‘Breakdown’ S05 Ep. 10: Some surprises from the defense

Tex McIver’s fate will almost certainly be in the hands of the jury sometime this week.

The new episode of our Breakdown podcast, which went live early Monday, explores how McIver’s murder trial came to this pass — the weeks of prosecution testimony vs. the days of defense testimony.

» Full season of the 'Breakdown' McIver podcast

The state rested last week after calling more than 70 witnesses. Fulton County Chief Assistant District Attorney Clint Rucker at various times had a gurney with a mannequin rolled into the courtroom; he had a full-size replica of the interior of the McIvers’ Ford Expedition erected in court; he piled Tex McIver’s dozens of guns on a table in front of the jury; and he brought in a dummy with holes in the front and back – the same locations as Diane McIver’s entrance and exit wounds.

The defense, meanwhile, rested on Friday after 2 1/2 days. The prosecution is expected to call rebuttal witnesses Monday.

McIver’s team put up a sleep expert, who explained how REM behavior disorder works. Most of us don’t move a great deal while asleep: our dreams are inside our heads, walled off from the physical world. But people with RBD, according to Dr. David Rye’e testimony, break through that barrier, sometimes acting out in the physical world what they’re experiencing in the dream world.

» Closing arguments set for Tuesday 

Rye cited the example of a French former national soccer player not only kicking in his sleep but celebrating with upraised arms when he dreamed of scoring a goal. The doctor also said that REM behavior disorder can be hazardous to both the person acting out the dream and anyone in the same bed. He cited black eyes and broken bones, among other consequences.

Tex McIver has been diagnosed with REM behavior disorder. His implication was that the shooting of Diane McIver could have resulted from McIver jerking the gun in his lap while sleeping.

» Photos: The witnesses in the Tex McIver trial

The defense also put up the estate attorney who handled Diane McIver’s will. Stan Smith testified that the estate didn’t have the cash to cover about $350,000 in cash bequests that Mrs. McIver provided for. Smith says he recommended to Tex McIver that he catalog and sell off Diane’s clothing, jewelry and furs to raise cash for the estate.

This was critical, because McIver has been condemned for auctioning his wife’s belongings. Smith also said he advised McIver to move quickly on the sale.

“Her clothing was stylish clothing,” Smith said. “To the extent you waited until the next year, they could be out of style, and the value would go down very quickly. Secondly, I understood them to be primarily winter clothes. You’re going to get a much better price if you sell them during the winter than if you wait and try to sell them during the summer. Especially with regard to the furs. She had 137 furs.”

Episode 10 of “Breakdown” is available at Apple Podcasts, on Stitcher or on your favorite podcast platform. Or you can stream it directly from the AJC website, right here, right now: