Judge: Strong bias against Tex McIver could force change of venue

Of the 48 people questioned, 27 indicated some sort of bias or prejudice against McIver, who is also charged with attempted bribery, obstruction and three counts of influencing witnesses. Prosecutors contend that when McIver fatally shot his wife in September 2016, it was financially motivated murder. The defendant says it was an accident.

No one had raised the possibility of a change of venue before. Clearly, many metro Atlantans have followed the case and, based on the questioning of prospective jurors, it appears that few think Diane McIver’s death was accidental.

The 64-year-old advertising executive was shot by her husband as she sat in the passenger seat of the couple’s Ford Expedition. McIver, now 75, says he fell asleep in the back seat while holding his .38-caliber Smith and Wesson in his lap and pulled the trigger unintentionally and unknowingly.

One potential juror after another has expressed skepticism about that part of McIver’s story.

“My opinion is Mr. McIver is guilty of killing his wife,” said Juror 56. “I own 39 guns and I know they don’t just go off.”

Juror 32 concurred, saying she found it difficult to believe the shooting wasn’t premeditated.

“I grew up around hunting with my family,” she said. “It was just not that easy to shoot a gun, to me. You had to think about it. You had to pull the trigger.”

Meanwhile, the issues that many feared might affect jurors' opinions — including the controversial estate sale of Diane McIver's jewels and clothing a few months after she died and her husband's decision not to call 911 after the shooting — have yet to be raised.

It has become clear the defense has a bigger challenge ahead than many had anticipated.

“I’m really surprised the feelings against him are so strong,” said Dunwoody attorney Esther Panitch, who has closely followed the McIver case.

Panitch said she wouldn’t read too much into the judge’s comments about a possible change of venue.

“He just doesn’t want anyone to be caught off guard,” she said. “It’s too soon to know for sure. You can’t call something a trend when you’ve heard from just two panels.”

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But more people from the second panel of potential jurors indicated some sort of bias or prejudice against McIver than the first. Thus far, more jurors have been excused than have been brought back for a second round of questions.

If that pattern continues, a venue change becomes a more realistic option, Panitch said.

Such a decision wouldn't be made cavalierly. The McIver trial has already been delayed once. And it wouldn't come cheaply. For example, moving the Justin Ross Harris hot car death trial from Cobb County to Brunswick cost taxpayers $149,000.

Forty-two prospective jurors must be qualified from the pool, from which 12 jurors and four alternates will be selected. So far 41 jurors have been struck for cause or hardship while 35 remain eligible to serve. Jury selection resumes Wednesday.

Stay with The Atlanta Journal-Constitution for every twist and turn in the Tex McIver murder trial. We’ll provide minute-by-minute courtroom action as well as in-depth legal analysis of what it all means. Find links to our daily coverage, the “Breakdown” podcast, and previous stories at our website, myajc.com/crime

THE STORY SO FAR:

Judge Robert McBurney raised the possibility of a change of venue because of the difficulty in finding impartial or unbiased jurors. Moving the trial remains unlikely, but the mere suggestion came as a surprise. Several prospective jurors have said they don’t believe Tex McIver shot his wife accidentally, as he claims.

WHAT’S NEXT:

Jury selection resumes Wednesday and will likely continue into Thursday.