A judge has ruled that Gregory Thayer cannot be retried on a murder charge in the shooting death of his childhood friend Bruce Swierc at a home on Magic Lane in the town of Ulster, even though an appeals court recently tossed his earlier manslaughter conviction. The decision from state Supreme Court Judge Roger McDonough, issued Nov. 10, means the original indictment against Thayer must be dismissed except for a charge of criminal possession of a weapon.
Double Jeopardy Blocks a Fresh Murder Case
McDonough found that retrying Thayer for murder would violate protections against being prosecuted twice for the same offense, according to the Daily Freeman. Thayer had been acquitted of second-degree murder at his original bench trial, a point that underlies the judge's reasoning, since New York law generally bars a second prosecution for the same offense under Criminal Procedure Law section 40.20, according to the New York State Senate. Thayer still faces the standalone weapons possession count.
Robert Gottlieb, an attorney involved in the case, said he was pleased with McDonough's ruling, per the Daily Freeman's report. Ulster County District Attorney Emmanuel Nneji did not respond to an email from the newspaper seeking comment on the decision.
How the Case Unraveled on Appeal
The ruling follows a unanimous decision in September by the Appellate Division, Third Department, which upheld an earlier finding by McDonough that Thayer was entitled to a new trial because of ineffective assistance from his defense team. The appellate court concluded there was an actual conflict of interest involving Andrew Kossover, a former Ulster County public defender who assisted Thayer's defense before trial, the Daily Freeman reported in its September coverage. The circumstances, the court wrote, revealed the existence of an actual conflict of interest.
At the heart of that conflict: Kossover reportedly told Gottlieb that a judge's law clerk had said the judge doubted the mental disease or defect defense and urged the team to seek a jury trial instead — information Gottlieb said he would have used to change the defense strategy had he known before trial, according to the Daily Freeman. The appellate opinion, published via CourtListener, notes the court did not decide whether double jeopardy would bar a murder retrial, finding that question was not properly before it at the time.
What Happened the Night Swierc Was Killed
Thayer was accused of shooting Swierc, his childhood friend, in the back of the head at his mother's home on Magic Lane. Prosecutors described the shooting as cold-blooded murder, while the defense argued Thayer was not guilty by reason of mental disease and defect, saying he suffered a psychotic break after drinking and taking alprazolam, known by the brand name Xanax, and believed Swierc was an intruder intending to harm him. An email Swierc had sent indicated he and Thayer were hanging out and talking trash that night, per the dossier of case facts.
Accounts differ on the exact date of the shooting. The Daily Freeman's reporting has placed Swierc's death on Sept. 29, 2021, while Law360 described the fatal shooting as occurring on the night of Sept. 28, 2021.
From Conviction to a Second Chance on Appeal
Following a nine-day bench trial, Ulster County Judge Bryan Rounds acquitted Thayer of murder on May 10, 2023, but convicted him of first-degree manslaughter and weapons possession, finding that Thayer intentionally shot Swierc while suffering extreme emotional disturbance. That account differs from one offered by News10, which reported that Thayer was found guilty of second-degree murder in May before Rounds reduced the conviction to first-degree manslaughter after finding extreme emotional disturbance. The appellate opinion itself states that the court acquitted Thayer of second-degree murder but convicted him of the lesser offense of first-degree manslaughter along with second-degree criminal possession of a weapon.
Thayer filed a lawsuit against Kossover in February, which remains pending in state Supreme Court, according to the case facts included in the Daily Freeman's reporting. District Attorney Nneji has filed a motion seeking permission to appeal the appellate ruling to the state Court of Appeals and may also appeal McDonough's latest ruling to the Appellate Division, Third Department. Nneji may additionally ask a grand jury to indict Thayer on lesser homicide charges or re-present appropriate charges to another grand jury, though none of those steps have been confirmed as having occurred.
