The court again made headlines days after that decision in overturning the conviction of McIver, a prominent Atlanta attorney who fatally shot his wife from the backseat of an SUV.
In its unanimous ruling, the court said jurors should have been allowed to consider a misdemeanor involuntary manslaughter charge at trial, not just a murder charge. This would have given the jury a chance to decide whether McIver was criminally negligent when he fired the shot, not only whether he intended to kill Diane McIver.
The shooting occurred Sept. 25, 2016, as the couple returned home to Atlanta from their 84-acre ranch in Putnam County. 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, who had the gun in a plastic bag on his lap, was seated behind his wife when the revolver discharged. Her best friend, Dani Jo Carter, was driving the Ford Expedition.
Former DeKalb District Attorney J. Tom Morgan said he agrees with the Georgia Supreme Court. In McIver’s case, Morgan said he wouldn’t be surprised if Fulton County prosecutors decide not to retry the 79-year-old, opting instead to accept a guilty plea on lesser charges.
“The court basically said there was very thin evidence supporting the conviction,” said Morgan, who served as DeKalb’s DA from 1992 to 2004. “As far as a retrial, I think there could be some serious negotiations.”
If McIver meant to kill his wife, he said, it was “the most bizarre decision” to fire a weapon through the front seat of an SUV as her friend drove.
“From the get-go, I always thought it was reckless,” Morgan said, but he couldn’t understand why McIver was charged with malice murder to begin with.
The jury acquitted McIver of malice murder — that he intentionally meant to shoot and kill his wife, but convicted him of felony murder, with the underlying felony being aggravated assault — that he intentionally shot his wife.
Clint Rucker, the lead prosecutor in McIver’s case, said he stands by his work.
“Given the political climate” he doesn’t want to deconstruct the high court’s ruling because Fulton DA Fani Willis must decide whether to retry the case.
“I rest on the decision the trial jury made,” he said.
Rucker also noted the state’s case “was not weak to the jury” that convicted McIver of murder.
In the Harris case, prosecutors used evidence of the web developer’s extramarital affairs to establish motive, arguing he left his son in his car seat to die so he could get out of his marriage and pursue relationships with other women. They were allowed to introduce testimony showing Harris slept with prostitutes and sent graphic texts and photos to minors.
Credit: Kelly J. Huff/Marietta Daily Jou
Credit: Kelly J. Huff/Marietta Daily Jou
Without such evidence, Morgan said it will be much harder to convince a jury that Harris left his son in the back seat on purpose when he went to work at Home Depot’s corporate office that morning.
“The state convincingly demonstrated that (Harris) was a philanderer, a pervert and even a sexual predator,” Chief Justice David Nahmias wrote in the court’s 134-page opinion. But he said the evidence “did little if anything to answer the key question of (Harris’) intent when he walked away from Cooper.”
The court upheld convictions against Harris for exchanging graphic text messages to an underage girl, for which he was sentenced to 12 years in prison.
Morgan said evidence of the extramarital affairs tainted the jury and should have never been permitted.
“Nahmias hit the nail on the head,” he said. “They proved he was a pervert, a philanderer. But that has nothing to do with with whether or not he intended to murder his child by leaving him in a hot car.”
Plenty of people have extramarital affairs, the former prosecutor said. That doesn’t mean they think about killing their children.
In 2000, Morgan unsuccessfully tried a DeKalb woman who forgot to drop her 1-year-old grandson off at day care and left him in a hot car when she went to work. A jury acquitted the grandmother on a murder charge.
Harris’ ex-wife, Leanna Taylor, said after the decision that Harris was a loving and proud father to Cooper.
“At the same time, Ross was being a terrible husband,” said Taylor, who supported her husband during his trial. “These two things can and did exist at the same time.”
Former Gwinnett County DA Danny Porter said he thought prosecutors were “walking a fine line” in introducing other bad acts as character evidence.
Pate, who agrees with both of the high court’s rulings, said he thinks Cobb prosecutors will likely retry Harris’ case in the hope they can secure another murder conviction, even without the character evidence.
Given how difficult it was for the jury to reach a unanimous verdict at McIver’s trial, however, Pate said he wouldn’t be surprised if a plea deal is reached on lesser charges.
“Given the man’s age, the fact that he’s serving a sentence and the fact that a conviction on a retrial is far from guaranteed, I think you may just let that one go,” he said.
The court upheld McIver’s conviction for influencing a witness. For that, he was sentenced to 5 years in prison. As of this week, he has served 4 years and 10 months in custody, his lawyers said.
Longtime defense attorney Dwight Thomas said he was surprised Fulton County prosecutors secured a murder conviction against McIver in the first place. He always thought McIver’s conviction would be overturned on appeal, especially since the jury wasn’t allowed to consider lesser charges during deliberations.
“When I learned that the judge did not give the jury that option, I figured that might be a problem,” he said.
— AJC columnist Bill Torpy contributed to this article.