The State’s case against Claud “Tex” McIver for the fatal shooting of his wife Diane in September 2016 in Atlanta is on a break this week and will resume April 9. In the past three weeks, the bulk of the State’s case has been presented. Prosecutors have called 54 witnesses (by my count) and should wrap their case in chief early next week. The defense is expected to put on a short case. It’s unclear if McIver will testify.
In the past weeks, the State has presented evidence of a financial motive. McIver owed his wife tens of thousands of dollars. He had assets in real estate and other property but he was “cash poor.” Diane executed a will in 2006 though there is some evidence that she either had a subsequent will or at least contemplated it. Diane, who had no children of her own, became a godmother in 2006 to Austin Schwall. Austin was 11 years old when Diane died. She loved the child and doted on him, telling him that someday the ranch (outside Atlanta) would be his. But the 2006 will predated Austin’s birth. There is no provision in it that he would inherit at least her share of the ranch. In fact, it appears that the only evidence of her wishes that Austin be a beneficiary of her estate are her oral representations.
McIver has always maintained that the shooting of his wife was a terrible accident. He was holding a .38 revolver as he sat behind his wife in their Ford Expedition. Their friend, Dani Jo Carter, was driving as the three returned from a weekend at the ranch to Atlanta. It is unclear exactly what caused the gun to fire through the front seat and into Diane’s back. What is not in dispute is that McIver pulled the trigger. The gun did not just discharge on its own.
One critical question is: Was Tex McIver holding a cocked or uncocked gun on his lap as he sat behind his wife who was in the front passenger seat? The detective who questioned McIver never asked. Why does it matter? Because the amount of pressure to pull the trigger is vastly different between a cocked and uncocked gun. With this particular revolver, 12 pounds of pressure, or what is called “trigger pull,” is required to fire the uncocked gun. If cocked, only about two pounds of pressure is required. But, again, his finger had to be on the trigger at the time.
The idea that McIver would sit with a cocked gun on his lap is hard to believe. He is very skilled in gun use and safety, and surely knew that the risk of an accidental discharge was greatly increased if he did so. Plus, he claimed he was dozing off in the back seat and was startled awake. If he fired the gun when startled awake, then why did he fall asleep with his finger on the trigger? These are questions we may never know the answer to.
Regardless of whether he pulled the trigger with 12 pounds or 2 pounds of pressure, Diane’s death was at least the result of a reckless act which could result in a conviction of a non-homicide crime. One of the charges McIver faces is the felony of aggravated assault. Under Georgia law, this can be committed in a few ways, one of which is “without legal justification by discharging a firearm from within a motor vehicle toward a person or persons.” Under that theory of aggravated assault, McIver faces a sentence of five to 20 years in prison. If convicted of this crime, I would think his sentence would be on the higher end because the discharge killed his wife. (The death of an occupant of the car is not necessary for a conviction on aggravated assault charges. That he killed her, thus, should justify a higher sentence.)
What do you think? Did McIver kill Diane “with malice aforethought” or was this an accident? Do you think he should be punished at some level for, at a minimum, a reckless act?