, 1997) was an American poet and writer. As a student at Columbia University in the 1940s, he began friendships with William S. Burroughs and Jack Kerouac, forming the core of the Beat Gener ...

and the political commentator

William F. Buckley Jr. William Frank Buckley Jr. (born William Francis Buckley; November 24, 1925 – February 27, 2008) was an American public intellectual, conservative author and political commentator. In 1955, he founded ''National Review'', the magazine that stim ...

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 Moses Kunstler (July 7, 1919 – September 4, 1995) was an American lawyer and civil rights activist, known for defending the Chicago Seven. Kunstler was an active member of the National Lawyers Guild, a board member of the American Civil ...

, 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 Facility Green Haven Correctional Facility is a maximum security prison in New York. The prison is located in the Town of Beekman in Dutchess County. The New York State Department of Corrections and Community Supervision lists the address as Route 216 ...

and Culhane to the

Attica Correctional Facility Attica Correctional Facility is a maximum security campus New York State prison in the Attica (town), New York, Town of Attica, New York (state), New York, operated by the New York State Department of Corrections and Community Supervision. It w ...

, and elected to pursue different paths to gaining release. McGivern took and passed two

polygraph A polygraph, often incorrectly referred to as a lie detector test, is a device or procedure that measures and records several physiological indicators such as blood pressure, pulse, respiration, and skin conductivity while a person is asked an ...

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 A chaplain is, traditionally, a cleric (such as a Minister (Christianity), minister, priest, pastor, rabbi, purohit, or imam), or a laity, lay representative of a religious tradition, attached to a secularity, secular institution (such as a hosp ...

presented a petition seeking

for McGivern. Lieutenant Governor Mario Cuomo formally recommended that New York Governor Hugh Carey commute McGivern's sentence. The district attorney of

Ulster County Ulster County is a county in the U.S. state of New York. It is situated along the Hudson River. As of the 2020 census, the population was 181,851. The county seat is Kingston. The county is named after the Irish province of Ulster. History ...

, 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.

Later life, death, and legacy

McGivern was married to Marguerite Culp, a reporter for the

Woodstock Times ''Woodstock Times'' is a small weekly newspaper in Woodstock, New York Woodstock is a town in Ulster County, New York, United States, in the northern part of the county, northwest of Kingston, NY. It lies within the borders of the Catskill Pa ...

, from 1978 until 1991. 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. McGivern's papers are housed in the Special Collections of

Lloyd Sealy Library The Lloyd George Sealy Library is the campus library at John Jay College of Criminal Justice, City University of New York (CUNY). Located in Haaren Hall, the library specializes in criminal justice-related materials. Overview The Lloyd Sealy Li ...

John Jay College of Criminal Justice The John Jay College of Criminal Justice (John Jay) is a public college focused on criminal justice and located in New York City. It is a senior college of the City University of New York (CUNY). John Jay was founded as the only liberal arts c ...

in New York City. The Gary McGivern and Marguerite Culp Papers include correspondence, writings, journals, legal documents, news articles, artifacts, and photographs dating from 1967 to 2003.

Early life

September 13, 1968

Three trials in Ulster County, New York

Executive clemency

Later life, death, and legacy

References

Further reading

See also