Deadlocked during a fifth day of deliberations, yet urged by the judge to reach a verdict, jurors in the Claud “Tex” McIver murder trial settled on a compromise seemingly satisfying to both sides.
A majority of the jurors wanted to convict McIver on felony involuntary manslaughter, a charge that carries a prison sentence of up to 10 years. But a small minority of jurors insisted on a conviction for malice murder, the most serious of the charges against the Buckhead attorney.
» IN-DEPTH: Tex McIver said he shot his wife by accident — jurors didn't buy it
They settled on finding him guilty of felony murder, a distinction without a difference for the defendant, since it carries a mandatory sentence of life in prison.
McIver will be sentenced on May 23 for fatally shooting his wife, Diane, in the back as they were being chauffeured in their SUV on September 2016. Whether he is granted the possibility of parole doesn’t much matter when you consider his age, 75.
Juror Aubrey Gray said when deliberations began on April 17, a slim majority favored a conviction on the lesser charge. Their ranks grew as discussions continued, but after 27 hours the two camps couldn’t reconcile their differences, telling Fulton County Superior Court Judge Robert McBurney they saw no clear path to a verdict.
“There was definitely a point where we did not think we were going to get to either guilt or innocence,” Gray said. “The judge reassured us we were on the right track.”
It’s unclear whether the jurors who leaned toward involuntary manslaughter knew they were accepting a deal that would likely send McIver away until death.
For Gray, who believed McIver intended to kill his wife, the punishment fits the crime.
Atlanta criminal defense attorney Page Pate, who followed the case closely, said he believes had the majority of jurors known the punishment that awaited McIver, they would have never compromised.
“This happens all the time,” he said. “Juries don’t know about these mandatory minimum sentences.”
The end result was a verdict rife with contradiction. McIver was found guilty of aggravated assault, which requires a finding of intent to do physical harm, but there was no intent to kill. There was never any suggestion that McIver merely wanted to injure his wife.
“The verdict makes no sense,” said Pate, who blames the imposition of the Allen charge, which encourages jurors to continue deliberating even when they are deadlocked. The U.S. Supreme Court has upheld its use, although some states don’t allow the Allen charge on the grounds that it is coercive.
“You’ve got a judge telling them they need to find the truth,” Pate said. “It’s not their job to find the truth.”
The jury of seven women and five men took Judge McBurney's instructions to heart. Already empowered by McBurney to ask questions of witnesses — a rarity in such trials — some jurors said they reached conclusions that weren't necessarily based on evidence.
Prosecutors “did not give us any evidence to go by to present malice,” juror Lakeisha Boyd said. “That’s what they wanted but they couldn’t give that to us.”
“We had to read between the lines and fill in what they didn’t give us,” she said.
Gray said he felt the jury wasn’t provided all the information
they needed to reach an informed decision.
“In future cases where this type of incident occurs, I wish all sides, from law enforcement to the lawyers, will do their due diligence to get the truth and not leave it to the 12 of us to decipher some of the things we were left to decipher,” he said.
Gray, who is African-American, said race wasn’t a factor in the jury’s decision. And he said the state’s argument of a financial motive in the McIver killing hardly moved the needle.
Gray and Boyd said the key evidence that persuaded them McIver was guilty was this: His finger was on the trigger when his .38 revolver fired the bullet into his wife’s back.
“Guns just don’t go off,” he said.
There was one thing that unified the jurors from the start.
“A lot of us thought he wasn’t a good person,” Gray said. “Not a good guy.”
And sometimes that can make all the difference.
“Sometimes it’s a matter of whether they’re going to give the benefit of the doubt. Clearly that didn’t happen here,” Pate said. “Your wife is dead. You were clearly responsible. And you’re an ass.”
For McIver, it was too much to overcome. And his attorneys couldn’t risk calling character witnesses on his behalf because that would have opened the door for the state to introduce evidence about a 1990 shooting incident when McIver allegedly opened fire on a carload of three young men and then lied to the police about it.
» RELATED: Tex McIver faced charges in 1990 shooting of teens’ car
Defense attorney Don Samuel said Tuesday there will be an appeal, but he doesn’t know yet whether he and co-counsel Bruce Harvey will be retained by McIver, who was found guilty on all but one of the five counts against him.
Samuel said grounds for an appeal might include the judge’s decision to grant jurors a second look inside the McIvers’ Ford Expedition. Jurors were allowed to hold the gun used to shoot Diane McIver, despite the defense’s objections that, because of the various sizes of the jurors, an accurate re-enactment wasn’t possible. It was “an uncontrolled experiment,” Samuel said Tuesday.
Lead prosecutor Clint Rucker said that decision was a turning point for jurors.
“I think providing them the opportunity to actually sit in the vehicle, to see the trajectory rod through the seat, to understand where the gun would have had to have been when it was fired, was extremely important,” Rucker said Monday. “And perhaps more so when you put it into context with his statements it’s where the gun could not have been. I think that proved to be real pivotal for a lot of people.”
Rucker said he was confident McIver would be found guilty of murder, even when jurors asked McBurney early in their deliberations if they could acquit on all charges except for Count 5, influencing a witness.
“I spent a lot of my time getting my folks to calm down because I’ve been doing this work long enough to know it’s very difficult to have a crystal ball and understand what’s going on in the back with the jurors,” he said.
WHAT COMES NEXT
On Monday jurors convicted Claud “Tex” McIver of murder for the September 2016 shooting of his wife, Diane. McIver will be sentenced next month to life in prison, when the judge will also announce whether McIver will be eligible for parole. An appeal will be forthcoming, defense co-counsel Don Samuel said Tuesday.
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