Around 2 p.m. Monday, after more than 27 hours of deliberations, jurors in the Claud “Tex” McIver murder trial told Judge Robert McBurney they were hopelessly deadlocked.
But less than two hours later, the 7-woman, 5-man panel came back with a verdict few expected: Guilty of felony murder, and three of the remaining four counts. He was acquitted of malice murder, the most serious charge, but that comes as little solace for the 75-year-old attorney, who faces a mandatory sentence of life in prison for the other murder conviction.
Known as “The Fixer” because of his ability to grease the wheels of bureaucracy and get things done, McIver appeared stunned as he was handcuffed by a Fulton County sheriff’s deputy and led from the courtroom following the verdict. McIver had lived a mostly charmed existence until the evening of September 25, 2016, when he shot his wife Diane in the back as they were being driven near Piedmont Park. He claimed it was an accident. Jurors didn’t buy it.
“It definitely took a lot of compromise on both sides,” said juror Aubrey Gray, who added he went back and forth over McIver’s guilt.
“There was definitely a point where we did not think we were going to get to guilt or innocence,” Gray said. “But luckily, the judge told us to rethink what we were doing and we got to a point where all the jurors were able to compromise, specifically look at the evidence, take away any of the emotion we had, and come up with the verdict of guilty on four of the five counts.”
It was a compromise that, legally, didn’t make much sense. Jurors found him guilty of aggravated assault and not guilty of malice murder, both of which require intent. In other words, he shot her on purpose but didn’t murder her intentionally.
McIver’s supporters — including Anne Schwall, the mother of his godson Austin, and Annie Anderson, his personal masseuse who was forced to testify about an alleged affair that wasn’t — were caught off guard, optimistic before the verdict, overcome with emotion afterward. They ran out of the courtroom in tears as McIver, appearing especially helpless, tried to make eye contact.
Though his defense team was bitterly disappointed they were not altogether surprised by the jury’s decision. They had expressed concern during deliberations that the jury would somehow reach a compromise and convict McIver of felony murder if they couldn’t convict him of malice murder.
“It just shows the power of emotion over reason,” defense co-counsel Bruce Harvey said as he left the courthouse.
For Fulton County District Attorney Paul Howard and lead prosecutor Clint Rucker, McIver’s conviction was a huge victory, defying widespread skepticism in Atlanta’s legal community that their case was unwinnable.
They were accusing McIver of planning a murder that he couldn’t entirely plan. The decision to exit on Edgewood Avenue, which prompted Tex to ask for his gun, was made by Dani Jo Carter, who was chauffeuring the McIvers that night.
“Really? He planned there would be traffic (on the Connector)?” said Noah Pines, a criminal defense lawyer and former prosecutor who followed the trial closely. “He planned they would pull off (on Edgewood Avenue)?”
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But as was the case in the 2016 hot car death trial, emotion, or lack thereof, played a major role in the jury’s decision. Justin Ross Harris did not appear sufficiently upset over the death of his son, Cooper, and he was sentenced to life in prison. The same fate now awaits Tex McIver, who seemed more preoccupied with greed than grief in the days after his wife’s death, cataloguing her jewels and asking two of Diane’s associates if they thought he could collect his wife’s Social Security benefits.
It was then, close friend and work colleague Jay Grover told The Atlanta Journal-Constitution, that he knew this was no accident.
Billy Corey, Diane’s mentor and boss at U.S. Enterprises, put it more succinctly at a press conference following the verdict: “A .38 (revolver) don’t go off by itself.”
Juror Lakeisha Boyd agreed and said there was a consensus from the beginning that Diane McIver’s death was intended.
“Whether you’re half-asleep, we don’t know that, we’ll never know that,” Boyd said. “That’s between him and God.”
Rucker said he believes a major turning point came during deliberations, when jurors asked to sit in McIver’s Ford Expedition a second time. This time, they did so with McIver’s .38 revolver in hand.
“I think providing them the opportunity to actually sit in the vehicle, to see the trajectory rod through the seat, to understand where the gun would have had to have been when it was fired was extremely important,” said Rucker, whose rousing closing argument was widely praised. “And perhaps more so when you put it into context with his statements it’s where the gun could not have been. I think that proved to be real pivotal for a lot of people.”
Rucker said prosecutors became suspicious of McIver’s story soon after they began investigating in January 2017, one month after Atlanta police had charged him with involuntary manslaughter and reckless conduct. Interviews with Diane’s colleagues at U.S. Enterprises helped show “that everything that the defendant was expressing publicly may not have been the case,” Rucker said.
RELATED: What is felony murder?
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But the prosecution may have had no bigger asset than McIver himself. The defense tried, unsuccessfully, to take advantage of the very things that aroused suspicion about his client – the lies, the lack of emotion, the inappropriate questions.
“And yet if you think about it, if it’s a planned calculated murder why doesn’t he do what everybody would expect someone to do?” defense co-counsel Don Samuel said in his closing argument. “Do something to make it look more like you’re grieving. Cry. Writhe on the ground. Pound the walls. ‘I can’t believe what’s happened! I can’t believe my wife is dying.’”
Putnam County Sheriff Howard Sills, a friend of the McIvers for 20 years, acknowledged Tex was often his worst enemy.
“Comments he made, things he said, were certainly to his detriment,” Sills told the AJC late Monday. He blamed it on a combination of “naivete and possibly dementia.”
“He’s not at all like the way he was (before the shooting),” the sheriff said. “The man has suffered from some tremendous, acute psychological trauma.”
For Howard, the jury’s verdict was all about Diane McIver, who, before she died, told an Emory University doctor the shooting was an accident, but then declined an offer to see her husband.
“We would like to say to Diane, we hope that you were watching,” Howard said. “We hope that you felt we stood for you and we stood for the things you represented.”
Tex McIver was found guilty on Monday of felony murder but acquitted of malice murder.
What’s the difference?
Malice Murder: An intentional murder that is willful and premeditated.
Felony Murder: A killing that occurs during the commission or attempted commission of a felony. Intent is not necessary. In the case of McIver, the underlying felony was aggravated assault with a deadly weapon.