Several jurors said they had no idea McIver, 75, would spend the rest of his life in prison as a result of their decision and, had they known, they might have stuck to their guns and not agreed to a murder charge. This would have resulted in a hung jury and a mistrial.
Instead, their compromise verdict has sparked debate across the legal community about whether juries should know the possible punishment, and whether jurors, not judges, should be the ones deciding the sentence.
“Something needs to be changed, especially when you see what happened in the McIver case,” Atlanta criminal defense attorney Jack Martin said. “Compromise verdicts are never good. This is a problem.”
After deliberating over four days, the McIver jury declared it was deadlocked. At that time, some of the jurors told The Atlanta Journal-Constitution, seven jurors wanted to find McIver guilty of involuntary manslaughter. In other words, Diane McIver’s death was an accident, but it was caused by Tex McIver’s recklessness. That offense carries a maximum 10-year prison term. Five jurors wanted malice murder, an intentional killing that carries a mandatory life sentence.
» RELATED: The AJC's award-winning 'Breakdown' podcast, Season 5: The McIver Trial
After Superior Court Judge Robert McBurney told jurors to continue deliberations, both sides found a middle ground: felony murder. Under Georgia law, this means someone is killed during the commission of a felony. In this case, the felony was aggravated assault, in which McIver intentionally shot his wife with a handgun.
Both malice murder and aggravated assault are crimes of intent, said Paul Kurtz, a former University of Georgia law school professor who taught criminal law.
“They are essentially the same crimes,” he said. “He pulled the trigger to kill and he killed. How you could convict him of aggravated assault in this case and acquit him of malice murder just makes no sense.”
‘I have great faith in juries’
Decades ago, Georgia juries imposed sentences after finding someone guilty. But this changed in 1974 when lawmakers turned over that responsibility to judges. Any change would need to come from the state Legislature.
Former Gov. Roy Barnes, a Marietta attorney, tried some cases under the old rules. After a jury would find a defendant guilty, he said, the prosecutor could tell jurors the defendant’s prior record and the defense lawyer could submit evidence of mitigating factors.
Once the jury imposed the sentence, that was it, Barnes said. The judge couldn’t change it.
“I have great faith in juries,” Barnes said. “Jurors could be a lot more merciful than the judges. They could load up punishment for those who really deserved it, but they could cut defendants a break if they thought it was warranted.”
Jurors still impose the sentence in six states — Arkansas, Kentucky, Missouri, Oklahoma, Texas and Virginia — according to the National Center for State Courts.
Judge Stephen Kelley, who chairs of the Council of Superior Court Judges.
Judge Stephen Kelley, a former prosecutor in Brunswick, said allowing juries to impose a sentence is “a two-edged sword.”
“It may help the jury in some respects,” said Kelley, who chairs the Council of Superior Court Judges of Georgia. “But it’s really not relevant. The jury’s job is to decide whether the state has proven guilt beyond a reasonable doubt.”
The U.S. Supreme Court stated as much in 1994. That’s when it upheld a judge’s refusal to let a Mississippi jury know that the defendant at trial would be involuntarily committed if they found him not guilty by reason of insanity.
The jury’s function is to find the facts and, based on those facts, decide whether the defendant is guilty as charged, Justice Clarence Thomas wrote for the 7-2 majority. “(P)roviding jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their fact-finding responsibilities and creates a strong possibility of confusion.”
In a world not governed by human nature, that makes perfect sense. But in a world in which decisions have consequences, jurors quite naturally want to know what impact their verdict might have.
Retired Fulton County Judge Wendy Shoob certainly felt that way.
‘Why shouldn’t they know?’
While Shoob was still on the bench, if a case in her courtroom involved both malice and felony murder charges, Shoob would tell jurors that both offenses carried the same life sentence. This practice didn’t seem to bother Fulton prosecutors, Shoob said.
But a nasty feud erupted between Shoob and the district attorney's office in March 2015 in a trial against a man charged with using an air gun to commit a robbery. Jarvis Taylor had three prior felony convictions, leading the DA's office to charge him under Georgia's recidivist law.
This meant Shoob’s hands would be tied at sentencing if Taylor were convicted of armed robbery. Because of the earlier felonies, she would have to sentence him to life in prison without the possibility of parole.
Wendy Shoob, now retired, when she sat as a Fulton County Superior Court judge.
Shoob had encouraged prosecutors to work out a plea deal so the mandatory sentence would not come into play. When they refused, Shoob told the jury if they convicted Taylor of armed robbery, she would have to give him life without parole.
The DA’s office filed an emergency motion, asking the Court of Appeals to halt the jury’s deliberations. But the court refused to step in.
When the jury returned its verdict, it acquitted Taylor of armed robbery and found him guilty of the lesser offense of robbery. Shoob then sentenced Taylor to 10 years in prison.
“In a case like that, the jury is really making the sentence without even knowing it,” Shoob said. “Why shouldn’t they know it? I think they should do what they feel is the right result. They should know.”
Burden of proof
Don Samuel, a member of McIver’s defense team, said if he could cherry-pick the cases in which juries get to find out about possible punishment, that would be fine by him.
But in all cases? Probably not, he said.
“Why add that to the mix when their real job is to determine whether the state met its burden of proof?” Samuel asked. “If you do, you’ll have juries making decisions based on facts that aren’t appropriate for guilt or innocence. Maybe the better solution is to get the judge to tell the jury there should never be any compromise verdict.”
Jurors deliberated for days to come up with the verdict.
During McIver’s trial, Samuel openly fretted that the jury would compromise and find McIver guilty of felony murder. During his closing argument, Samuel tried to let the jury know they wouldn’t be cutting his client a break by doing that.
“It’s the same as (malice) murder — no different,” he said.
At the end of the case, Samuel noted, the defense asked Judge McBurney to allow the jury to consider a second manslaughter charge — a misdemeanor version of involuntary manslaughter. But McBurney denied that request.
“If the jury could have had that option, we absolutely didn’t want them to know that Tex could get no more than 12 months if they convicted him of that,” Samuel said. “The jury may not have thought that was enough time. … So a lot of times it works in our favor if they’re not told. It’s best when they’re left in the dark.”
HOW KENTUCKY EMPOWERS JURIES
In Kentucky, juries not only get to sentence criminal defendants, they also get to know the range of prison time a defendant can get before the first witness takes the stand.
“There’s none of this, ‘I didn’t know what the punishment could be,’ by jurors after their verdict,” said Ernie Lewis, who once headed Kentucky’s public defender system. “They are told the full range of penalties during jury selection.”
Kentucky is one of six states that allow juries to sentence defendants. And when this happens in Kentucky, a judge can only reduce a jury sentence, not increase it.
In a 1991 decision, the Kentucky Supreme Court reaffirmed a jury’s right to know all that’s in store for a defendant, punishment-wise, if the jury votes to convict. “We remain convinced that, in all criminal cases, the right to a fair and impartial jury requires the jury to possess the ability to consider the full range of penalties,” the court said.
Even though jurors can get inflamed and hand down harsh sentences in some cases, “I tend to like jury sentencing,” said Lewis, now executive director for the National Association for Public Defense.
For example, if a defendant declines to plead guilty and instead goes to trial and is convicted, some judges will exact a “trial penalty” when imposing sentence, Lewis said. But juries do no such thing.
Also, judges often worry about the political ramifications if they impose what could be considered a lenient sentence. “Juries don’t have to run for re-election,” Lewis said.