With the murder trial of Atlanta attorney Claud “Tex” McIver just 18 days away, the prospect of a plea deal emerged publicly on Thursday for the first time.
The surprise possibility arose during a hearing of last-minute pretrial motions concerning jury selection, witness lists and evidence. While no deal was placed on the table, both sides indicated that they wanted to hear what the other has to say.
Judge Robert McBurney set a deadline of close of business Monday for the prosecution to present any plea offer. The defense has until close of business Thursday to respond. If the two sides enter into serious negotiations, the judge said he could extend the deadline.
Cutting a deal could be difficult, said criminal defense attorney Esther Panitch, who is not involved in the case but has watched it closely.
McIver is accused of killing his wife a year ago while the couple were passengers in an SUV near Piedmont Park. He says the shooting was an accident, but the district attorney has charged him with malice murder, felony murder and aggravated assault. In the aftermath of the shooting he has faced three additional charges of influencing witnesses, all felonies.
Having leveled such serious charges, prosecutors must show they’ve “gotten their pound of flesh, that they’ve lived up to their obligation to protect the people of Georgia,” Panitch said.
Meanwhile, the defense is likely focused on McIver’s age. At 74, even a 10-year sentence could mean “he never sees the outside of a prison,” she said. She offered one possible compromise: McIver pleads guilty and receives a 5-year sentence followed by several years of probation.
For now, the case is moving toward the trial starting at end of the month.
“Both sides are ready, and that’s the plan,” said McIver’s lead defense attorney William Hill after the hearing in Fulton County Superior Court.
Both the prosecution and defense have said they could use more time. The defense only recently received 90,000 emails taken from Diane McIver’s work computer. The prosecution must still go through some 30 boxes of materials that its investigators seized from the McIvers’ Buckhead condo.
The defense has said that it would not request a postponement — which might delay the trial for months — unless their client is released from jail in the interim.
“Tex has been in jail since April 26. He’s lost 30 pounds,” said Hill, emphasizing the strain of incarceration on McIver. “We have to go to trial on the 30th.”
Lead prosecutor Clint Rucker made clear that he opposes bond for McIver.
Both sides say they expect a trial to last three weeks or more.
On Thursday, Rucker revealed a witness list with more than 80 names, including medical staff who treated Diane McIver at Emory Hospital the night she died, as well as some doctors from Grady Memorial Hospital.
These witnesses, Rucker said, will address a key question in the case: “Why was Diane McIver brought to Emory with a gunshot wound? She should have been taken to Grady.”
Others on the prosecution’s list included the restaurant worker who served the McIvers dinner the night of the shooting and the manager of the golf course where they played earlier that day.
Judge McBurney also granted Hill’s request to have McIver examined by a sleep expert. Hill said McIver has been diagnosed with parasomnia, a sleep disorder that can cause a person to make jarring movements while they sleep. That could be an important part of McIver’s defense. McIver has said that, while nodding off in the backseat of the SUV, he quickly awoke and inadvertently squeezed the trigger on the gun in his lap, firing through the front seat and striking his wife in the back.
Prosecutors clashed with the defense Thursday over whether the judge should admit evidence of a 1990 shooting incident involving McIver. He fired into a car of teens drinking beer at the end of his cul-de-sac, police records show. McIver has said he believed the teens were trying to hit him with the car. No one was injured and the aggravated assault charges were dropped when McIver negotiated a settlement that included paying for the damage to the car. Rucker said the incident speaks to the way McIver handles guns.
“There is a certain disregard he has for human safety when he is handling these guns,” Rucker said.
Hill said the incident is 27 years old and has nothing to do with his state of mind the night of his wife’s death.
Rucker brought to the stand one of the teens, Kevin O’Neal, who is now 46.
“Mr. McIver opened fire on us as we were leaving,” O’Neal said. “You don’t forget something like that.”