Defense attorney Don Samuel grimances as Tex McIver, left, looks on wide-eyed after the jury found him guilty of felony murder last week. Bob Andres / bandres@ajc.com

‘Breakdown’ S05 Ep. 11: The verdict on Tex McIver

New episode explores opening arguments, confusing outcome

The public is likely to see Tex McIver just one more time — at his sentencing hearing on May 23. After that, the 75-year-old man will disappear into the state prison system to live out his days.

The final episode of this season of “Breakdown,” now available (podcast player below), takes you through the climax of the seven-week McIver murder trial.

» Tex is guilty. What happens to Diane’s money?

Episode 11 explores the confused verdict and concludes that the jury did not fully understand the law it was trying to apply. In sum, the jurors were confronted with two crimes of intent: malice murder, which charges that the defendant meant to kill, and aggravated assault, which charges that the defendant meant to do harm. In acquitting McIver of malice murder but finding him guilty of aggravated assault, the jury in effect concluded that McIver meant to shoot his wife, Diane, but not to kill her.

The podcast episode also discusses the consequences of the defense strategy of clearing McIver of the most serious charges against him — malice murder, felony murder, aggravated assault, use of a firearm in the commission of a felony.

» McIver said it was an accident. Jurors didn’t buy it.

“From the beginning, I thought this was an involuntary case based on reckless conduct,” said Atlanta defense attorney Noah Pines, who was not involved in the trial. “While I thought the defense did a masterful job in closing argument, one of the things that concerned me was that they asked the jury not to consider the lesser-included offense of involuntary manslaughter. So this is really an all-or-nothing. It’s either murder and he’s guilty, or an accident and he’s not guilty.”

Pines added: “There’s always a danger when you ask a jury for an all or nothing.”

Lead prosecutor Clint Rucker (left) confers with his boss, Fulton County District Attorney Paul Howard, as the court took up discussion of questions from the jury. Bob Andres / bandres@ajc.com
Photo: The Atlanta Journal-Constitution

Most of Episode 11 of “Breakdown,” however, is devoted to the closing arguments — there were four — presented in the case. Lead prosecutor Clint Rucker spoke for 95 minutes, using his extraordinary voice and often soaring oratory to weave a convincing tapestry of greed, betrayal and murder. But many of the threads in Rucker’s tapestry were thin. He sometimes spoke of things that either never occurred or, at best, were not proved in court. The podcast offers several examples of this. Here’s one:

» Listen to all six seasons of ‘Breakdown’

Rucker makes much of McIver’s attempt to get a friend to take Dani Jo Carter home on the Friday before the killing. Rucker theorizes this was because McIver didn’t want Carter to be present that weekend to witness what he planned to do.

“If he took Dani Jo home he’d be alone on the ranch with Diane McIver,” Rucker said. “They talked about, why didn’t he kill her at the ranch? Why didn’t he kill her on I-20? Maybe that was the original plan. She’d have an accident on the ranch. He says, ‘You know what? Maybe I’ll have to go to a Plan B.’”

Chief Assistant District Attorney Clint Rucker receives a congratulatory hug after the verdict. The jury found Tex McIver guilty on four of five charges on their fifth day of deliberations. Bob Andres / bandres@ajc.com
Photo: The Atlanta Journal-Constitution

This is a compelling story, but little of it was supported by evidence or testimony. Rucker surmised that McIver meant to kill his wife at the ranch. And he surmised that McIver came up with an alternate plan because Dani Jo Carter was there. Of course, Dani Jo Carter was present when McIver shot his wife — in the couple’s SUV on Piedmont Avenue late on that Sunday night.

“Breakdown” is available on Apple Podcasts, Stitcher or your favorite podcasting platform. Or you can stream it from ajc.com, right here, right now: