Tex McIver murder retrial halted due to debate over evidence

‘We’ll figure out when we’re prepared to saddle up again and try this,’ judge says
Former attorney Claud “Tex” McIver, flanked by his lawyers Amanda R. Clark Palmer and Donald F. Samuel, watches prosecutors speak to Fulton County Superior Court Judge Robert C.I. McBurney during the first day of his murder retrial on Monday. The retrial was delayed indefinitely Tuesday.
Miguel Martinez /miguel.martinezjimenez@ajc.com

Credit: Miguel Martinez

Credit: Miguel Martinez

Former attorney Claud “Tex” McIver, flanked by his lawyers Amanda R. Clark Palmer and Donald F. Samuel, watches prosecutors speak to Fulton County Superior Court Judge Robert C.I. McBurney during the first day of his murder retrial on Monday. The retrial was delayed indefinitely Tuesday. Miguel Martinez /miguel.martinezjimenez@ajc.com

The murder retrial of former attorney Claud “Tex” McIver was indefinitely halted Tuesday, a day after jury selection began, so the Georgia Supreme Court can decide what evidence a jury can hear about McIver’s alleged intent to shoot his wife.

Prospective jurors were excused by Fulton County Superior Court Judge Robert C.I. McBurney, who said the decision to delay the trial was made Tuesday morning.

“We’ll figure out when we’re prepared to saddle up again and try this,” McBurney said.

The judge said he’d issue a written order preventing prosecutors from alleging at the retrial that McIver intended to kill his wife, Diane McIver, when he shot her in September 2016. That will limit the state’s evidence.

Prosecutors from the Fulton County District Attorney’s Office indicated they will appeal the order, teeing up a debate in the Supreme Court. A retrial would have to wait until the appeal is resolved.

Donald F. Samuel, one of McIver’s attorneys, told The Atlanta Journal-Constitution that he’s surprised the state plans to appeal McBurney’s “obviously correct” ruling.

McIver, 80, was acquitted at his first trial in 2018 of malice murder.

Samuel said the acquittal prevents prosecutors from arguing again that Diane McIver’s death was planned. He said the focus now turns to what evidence is relevant for retrial.

“What’s the relevance of a life insurance policy if the state can’t argue intent to kill?” Samuel said. “There’s some gray area of what does (McBurney’s) decision mean.”

Prosecutors declined to immediately comment on the case.

Samuel said he’ll again ask McBurney to grant bond for McIver, who turns 81 on Dec. 22.

“He’s now been in jail a year and three months after having served his time,” Samuel said.

In June 2022, the Supreme Court overturned McIver’s 2018 murder conviction and life sentence, ruling in large part that the jury in the first trial should have been allowed to consider misdemeanor involuntary manslaughter.

McIver faces retrial for felony murder, aggravated assault and an associated gun possession charge.

McBurney said the aggravated assault charge does not allege intent to kill.

Samuel said prosecutors should be barred from presenting any evidence at the retrial that McIver benefited financially from his wife’s death. The McIvers, who wed in 2005, maintained separate finances.

“It’s not relevant anymore,” Samuel told the judge.

McBurney pushed back on that theory, hypothesizing that McIver could have secured control over his wife’s assets if she was “incapacitated” as a result of being shot.

“She doesn’t need to die for there to be some financial benefit,” McBurney said. “If Mr. McIver has power of attorney, who knows what he’d be able to do.”

Rich, successful and politically connected, the McIvers were considered an Atlanta power couple. They had a luxury 3,400-square-foot condominium in Buckhead and an 85-acre ranch in Putnam County.

McIver was a partner at a national labor and employment law firm. Diane McIver, 64, had risen to the top of U.S. Enterprises Inc., after more than four decades with the real estate and advertising business founded by Billy Corey.

Claud "Tex" McIver and his wife, Diane McIver, are shown in an undated family photo. FAMILY PHOTO

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The shooting happened on Sept. 25, 2016, as the McIvers were being driven through downtown Atlanta, returning to Buckhead from their ranch. Diane McIver was in the front passenger seat of their SUV and McIver was seated directly behind her.

McIver allegedly fell asleep while holding his .38-caliber revolver. The gun fired as the SUV traveled along Piedmont Avenue near Piedmont Park, striking Diane McIver in the back. She later died at Emory University Hospital.

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