By KATE BRUMBACK Associated Press
ATLANTA (AP) — Prosecutors said Friday that they plan to retry a well-connected Atlanta man whose murder conviction in the shooting death of his business executive wife was recently overturned.
Claud “Tex” McIver, 79, was convicted in 2018 on charges of felony murder, aggravated assault, influencing a witness and possession of a firearm during the commission of a felony in the September 2016 death of 64-year-old Diane McIver. The Georgia Supreme Court last month reversed his convictions for felony murder and possession of a firearm during the commission of a felony but affirmed his conviction for influencing a witness.
Claud “Tex” McIver (Fulton County Sheriff’s Office)
The Fulton County District Attorney’s office said in a court filing Friday that it plans to retry McIver on charges of felony murder, aggravated assault with a deadly weapon and possession of a firearm during the commission of a felony. The motion asks that a trial be set within 180 days of when the trial court receives the Supreme Court’s order, which is expected to happen soon.
In overturning McIver’s convictions on murder and other charges, the high court said the jury should have had the option to convict him on a misdemeanor involuntary manslaughter charge.
Then-Presiding Justice Michael Boggs, who this week became chief justice, wrote in the unanimous opinion, “While the State’s evidence was sufficient to support the appellant’s conviction of murder, it also could have supported a finding that the appellant killed the victim without any intention of doing so in the commission of an unlawful act.”
In its motion for a new trial, the district attorney’s office notes that the Supreme Court found there was enough evidence at trial for a rational jury to conclude beyond a reasonable doubt that McIver was guilty of the crimes for which he was convicted.
“The jury which served at the original trial of this case evaluated all of the evidence and unanimously convicted (McIver) of intentional crimes against his wife,” the motion says. “This fact weighs heavily in the State’s consideration of how best to serve the interests of justice in this case. This District Attorney believes very strongly that a jury of one’s peers, working as a body, is best positioned to evaluate the accuracy of testimony and other evidence in a case to determine an individual’s culpability under the law.”
The high court found that the evidence against McIver was weak and that prosecutors admitted evidence that had “no relevance or basis in fact,” McIver attorneys Don Samuel and Amanda Clark Palmer said in a statement.
“Now, the prosecution brags that it is only seeking justice. It is better late than never, but justice would be recognizing that Tex McIver is entirely not guilty,” they said.
It is undisputed that McIver shot his wife. At trial, jurors had to decide whether they believed he did it intentionally.
The McIvers were wealthy and well-connected. He had been a partner at a prominent labor and employment law firm and served on the state election board. She was president of U.S. Enterprises Inc., the parent company of Corey Airport Services, where she had worked for 43 years.
At the time of the shooting, Tex McIver was no longer a partner at his firm and his income had dropped significantly. He and his wife kept separate finances and prosecutors alleged he killed his wife because he needed her money to cover his expenses. Defense attorneys disputed that, saying McIver deeply loved his wife and her death was a tragic accident.
The jurors in his trial acquitted McIver of malice murder but found him guilty of felony murder. Felony murder is when a killing happens during the commission of another felony, in this case aggravated assault with a deadly weapon. That means the jury found that he intentionally shot his wife, and that led to her death.
Dani Jo Carter, a close friend of Diane McIver, was driving the couple’s Ford Expedition the evening of Sept. 25, 2016, as the three returned from a weekend at the McIvers’ horse farm about 75 miles (120 kilometers) east of Atlanta. Diane McIver was in the front passenger seat and Tex McIver was in the back seat behind his wife.
With traffic heavy on the interstate, Carter exited in downtown Atlanta. McIver said, “Girls, I wish you hadn’t done this. This is a really bad area,” and asked his wife to get his gun from the center console and hand it to him. A short while later, McIver fired the gun once, striking his wife in the back. Carter drove to a hospital where Diane McIver died.
