Fulton County District Attorney Paul Howard Fulton County District Attorney Paul Howard (Photo: John Disney/ALM)

Atlanta police investigating the death of businesswoman Diane McIver missed “the biggest, most direct evidence” that she knew her husband intended to kill her, Fulton County District Attorney Paul Howard said.

It was Diane’s final word, declining to see her husband as she lay dying in the hospital, that guided prosecutors’ pursuit of Claud “Tex” McIver for murder. Howard, in his first wide-ranging interview since McIver was sentenced to life in May, said that last conscious act by Diane McIver became one of the driving forces behind the district attorney’s successful murder prosecution.

Howard and a team of five prosecutors led by Executive Assistant District Attorney Clint Rucker fought to convict McIver of murder even though Atlanta police appeared willing to take the lawyer at his word that the shooting was an accident.

McIver’s defense team has filed a motion for a new trial and has promised to appeal the verdict.

As Dr. Susanne Hardy prepped Diane McIver for surgery for the gunshot wound, the emergency room physician asked if she wanted to see her husband. Diane said “no.” It was last word she ever spoke.

Howard said police either discounted or missed the significance of that statement in initially concluding the shooting was an accident. Instead, police emphasized Diane McIver’s response when Hardy first asked her what had happened, Howard said. She initially said it was an accident.

Howard said Diane McIver rightly feared she was dying. Human nature dictated she would want to see the person she loved most before she was intubated and whisked into emergency surgery. “What she said was ‘no.’ Because he murdered her,” Howard said.

Police interviewed Hardy. But Howard said they didn’t interview other Emory University Hospital personnel who became suspicious of McIver’s actions.

When prosecutors did so, “We began receiving a totally different view as to what had happened,” Howard said.

McIver gave hospital staff at least three different versions of how and where his wife was shot, Howard said. Their statements were credible, he added. “Why would they make up a story about Tex McIver?” Howard said.

Howard’s team grew even more suspicious when Dani Jo Carter, a longtime friend of Diane McIver’s who was driving the couples’ SUV when the shooting occurred, unexpectedly changed her story.

Carter initially told police the shooting was an accident, Howard said. Three weeks later, she told prosecutors she no longer believed that. Instead, Carter told prosecutors that, while at the hospital where Diane McIver died, Tex urged her to stay out of it and tell police she was just a family friend.

Howard called McIver’s decision to shoot his wife in front of Carter “a brilliant move.”

“She was a good friend of his wife. She was a good friend of the family. She looked on him with a lot of respect. And she couldn’t see what happened in back of her” when the gun went off, Howard said. “Not only does he shoot and kill his wife, he has a good friend there to say it was an accident.”

Prosecutors also were troubled by McIver’s claims that he was holding the gun because he feared the downtown neighborhood they were driving through but that it accidentally fired after he fell asleep in the back seat of the SUV. The Smith & Wesson .38-caliber revolver is one of the more reliable guns with a double-action trigger that requires effort to squeeze, Howard added. “That gun just doesn’t go off.”

And, while McIver told police he knew little about guns, Howard said his team soon discovered that McIver had dozens of guns and “by any measure was a gun expert himself.”

Yet McIver continued to insist, “Guns are not my thing.” Howard said. “Why was he trying to mislead people?”

Howard said prosecutors’ suspicions deepened as they began delving into the McIvers’ finances, which police had not explored.

“It was kind of a reflex action,” he said. The McIvers were wealthy “and many of our [murder] cases involve financial motives, particularly with husbands and wives.”

“Atlanta police really had not explored the financial details in any great aspect,” he explained. “The police department kept saying he’s a wealthy man. But what’s the proof? They didn’t have any.”

Howard’s team discovered that McIver’s lucrative partnership at Atlanta’s Fisher & Phillips was on the wane and his income dropped precipitously as the law firm prepared to push him out.

The McIvers also were fighting over who would inherit their ranch near Lake Oconee. Diane McIver held a $350,000 promissory note from her husband that he collateralized with his share of the ranch. He had already defaulted on the note.

A forensic accountant Howard hired also discovered McIver’s bank accounts would have been overdrawn by more than $5,000 when he killed Diane, if it were not for regular cash infusions from her. Tex McIver’s image of himself was inextricably tied to his money and to the ranch, Howard said.

“All his prestige, his power, was totally dependent on his wife,” Howard said. Diane’s death gave McIver control over her estate and a quick cash infusion of more than $1 million. The lawyer’s dire financial straits helped tip the balance in favor of prosecuting McIver for murder.

One final thing clinched prosecutors’ suspicions—particularly among the female staff: The lawyer left his wife’s ashes for 42 days at the funeral home before he finally picked them up.

McIver claimed he waited until his wife’s will was probated and he had opened a bank account for her estate. But Howard called that decision “profound.” Diane McIver had no other family, the DA said. An estranged friend eventually paid for her cremation. “This was a guy who supposedly had vast holdings,” Howard said. “He wouldn’t even go over and pay for her ashes.”

And, the DA added, when the McIvers’ condominium was searched six months later, investigators found Diane McIver’s ashes—in a sock drawer in a bedroom closet.