It’s a long shot, but attorneys for Claud “Tex” McIver are trying to appeal a Fulton County judge’s denial of bond to the prominent attorney charged with murdering his business executive wife.
His attorneys filed an application Thursday with the Georgia Supreme Court to appeal the June 13 denial of bond by Fulton County Superior Court Judge Robert McBurney.
Credit: John Spink
Credit: John Spink
Stephen Maples, one of McIver's attorneys, said the judge had made "errors of law" in denying bond to the 74-year-old, who is charged with fatally shooting his wife while they were driving near Piedmont Park in September. McIver has said the shooting was an accident.
But the state Supreme Court rarely agrees to even hear such requests, as it most often defers such decisions on pre-trial bond to the local judge, said Scott Key, a metro area criminal defense attorney who specializes in appeals.
“They are not going to second-guess the decision if there is any evidence to support it,” Key said. “It would have to be an error that would affect the trial itself.”
In denying McIver's release from jail, McBurney ruled that McIver poses "a significant threat" to himself and to others. The judge also ruled that McIver has attempted to influence the outcome of his case by talking to potential witnesses, or the people who influence them.
McIver had actually been free on bond when prosecutors, acting on a warrant, discovered a handgun in a sock drawer of his Buckhead condo in April. That was a clear violation of his bond conditions, prompting the judge to revoke his bond. Prosecutors then escalated the charges against him from involuntary manslaughter, a charge which indicates authorities believe the death was accidental, to malice murder and attempting to influence witnesses.
Maples said that prosecutors had illegally searched and seized materials from McIver’s condo, in that they took things that exceeded the scope of the warrant. Also, he said the judge looked to the grand jury’s recommendation against bond, when that recommendation exceeded the authority of the grand jury.
"The trial court therefore manifestly and flagrantly abused its discretion in denying Mr. McIver's motion for bond," the defense said in the appeal application.
The Fulton County district attorney's office did not respond to requests for comment Friday. The DA has yet to file a response to the appeal application, but in prior court papers prosecutors have denied that they illegally seized any materials from McIver.
Prosecutors allege that McIver had a financial motive for killing his wife. They have suggested that Diane McIver had a second will that was not as generous to her husband. But there has not been any evidence made public that they have found such a document.
Staff in McBurney’s office said the judge does not discuss ongoing cases.
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