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Opinion

Prosecution’s Murder Case against Prominent Atlanta Attorney Is Total Reach and Complete Hogwash

Tex McIver Murder Trial

Atlanta attorney Tex McIver has been defending himself on murder charges. Prosecutors have alleged McIver murdered his wife, Diane McIver, who was the CEO of an Atlanta company. The defendant McIver has said all along that the shooting was accidental. By now, if you’ve been following the case, you’ve heard the story a million times:  a friend was driving the McIvers home. The highway was backed up. The friend exited the highway into an area the defendant considered unsafe. He asked for his gun, which was in the center console of the vehicle. His wife handed it to him. McIver says he was dozing in and out of sleep with the gun wrapped in a plastic shopping bag. He felt less and less safe. The vehicle continued onward. He suddenly awoke, the gun discharged, and the bullet traveled from the back seat (where the defendant was sitting) to strike his wife in the front passenger seat. The driver, Dani Jo Carter, sped to the hospital, where Diane McIver died.

Prosecutors presented a slow, disorganized case to the jury. It was as if prosecutors were trying the case by scattering a trial of breadcrumbs, hoping jurors would somehow find that the crumbs resulted in a path to the top charge:  murder. Perhaps one juror would find meaning in this crumb; perhaps another would latch onto that one; perhaps back in the jury room they’d add the scattered trail up into something that resembled a mildly discernible path.

That, in my opinion, is not guilt beyond a reasonable doubt.

Every major assertion made by the prosecution was met with a colorable rebuttal by the defense. The state says this was no accident. However, when a state expert was handling McIver’s unloaded gun in front of the jury, the gun accidentally went off. (Again, courtroom security standards were in effect, and the gun was obviously not loaded.) Still, it was triggered. The point was made. Defense attorneys couldn’t have asked for better evidence that the gun might have gone off accidentally. The state proved it for them!

Other points and counterpoints include, but are not limited to, the following. Prosecutors said Tex and Diane disagreed over making a new will. Emails entered into evidence suggest that the disagreement occurred years before Diane McIver died. An assistant who claimed to have handled a new, heretofore undiscovered will? She never looked at it, so she wasn’t sure what it was. Prosecutors said McIver’s salary plummeted at work. The salary drop was attributable to McIver transitioning out of a leadership role at his law firm, which is not uncommon for an attorney in his 70s. Plus, McIver’s defense indicated he owned about $700,000 worth of shares in a mining company. Prosecutors insinuated a sexual relationship between Tex McIver and a massage therapist. She denied it on the stand and said the insinuation had tarnished her reputation professionally.

Surely, Tex McIver said some strange things. He said he wasn’t a gun enthusiast in a local television interview, but prosecutors exhibited a mountain of his weapons directly in front of the jury. The driver of the car, Dani Jo Carter, said McIver asked her to lie about how she showed up at the hospital.

Still, these statements are not proof beyond a reasonable doubt that McIver intentionally murdered his wife. McIver’s opinion about whether to label himself as a gun enthusiast or not is a question of degree and opinion:  when is someone an owner versus an enthusiast of guns? Being an owner of multiple weapons does not necessarily make one a weapons enthusiast. Whether McIver was trying to squeeze a different story out of Dani Jo Carter is subject to a more strict assessment. It is arguable that McIver, a high-profile attorney with friends in public relations, wanted to protect Carter from the onslaught of publicity he surely knew would follow. If so, his instinct to protect Carter was horribly executed and morally disgusting.

The state initially charged McIver with murder, felony murder, aggravated assault with a deadly weapon, possessing a firearm during the commission of a felony, and three counts of influencing a witness.

The judge already threw out the last two counts of influencing a witness. The sole remaining charge of influencing a witness might stick. A jury could find that McIver was trying to get Dani Jo Carter to lie on the stand. If he was otherwise trying to get her to lie, e.g., to protect herself from being hounded, the charge might not stick.

The top charge, though, is a very hard one for the state to prove beyond a reasonable doubt. Under Georgia law:

A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.

Murder with express malice involves intent. There is not evidence to prove, beyond a reasonable doubt, that McIver intended that his wife be dead.

Murder with implied malice is where “no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.” That legal term of art is rather open to interpretation. The Georgia Supreme Court adopted the following definition of “implied malice” in another case:

Implied malice, however, may be found when the defendant’s conduct exhibits a reckless disregard for human life.

[ . . . ]

Extremely negligent conduct, which creates what a reasonable man would realize to be not only an unjustifiable but also a very high degree of risk of death or serious bodily injury to another or to others — though unaccompanied by any intent to kill or do serious bodily injury — and which actually causes the death of another.

That might look and smell at least a little bit like what McIver did, but it’s not. Traditionally, this sort of a statute would apply, hypothetically, to a case where someone throws a cinderblock from an overpass onto a highway below and happens to strike and kill someone. It would also apply to a case where someone purposefully fired a gun at random toward the general direction of a crowd of people. In such cases, the perpetrator didn’t target anyone in particular, but his acts indicated a reckless disregard for human life.

That’s not the McIver case. The McIver case is about whether the defendant purposefully pulled the trigger. The state, despite arguing that the trigger pull was on purpose, seems to be ignoring that the gun went off accidentally in court.

The case should rightfully center around either the lesser or the lesser-included charges, including involuntary manslaughter due to reckless conduct and involuntary manslaughter due to criminal negligence. As to the latter:

Criminal negligence is an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.

Legally speaking, if the jury is to convict, that is the sort of charge which is most appropriate.

 

[Image via screen grab from the Law&Crime Network.]

This is an opinion piece. The views expressed in this article are those of just the author.

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