ATLANTA - The jury is beginning deliberations in the trial of an attorney accused of murdering his wife.
Tex McIver is accused of intentionally killing his wife, Diane, as they rode in their SUV in Sept. 2016. McIver claims the shooting was an accident.
The prosecution and defense completed their closing arguments Tuesday morning.
The judge then charged the jury and sent them out to deliberate.
Stay with Channel 2 Action News and the Atlanta Journal-Constitution for live coverage of the verdict in the Tex McIver murder trial. We will stream it live on WSBTV.com and the WSB-TV Facebook page once a decision is reached.
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The judge dismisses the jury for the day. Deliberations will continue at 9 a.m. Wednesday.
The jury has asked to inspect the .38 Revolver that Tex McIver used to shoot his wife.
About a half hour after leaving the courtroom to deliberate, the jury sent out a note asking “to have the gun unlocked to be tested.”
Prosecutor Clint Rucker had urged jurors to handle the gun and pull trigger to gain a sense of the force that required to fire a round. It appears at least some of the jurors are taking his advice.
The jury also asked for copies of the jury charge from the judge as well as adhesive tape, paper clips and note cards.
Judge completes his charge to the jury and sends them off to begin deliberations.
The deputy brought evidence back to jurors. They can now begin their deliberations. I’m Live at 4 with closing arguments in the #TexMcIver trial.— Mike Petchenik (@MPetchenikWSB) April 17, 2018
Court has resumed following a lunch break. Judge McBurney begins explaining to jurors what they must do.
An Emory doctor asked Diane if she wanted to see her husband in her last moments, Rucker said. Diane said, “No.”
“Ladies and gentleman, will you stand for Diane McIver as she cries out, ‘Who will stand up for me?’” Rucker says.
Rucker ends his closing arguments.
Eight months after Diane’s death, her cremains were in a cardboard box in a bedroom closet, Rucker says.
“It’s not right, and I’m asking y’all to do something about it,” he tells the jury.
Doctors said McIver told no signs of grief after being told Diane has died, Rucker says. McIver had two days to come up with a story before meeting with detectives. He showed up two different attorneys, Rucker says.
McIver had to come up with stories because “the truth was going to put him in jail,” Rucker says.
McIver gave four different versions of what happened when Diane was shot.
“He lies because he’s guilty,” Rucker says.
Rucker says Tex McIver was frequently near Grady Memorial Hospital and drove by Emory Midtown daily. But instead, told Carter to drive to Emory University Hospita
“If McIver was that scared, why did he go back to sleep?” Rucker asks the jury.
McIver told everyone the gun “went off.” But that was a lie, Rucker says.
“Why is he lying? Because he’s guilty,” Rucker says.
McIver claims he doesn’t feel safe because of a “large group of homeless people” around the SUV as he, Dani Jo Carter and Diane McIver exit onto Edgewood Avenue.
“Girls, this is a bad idea,” Tex McIver said, Rucker tells the jury.
Tex asked Diane to give him his gun from the SUV center console
Tex McIver is a gun expert, though he says “guns are not my thing,” Rucker says. McIver lied because he is guilty, Rucker tells the jury.
“Killing Diane McIver solves all of this problems,” Rucker tells the jury. “He is much better off with her dead than with her alive.”
The only way for Diane McIver to leave the ranch to Austin was to foreclose on Tex, Rucker says. Diane made a new will to include Austin, he says.
Tex McIver’s income dropped 54 percent between 2013 and when Diane died, Rucker says.
“His solution was to rely on the sugar mama,” Rucker says. “The problem was she wasn’t that kind of woman.”
Weeks before she died, Diane gave her husband $20,000.
I’m leaving the ranch to Austin with enough money to take care of it,” Diane McIver says, a friend testified.
Diane was a smart woman who made a fortune in real estate, Rucker says.
In 2011, Diane gave Tex McIver a $350,000 loan.
“It must be good to have a woman take care of you like that,” Rucker said.
The ranch was a “source of contention” between the McIvers, Rucker says. Diane McIver planned to give her half of the ranch to Austin Schwall, who she considered like a son. Tex McIver wanted the ranch left to his estate, Rucker says.
"This case was all about the defendant's attempt to maintain an image of wealth and power," Rucker says.
Rucker tells jurors that when he is done, it will be clear that McIver is guilty.
Rucker is standing in front of a large photo of Diane McIver.
“Who will stand for truth and justice, truth and justice, as she cries out, ‘Who will stand for me?’” Rucker says.
The state’s rebuttal closing statements begin. Assistant DA Clint Rucker will be speaking. He has 1 hour and 24 minutes.
Harvey ends his closing statements.
Harvey says juries can’t convict someone on speculation, but instead on the “bedrock of fact.”
“This trial is an accident in search of a motive,” Harvey says.
“Do we have to prove it was an accident?” Harvey asks the jury. “No.”
The state has to prove it wasn’t an accident, he says.
"It was a horrible accident,” Carter told police. “We were jealous of their relationship...there was never any animosity between them.”
Harvey says the unintentional discharge was an accident.
“The three people that were in the vehicle all said it was an accident,” Harvey says.
Harvey says there is no question McIver was asleep in the vehicle.
“I’m sure he went to sleep with the gun on his lap,” Dani Jo Carter testified, Harvey says.
Harvey says there is no doubt that Tex McIver depended on his wife’s money.
“There’s no doubt about that,” Harvey said.
Diane McIver provided thousands of dollars each year to her husband, Harvey says.
“Tex was not broke, nor was he in dire straits,” Harvey says.”
Before Diane died, McIver was worth more than $1.7 million, Harvey tells the jury.
Accidental discharges happen “all the time,” according to an Atlanta police detective, Harvey says.
Harvey holds the handgun McIver used to shoot his wife in front of jurors. Evidence shows no one can tell whether the shooting was intentional, Harvey says.
Harvey begins his portion of the closing argument by telling the jurors they aren’t here because of the indictment. Instead, it’s because McIver says he is not guilty.
Samuel has wrapped up his part of the defense closing argument and the jury is taking a break. Samuel’s co-counsel, Bruce Harvey, will be up next.
Samuel said in the absence of real evidence the state has spent weeks vilifying McIver.
“He’s a flawed person, OK?” Samuel says.
“He’s not perfect. He’s not even close to being perfect.”
Samuel reserves some of his harshest criticism for the prosecution’s suggestions — sprinkled throughout the trial — that McIver was having an affair with Annie Anderson, the couple’s personal masseuse.
“Shame on you,” Samuel said turning to the prosecution table
“Everyone was thinking the same thing — he’s having sex with the masseuse,” Samuel said in a stage whisper.
“It wasn’t right what they did,” Samuel said.
(On the stand, Anderson called insinuations that she was sexually involved with McIver “1,000 percent not true.”)
The witness influencing count is now being discussed.
Samuel called McIver’s remark to Dani Jo Carter telling her to say she hadn’t been in the SUV during the shooting “inexplicable.” But he said it doesn’t really matter.
“It is not a crime to tell someone to lie,” he said.
Turning his attention to the state’s case against McIver he said it was built entirely on “speculation and red herrings.”
Samuel is arguing that some of McIver’s strange behavior following the shooting shows that it wasn’t planned. He mentions Tex’s failure to cry and grieve at the hospital, calling his lawyer first and asking Dani Jo Carter to say she wasn’t in the SUV when she was actually driving.
“All these things that look suspicious.... are proof that it wasn’t a planned murder,” Samuel said.
“We’re not talking about reasonable doubts here we are talking about astonishing improbabilities,” he continued.
Samuel said one of the strongest arguments against the state’s case that Tex McIver killed his wife on purpose was that the couple was in love.
He said the pair were “like teenagers” who would be caught by friends kissing in the kitchen while they cooked together.
Samuel also questioned the circumstances of the shooting.
“If you are going to murder someone why do you shoot her in front of her best friend?” Samuel asked.
Samuel said he will present 16 “doubts” about the state’s case. But he noted that jurors only needed to agree with one to return a verdict of not guilty.
“Let’s talk about the theory, that it was a planned, intentional deliberate murder,” Samuel said.
“There’s zero evidence.”
Don Samuel has begun closing arguments for the defense.
He tells the jury that this case will likely stay with them.
“You will never forget this experience, I will tell you,” Samuel said.
And he said the decision they make in this murder trial will be one of the more momentous decisions that they will make in their life.
Convery wraps up her part of closing arguments. The jury is taking a short break before the defense offers their take. Following the defense, prosecutor Clint Rucker will have the final word.
Convery explains that the jury will see five of the original charges on the verdict form along with an additional option of involuntary manslaughter.
“I’m going to ask that you not check that box,” Convery said. “Because the defendant is not guilty of involuntary manslaughter. The defendant is guilty of malice murder beyond a reasonable doubt.”
“In this case, the conduct after the killing is so important,” Convery said.
Those few moments following the shooting are precious because those few moments determine if she lives or dies,” Convery said of Diane McIver.
Convery notes that McIver did not call 911. Instead, his first phone call after the shooting was to his lawyer, Steve Maples.
“What we have here is no accident. We have a gun in perfect working order,” Convery told the jury.
The prosecutor said if McIver’s .38 Revolver wasn’t already cocked it would require 12 pounds of pressure to fire. She urged the jury to try to as to handle the gun themselves to see what that felt like.
She also argued that the jury does not have to find that the crime was premeditated.
“Malice can be formed an instant,” Convery said.
Fulton County Assistant District Attorney Cara Convery has begin the state’s closing argument. She started out by thanking the jury for serving.
Convery is also explaining the legal concept of “intent” encouraging jurors to consider Tex McIver’s actions “before, during and after” the shooting.
“This gun didn’t just go off. This gun had the trigger pulled,” Convery said.
Following 20 days of testimony and nearly 80 witnesses, the jury has entered the courtroom and closing arguments are about to begin.
The Fulton County courthouse is packed with observers.
Judge Robert McBurney decided late Monday to remove misdemeanor involuntary manslaughter from the lesser included charges available to the jury. That's potentially bad news for the defendant; if the jury wants to punish him their options are especially punitive. Felony involuntary manslaughter, which remains on the table, could land McIver in jail for up to 10 years.
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