Last May I posted a blog about a Georgia murder case where a husband claims he fatally shot his wife by accident. That case–against attorney Claud “Tex” McIver–started today with jury selection. The prosecution says they plan to call up to 100 witnesses. This case is not a whodunnit; rather, the issue for the jury is the manner of death: Is the shooting death of Diane McIver a homicide or a tragic accident?

A brief review of the facts as I understand them:

On the evening of September 25, 2016 Diane and Tex McIver were in a vehicle driven by a friend, Dani Jo Carter. Diane was in the front passenger seat and her husband sat directly behind her. Tex had asked his wife to hand him a handgun he was licensed to carry from the glove compartment when Carter took a detour to avoid traffic congestion. That exit took them through a neighborhood McIver perceived to be a risk. Early reports were that Tex feared the Black Lives Matter movement and felt safer to be armed while in a black neighborhood. (The defense soon disputed the Black Lives Matter fear.) During the ride, the gun discharged–clearly fired by McIver. Diane was shot in the back and clear through her body. (The bullet was later found in the SUV.) Her internal injuries were significant as her abdominal cavity started to fill with blood. She died hours later but not before making a deathbed statement that the shooting was an accident.

What happened? Tex claims he was dozing off, was startled awake, and that the shot was accidental. (So much for being fearful and vigilant during the drive.) In any event, after he shot Diane, Tex asked Carter to drive to Emory University hospital on the campus rather then head for one of three hospitals that were closer.

A key question is whether the handgun was cocked or not at the time it discharged. If cocked, only a light pull on the trigger would have caused it to fire. But if the gun was not cocked, then McIver would have had to pull on the trigger with five times the pressure. That latter scenario, if true, doesn’t seem to support an accident.

Why is McIver charged? The police initially charged him with involuntary manslaughter and reckless conduct which is consistent with a reckless accident. But a subsequent investigation led prosecutors to present evidence to the grand jury–evidence we’re not entirely privy to. The grand jury returned an indictment for malice murder and felony murder. As you know, police and prosecutors always know more than the public about a case unless, of course, the case is in Florida and is high profile. (Florida has liberal public records laws that allow for disclosure of the entire police file before trial). But Florida is not the norm, nor should it be. We should learn the State’s evidence as it unfolds at pretrial hearings and the trial itself.

Recent rulings by the judge in the McIver case are good for the State as prosecutors prepare to present a host of circumstantial evidence that they hope will convince a jury that Diane’s death was not an accident. That evidence includes:

  • Testimony that Diane McIver had a second, more recent, will though the will was never found. The will in probate is from 2006.
  • Testimony that McIver opted not to call 911 after he shot his wife.
  • Testimony about an estate sale of Diane’s jewelry and clothing only a few months after she died.
  • Testimony that McIver owed his wife more than $350,000. He said the money was used to build guest quarters in a barn on the 86-acre farm outside Atlanta.

In addition to charges of malice murder and felony murder, McIver is also charged with three other counts for trying to influence witness testimony.

McIver  was a prominent attorney in Atlanta and served on the Governor’s Judicial Nominating Commission. Besides the farm outside the city in Putnam County, the couple lived in a condo in the Buckhead neighborhood of Atlanta.

The trial is being streamed on Atlanta-based sites and elsewhere. Testimony is expected to begin later in the week. The Atlanta Journal Constitution’s Breakdown podcast (Season 5) is also covering the case.