Fifty prospective jurors were questioned Monday by McBurney and the lawyers in the case. Eight indicated they had already made up their mind, without revealing whether they think McIver is guilty or not.
Another 50 Fulton County residents are due to go through jury selection Tuesday.
The retrial is expected to take up to three weeks. Opening statements and the start of witness testimony is likely to come Wednesday or Thursday.
McIver was acquitted at his first trial of malice murder. He maintains that the shooting, which happened in Atlanta on Piedmont Avenue between 10th and 14th streets, was an accident.
McBurney, who oversaw the first trial, indicated just before jury selection on Monday that he’s unlikely to let prosecutors argue in the retrial that McIver intended to kill his wife. The judge seemed to agree with McIver’s attorneys that the malice murder acquittal in 2018 bars that argument.
McBurney said the state could still use its evidence to argue that McIver intended to shoot his wife in order to gain control over her and her assets. The McIvers, who wed in 2005, maintained separate finances.
“It would seem like the state could argue that Mr. McIver wanted his wife out of the way,” McBurney told the lawyers in the case.
Prosecutor Kevin Armstrong said the state would likely appeal a ruling that barred it from using key evidence. An appeal would delay the retrial.
Donald F. Samuel, one of McIver’s lawyers, said prosecutors can argue that McIver intended to shoot his wife, but not that he intended to kill her.
“That issue is off the table now,” Samuel said. “The jury (in the first trial) rejected malice murder. They unanimously agreed there was no intent to kill.”
Before jury selection began, McBurney gave McIver a last-minute opportunity Monday to consider resolving the case without trial.
McIver said he chose to go ahead with the trial “at this point.”
Of the 50 prospective jurors questioned Tuesday, 30 indicated they had fired a gun. Several told McBurney it would be physically difficult for them to serve as a juror through Dec. 22, and 14 indicated that the task would be a serious hardship or burden.
Eight of the potential jurors flagged that they had in some way supported the Black Lives Matter movement.
Diane McIver was fatally shot on Sept. 25, 2016. The McIvers were being driven through downtown Atlanta, returning to their Buckhead condominium from their Putnam County ranch.
McIver asked his wife to retrieve his .38-caliber revolver from the center console of their SUV as he thought they might encounter Black Lives Matter protestors and had safety concerns, according to testimony from the first trial. McIver, who had fallen asleep, fired a shot through the front passenger seat and into his wife’s back.