Murder trial 2.0: How the Tex McIver retrial may differ from the first

Judge likely to limit key evidence in new trial over the shooting death of Diane McIver
Tex McIver, flanked by his lawyers, will return to Fulton County Superior Court Judge Robert C.I. McBurney's courtroom Dec. 4 for the start of his murder retrial.

Tex McIver, flanked by his lawyers, will return to Fulton County Superior Court Judge Robert C.I. McBurney's courtroom Dec. 4 for the start of his murder retrial.

Claud “Tex” McIver will be in familiar territory when he enters a downtown Atlanta courtroom Monday for his retrial in the fatal shooting of his wife.

The 81-year-old former attorney is being retried on felony murder and associated charges, though he maintains he accidentally shot corporate executive Diane McIver in the back as they were being driven through Atlanta by her best friend in September 2016.

But this time, some of the key evidence that led to his felony murder conviction and life sentence in 2018 is likely to be left out after the Georgia Supreme Court struck down that earlier conviction.

Noting Supreme Court instructions, Fulton County Superior Court Judge Robert C.I. McBurney indicated last week that he’s inclined to take some of the sting out of the state’s case. That is unless it can further support the theory that McIver intentionally killed his wife for financial gain.

The judge also appeared to agree with McIver’s attorneys that McIver’s 2018 acquittal of malice murder bars prosecutors from again suggesting that Diane McIver’s death was planned. That’ll be hashed out in oral arguments before opening statements, McBurney said.

He added that the relevance of evidence about McIver benefiting financially from his wife’s death turns on the state’s ability to allege the shooting was intentional.

It’s a case like no other.

Rich, white, professionally 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.

The McIvers wed in November 2005, each having been married previously. They kept separate finances.

McIver’s lawyers claimed the couple were madly in love and that the shooting was a tragic accident. They told the jury in 2018 that Diane McIver was worth more to her husband alive than dead — a theory somewhat challenged by McIver’s controversial decision to publicly auction her vast belongings shortly after her death.

Prosecutors pointed out that McIver’s six-figure salary was dwindling as he neared retirement in 2016 and that he owed hundreds of thousands of dollars to his wife, whose higher income remained steady. The state suggested Diane McIver had prepared a new will disfavoring her husband, though the document was never produced.

In June 2022, the Supreme Court overturned most of McIver’s convictions, ruling in large part that the jury should have been allowed to consider a misdemeanor involuntary manslaughter charge. The high court also took issue with some of the evidence admitted in the first trial.

 Diane McIver. File photo

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McBurney acknowledged in his latest order that the state’s evidence in 2018 of a second will was “not particularly strong” and that prosecutors failed to show McIver knew of it. He said the elusive will cannot be mentioned in the new trial unless the state first shows, outside the presence of the jury, that McIver thought his wife planned to reduce his bequeathment.

McBurney also barred prosecutors from referring in the second trial to Georgia’s “slayer statute,” which prohibits murderers from benefiting from their victim’s estate.

Whether prosecutors can again allege that McIver purposely hindered his wife’s treatment after shooting her remains to be seen.

The shooting occurred in the late evening of Sept. 25, 2016, as the McIvers were traveling in their SUV along Piedmont Avenue, near Piedmont Park. They were returning to their Buckhead home after a weekend at their ranch.

After shooting his wife inside the vehicle, McIver told her best friend to drive them to Emory University Hospital on Clifton Road in North Decatur, almost 4.5 miles away. He did not call 911.

The fact that Grady Memorial Hospital, a Level 1 trauma center, and other hospitals were closer to the shooting location can only be introduced at the second trial if the state can show beforehand that McIver knew when he shot his wife that Grady would have been a better option. If McIver testifies, the state could raise it on cross-examination.

McIver did not testify in the first trial. His attorneys recently revealed that his health is deteriorating and he has problems with his memory and ability to communicate logically.

McIver’s questionable conduct at the hospital, where his wife later died, can be put to the new jury, McBurney ruled. Several witnesses testified in 2018 that McIver did not show traditional signs of grief, appearing instead to plot his response with a lawyer friend he had called to the hospital.

McIver’s alleged attempts to influence witnesses and avoid prosecution with bribery can also be revealed in the new trial, McBurney decided.

The judge said prosecutors can also suggest in the second trial that McIver was motivated to shoot his wife because of an extra-marital affair, but only if they first show supporting evidence that’s not merely speculative.

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