Fulton County prosecutors are requesting that the upcoming murder trial against Atlanta lawyer Claud “Tex” McIver be delayed until February or March over concerns that potentially critical evidence has yet to be examined.
McIver stands charged with intentionally killing his wife, Diane, on the night of Sept. 25, 2016, as they drove along Piedmont Avenue. He is scheduled to go to trial on Oct. 30.
McIver says the shooting was accidental – that he had fallen asleep with a gun in his lap and pulled the trigger after being jolted awake. (The bullet went through Diane McIver's back; she died hours later at Emory University hospital.) Prosecutors contend McIver, 74, wanted his wife dead and say there was a financial motive.
McIver's lead attorney, William Hill, said late Monday that the defense will agree to a continuance so long as McIver is allowed to be released on bond. For the past several months, McIver has been housed in the Fulton jail, his bond revoked after a gun was found in his Buckhead condo's sock drawer. A condition of McIver's bond was that he not possess a firearm.
“I am not the impediment” of the case being delayed so both sides will have more time to prepare, Hill said.
“But this was an accident,” he said. “Tex hurting Diane makes no sense. They loved each other. So if we have to strike a jury on the 30th, I’ll be ready. We are feverishly working on trial preparation. He is an innocent man who’s lost his wife in a tragic accident.”
Hill said, if the trial is delayed, McIver would agree to be held under house arrest at his ranch in Putnam County and be subject to electronic monitoring.
Hill noted that a clerk who works for Superior Court Judge Robert McBurney, who is presiding over the case, told both sides on Monday that the judge will agree to grant a continuance — but only if both the prosecution and the defense agree on conditions.
“The ball’s back in their court,” Hill said of the prosecution.
The McIver murder case is the subject of Breakdown, a podcast by The Atlanta Journal-Constitution. The first episode launched Monday.
In their motion, Fulton prosecutors noted that, in April, the state executed search warrants, seizing 30 banker’s boxes of documents from McIver’s Buckhead condo, electronic records and documents from Diane McIver’s storage unit.
Because many of the documents came from McIver’s law practice, they may contain privileged information. For this reason, an outside counsel was brought in to screen the records before the defense and prosecution could review them.
Because this independent review has yet to be completed, neither the prosecutor nor the defense “have been able to review any of the materials from the banker’s boxes or from the electronic devices,” the prosecution’s motion said.
“The state strongly believes that the sequestered materials contain critical, relevant and admissible evidence,” the motion said. “For instance, the state anticipates that many of the documents seized are personal and business papers belonging to the victim, which may very well contain evidence central to the state’s theory of the case.”
Moreover, prosecutors said, if the McIver’s lawyers do not have enough time to prepare, they will provide ineffective assistance of counsel. This can be grounds for a conviction to be reversed if McIver is found guilty.
The state’s surprise filing raises a number of questions: Why has more than a half a year gone by without a complete examination of the documents in all the seized boxes? And if the state is asking for a continuance, does this mean prosecutors are not ready to go forward in a case that was set to go to trial months ago?
Bruce Harvey, another one of McIver’s attorneys, disparaged the prosecution’s motion.
“I’m glad they are concerned with our representation,” he said. “Clearly, they are not ready to go forward.”
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