Lawyers representing Atlanta attorney Claud “Tex” McIver rested their defense Friday after informing Fulton County Superior Court Judge Robert McBurney that he would not testify in his murder trial.
Prosecutors will offer rebuttal witnesses Monday.
The defense ended three days of testimony with their own crime scene expert, Ross Gardner, the former chief of the Lake City, Georgia, police department. Gardner testified the gun McIver’s gun was likely resting flat on top of his right thigh when it fired.
He also said that, based on his analysis, it was “physically impossible” that the gun was pointed directly at the seat Diane McIver was in, given the spatial constraints of the back seat where McIver sat.
“I have confidence that the weapon was somewhere between the forward hip and the lower thigh at the time of discharge,” he said.
Gardner was the final witness presented by McIver’s defense team.
Gardner was called to counter testimony by the prosecution’s crime scene expert, Michael Knox, who testified that McIver’s explanation of how he was holding the gun when it fired was inconsistent with the bullet’s trajectory through the front passenger seat.
During his testimony Friday, Gardner said he “couldn’t be confident” about how far back the gun may have been from the seat.
Gardner said that, while crime scene photographs taken within hours of the shooting depicted what he identified as gunshot residue surrounding the bullet hole in the seat, it was gone by the time he inspected the Ford Expedition.
Atlanta police returned the SUV to McIver days after the shooting. McIver took it to a handyman to have cleaned before selling it, but the Fulton County district attorney ordered it re-seized and shipped to the Georgia Bureau of Investigation for further tests.
Gardner also said, “We lost the best evidence we could have had” in determining the gun’s location in the car when Atlanta police did not conduct gunshot residue tests on McIver’s hands or preserve the pants he was wearing when the gun fired.
While McIver’s attorneys defended the Atlanta police investigation, which concluded the shooting was likely an accident, Assistant District Attorney Clint Rucker repeatedly took the lead homicide detective to task for over failing to conduct interviews, forensic tests and financial reviews.
Gardner said he based his determination of how McIver was holding the gun on an armrest in the right rear of the SUV that he said would have limited his ability to hold the gun alongside his right thigh.
Defense attorney Bruce Harvey also elicited testimony from Gardner that there’s no way to determine whether McIver intentionally fired the gun. Gardner explained that an unintentional discharge could be “an automatic response by an individual that causes the gun to go off… There is no conscious act on my part,” he explained. “My body does something, and I have no specific control over it.”
“It happens?” Harvey asked.
“Correct,” Gardner responded.
Rucker challenged some of Gardner’s findings in an often combative cross-examination that prompted Harvey to say, “You can’t cut him off if you don’t like the damn answer.”
Rucker hammered Gardner for using a model semi-automatic Taurus as the basis for his reconstruction that’s 3 inches longer than McIver’s Smith & Wesson .38-caliber revolver.
Rucker did secure two significant admissions from Gardner. The crime scene reconstruction expert agreed that any statement that McIver’s gun fired when the SUV hit a bump would be untrue.
Gardner also testified that McIver defense lawyer Stephen Maples’ demonstration to Atlanta police that the gun was pointed down between his client’s legs when it fired was inconsistent with the evidence.