When considering the unpredictable nature of juries, look no further than Annie Anderson, the personal masseuse to Claud “Tex” and Diane McIver who prosecutors insinuated was a possible paramour to the defendant.
The defense used that innuendo to their advantage when calling Anderson as a witness last Thursday. At first glance, her testimony — in which she vehemently denied an affair — appeared to be a home run for alleged murderer Tex McIver’s team. Lead prosecutor Clint Rucker even acknowledged afterward “he would lose all credibility” if he told jurors there was evidence of a sexual relationship.
After 20 days of testimony and nearly 80 witnesses, jurors are set to begin deliberating as early as Tuesday afternoon, following closing arguments in the morning. And one thing is certain.
“The risk with a jury is they see things the lawyers miss,” said Atlanta attorney Esther Panitch, who has followed the McIver trial closely.
Perhaps what they’ll most remember from Anderson’s testimony is her description of McIver’s behavior during massages, which could end up hurting the defendant more than helping him.
“He always had a lot of tension,” Anderson said. “He bent his finger back. It’s stuck. He has some muscle issues in his palm. If I tried to massage it, he’s like ‘ow ow,’ and he makes all these grunting noises because it’s very painful. And so when he throws his arms up his hands always have a curled motion to their muscle.”
There’s a name for it, she said: “They actually call it, anatomically, kind of a trigger finger. His index, middle and thumb are always curled.”
So while it may buttress McIver’s contention that the shooting was an accident, Anderson’s testimony could also give jurors reason to slap him with a lesser-included involuntary manslaughter charge — one a misdemeanor, punishable by up to one year in prison, the other a felony that carries a 10-year prison sentence.
“He was holding a gun he knew to be loaded because he loaded it,” Panitch said. “His propensity to have muscles which would cause him to claw is additional proof of his knowledge of the danger.”
Anderson also testified that McIver would almost always fall asleep during massages.
“He would have conversations in his sleep and then depending on what he was saying he would act things out, or he might just be quiet and all of a sudden flare an arm or a punch and I would have to get out of the way, if I was close to his body in any way,” she said.
The power of that testimony could hinge on the state’s lone rebuttal witness, who offered some of the most unequivocal testimony of the trial. In a case full of uncertainties, Mark Pressman, a sleep disorder expert from Pennsylvania who also teaches at the Villanova School of Law, pulled no punches.
“Was the (defendant’s) behavior consistent with someone who was awake when the gun was fired on Sept. 25, 2016?” Fulton County Assistant District Attorney Adam Abbate asked.
“Yes,” Pressman said.
Pressman says he has reviewed the records from Tex McIver’s sleep studies, one conducted in January at Emory University and another previous study from the Mayo Clinic Jacksonville.
“If he had dozed off almost immediately, even 10 minutes isn’t sufficient to get to REM, even deep sleep,” Pressman said. That encompasses the amount of time between McIver asking for his gun and firing the fatal bullet.
“People do not wake up suddenly,” Pressman explained. “They’re stuck in this never-never land. Typically they’re confused, they’re slowly disoriented.”
If that was the case, McIver would not have been able to calmly and coherently guide Dani Jo Carter, who was driving at the time, to Emory University Hospital.
“No, that should not be able to occur for several minutes after confusional arousal,” said Pressman, critiquing another finding from the defense’s expert.
Remember when the focus on the drive to Emory University centered around its distance from the site of the shooting? One now wonders whether the jury will even consider that question when deliberating.
Prosecutor turned defense attorney Noah Pines, who has also followed the McIver trial closely, said jurors tend to notice when either side promises something they can’t deliver.
He pointed to prosecutor Seleta Griffn’s opening statement in which she asserted the shooting was “planned, intended and calculated.”
“It could be intentional, but it couldn’t have been planned,” Pines said, noting that the decision to exit the Downtown Connector onto Edgewood Avenue which prompted Tex McIver to ask for his gun was one made by Carter.
That would seem to preclude the possibility that McIver might have — with gun in hand, pointed at his wife’s back — seized upon an unexpected opportunity. Jurors were allowed to inspect the McIvers’ SUV Monday, as were reporters. Some who sat in the rear passenger seat, where Tex sat, were struck by the proximity between it and the back of the front passenger seat, where Diane was sitting.
Which might call to mind a tidbit from Carter’s testimony about the fateful drive home from the McIvers’ Putnam County ranch. Along the way, Carter said she and Diane discussed an accidental discharge by Diane’s attorney and friend Ken Rickert in his home office.
“It’s a weird coincidence,” said Panitch, one the media has largely overlooked.
But that doesn’t mean jurors didn’t note it.