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The Georgia Supreme Court on Thursday granted a new trial for Atlanta lawyer Claud “Tex” McIver, who was convicted of murder in the shooting death of his wife in 2016.
The court ruled unanimously that the jury should have been allowed to consider a lesser charge — involuntary manslaughter, the Atlanta Journal Constitution reported.
Justice Michael Boggs wrote that the state’s evidence for McIver having intentionally killed Diane McIver, a Buckhead business executive, “was not overwhelming or even strong.”
“Indeed,” Boggs wrote, “the state’s evidence of intent was weak, as no witness testified to any disagreement or quarrel between McIver and Diane, and many witnesses testified that they were very much in love.”
Prosecutors presented evidence to show that McIver had a financial motive to kill his wife, but Boggs called that evidence “thin.”
McIver, 79, was sentenced to life in prison in 2018 after his conviction.
As CrimeOnline previously reported, most of the facts of the September 25, 2016, shooting were not in dispute. McIver was riding in the back seat of a Ford Expedition driven by Diane McIver’s best friend, Dani Jo Carter, with Diane in the front passenger seat. The trio were returning to Atlanta from the McIvers’ 84-acre ranch in Putnam County.
As they arrived in the city, McIver reportedly asked for his .38 caliber revolver from the center console — according to one statement because they had driven up on a Black Lives Matter protest, while in another statement he said it was for protection against homeless people.
McIver fell asleep in the back seat, with the gun in his lap in a plastic bag. According to testimony, as they pulled up to a traffic light on Piedmont Avenue, Diane McIver, 64, told her husband to wake up and not fall asleep. McIver fired one shot, which went through the seat and struck his wife in the back.
McIver had Carter drive to Emory University Hospital — despite other hospitals being practically within walking distance of where the shooting took place — where his wife died during surgery.
Chief Superior Court Judge Robert McBurney sentenced McIver to life in prison,after McIver had spent more than 15 minutes talking about his “fans,” his godson, his love of Chick-fil-a food, and his prison “pen pals.”
“I’ll tell you what’s most telling,” McBurney said. “You had as much time as you wanted to share with me what you thought was important for me to hear and I guess your audience to hear. … I didn’t ever hear you say you’re sorry for what you did. To me, that silence speaks volumes.”
In his opinion, Boggs noted McIver’s contention that he was startled awake by his wife and inadvertently pulled the trigger because of it.
“From this evidence, the jury could have concluded that the revolver was not deliberately or intentionally fired, but rather, as McIver suggests, discharged as a result of his being startled awake, reflexively or involuntarily clutching at the bag holding the firearm, and inadvertently contacting the trigger,” the justice wrote.
“If McIver intended to fatally shoot Diane, why would he do it in the presence of Carter, and why would he do it in Midtown Atlanta, within a few miles of several major hospitals, instead of on a rural interstate, far from any medical aid?” Boggs asked.
The high court upheld a second conviction for influencing a witness, for which McIver, a well-connected Republican attorney known for union busting, was sentenced to five years in prison. He has now served four years and 10 months.
McIver’s attorneys issued a statement saying they were pleased with the ruling.
“He was deprived of a fair trial because the jury was not given the opportunity to find that the shooting was entirely the result of negligence, as opposed to an intentional killing,” attorneys Amanda Clark Palmer, Bruce Harvey and Don Samuel said. “He was entitled to a fair trial and did not get a fair trial.”
[Featured image: Tex McIver/Fulton County Sheriff’s Office]