Judge puts Tex McIver retrial on hold just one day after jury selection began

ATLANTA — The retrial for a former attorney accused of shooting and killing his wife is now on hold.

The move to halt Tex McIver’s murder case came just a day after jury selection got underway.

A 2018 jury found McIver guilty of felony murder in the shooting death of his wife Diane McIver.

The couple and their friend Dani Jo Carter were heading home from a party when Tex McIver shot Diane McIver in the back as he sat behind her in the car. Diane McIver died at the hospital.

Last year, the Georgia Supreme Court overturned McIver’s felony murder conviction, ruling the jurors didn’t receive proper instructions.

Channel 2 investigative reporter Mark Winne spoke to one of McIver’s attorneys following Tuesday morning’s developments.

“As a member of Tex McIver’s defense team, what are you doing this afternoon?” Winne asked attorney Don Samuel.

“We are preparing a bond motion to have him released pending the trial, which now is postponed for possibly as long as six or seven months,” Samuel said.

“Will you oppose any efforts by the defense to get Tex McIver out on bond pending the state’s appeal?” Winne asked Fulton County executive district attorney Mike Carlson.

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“We will review any motion that we receive. However, the state has consistently opposed bond in this case and I don’t have any indication at this point that the office will change its position,” Carlson said.

“Has Judge (Robert) McBurney given you an indication of how quickly he would consider bond?” Winne asked Samuel.

“He said he would do it rapidly,” Samuel said.

Samuels said McBurney let lawyers on both sides of McIver’s case know of his intent to issue a written order barring the prosecution from introducing evidence McIver had an intent to kill his wife.

“It follows logically from the ruling that the state cannot argue intent to kill, that the state would be prevented from entering evidence about life insurance that is no longer relevant,” McBurney said during Tuesday’s hearing.

Samuel said because the prosecution signaled it would appeal, jury selection, which started Monday in what would have been McIver’s retrial, stopped.

“Georgia law allows for the state, prosecution, to be able to appeal where a trial judge has excluded evidence pretrial. That has occurred in this case, so the state is preparing its direct appeal on the issues that were presented today,” Carlson said. “This is not an unusual occurrence for this office. We’ve had any number of evidentiary issues up on appeal pretrial.”

Samuel said in his original trial, McIver was acquitted of malice murder, which involves intent to kill but convicted of a felony murder charge that -- the way it was written in McIver’s case -- did not involve the intent to kill.

The defense maintains it would be unconstitutional for the prosecution to argue something a jury has already unanimously rejected.

“They couldn’t change the indictment now?” Winne asked Samuel.

“It is our position they cannot change the indictment because all charges have to be brought in the original indictment,” Samuel said.

“Do you anticipate they may try to reindict?” Winne asked Samuel.

“I do,” Samuel said.

Carlson said the Fulton County DA’s office maintains motive evidence such as financial incentives, is important and widely admissible in violent crime prosecutions.

A prosecution motion suggests case law makes clear motive evidence illustrating murderous intent is admissible to prove the charges of aggravated assault and felony murder.

“It was absolutely an accidental shooting. He didn’t intend to shoot his wife. He didn’t intend to kill his wife he didn’t intend to pull the trigger,” Samuel said.

“He had fallen asleep with the gun in his lap?” Winne asked Samuel.

“That is correct. That might be negligent. That might be reckless, but the shooting was still accidental,” Samuel said.

Carlson says the DA office’s position is the shooting was not accidental and the office is appealing Tuesday’s order so that it can present evidence to that effect in the retrial.

Winne asked Samuel if the prosecution follows through with an appeal to the Georgia Supreme Court, how long do you anticipate that taking? He said he would guess six to eight months.

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Judge denies bond for former prominent lawyer Tex McIver before new trial in wife’s death

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