The defense renewed its motion for a directed verdict but the judge denied it.

McIver defense rests; prosecution rebuttals come next

The defense in the Claud “Tex” McIver murder trial rested Friday after just two and a half days — a mere fraction of the time the prosecution spent arguing that McIver intentionally killed his wife with a bullet to the back during a car ride in September 2016.

A swift defense is not unusual in high-profile cases such as this one. The defense has no burden of proof. And “you never want to call a mediocre witness,” said Atlanta criminal defense attorney Page Pate, who has been following the trial as an observer.

Claud “Tex” McIver watches as his defense attorneys pass around questions posed by the jury during Day 19 of his trial before Fulton County Superior Court Chief Judge Robert McBurney on Friday, April 13, 2018. (ALYSSA POINTER/ALYSSA.POINTER@AJC.COM)

Pate said he thinks McIver’s lawyers — Bruce Harvey, Don Samuel and Amanda Clark Palmer — “did a great job framing their case.”

Now the prosecution will respond with rebuttal witnesses on Monday.

The defense started on a high note this week when the judge threw out two of the three “influencing a witness” charges on Wednesday. If McIver had been convicted on those charges, the 75-year-old attorney would have faced up to five years in prison on each count.

Then the defense team tackled two issues that have been presented as contributing factors in the fatal shooting — the defense’s contention that McIver’s alleged sleeping disorder played a role, and the prosecution’s implication that McIver was having an extramarital affair with Annie Anderson, a masseuse who’d worked for the McIvers for years.

Anderson’s testimony on Thursday was essential on both fronts.

The prosecution has questioned why Anderson maintained a constant presence at Tex McIver’s side in the week following his wife’s death.

But Anderson was adamant in her defense that she has never been sexually involved with McIver — “1,000 percent never.”

She testified that she stayed in Tex McIver’s bedroom on the night after Diane’s death to keep tabs on him, at his doctor’s request.

“We knew we needed to watch out for Tex because he had an anxiety attack at the hospital,” Anderson testified. She said they monitored him constantly “because we honestly didn’t know what state of mind he had.”

She said she accompanied McIver to his interview with police, and later to his Putnam County ranch, for one reason: The medication he was taking precluded him from driving.

Fulton County Chief Assistant District Attorney Clint Rucker questions the results of the crime scene analysis during Day 19 of the Tex McIver murder trial in Fulton County Superior Court on Friday, April 13, 2018. (ALYSSA POINTER/ALYSSA.POINTER@AJC.COM)

During a spirited back-and-forth on Thursday in Fulton County Chief Judge Robert McBurney’s courtroom, the prosecution denied ever suggesting that McIver and Anderson were having an affair.

But defense co-counsel Samuel said, “Had we not called Annie Anderson to the stand … I guarantee 12 out of 12 jurors would have thought he was having sex with the masseuse.”


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Anderson’s testimony also buttressed the defense team’s contention that McIver has a sleeping disorder that likely caused him to inadvertently pull the trigger on his .38 revolver, sending a fatal bullet into his wife’s back.

Anderson said McIver almost always fell asleep during massages and would routinely flail his arms or punch his fist when he’d wake up.

On Friday, April 13, 2018, defense attorney Bruce Harvey demonstrates with his hand how the gun used in the fatal shooting of Diane McIver may have been held. This was Day 19 of the Tex McIver murder trial in Fulton County Superior Court, and the defense rested its case. (ALYSSA POINTER/ALYSSA.POINTER@AJC.COM)

That was consistent with testimony Wednesday from Emory University professor of neurology David Rye, who specializes in sleep disorders. He said McIver first sought treatment for his sleeping issues in 2004 — a year before he married Diane — at the Mayo Clinic in Jacksonville, Fla.

Rye said he examined McIver in January and diagnosed him with REM behavior disorder, which causes sufferers to act out their dreams. He said McIver once fell asleep in just two minutes during testing at Emory. Another time, Rye said, McIver fell asleep for a nap in five minutes and “fell directly into a dream,” or REM sleep.

Crime scene analyst Ross Martin Gardner, left, hands back the gun used in the shooting of Diane McIver to Fulton County Chief Assistant District Attorney Clint Rucker during Day 19 of the Tex McIver murder trial in Fulton County Superior Court on Friday, April 13, 2018. (ALYSSA POINTER/ALYSSA.POINTER@AJC.COM)

On Monday, the state will call its own sleep expert to rebut Rye’s testimony. Lead prosecutor Clint Rucker will also call Putnam County Sheriff Howard Sills, who allegedly advised McIver that being alone with Anderson at his ranch didn’t look good.

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