Tex McIver, the epitome of both privilege and cluelessness, may soon be a free man following last week’s state Supreme Court decision that said the murder trial against him was unfair.
In 2016, Tex shot his wife, Diane, in the back with a .38-caliber revolver wrapped in a plastic bag as he sat in the back seat of his SUV. The story was that he was falling in and out of sleep, possibly drunk, and afraid of carjackers, homeless people and Black Lives Matter protestors. Prosecutors said Tex was a well-connected deadbeat leaching off his rich, go-getter wife and that she was more valuable to him dead than alive.
The tragedy of the couple, who owned a Buckhead condo and a Putnam County ranch, has been called Atlanta’s own version of “Bonfire of the Vanities.” The 1980s Tom Wolfe novel centers around a Wall Street hotshot and his wife who took a fateful wrong turn off the expressway.
The high court, in a unanimous ruling Thursday, said Fulton County Superior Court Judge Robert McBurney, owner of a sharp legal mind, screwed up when he didn’t allow jurors to consider a charge of misdemeanor involuntary manslaughter as they deliberated.
After his judicial spanking, McBurney had to lick his wounds, robe up the next day and preside over a hearing in perhaps the most watched court case in America, the Trump election case.
In McIver’s case, the Supreme Court said Tex’s legal team was deprived of a vital option that could have set the jury on a more merciful path.
Instead the jury was left to consider four choices: Malice murder; felony murder (which doesn’t sound as harsh as malice but pretty much is), felony involuntary manslaughter (which can fetch 10 years) and letting Tex off scot free because it was an accident.
The court, in a 97-page decision, meandered for dozens of pages with a long history of reckless gunplay through the ages: A hunting accident, a tragic argument between a couple, a gun sale ending in death and catastrophe when a pistol was pulled from a laundry bag.
Don Samuel, McIver’s lead attorney, told me that not being allowed to argue for the misdemeanor version of involuntary manslaughter gutted his presentation to the jury. He was left being able to only beseech jurors to release his client because it all was an accident. He worried that if he hinted at the felony charge of involuntary manslaughter in his closing arguments, that McIver, then 75, could have gotten 10 years and died in prison.
“We had to go for broke; any sentence was a life sentence,” Samuel said. “If we had any other option, we could have argued that.”
But jurors wanted to stick McIver with some criminal act. They “compromised” with felony murder.
Clint Rucker was the lead prosecutor and is now in private practice, ironically working in Samuel’s firm. They don’t discuss the case, he says.
Rucker said he doesn’t want to deconstruct the high court’s ruling because Fulton’s current DA, Fani Willis, must decide to retry the case or let it slide.
But, he added, “I stand by my work; I rest on the decision the trial jury made.”
The high court gave Rucker, who for 20 years was former DA Paul Howard’s meanest bulldog, a left-handed compliment when it called the state’s evidence of intent “weak” and the financial motive for McIver killing his wife “thin.” He made prosecutorial chicken salad from something else.
“My theory about the motive,” he told me, “was not weak to the jury.”
In fact, five of the jurors wanted to go with malice murder and seven wanted felony involuntary manslaughter.
Rucker said the case was a “master class in our judicial system.” He said six or seven Fulton judges declined to sign search warrants because of connections with McIver and “I’ve never seen a suspect treated so nicely by Atlanta police before.”
Credit: Bob Andres
Credit: Bob Andres
The statement early on by Tex’s spokesman that he grabbed his gun because he was worried about Black Lives Matter protestors catapulted the case into a national story. I’ve always felt it pushed then-DA Howard into charging him. After all, it would look bad for him to prosecute an endless line of Black suspects and let the rich white one go.
“That statement did not help, especially in that environment,” said veteran attorney Dwight Thomas. “The thinking probably was that if (McIver) gets a pass, then let it come from the jury.”
Putnam County Sheriff Howard Sills was a friend of McIver’s and had often visited his ranch near Eatonton. He thinks Tex had shown signs of dementia because he continually said “some of of the stupidest things and did some of the stupidest things,” starting off with the Black Lives Matter statement.
He, too, thinks the case was weak and believes the BLM statements “and pressure from Billy Corey,” an influential Atlanta businessman, helped seal McIver’s fate. Diane McIver worked for Corey for years and he went to Howard’s office saying the shooting looked to be more than an accident.
Jay Grover, a former cop and longtime Corey aide, told me he thinks prosecutors were already looking at the killing as a murder.
“But maybe after we met and filled in the blanks, that might have helped,” Glover said.
Or at least he hoped it did.
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