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FEATURED CASE STUDY: GARY McGIVERN
Westchester County deputy sheriffs Singer and Fitzgerald had the job of transporting three prisoners from Auburn to a court appearance in September of 1968. They drove south on the New York State Thruway in a private car with the three inmates the morning of Friday the thirteenth with White Plains as their destination.
If there had been a proper security screen separating the front seat
from the back, a tragedy would have been prevented. Gary McGivern, one
of the three prisoners in the vehicle, had no choice about being placed
in a vehicle without a security screen and next to a prisoner who had
a long history of documented escape attempts.
In 1971 Ulster County passed a resolution indicating its intent to sue
Westchester County and New York State for "negligence" in
the transport of prisoners. Failing that, the county put the burden
of guilt on McGivern and Culhane, the two surviving prisoners, and the
case went on to become a political football within Ulster County, and
then was used in state and national political campaigns.
There is more than reasonable doubt in the long history of three trials,
appeals and the consideration by NYS Lieutenant Governor Mario Cuomo
who used the ombudsman function of his office to investigate the case
and recommend in 1979 that executive clemency was an appropriate action
of government. Cuomo, when governor in 1986, signed the order for executive
clemency. Law enforcement opposed the clemency, which resulted in the
state parole board not approving parole for McGivern until 1989.
Questions have been raised repeatedly over Westchester County’s
negligent role in the case. The county owned a proper transport vehicle
with security features, yet chose not to use it in the transport of
three prisoners. Robert Bowerman, the prisoner with the long history
of escape attempts, had no business being in the car in the first place.
In spite of Bowerman’s extensive history of escape attempts, the
deputies let him out of the vehicle almost every hour on the hour to
urinate.
When McGivern stood trial in Ulster County for felony murder in 1969, this first trial ended in a hung jury because several jurors questioned if McGivern should be held responsible for Robert Bowerman’s actions. The jurors who held out for an acquittal questioned the reliability of Joseph Singer’s testimony because the deputy had testified in the preliminary hearing about his glasses falling off during the incident, and he said he may have suffered a heart attack.
The second trial’s outcome sent McGivern and Culhane to Death Row at Green Haven. The state’s highest court unanimously overturned the conviction in 1973 because of prejudicial errors in the second trial, in particular, the jury selection. The court noted that the evidence was either incomplete, unreliable or non existent. Deputy Joseph Singer stated on the witness stand how some of the questions during cross examination confused him; he changed his account from what he had testified to at the preliminary hearing to other versions during the first and second trials. The prosecution claimed the inconsistencies weren’t significant, a conclusion the defense hotly contested.
Deputy Singer’s answers during cross examination included: “I probably said that then, but what I am saying today is what happened.” In response to other questions, he said, “I probably said that but I didn’t mean it that way. “At one point he added, “Well, it all happened so fast, it was pretty hard to see.” Singer admitted that in spite of losing his glasses, possibly suffering a heart attack and acting confused, he was able to testify later in court as to the exact sequence of what occurred inside the transport vehicle.
Singer testified at a disability hearing that he blanked out for twenty to sixty seconds when his partner Fitzgerald was shot. Eyewitness testimony is notoriously unreliable compared to fingerprints and physical evidence. Fingerprints on the guns were destroyed and if residual prints existed, tests weren’t conducted on them.After the surviving deputy’s testimony was questioned, undermined or contradicted, he later adjusted it on the witness stand.
McGivern could have plea bargained in his third trial and accepted the
offer from the Ulster DA's office of a plea for manslaughter of 8 1/3
to 25 years. He chose to enter a plea of innocence instead, a stand
which he had insisted on from the very beginning. By insisting on his
innocence, the case consumed the criminal justice system for years and
in the end, cost the taxpayers several million dollars.
This case had serious implications in terms of a lack of consistency
of standards in the transport of prisoners on the local, county, state
and federal levels. Law enforcement officials have an obligation and
duty to perform their jobs in a competent manner and not cover up or
minimize the importance of their negligence.
The death of a law enforcement officer is of sufficient gravity to warrant
an extensive investigation and analysis of the facts, not to mention
a rigorous application of all standard procedures and forensic tests
during an investigation of the death of a police office in the performance
of his duty.
There is a tendency by police officials to justify an officer’s
conduct, however questionable, during an incident of this type. Suggestions
that the officer failed to meet either the requirements of law or departmental
standards are often raised behind the scenes, but they are rarely part
of the public record. If questions were raised in this instance, it’s
not evident or the findings have been suppressed. Neither police or
prosecutors questioned the authenticity of Deputy Joseph Singer’s
version of events in 1968.
Despite the presence of so many high-placed state police personnel along the Thruway on September 13, 1968, the investigation failed to meet minimal and reasonable standards of acceptability. Instead of the most senior police officer taking charge of the crime scene, the least experienced --a trooper who accidentally stumbled on the scene by virtue of his close proximity to Milepost 67.4-- was placed in charge of the initial interview with Joseph Singer.
Standard techniques employed routinely by the police at a crime scene were ignored or deliberately omitted. The restraint demonstrated by police in conducting their probe gave the impression that it was intentional, that is, designed to prevent the creation or collection of evidence which might contradict Deputy Joseph Singer’s testimony.
Investigators failed to locate key evidence and collect other available evidence. They failed to take advantage of routine scientific tests which was noted by defense counsel in repeated appeals. 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. Although the investigation was characterized by the defense as culminating in a picture of ineptitude of significant proportions, there were strong indications that rather than inept, the actions of police officials were calculated to limit the creation of evidence which could refute the basic premise upon which the case is built
In spite
of the omission of certain tests, including those conducted by the state
police laboratory, the results were still not consistent with Joseph
Singer’s version of what happened. Police and prosecutors nonetheless
proceeded with the prosecution. The contradictions were in the context
of what should have been an open-and-shut case, thus presenting significant
problems for the first Ulster County district attorney trying the case,
The primary defense argument in an appeal brief went straight to the point: “A reasonable doubt is necessarily raised when the testimony of the sole prosecution eyewitness is directly contradicted by all the disinterested prosecution witnesses and by the physical evidence; when it is repeatedly and drastically altered in unsuccessful attempts to make it ‘square’ with the physical evidence, and when, even after such alteration, it remains too improbable to be worthy of belief.”
When the New York State of Appeals, the state’s highest court, reviewed the case and unanimously overturned the death sentence in 1973, the court 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 Court also noted the “taint flowing from the newspaper and radio publicity” and the “incessant nature of the prejudicial publicity surrounding the case” and added that this “media saturation in and of itself is somewhat prejudicial.” (33 N.Y. 2nd at 110).