Petition — Culhane v. New York

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

ee es 547

CHARLES CULHANE AND GERALD MCGIVERN,

Petitioners,

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS FOR

THE STATE OF NEW YORK

MICHAEL E. TIGAR

JOHN MAGE

JOHN J. PRIVITERA

Suite 201

1302-18th Street, N.W.

Washington, D.C. 20036

WILLIAM M. KUNSTLER

13 Gay Street

New York, New York lLOO14

Attorneys for Petitioners.

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Wastington, 0.C. + THIEL PRESS - (202) 638.4521

(2)

TABLE OF CONTENTS

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REASONS FOR GRANTING THE WRIT ............

I. Compulsory Process.

The Decision of the New York Court of Appeals

Posits a Dubious Rule of Evidence as a Bar to

Sixth Amendment Compulsory Process Rights, in

Conflict with the Principles of Chambers v.

Mississippi, 410 U.S. 284 (1973), and Washington

v. Texas, 388 U.S. 14 (1967), and of Importance

in the Administration of Criminal Justice ........

Il. Fifth Amendment.

The Need for This Court To Hear This Case Can

Be Stated in One Sentence: Is Raffel v. United

States, 271 U.S. 494 (1926), Confined to Its

Peculiar Facts, or Was It Implicitly Overruled by

Doyle v. Ohio, 426 U.S. 610 (1976), or Is It

Still Controlling Authority for the State and

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TABLE OF AUTHORITIES

Cases:

Baxter v. Palmigiano, 425 U.S. 308 (1976) ...........

Chambers v. Mississippi, 410 U.S. 284 (1973) .........

. 18a

(22)

Cases, continued: ae.

Davi v. Alaska, 415 U.S. SOB (1974) 2. ww eee ewe scves 10

Doyle v. Ohio, 426 U.S. 610 (1976) ............ 10, 11, 13

Griffin v. California, 380 U.S. 609 (1965) ............. 12

Grunewald v. United States, 353 U.S. 391 (1957) ...... 12, 13

ee a a | 8

Johnson v. United States, 318 U.S. 189 (1943).......... 11

Lakeside v. Oregon, 55 L.Ed.2d 319 (1978) .........4.. 12

Lefkowitz v. Cunningham, 431 U.S. 801 (1977) ......... 13

Ree Di ee, Bre ee VCO 6 6 eos a 5 4a 8 eee 10

People v. Cuthane, 45 N.Y.S.2d 757 (1978) .... 2c cccess 2

People v. Culhane, 57 A.D.2d 418, 395 N.Y.2d 517 (3d

Pe ete ee Ces Wek Ri ees tn bk eA 2

People v. Cuihane, 33 N.Y.2d 90, 350 N.Y.S.2d 381,

Ne it lk, PRUE Tee Ur cee Cente Ter 2

Raffel v. United States, 271 U.S. 494 (1926) ........ passim

Stewart v. United States, 366 U.S. 1 (1961) ............. 12

United States v. Burr, 25 F.Cas. 187 (No. 14694,

ee ED 50 css. a4 6 We. Nae bees ark be ek Be ele ee 8% 10

United States v. Hale, 422 U.S. 171 (1975) ............ 13

United States v. Nixon, 418 U.S. 683 (1974) ........... 10

Washington v. Texas, 388 U.S. 14 (1967) ............. 7,8

Regulations and Statutes:

Federal Rule of Evidence 801(d)(2)(B) ........cccce0. 11

meee Yawn Sen Law § U25.25(5) .. 0 cee cess 2

eR ORE ic ce eck cess esas eee eke eM s 2

Other Authorities:

P. Wester;, Compulsory Process, 73 Mich.L.Rev. 71

IEEE SS TR PAS LN ol er aE 8

P. Westen, Compulsory Process II, 74 Mich.L.Rev. 191

ST ate Mec re gs Pe were ee orale Sk cient 8

IN LHE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No.

CHARLES CULHANE AND GERALD MCGIVERN,

Petitioners,

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS FOR

THE STATE OF NEW YORK

Petitioners Charles Culhane and Gerald McGivern pray

that a writ of certiorari issue to review the judgment of

the Court of Appeals of New York, dated July 13, 1978,

which affirmed judgments of conviction of the Ulster

County Court, Ulster County, New York, rendered

April 23, 1975, sentencing petitioners to an indeter-

minate sentence with a maximum of life imprisonment

and a minimum of twenty-five (25) years on the finding

l

2

of guilt of second-degree (felony) murder under the pro-

visions of New York Penal Law §125.25(3). The one

count indictment charged petitioners with felony murder

for causing the death of a peace officer during an attempt

to escape from custody. Petitioners are incarcerated at

Green Haven Correctional Facility, Stormville, New York.

OPINIONS BELOW

The memorandum opinion of the Court of Appeals of

New York, reported as People v. Culhane, 45 N.Y.S.2d

757 (1978), and the opinion of the Supreme Court, Ap-

pellate Division, reported as Pe uple v. Culhane, 57 A.D.2d

418, 395 N.Y.2d 517 (3d Dep’t. 1977), are printed in the

Appendix as A and B, respectively. Since both opinions

refer to the statement of facts in an earlier appeal in the

same case, reported as People v. Culhane, 33 N.Y.2d 90,

95-6, 350 N.Y.S.2d 381, 385-6, 305 N.E.2d 469, 472-3

(1973), that segment is printed as Appendix C.,

JURISDICTION

The judgment of the Court of Appeals of New York

was entered on July 13, 1978. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1257 (3).

QUESTIONS PRESENTED

1. Whether it was a violation of the petitioners’ sixth

amendment right to compulsory process, and fifth and

fourteenth amendment right of due process of law, to

exclude competent, relevant exculpatory evidence

tending to show that a person other than the petitioners

committed the offense?

2. Whether it was a violation of petitioner McGivern’s

privilege against compulsory self-incrimination to permit

3

cross-examination of him on his not having testified in

his own defense in a prior trial of the same case, and to

permit the prosecutor to argue in summation that an

adverse inference should be drawn from the prior silence?

Should Raffel v. United States, 271 U.S. 494 (1926), be

explicitly overruled?

STATEMENT OF THE CASE

This case has been tried three times. The first trial

resulted in a hung jury and a mistrial. On the second trial

the defendants were convicted and sentenced to death.

The Court of Appeals of New York set aside their first

conviction. Through all proceedings Culhane and

McGivern have protested their innocence.

The facts are as. follows. In September, 1968, three

prisoners, Charles Culhane, Gerald McGivern and Robert

Bowerman were being transported by car from Auburn

Prison in New York to a hearing in Westchester County,

by two deputy sheriffs, Joseph Singer and William

Fitzgerald. The trip ended, short of its destination, in

the shooting deaths of Bowerman and Fitzgerald and

gunshot wounds to Singer, Culhane and McGivern. The

three survivors were the only eyewitnesses. Culhane and

McGivern were charged with murder in the death of

Fitzgerald, and have claimed that Bowerman, in a solo

escape attempt, killed Fitzgerald while they sat as horri-

fied witnesses.

The three prisoners were each handcuffed; the chain

linking their cuffs was passed through a leather security

belt around the waist. They sat in the back seat of

the car, with Bowerman near the passenger side door,

McGivern in the middle and Culhane near the driver’s

side door. Singer drove and Fitzgerald sat next to him

on the front seat.

4

4

Several times during the trip down the New York

Thruway, Bowerman compiained of the need to urinate,

and each time the car was stopped to permit him to do

so. In the early afternoon, Bowerman again said he

wanted to urinate. Fitzgerald told Singer to pull over.

At this point in the narrative, the facts are sharply in

dispute. The petitioners testified that Bowerman had cut

his security belt with a razor blade, and motioned to

McGivern and Culhane to do the same. McGivern and

Culhane did not comply. Thereafter, petitioners testified,

Bowerman struck at Fitzgerald and Sir zer and grabbed

Singer’s gun. Holding the other occupants of the car at

gunpoint, Bowerman undid Culhane’s belt and told

Culhane to undo McGivern’s belt. Fitzgerald then turned,

gun in hand, and he and Bowerman exchanged shots.

In the ensuing exchange of gunfire, Bowerman and

Fitzgerald were killed, and McGivern and Culhane seri-

ously injured.

Singer’s version was that as the car slowed to a stop,

Culhane reached over Singer’s head and choked him.

Singer said that at the same moment Bowerman did the

same thing to Fitzgerald. Then, said Singer, McGivern

took Singer’s gun. Fitzgerald pulled his own weapon.

Two or three shots were fired in the car. Singer then

stated that he took back his own weapon from McGivern

and that Culhane grabbed Fitzgerald’s gun. Singer fired

at Culhane; at one time he had said he hit Culhane, but

changed his story when it became clear he could not have

done so. Singer then took Fitzgerald’s gun. According

to his version, he fired away with both weapons.

Bowerman had reached for the gun in Singer’s right hand

and was holding the barrel while Singer fired at him.

It was agreed that Culhane and then McGivern

managed to get out of the car. It was also undisputed

5

that Singer’s gun was fired twice during the affray, and

Fitzgerald’s five-shot revolver was emptied.

Bowerman was killed with bullets from Fitzgerald’s

gun. Culhane was injured with bullets from the same

gun. The bullet removed from Fitzgerald’s body had

come from Singer’s weapon. No scientific tests were

performed to determine who fired a weapon. Thus, the

credibility of each witness was sharply in issue.

Tending to corroborate the petitioners’ version was

expert testimony that Culhane’s wounds were consistent

with an effort to cover his head with his hands.

Defense counsel sought to corroborate the peti-

tioners version by offering documentary evidence that

Bowerman had a history of solo escape attempts in

which he tried to seize guns from, and once even shot,

peace officers. This prior criminal conduct of Bowerman

and his psychiatric record, embodied in what was marked

at trial as Defendants’ Exhibit O, was offered to prove

both that his efforts on September 13, 1968 were part of

a long-standing scheme, and that he was a person who

was accustomed to committing the very type of act

which the petitioners testified he committed on this

occasion. The trial court refused to permit these prior

events to be proved in the petitioners’ case and cut off

cross-examination about Bowerman’s characteristics. !

'Defendants’ Exhibit O, which was kept from the jury,

includes the following excerpts:

“At Elmira Reception Center, Bowerman made a very

poor adjustment. He behaved in a depressed and emo-

tionally unstable fashion, and was finally declared vy

the institution psychiatrist to be suffering from a psy-

chosis. He was transferred to Matteawan Hospital on

Oct. 4, 1955, where he remained until Jan. 26, 1956

[footnote continued]

6

McGivern testified in his own defense. McGivern had

not testified in the prior trials; Culhane had testified.

The trial court permitted questioning (over objection)

establishing the fact that at the prior trials of the case,

McGivern had exercised his constitutional right net to

testify. The prosecution was permitted to cross-examine

McGivern on both McGivern’s prior silence and Culhane’s

prior testimony. The prosecutor repeatedly urged the

jury to draw an adverse inference from McGivern’s prior:

silence.2

when he was returned to Elmira Reception Center.”

O-9, p.4.

“On Apr. 24, 1963, at 6:35 P.M., in front of 203 West

42nd Street, Manhattan, the defendant, in an attempt

to avoid arrest for his involvement in the instant

offense, assaulted Patrolman Theodore Vasakes of the

16th Precinct by pointing a loaded pistol at him, and

attempted to steal from his person a .38-calibre Smith

& Wesson pistol valued at $48.00.

“Shortly thereafter, the defendant attempted to kill

Detective Robert Corrigan of the 50th Squad by

shooting a loaded pistol at him, inflicting injuries

which necessitated Detective Corrigan’s hospitaliza-

tion.” O-11, pp. 6-7.

“The records indicate this inmate attempted suicide in

1954 by slashing his arms.”’ Letter dated March 10,

1964 from L. V. Granger, Guidance Counselor, to

Mr. Addison Byram, Acting Warden and Dr. James

Gaetaniello, Chief Psychiatrist, O-41.

“In October 1963, while being treated at Meadowbrook

Hospital he attempted to escape from a correction

officer.”

“Police officers consider this inmate highly dangerous.”

Letter dated March 10, 1964 from L. V. Granger,

Guidance Counselor, to Mr. Addison Byram, Acting

Warden, O-42.

?Excerpts from the cross-examinations and summation are

attached as Appendix D. Although the opinions in the New York

courts do not refer to this point, it was briefed before both review-

ing panels.

REASONS FOR GRANTING THE WRIT

I. Compulsory Process.

THE DECISION OF THE NEW YORK COURT OF APPEALS

POSITS A DUBIOUS RULE OF EVIDENCE AS A BAR TO

SIXTH AMENDMENT COMPULSORY PROCESS RIGHTS,

IN CONFLICT WITH THE PRINCIPLES OF CHAMBERS

v. MISSISSIPPI, 410 U.S. 284 (1973) AND WASHINGTON

v. TEXAS, 388 U.S. 14 (1967), AND OF IMPORTANCE

IN THE ADMINISTRATION OF CRIMINAL JUSTICE.

At issue, and worthy of review, is the ability of a

defendant to obtain and present to a trial jury exculpa-

tory evidence on the issue on which guilt or innocence

depends.

As the dissenting Judge correctly noted below, the

central factual issue of the trial was clearly framed: ‘‘Had

Bowerman, whose penal dossier included a prior history

of mental disturbance and futile but violent attempts to

escape, set in motion the tragic events of September 13th

on his own, with the appellants playing only an unwill-

ing and unwitting part, as they contended, or, instead,

had Culhane and McGivern actively aided and abetted

Bowerman, as Singer swore.” (Fuchsberg, J., dissenting,

see Appendix A). Defendants’ Exhibit O, official records

detailing Bowerman’s previous attempts to escape from

custody on his own, attempts to seize a gun and assault

3Most of the issues raised and briefed in the appellate courts

below, inter alia, the trial court’s onesided marshalling of the evi-

dence (see Appendix B, dissent), the wide-ranging cross-examination

of the petitioners over the details of prior offenses, and the exclu-

sion of competent and relevant impeachment evidence of the

Prosecution’s main witness, are not presented here. Their presence

shows that the constitutional errors of the trial court were not

harmless.

8

guards on his own, and attempted suicide, went directly

to the central factual issue in the trial. The trial court,

sustained by the Court of Appeals, excluded Exhibit O as

neither competent nor relevant.

The decision of the New York Court of Appeals impli-

cates the entire understanding of the compulsory process

clause developed from its modern origin in Washington v.

Texas, 388 U.S. 14 (1967).4 The issue and holding in

Washington, framed in terms of exclusion of exculpatory

evidence by means of an arbitrary state standard of com-

petence, is directly confronted.® The logic of Washington

applies as well to relevance: for State case law or legisla-

ture cannot so define relevance as to exclude exculpatory

evidence within the meaning of the compulsory process

clause. In this context, a commentator has concluded

that “the defendant has a constitutional right to present

any evidence that may reasonably be deemed to establish

the existence of facts in his favor.”’ P. Westen, Compul-

sory Process II, 74 Mich. L. Rev. 191, 207 (1975). It has

long been observed that evidence of the kind offered

by the defendants can tend to exonerate an innocent

accused:

*The right to offer testimony rests, as well, on broad, if vague,

due process grounds. See In re Oliver, 333 U.S. 257, 273 (1948).

The development of the more clear and specific compulsory

process analysis has been lauded as a major conceptual advance of

this Court. P. Westen, Compulsory Process, 73 Mich. L. Rev. 71

(1974).

‘Although quoting the trial judge’s ruling that the records

were not “competent” (Appendix A, opinion at n.1), the thrust of

the Court of Appeals’ opinion was to relevance, terming the issue

“collateral.” It is hard to see what rationale would even purport to

justify terming the official records “not competent.” As noted by

the dissenting Justice, they were unimpeachable in their source and

were kept in the regular course of business.

9

“It should be noted that this kind of [prior act]

evidence may be also availabl to negative the

accused's guilt. E.g., if A is charged with forgery,

and denies it, and if B can be shown to have done a

series of similar forgeries connected by a plan, this

plan of B is some evidence that B and not A com-

mitted the forgery charged.”

2 J. Wigmore, Evidence § 304 at 205 (3d Ed. 1940).

The conclusion in the dissent that the proferred proof

was reliable, relevant and material accords with the

nature of the proof and charges.®

In contradistinction the New York Court of Appeals

has fashioned a rule of evidence that cannot stand scru-

tiny. The court found that evidence establishing a

pattern of solitary prior escape attempts by Bowerman

would be irrelevant “unless it were additionally shown

that the prior escape attempts had been made in compa:

rable circumstances, including the presence but non-

participation of other potential escapees.” (At n.1). At

the same time, the court found the proffer excludable as

potentially confusing, a “mass of miscelianeous records,”

“80 pages of the undifferentiated, unredacted files of the

Corrections Department with respect to Bowerman... .’

Thus simultaneously, the New York Court of Appeais

would exclude the records as remote and confusing, while

permitting their introduction into evidence if the defend-

ants could show that “potential escapees” (persons in no

way connected with the proceeding) did not participate

in escape attempts not previously litigated and not at

issue in the trial.

On the issue of materiality, it must be remembered that

Bowerman was dead at the time of trial. Exhibit O was the only

means available to petitioners to attempt to demonstrate Bower-

man’s similar prior unassisted escape attempts.

10

State rules of evidence based on commonly accepted

and understandable grounds, such as the exclusion of

hearsay, must yield to a defendant’s constitutional right

to present witnesses in his own defense. Chambers *

Mississippi, 410 U.S. 284 (1973).’ Even as well accepted

a State interest as protecting juveniles from the embar-

rassment of exposing a record of a prior offense must

vield to the right of a defendant “to seek out the truth in

the process of defending himself.” Davis v. Alaska, 415

U.S. 308, 320 (1974). Perforce, an evidentiary standard

arbitrary to the border of incoherence cannot be raised

to block the introduction of potentially exculpatory

evidence on the crucial issue at trial.

Il. Fifth Amendment.

THE NEED FOR THIS COURT TO HEAR THIS CASE CAN

BE STATED IN ONE SENTENCE: IS RAFFEL v. UNITED

STATES, 271 U.S. 494 (1926) CONFINED TO ITS PECU-

LIAR FACTS. OR WAS IT IMPLICITLY OVERRULED

BY DOYLE vy. OHIO, 426 U.S. 610 (1976), OR IS IT STILL

CONTROLLING AUTHORITY FOR THE STATE AND

FEDERAL CouRTS? 8

Raffel held that a defendant who testifies at his or her

second trial, but who did not testify at the first trial, may

be impeached by the prior silence when the purpose in

7The compulsory process clause applies equally to documents

and to witnesses. United States v. Burr, 25 F.Cas. 187 (No. 14694,

C.C.D. Va. 1807); United States v. Nixon, 418 U.S. 683 (1974).

8 Although the fifth amendment question in Raffel arose in a

federal prosecution, and the holding may be said to have been

grounded upon this Court’s supervisory power, it has been fol-

lowed or distinguished by numerous state and federal courts. At

least since this Court’s opinion in Malloy v. Hogan, 378 U.S. 1

(1964), this phenomena is undoubtedly based on the oft-quoted

passage in Malloy that “the same standards must determine whether

an accused's silence in either a federal or state proceeding is justi-

fied.” Jd. at il.

1]

testifying is to deny some statements attributed to him or

her by a witness who has offered the same testimony at

both trials..

In D. e it was held that cross-examination of a

defendan, out his post-arrest silence after receiving

Miranda warnings violates due process. Raffel was not

cited in the majority opinion, although its continued

vitality was questioned by four Justices.

This case closely parallels the certified question,

answeied in the negative, in Raffel: “Was it error to

require the defendant, Raffel, offering himself as a

witness upon the second trial to disclose that he had not

testified as a witness in his own behalf upon first trial’’?

271 U.S. at 496. Were it not for this Court’s opinions

subsequent to Raffel, the trial court’s ruling might seem

correct.9

A brief sketch of some of this Court’s opinions since

Raffel demonstrates the ambiguity between the holding

in that case and the holding in Doyle.

In Johnson v. United States, 318 U.S. 189 (1943), it

was suggested, in dicta, that when a defendant asserts a

privilege against compulsory self-incrimination in the

? However, this point is not conceded here. There are signifi-

cant distinctions between the facts in Raffel and the facts of this

case. In Raffel’s first trial, an officer testified that Raffel made a

statement upon arrest. Raffel remained silent. At the second trial,

Raffel took the stand and stated that he did not make the state-

ment. Thus, there was a technical inconsistency. Raffel’s silence

at the first trial was an admission by silence with respect to the

specific statement at issue. The analagous modern rule is embodied

in Federal Rule of Evidence 801(d)(2)(B). In this case, however,

McGiverm was impeached with his prior silence, and adverse infer-

ences were drawn therefrom, with respect to broad areas of his

testimony.

12

midst of his testimony, and the assertion is upheld by the

trial judge, the silence cannot be adversely commented

upon by the prosecution in the face of a properly lodged

objection.

In Grunewald v. United States, 353 U.S. 391 (1957), a

defendant was asked on cross-examination why he had

asserted the fifth amendment before the grand jury in

response to the same questions which he later answered

at trial. The holding was unanimous. The five Justices

of the majority reaffirmed Raffel, but stressed that

Grunewald differed in that it turned on whether refer-

ence to the prior silence was in fact probitive in impeach-

ing the defendant’s credibility. /d. at 418-424. The

court held that the defendant’s silence before the grand

jury was wholly consistent not only with his innocence,

but also with his trial testimony. However, four Justices

concurring in Grunewald indicated that Raffel should

be overruled. The rationale of that concurrence runs

through the decision in Griffin v. California, 380 U.S. 609

(1965), holding that the privilege against compulsory

self-incrimination barred both adverse comment by the

government on a defendant’s silence and jury instructions

that such silence is evidence of guilt.!° Raffel was not

cited in the Griffin opinion.!!

'0See also Stewart v. United States, 366 U.S. 1 (1961) (the

demeanor of a defendant whose testimony is “gibberish” cannot

be challenged by introducing the fact that he failed to testify at

former trials).

'l'The continued vitality of Griffin is emphasized by this

Court's opinion in Lakeside v. Oregon, 55 L.Ed.2d 319 (1978),

holding, among other things, that a Griffin cautionary instruction

over the defendant’s objection is not a violation of the privilege

against compulsory self-incrimination.

13

In United States v. Hale, 422 U.S. 171 (1975), it

was held, on nonconstitutional grounds, that cross-

examination of the defendant as to his silence during a

police interrogation was prejudicial error and that, based

on the circumstances of his custody, he had no moti-

vation to speak. Raffel was distinguished, id. at 175,

based on the reasoning in Grunewald.!”

In the majority opinion in Baxter v. Palmigiano, 425

U.S. 308 (1976), holding, among other things, that an

adverse inference may be drawn from an inmate’s asser-

tion of the fifth amendment at a disciplinary proceeding,

Raffel was cited with apparent approval. /d. at 318.

Baxter has not, however, signalled a departure from this

Court’s developing fifth amendment doctrine. See

Lefkowitz v. Cunningham, 431 U.S. 801, 808 n.5 (1977).

The tension between the holdings in Raffel and Doyle,

discussed at length by the dissenting Justices in Doyle,

426 U.S. at 532 n.11, asks for clarification by this Court.

Given the frequency of retrials, virtually every criminal

defendant is affected in a crucial decision by this uncer-

tainty in the law. Consequently, every criminal trial is

affected as well.

Even if this Court chooses not to resolve that ambi-

guity, this case should be heard. As discussed above,

Raffel may rest on its own peculiar facts. This case is

controlled by Grunewald. There, as here, the prior

silence of the accused was wholly consistent with inno-

cence. McGivern properly invoked his privilege at the

'2 Although in Doyle the majority stated certiorari was granted

to decide the constitutional question left open in Hale, the ques-

tion was not answered to the extent it was left open. In Hale, 422

U.S. at 175, n.4 the majority stated that the question that was left

open was whether the Raffel decision had continued vitality.

| +

prior trials. He cannot be penalized for the valid asser-

tion of his fifth amendment rights.

CONCLUSION

For all of the above reasons, it is respectfully prayed

that the writ of certiorari be granted.

Respectfully submitted,

MICHAEL E. TIGAR

JOHN MAGE

JOHN J. PRIVITERA

Suite 201

1302 185h Street, N.W.

Washington, D.C. 20036

WILLIAM M. KUNSTLER

13 Gay Street

New York, New York 10015

Counsel for Petitioners

Dated: October 11, 1978

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APPENDIX

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APPENDIX A

The People of the State of New York, Respondent,

v. Charles Culhane and Gerald McGivern, Appellants.

45 NY 2d 757

Argued June 7, 1978

July 13, 1978

HEADNOTE:

Crimes - Murder

An order of the Appellate Division which affirmed the

murder convictions of defendants, charged with killing a

Deputy Sheriff during an attempt to escape from cus-

tody is affirmed, in a Memorandum by the court.

People v. Culhane, 57 AD2d 418, affirmed.

SYLLABUS:

Appeal, by permission of a Justice of the Appellate

Division of the Supreme Court in the Third Judicial

Department, from an order of that court, entered

June 10, 1977, which affirmed judgments of the Ulster

County Court (Robert H. Ecker, J.), rendered upon

verdicts convicting defendants of murder. Defendants

were charged with killing a Deputy Sheriff during an

attempt to escape from custedy. (For facts and prior

appeal, see 33 NY2d 90)

William M. Kunstler, Michael E. Tigar (admitted pro

hac vice), Karen K. Peters and John Mage for Appellants.

E. Michael Kavanagh, District Attorney (Paul Guner

and Edward M. P. Greene of counsel), for respondent.

MEMORANDUM.

The order of the Appellate Division should be af-

firmed.

Ia

We have examined the several contentions advanced by

defense counsel and conclude that there should be an

affirmance. We comment briefly with respect to some of

such contentions.

On the basis of careful postmortem dissection it can be

said that in charging the jury the trial court’s marshaling

of the evidence fell short of the ideal. The court has an

obligation to marshal or refer to the evidence, however,

only to the extent necessary to explain the application

of law to the facts (CPL 300.10[2]). The critical issue

on appellate review is whether the deficiency, if any, was

such as to deny either defendant a fair trial. We are satis-

fied that the material issues, both factual and legal, were

made abundantly clear to the jury in consequence, inter

alia, of the informed efforts of competent defense coun-

sel, and that there was no such inadequacy of explanation

or other error of commission or omission as to result in

prejudice to either defendant.

Several of the trial court’s evidentiary rulings which

are challenged by defendant fell within the recognized

authority of the trial judge involving questions as to the

admissibility of evidence offered with respect to collater-

al matters. We include in this category the exclusion of

evidence sought to be introduced to impeach the cred-

ibility of Deputy Sheriff Singer—the record of the pro-

ceeding before the State of New York Employees’

Retirement System in which Singer’s application for

accidental disability retirement based on injuries suffered

during the escape attempt was denied, and evidence with

respect to his receipt from the Police Officers Asso-

ciation of an award in which there was a recital of events

at some odds with his testimony. Similarly, evidence of

Bowerman’s record of past armed escapes and of his

psychiatric disorders would have gone only to the col-

3a

lateral issue of his role in the escape attempt.! Nor do

we find any error in the trial court’s rulings as to the

scope of the People’s cross-examination of either defen-

dant as to prior convictions (including the facts under-

lying such convictions) and acts of misconduct. Neither

was it error to admit the photograph of the deceased

deputy sheriff. We find no abuse of discretion as a matter

of law in any of these evidentiary rulings. It is, of course,

not determinative or even persuasive that apparently

contrary rulings have been upheld in other cases in what

may seem to be similar situations.

The Evidence offered consisted of 80 pages of the undiffer-

entiated, unredacted files of the Corrections Department with

respect to Bowerman covering a period of some 18 years. The dis-

senter now urges that this evidence, offered en masse, should have

been admitted on the theory that a few selected portions might

have tended to establish a propensity on Bowerman’s part to make

escape attempts alone and unassisted. Such proof would have been

irrelevant unless it were additionally shown that the prior escape

attempts had been made in comparable circumstances, including

the presence but nonpaiticipation of other potential escapees.

There was, however, no tender of any such additional showing. No

claim was made that the prior escape attempts were made in

comparable circumstances, and examination of the file discloses

great dissimilarity of circumstance. In fact the files were collec-

tively offered for a much broader purpose: “to show what kind of

individual [Bowerman] is’’, in support of the defense theory that

the defendants were ‘‘the vicitims of the maneuvering, manipu-

lations” of Bowerman. This mass of miscellaneous records, not

directly related to the events comprising the charges against these

defendants, would only have produced confusion, invited spec-

ulation and inevitably have led the jury into excursions into

collateral matters. The trial court exluded this remote and poten-

tially confusing evidence on the ground that it was not “competent

or relevant”. The authorities cited by the dissenter involve situa

tions in which proof that a third party had been the criminal actor

would have established the innocence of the defendant. By con-

trast here, proof that Bowerman might have been disposed to

instigate this escape attempt would not have exonerated these

defendants for their participation in it.

da

Within the ambit of the trial court’s responsibility was

the preliminary factual determination that McGivern’s

statement of asserted innocence was not spontaneous so

as to qualify it for admission under the exception to the

hearsay rule. There was no error in the resolution of that

question when the statement was not made_ until

McGivern’s arrest some two and one-half hours after the

commission of the crime.

Finally, we find no error in the denial of defendants’

pretrial motions to be permitted to appear as their own

cocounsel or in the denial of the posttrial motion to set

aside the verdicts because of the failure of the People

to produce the photograph of Bowerman ‘after his death.

In sum, we agree with the majority at the Appellate

Division that there was no error which calls for a reversal

of the conviction of either defendant.

FUCHSBERG, J. (dissenting):

This murder case has been tried three times. In the first

trial, the jury disagreed. The second, which resulted in

convictions and sentences of death, was followed by

unanimous reversal by this Court (33 NY2d 90), essen-

tially for the failure of the trial judge to excuse biased

veniremen for cause on the voir dire. Because the third

trial was marred by the exclusion of what I believe to be

competent, relevant and potentially exculpatory evi-

dence, I am constrained to vote for reversal and another

trial. :

Since the salient facts are adequately detailed in our

prior opinion, they need only be briefly recounted here.

On September 15, 1968, three inmates of the Aubum

State Prison, Charles Cuihane, Gerald McGivern and

Robert Bowerman, were being taken by automobile to

=

Ja

a courthouse in Westchester County in connection with a

coram nobis proceeding brought on behalf of Culhane.

Two deputy sheriffs, Joseph Singer and William Fitz-

gerald, occupied the front seat. The three manacled

prisoners, joined to the vehicle by leather security belts,

were in the rear. The party never reached Westchester,

the trip ending en route in the death of Fitzgerald and

Bowerman and near-mortal gunshot wounds for Culhane

and McGivern.

The three survivors were the only eyewitnesses. Dep-

uty Singer, the single one available to the People in effect

was arrayed against the two surviving prisoners, each of

whom testified in his own behalf at the trial.!

According to the story related by Singer, Bowerman

and Culhane attacked the deputies from the rear, using

their locked handcuffs to choke the two officers as

McGivern seized Singer’s revolver and fired it at Fitz-

gerald. Singer went on to state that he then fired at the

two defendants, though the medical evidence tended to

refute his assertion that he was choked by the hand-

cuffs and the ballistics evidence introduced similar doubts

as to his version of the shooting.

Appellants described the events very differently.

Their claim was that it was only Bowerman, who, after

cutting his own security belt with a concealed razor blade

and unsuccessfully trying to persuade his fellow prisoners

to do the same, struck at Fitzgerald and Singer and grab-

bed the latter’s gun. As they told it, Bowerman, while

holding them at gunpoint, had then undone Culhane’s

belt and forced Culhane in turn to undo McGivern’s

1In this Court’s earlier opinion we noted that the prose-

cutor’s evidence ‘“‘presented substantial questions of credibility”

(33 NY2d, at p. 96, n.1).

ba

belt, at which point Fitzgerald suddenly tured, gun in

hand, precipitating an exhange of fatal shots between

himself and Bowerman.

Thus, the trial’s central factual issue was clearly

framed: Had Bowerman, whose penal dossier included a

history of mental disturbance and futile but violent ef-

forts to escape, set in motion the tragic events of Sep-

tember 13th on his own, with the appellants playing only

an unwilling and unwitting part, as they contended, or, '

instead, hod Culhane and McGivern actively aided and

abetted Bowerman, as Singer swore?

To back their claim that Bowerman had initiated the

escape episode and had carried it through to its grisly

end on his own, the appellants, among other things,

sought to introduce the official prison and medical

records chronicling his past attempts to free himself of

prison and police custody. These records would have

established that Bowerman was “suffering from a psy-

chosis’’ and had been frustrated in his plans to escape on

at least three earlier occasions. During the fourteen years

immediately preceding the events which resulted in the

two killings involved in this case, he pursued repeated

methods of self-release, ranging all the way from suicidal

slashing of his wrists to a try at winning his freedom by

shooting his way past a detective whose firearm he had

seized. As recently as 1964, a Corrections Department

Guidance Counselor officially reported him “highly dan-

gerous”. Earlier, he had spent four months in the Matte-

awan State Hospital for the Criminally Insane after the

State prison authorities at Elmira had at various times

observed that he was poorly adjusted, depressed, and

emotionally unstable. Significantly, in every one of these

documented events, with the possible exception of one

at the Brooklyn House of Detention, where an entry

7a

indicated that “it was rumored he planned a spectacular

jail break with the aid of a girl friend on the outside”,

he was the lone participant.

The majority, in affirming, nevertheless finds no

“abuse of discretion” in the exclusion of this docu-

mentary evidence by the trial court, both when offered

directiy or as grist for cross-examination. It is difficult

to understand how these records, unimpeachable in their

source and having been kept in the regular course of

business (cf. People v. Foster, 27 NY2d 47, 52; Kelly

v. Wasserman, 5 NY2d 425, 429), could be claimed

to have been collateral, since they bore directly on the

main, and most critical question of whether the con-

ceded culpability of Bowerman was shared or unshared

with the defendants. !

The trial record goes far beyond the majority’s suggestion

that the excluded proof was offered solely to show Bowerman’s

general bad character. The colloquy which followed the offer

could have left no doubt in the trial judge’s mind but that it was

also directed in particular to those portions of the public records

relating to Bowerman’s solo escape ventures. As defense counsel

put it, a primary purpose was to show that Bowerman “didn’t

care about his life, this man, the records would reflect, was in-

volved in escapes” and, for that reason, counsel “picked out those

portions which we considered essential” because they went “to

the very heart of the issue, who precipitated this break, who

killed Fitzgerald, was it done by Bowerman alone or was it done

by Bowerman in conjunction with our clients, which we

vehemently dispute. . . .”’ The District Attorney did not miscon-

ceive this purpose. In objecting, he stated, ‘“‘This simply goes to

show propensity which is not admissible”. And the trial judge,

in explaining his ruling, after merely remarking that the evidence

would be “irrelevant” and “incompetent”, fell back to the un-

elaborated position that “it would be highly unfair to permit

the evidence of this type and it would deprive the People of a

fair trial’. Thus, the very issues raised on this appeal—that the

records were relevant and competent and that their exclusion

or reception would affect the fairness of the trial—were expressly

passed upon at trial and so preserved for our review. (emphasis

supplied)

8a

Of course, the jury would not have been compelled

to conclude that, because Bowerman had demonstrated

a propensity for violent jailbreaking and an equally con-

sistent penchant for practicing it without the aid of

others, he did in fact follow those patterns in this in-

stance. But, it can hardly be denied that it may very well

have made a world of difference to the triers of fact in

deciding whether the escape was the work of but one

man, Bowerman. Had they been aware that Bowerman

was the only one of the three prisoners with a known

propensity for endeavoring to escape and that he had

never demonstrated that propensity in alliance with

other prisoners, instead of being left, as the jurors were

here, with an impression that none of the three prisoners

appeared to have had any greater inclination to escape

than the others, it is conceivable that the defense would

have been credited.

Thus, the proferred proof was not only reliable. It

was also relevant and material, on the principle that it is

a defense to a criminal accusation that a person other

than the defendant committed the crime. For that pur-

pose, “similar acts . . . can be used to exonerate an

innocent accused, where the acts evidencing the plan are

those of a third person not the defendant” (2 Wigmore,

Evidence [3d ed.], §341, p. 245 [emphasis in org.] ;

cf. People v. Fiore, 34 NY2d 81). Under the theory of

the defense, Bowerman must be considered a “third

party’. As we have already indicated, the defendants’

version of the events was not that Bowerman had “in-

stigated’’ the escape or acted “in conjunction” with

them. To the contrary, they were “vehement” in their

position that it had been ‘“‘done by Bowerman alone”.

Consequently, the admission of Bowerman’s “similar

acts” to help establish the defendants’ noncomplicity in

Ga

the escape and the murder would have been in con-

formity with the proposition that the most acceptable

“test of relevancy is whether a reasonable man might

believe the probability of the truth of the consequen-

tial fact if he knew of the proferred evidence” (1 Wein-

stein’s Evidence, 4401 [07], p. 401-27; see also Thayer,

A Preliminary Treatise on Evidence at Common Law, pp.

264-265 [1898]; McCormick, Evidence [2d ed] 8185,

p. 437).

Furthermore, uncharged immoral or criminal acts are

admissible if they are probative of a matter in issue (e.g.,

People v. Jackson, 39 NY2d 64; People v. Molineux,

168 NY 264). Although generally excluded when the

prior conduct involved is that of an accused (see People

v. Fiore, 34 NY2d 81, supra), this is for reasons of poli-

cy rather than logic (People v. Mayrant, 43 NY2d 236,

239; People v. Zachowitz, 254 NY 192, 198). So, when

excluded, it is rarely for lack of relevancy, but because

of inherent prejudice to the accused (see People v. Davis,

44 NY2d 269, 274). However, when, as here, the prio:

conduct of a third party is at issue (cf. People v. Duffy,

44 AD2d 298, 306, n.3 [Shapiro, J.], affd. 36 NY2d

258, cert. den. 423 US 861), absent countervailing

considerations of prejudice, the relevancy and mater-

iality of the evidence is to be judged on its own merits.

On that score, it has been well said that, ‘tone who has

demonstrated a consistent response under given cir-

cumstances is more likely to repeat that response when

the circumstances arise again, [and therefore] evidence

of habit has, since the days of the common-law reports,

generally been admissible to prove conformity on speci-

fied occasions” (Halloran v. Virginia Chems., 41 NY2d

386, 391, a civil case whose principles are applicable to

criminal cases as well [CPL 60.10]; see also, People v.

10a

Miller, 39 NY2d 543). In the practical application of this

experiential principle, there appear to be no valid grounds

for distinguishing between a case where the dispute

revolves about an issue as to whether a person acted

alone or in concert and a case in which the issue posed is

whether the person acted at all.

Moreover, if there were a valid evidentiary rule of

exclusion—and the majority points to none—the evidence

would still have to be received on the even more funda-

mental ground that its exclusion violated the consti-

tutional right of the appellants to present exculpatory

evidence on the issue on which, in the end, their guilt

or innocence tumed (see, generally, Clinton, The Right

to Present a Defense: An Emergent Guarantee in Criminal

Trials, 9 Ind. L. Rev. 713).

As Chambers v. Mississippi (410 US 284), which over-

turned the exclusion of a third party’s confession as

hearsay, makes clear, the constitutional right of a de-

fendant “to present witnesses in [his] own defense”’

(p. 302) is not to be yielded up to unduly restrictive

evidentiary practice. It simply will not do to point to a

technical rule of evidence or an incident of judicial

discretion which violates that credo. This is not to say

that criminal defendants are entitled to an open sesame

in the reception of evidence. Rather, the right to present

exculpatory material is to be measured by the “funda-

mental requirements of fairness’ (United States v.

Brooks, 480 F.2d 1310, 1311; see also, Davts v. Alaska,

415 US 308). That was not done here.

Finally, in view of what I find to be the decisiveness

of this issue, it is unnecessary to discuss other disturbing

aspects which, singly or in combination, added to the

denial of a fair trial. Included among these was the

charge to the jury, which the two dissenting Justices at

lla

the Appellate Division cogently critized (57 AD2d

418, 421).

Accordingly, my vote is for reversal and a new trial.

L2a

APPENDIX B

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent, v. Charles Culhane et al, Appellants.

57 AD2d 418

Third Department

June 2, 1977

CATCHLINES:

Crimes - murder - charge to jury.

HEADNOTE:

1. Defendants were properly convicted of murder in

the second degree. The central issue was one of credibil-

ity and the jury exercised its good judgment and common

sense in weighing the testimony. The sole defense was

that a dead associate was the prime actor in an attempt to

escape and, even assuming that to be so, the jury was

justified in finding defendants guilty.

2. The charge to the jury was not so unfair as to re-

quire reversal. The court charged time and again that it

was not its recollection or its marshaling of the facts that

the jury was to consider but the jury’s own recollection.

The court charged the prior criminal record of defen-

dants, but made it plain that it was to be considered only

of the issue of defendants’ credibility. The return of the

jury on several occasions for further instructions demon-

strates the careful examination given in reaching its

decision and makes it clear that the jury did not con-

sider the charge prejudicial, slanted or unfair.

APPEAL from a judgment of the Ulster County

Court (ROBERT H. ECKER, J.), rendered April 23,

1975, upon a verdict convicting defendants of murder in

the second degree.

L3a

Karen K. Peters (Michael E. Tigar and William M.

Kunstler of counsel), for appellants.

Francis J. Vogt, District Attorney, for respondent.

HERLIHY

HERLIHY, J. This case has been tried three times.

The first jury failed to agree and a mistrial resulted. The

second trial resulted in a conviction which was set aside

by the Court of Appeals in People v. Culhane (33 NY2d

90). The instant trial resulted in a conviction of the crime

of felony murder. This appeal ensued and defendants

have raised several issues urging reversal. After a careful

consideration of defendants’ contentions we are of the

view that only two require comment by us.

While this is an appeal following a retrial, the general

and underlying facts are sufficiently set forth in People

v. Culhane (supra) and need not be repeated here.

Defendants contend that there is insufficient evidence

to sustain the conviction. On this appeal, therefore, we

must view the facts most favorably to the People (People

v. Cleague, 22 NY2d 363, 366).

The central issue at the trial was one of credibility as

to the testimony of the witness Singer and the testimony

of the two defendants. The jury, as it usually does, exer-

cised its good judgment and common sense in weighing

the testimony and found the defendants guilty and it

would be difficult to conceive of a jury doing otherwise.

The defendants’ sole defense was that a dead associate

was the prime actor in the attempt to escape and even

assuming that to be so, the jury was justified in finding

the defendants guilty.

The only remaining issue concerned the charge of the

court and experienced criminal lawyers seek to convince

l4a

this court that certain parts thereof were out of pro-

portion. It is this court’s opinion that the charge may be

read in its entirety as often as one might wish and never

come away with the reaction that it was so unfair to

these defendants as to require a reversal. The court

meticulously charged time and again that it was not its

recollection or its marshaling of the facts that they were

to consider, but it was the jury’s own recollection. It

charged the prior criminal record of these defendants, .

but made it explicitly plain that it was to be considered

only on the issue of the credibility of these defendants.

The jury, of course, knew that the defendants were

imprisoned at the time of the commission of the crime

as they were in the process of being transported from

Auburn State Prison to the Westchester County Court

to be present at a coram nobis hearing.

It should be noted that the jury returned on several

occasions for additional instructions and for reading parts

of the testimony, all of which demonstrates the careful

and thorough examination given in reaching its ultimate

decision and which, in and of itself, makes it crystal

clear that as to the. jury, it did not consider the charge

in any way prejudicial, slanted or unfair. After a four-

week trial marked by considerable interruptions, ob-

jections, and bench conferences held at the request of

the attorneys for the defendants, it was the obligation of

the court to marshal the facts. On one occasion when the

jury returned for additional information where it

appeared that the court may have been in error as to one

minor part of the charge, the court said: “I caution you

once again, as [ have on at least two occasions during

the course of my charge, and that is, as to any reference

of fact that I made in my charge to you, it is your recol-

lection, the combined recollection of the twelve of you,

15a

that must govern and not my recollection nor that of the

attorneys.”

The court’s attention has been called to the memor-

andum decision of the Court of Appeals in People v.

Williamson (40 NY 2d 1073). A reading of the record and

the opinion of the Appellate Division (48 AD2d 863) is

convincing that that decision is in no way controlling.

In that case two police officers investigating the crime

directly contradicted each other’s testimony as to the

facts surrounding the happening of the event. Such a

contradiction in testimony presented a sufficient reason

for a court to mention the numerous inconsistencies in

the testimony of the witnesses for the prosecution. The

present trial lasted approximately four weeks while the

Williamson trial was of short duration. Additionally,

there were numerous other areas of concern in the latter

case, including the sentence, which raised serious issues

requiring a reversal, none of which are here present.

We have examined the numerous other alleged errors

as set forth in the brief of the defendants and, after a

review of the record, we find them to be without merit.

(see People v. Crimmins, 36 NY2d 230, 239)

The judgment should be affirmed.

SWEENEY, J. (dissenting). We are unable to agree

with the majority that the judgment should be affirmed

and, therefore, we dissent and vote to reverse. In our

view, the trial court’s marshaling of the evidence was so

one-sided and unfair as to constitute prejudicial error.

The court had the obligation to marshal the evidence

only to the extent necessary to “explain the application

of the law to the facts” (CPL 300.10). The court chose

to marshal the evidence in some detail. It summarized

the direct testimony of all of the witnesses, and, in addi-

l6a

tion, the cross-examination of defendants. It made no

comment on Singer’s cross-examination. This becomes

quite significant when we consider that the court charged

the jury of the importance of cross-examination in testing

the truth and credibility of a witness. The court also

mentioned some of the inconsistencies of the defendants’

testimeny, but none of the numerous inconsistencies in

Singer’s testimony. Furthermore, the court pointed out

that the defendants had an interest in the outcome of the:

trial which could be considered in evaluating their testi-

mony, but failed to point out any interest Singer might

have had. The court further charged that the jury could

consider defendants’ admitted crimes in evaluating their

credibility or believability. It then enumerated the prior

convictions of each defendant. Later in the charge it

again mentioned the prior convictions of Culhane and the

various sentences he received. Assuming a more detailed

marshaling of the evidence was required, it is axiomatic

that any marshaling, nevertheless, must be done fairly.

On this record, we are of the view that the charge

taken in its entirety was so unfair that any prejudice

created thereby was not remedied by the court’s recita-

tion of a few general principles of law. The harm was

accentuated when we consider that the marshaling of the

evidence which, concededly, favored the prosecution,

was the last word the jury heard on the case before sub-

mission. Credibility was of critical importance. The

indictment was one for felony murder. The prosecution

contended and offered proof that the defendants and

Bowerman were all attempting an escape at.the time

Fitzgerald was killed. The defendants contended and

testified that only Bowerman was attempting an escape

and they took no part in it. A resolution of the issue,

therefore, narrowed to who was telling the truth. Under

l7a

these circumstances, we cannot consider the error harm-

less (People v. Williamson, 40 NY2d 1073).

The judgment should be reversed and a new trial

ordered.

KOREMAN, P. J. and KANE, J., concur with HER-

LIHY, J.; SWEENEY and MAHONEY, JJ.’s, dissent and

vote to reverse in an opinion by SWEENEY, J.

18a

APPENDIX C

The PEOPLE of the State of New York, Respondent,

v. Charles CULHANE and Gerald McGivern, Appellants.

Court of Appeals of New York.

Oct. 23, 1973.

33 N.Y.2d 90, 95-6, 350 N.Y.S.2d 381, 385-6, 305

N.E.2d 469, 472-3

(factual segment)

* * * * *

The facts underlying the appellants’ conviction are

relatively bref. On September 13, 1968 three prisoners,

Culhane, Bowerman, and McGivern were being taken by

auto from the Auburn State Prison to White Plains in

connection with a coram nobis hearing on behalf of

Culhane. The two escorting Deputy Sheriffs were riding

in the front seat of the car. The car was Deputy Sheriff

Fitzgerald’s personal car so there was no screen separating

the prisoners from the two Deputy Sheriffs, Singer and

Fitzgerald, who were riding in the front seat. Each

deputy carried a .38 caliber revolver at his side.

Prisoners Culhane and McGivern were handcuffed to

a loop in front of their security belt. Each belt buckled

in the back. Prisoner Bowerman’s belt was fastened in

the front with a chain and a hasp to which the handcuffs

were attached. None of the belts were attached to each

other. At the time of the incident in question, Culhane

was sitting behind the driver, McGivern was in the middle

and Bowerman was on the right, behind the passenger

side of the front seat.

They never reached White Plains, for the trip ended in

“ vidlence in Ulster County, during the course of which the

19a

appellants were wounded and the pnsoner Bowerman and

Deputy Sheriff Fitzgerald were killed.

Appellants were charged with felony murder for killing

the Deputy Sheriff during an attempted escape (Penal

Law, § 125.25, subd. 3). At the trial the People relied on

both circumstantial evidence and the eyewitness testi-

mony of Deputy Singer to prove their case. Singer’s

testimony, which was inconsistent as to certain particu-

lars, was used to show that Bowerman and Culhane

“jumped” the deputies from behind using their hand-

cuffs to choke them while McGivern seized one of the

Sheriffs’ revolvers and killed Fitzgerald.! Evidence was

also submitted demonstrating that Bowerman’s belt had

been cut on the left side; appellants’ belts had been

unbuckled; and that a search of the prisoners’ clothes

revealed that Bowerman possessed a handmade handcuff

key, and Culhane, a razor blade.

Defendants’ theory was that only the deceased pris-

oner, Bowerman, had attempted to escape.

'Since we have concluded that there must be a new trial, it

would be inappropriate to explore in detail the merits or weak-

nesses of the People’s case. For the purposes of this appeal we need

only note that the prosecutor’s evidence—taken in the context of

this particular trial—presented substantial questions of credibility

for the jury’s consideration. This places in bold relief the issue

concerning the propriety of the jury selection process.

20a

APPENDIX D

McGIVERN—CROSS

[2492] Q:

(2493]

Q:

> ©

How much did you get during the course of

that robbery?

MS. PETERS: Your Honor, I object.

THE COURT: Overruled.

: | have no idea how much was involved. The

robbery was stopped while it was in progress.

: IT see. What about the first robbery? How

much did you get on that? .

MS. PETERS: I object Your Honor.

THE COURT: Overruled.

: I believe it was somewhere in the area of

about $270.00. Around there. And a

couple of cartons of cigarettes.

Though you testified in one of those cases,

correct?

: Yes I did.

: I see. And aside from that particular case

and this trial, those are the only times you

ever testified in a criminal action before?

Am I correct?

: No. I testified once.

: Where?

: In Westchester.

MS. PETERS: Your Honor, I object. I don’t

think this is relevant.

THE COURT: I think he is referring to the

time he said before. I will overrule it.

A:

2la

: So am I correct you testified once in West-

chester and you testified here before this

jury in this trial? Am I correct?

Now I[ am testifying, yes.

McGIVERN—CROSS

[2502] Q:

[2503]

Now you were present, am I correct, when

Mr. Culhane testified in the first trial.

Correct? .

: Yes I was.

: Now when Mr. Culhane testified in the first

trial, did he mention any of those three

points to the jury, if you recall?

MR. ROTHBLATT: I object.

MS. PETERS: I object. How does Mr.

McGivern know that? There is an entire

transcript....

MR. KAVANAGH: Let’s ask him if he

remembers specifically. If he doesn’t he can

say so. You don’t have to testify for him.

MR. ROTHBLATT: Whether it was men-

tioned or not mentioned I submit it is not

binding upon the trial of this case. We are

not bound upon the questions that were

asked in the first trial, Your Honor.

MR. KAVANAGH: I submit that it is ex-

tremely relevant to the theory of recent

fabrication. As to those three points, I

submit it is the prosecution’s theory, and we

intend to argue i summation, that those

three points were created by Gerald

McGivern just prior to coming into this

[2504]

BY

fe

22a

court to answer the proof that had been

advanced by the prosecution in this trial.

And thus, the basis for me asking these

questions.

THE COURT: Will you read the question

that has been objected to?

REPORTER READ BACK THE QUESTION.

THE WITNESS: I don’t remember him even

being asked the question.

MR. KAVANAGH CONTINUING:

O.K. You indicated, I believe, earlier on

cross-examination that you had read Charles

Culhane’s testimony, or at least the tran-

script thereof not too long ago. Correct?

: Right.

: And did you notice when you were reading

that transcript that Mr. Culhane had left out

these three areas when he testified?

: I don’t remember him even being asked the

question in the transcript.

I didn’t ask you that. Was it covered when

Culhane testified in the first trial? He had

his own attorney present, did he not?

I am sure he did.

You were there. Did he or didn’t he?

Yes.

MR. ROTHBLATT: I object to this witness

being asked questions about what was not

said.

25a

KAVANAGH-—SUMMATION

[2703]

[2723]

[2724]

Now, I would like to break down this story to

show you, to demonstrate to you, how Mr.

Singer’s statement, Mr. Singer’s version of what

happened [2704] which he first gave on the

day of the incidert, is essentially consistent with

all of the findings that were arrived at sometime

later. Number one. And you must remember,

this time Mr. Singer did not have the benefit of

the version of the story that Mr. Culhane was

going to tell a year and a half later and that Mr.

McGivern was going to tell six and a half years

later. He didn’t know what they were going to

say. Singer says first that they were driving

along. Culhane comes over the top. Bowerman

comes over the top of Fitzgerald and McGivern

goes for Singer’s gun.

Now going through what the two defendants

told you, there were three major point differ-

ences. Three major points where Mr. McGivern

differs from Mr. Culhane. All they are incon-

sistent. They are not inconsistent. They are

simple additions. Well, ask yourself, why is it

important, assuming they are lying, for Mr.

McGivern, six and a half years later to come into

this courtroom and say that he saw Singer walk

Culhane around that car. Why is that impor-

tant? Why couldn’t Culhane do it? Well, the

reason Culhane couldn’t do it is because Culhane

was already tied to the testimony he ga‘e in the

first trial and he couldn’t change ‘iis story.

Which was, that he was unconscious and when

he went over that seat he doesn’t know how he

24a

got there. He can’t tell you how he got there.

So what happened was, that defendants sat

down together and realized that that act of Mr.

Culhane’s and the location that he was found by

the police, that that was not consistent with

innocence. If he dove over that seat he was

trying to get Fitzgerald’s gun. So what the

defendants decide is that they had to create an

explanation. They had to pattern their story to

the evidence and they had to create some type

of version that there was an innocent act. So

what do they do? Six and a half years later,

McGivern testifies that he was walked around

and McGivern expects you to buy that during

that entire six and a half year period that he

never mentioned that to Culhane.