Fulton DA announces intention to retry McIver for murder

New filing suggests Fulton County will retry Tex McIver in shooting of his wife. (Bob Andres / bandres@ajc.com)

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New filing suggests Fulton County will retry Tex McIver in shooting of his wife. (Bob Andres / bandres@ajc.com)

The Fulton County District Attorney’s Office will retry former Atlanta lawyer Claud “Tex” McIver for the alleged murder of his wife Diane in September 2016, the office disclosed in a court motion filed Friday.

McIver, 79, was found guilty of his wife’s murder during a 2018 trial. But last month, the Georgia Supreme Court overturned the conviction on grounds jurors should have been allowed to consider convicting McIver of a lesser manslaughter charge.

In the court motion, Fulton prosecutors asked Superior Court Judge Robert McBurney, who oversaw the case, to set a trial date within 180 days. The office said it will retry McIver on three charges: felony murder, aggravated assault with a deadly weapon and possession of a firearm during the commission of a felony.

The DA’s office’s motion noted a jury “unanimously convicted McIver of intentional crimes of violence against his wife.” That fact “weighs heavily in the state’s consideration of how best to serve the interests of justice,” the motion said.

“The Supreme Court unanimously reversed the faulty conviction,” McIver’s lawyers, Don Samuel, Amanda Clark Palmer and Bruce Harvey, said in a statement. “Now, the prosecution brags that it is only seeking justice. It is better late than never, but justice would be recognizing that Tex McIver is entirely not guilty.”

Tex and Diane McIver were seen as a well-to-do power couple. He was a labor lawyer with deep ties to the state Republican Party. She was an executive at U.S. Enterprises and worked for years for influential businessman Billy Corey.

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Diane McIver

Diane McIver

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Diane McIver

After the state high court reversed McIver’s conviction, a large sign was put on Corey Tower, which overlooks the Downtown Connector not far from the state Capitol. It has a photo of a smiling Diane McIver that reads, “Justice for Diane.”

The killing occurred Sept. 25, 2016, when the couple returned to Atlanta from their Putnam County ranch. After they entered the city, McIver asked for his .38-caliber revolver from the center console because he thought they had driven upon a Black Lives Matter protest, according to testimony.

McIver, with the gun in a plastic bag on his lap, was sitting in the back seat behind his wife. Her best friend, Dani Jo Carter, was driving the Ford Expedition.

After they stopped at a traffic light on Piedmont Avenue, Tex McIver, who had fallen asleep, fired a shot through the front seat into his wife’s back. McIver directed Carter to take his wife to Emory University Hospital, where she died during surgery.

From the outset, McIver insisted the shooting was a tragic accident. But during the hotly contested trial, Fulton prosecutors convinced jurors that McIver was guilty of murder and claimed he had a financial motivation to do it.

ExploreComplete coverage of the Tex McIver case

In his opinion overturning the conviction, Chief Justice Michael Boggs wrote there was “thin” evidence of financial motive. “Indeed,” he wrote, “the state’s evidence of intent was weak, as no witness testified to any disagreement or quarrel between McIver and Diane, and many witnesses testified that they were very much in love.”

In their statement, McIver’s lawyers cited the strong language of the Georgia Supreme Court ruling. They also noted that the court ruled the prosecution improperly introduced evidence of Diane McIver’s second will, which was never found or even proven to exist. The ruling said the state cannot introduce evidence about it in a future trial.

In a retrial, jurors will be able to consider a misdemeanor manslaughter charge. That would allow them to decide whether McIver was criminally negligent when he fired the fatal shot.

The fifth season of The Atlanta Journal-Constitution’s Breakdown podcast — “The Tex McIver Murder Case” — covered the entire trial and the decision overturning the conviction.