This article, which appeared in The NY Times on February 11, 1986 as an Op-Ed piece was entitled "Playing Politics with a Prisoner." It detailed the way politcs was used in the granting of executive clemency which should have been a neutral matter. The piece was written by Maurice Hinchey, a Democrat, representing Ulster County in the NYS Assembly where the case of Gary McGivern and his codefendant Charles Culhane had been tried three times. Hinchey wrote:
"The Reagan Administration has jumped at an opportunity to politically
lynch Governor Cuomo. Its pawns are the ambitious Michael Kavanagh,
Ulster County's District Attorney, who has made bewildering statements
to the media, and Gary McGivern, who has spent 19 years in prison after
having been convicted in the murder of a deputy sheriff.
"The state Republican Party does not deny the Administration early
on had discussed the political value of the case. Washington's role
was evidenced by letters from all 56 Assembly Republicans and the G.O.P.
state chairman, Anthony J. Colavita, asking the Parole Board not to
release Mr. McGivern, who has been granted clemency by Mr. Cuomo. A
three-member panel of the board has denied clemency, and Mr. McGivern
is appealing the decision to the full board.
"In 1968, while being transported to a Westchester County court,
Mr. McGivern and two other prisoners allegedly attempted to escape on
the Thruway. In the scuffle, a prisoner and a deputy sheriff were slain.
Mr. McGivern and the third prisoner, Charles Culhane, were wounded.
They said the dead prisoner, Robert Bowerman, had engineered the escape
attempt and killed the officer. The surviving deputy sheriff testified
Mr. McGivern had fired the gun, but that officer later refused to take
a ''lie-detector'' test, although Mr. McGivern took two such tests successfully.
Moreover, the deputy sheriff changed his testimony on key points when
it became clear that his original statements could not be supported.
"The first trial ended in a dead-locked jury. Convictions obtained
in the second trial were reversed because of improper jury selection.
Mr. Kavanagh was so unsure of his case in the third trial that his office
offered Mr. McGivern and Mr. Culhane a chance to plead guilty to a lesser
charge, manslaughter, which would have made them eligible for parole
earlier. But insisting on their innocence, they refused. They were convicted
of felony murder. This means they were present and involved in the crime
when the murder took place even if someone else may have pulled the
trigger. Both got 25 years to life.
"In prison, Mr. McGivern has proved to be such a model prisoner
that some corrections employees have publicly supported him despite
the official ''no parole'' position of the correction officers' organization.
Mr. Kavanagh's public statements must be interpreted as political opportunism
or reflecting inability to view the matter objectively. He admitted
he had not bothered to find out about Mr. McGivern's conduct in prison,
then in the next breath claimed it was inconceivable that Mr. McGivern
''could ever be found to be a fit candidate for release to society.''
Doesn't he believe in learning the facts before drawing conclusions?
"Moreover, how do Mr. Kavanagh's remarks square with statements
made several years ago when a possible clemency request was first broached?
He was quoted as having said: ''If the petition is based completely
on the idea that he has rehabilitated himself while an inmate in prison,
then I am not taking any position on it.'' He also said, ''But if it
is based in whole or in part on the belief he is innocent, then I am
vigorously opposed to it.''
Governor Cuomo did not grant Mr. McGivern a pardon, but clemency. A
pardon would have been appropriate only if there were ''overwhelming
and convincing proof of innocence not available at the time of conviction,''
the law says. Clemency is appropriate if the prisoner ''had made responsible
use of available rehabilitative programs,'' according to law.
"The offer of clemency rather than a pardon signified Mr. Cuomo's
recognition of the complexities of the case. The judicial system found
the men guilty, yet the case against them never has been overwhelming.
Furthermore, Mr. McGivern has demonstrated evidence of genuine and exceptional
rehabilitation.
"When the Governor acted, he realized that clemency would not be popular but that it would represent the best instinct of society. The matter would have been put to rest except that Mr. Kavanagh, as William F. Buckley, who had urged clemency, put it, ''began the screaming and the yelling in December'' about ''the terrible risk to the people of New York that would come from letting McGivern out of jail although he was perfectly prepared to let McGivern and Culhane out of jail 10 years ago.''
"The Reagan Administration picked up the case as an opportunity
to embarrass Governor Cuomo and diminish his growing popularity. This
is an issue that never should have become mired in politics."
JUSTICE PAGES: Watch for other case histories
FEATURED CASE STUDY: GARY McGIVERN
A special thanks to Rachel West for her research
in the preparation of this case study