In a search of Claud "Tex" McIver's condo in April, the Fulton County district attorney's office seized some 30 boxes of documents, a computer hard drive and other electronic devices. McIver's attorneys went ballistic, saying the search was illegal and that the DA took material protected under attorney-client privilege, such as defense team emails, strategy outlines and witness interviews on the murder case against the Atlanta attorney.
Days later, defense attorneys filed objections and a judge ordered all of the materials hauled to the courthouse, where they have remained under lock and key. Since then, the DA and the defense have been locked in a court battle over whether the search was illegal and a violation of attorney-client privilege. Friday marked the latest round in court.
But another question looms: Exactly how many of those files did the DA’s office view before handing them over to the judge?
The answer could have a bearing on the criminal trial of the man accused of murdering his wife, business executive Diane McIver. The couple were riding in their SUV in September when Tex McIver shot and killed his wife. He says he pulled the trigger by accident, but he is facing charges of malice and felony murder.
McIver attorney William Hill said he suspects the DA's office reviewed many of the documents, some that he believes were protected under attorney-client privilege and others that exceeded the scope of the search warrant. That, he said, would provide the prosecution an incredible advantage at trial. So much so, he added, that it would violate McIver's right to a fair trial.
"The district attorney has unlawfully seized and reviewed at least some of Mr. McIver's privileged and protected documents and communications," Hill wrote in a court motion. "Such continued action by the district attorney will alter the status quo to the irreparable detriment of Mr. McIver's Sixth Amendment rights to a fair trial."
In the DA office’s written court response, it denies the allegations and that it violated McIver’s right to a fair trial.
Assistant District Attorney Clint Rucker on Friday declined to discuss the case with The Atlanta Journal-Constitution.
At a court hearing in April, Rucker had said, “I have no intention of viewing any confidential work product materials between your client Claud Lee McIver III and his attorneys.” Neither, he added, will his staff review them.
In the high-profile McIver case, the controversy over the condo search has percolated on the back burner, behind issues such as the discovery of a gun in his condo in April, which occurred during a search by the DA.
Esther Panitch, an Atlanta criminal defense attorney who has closely followed the case, said it’s too early to tell how the condo search will impact the case.
“All interceptions of attorney-client privilege are bad and should never occur,” Panitch said.
She added, "It's likely that anything that was seized and was attorney-client privileged will not be entered into evidence."
But Hill, she added, has a long way to go before he can convince a judge to remove the Fulton DA from prosecuting the case. Hill said he plans to request that.
“Hill has to prove that something intentionally bad occurred, and that might be hard,” she said.
The DA's office obtained the warrant to search McIver's condo in mid-April, asserting that it might contain evidence that Diane McIver had recently created a second will. The warrant allows the DA to search for "evidence relating to the joint and individual business and personal finances of Landa Diane Smith McIver and Claud McIver III, and/or Landa Diane Smith McIver's estate."
McIver's defense team pointed out that no second will has emerged.
For now, the seized documents remain in the court’s possession. Friday was the deadline for the parties to exchange evidence as part of discovery, and none of those materials were included in the exchange.
For now, the battle over the condo search is playing out in Fulton County’s civil court before Judge John Goger. McIver’s attorneys had filed a separate lawsuit there against the DA, apart from the criminal case.
On Friday, Judge Goger directed the two sides to move toward a compromise. The DA will have an outside attorney, Anita Wallace Thomas, search through the materials and filter out those that come under attorney-client privilege.
Even then, the matter will hardly be settled. No documents will change hands, Hill said.
That is because Goger is awaiting the outcome of a similar motion filed by Hill in criminal court, Hill said. His motion asserts that the condo search was illegal and that everything seized should be withheld from the trial.
Fulton County Superior Court Judge Robert McBurney is hearing the criminal case.
The next court date is Aug. 25. McIver's trial is set for Oct. 30.
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