Fulton County prosecutors resumed the murder trial of Atlanta attorney Claud “Tex” McIver on Monday by revisiting the night his wife died at Emory University Hospital after he shot her.
The jury heard from the surgeon who operated on Diane McIver, who described her fatal injuries and Tex McIver’s demeanor immediately before and after his wife’s death. Mciver’s trial reopened for a fourth week of testimony Monday after a weeklong hiatus for spring break.
Dr. Marty Sellers, a transplant surgeon on call the night Diane McIver was shot on Sept. 25, 2016, testified about McIver’s “aggressive” demeanor, particularly toward the chief resident who worked with Sellers to try and save Diane.
After Diane McIver died, Sellers said he and Dr. Blaine Sayeed headed for the surgical wing waiting area to notify McIver. There was no one there, and Sellers said he was told McIver “wanted to wait for his attorney to get there before he came up to speak with us.”
Sellers said he and Dr. Sayeed were already in the waiting room when McIver and a companion he later learned was Maples arrived, accompanied by the hospital chaplain and a security guard. Previous witnesses have testified McIver called criminal defense attorney Stephen Maples shortly after arriving at Emory’s emergency room.
“Dr. Sayeed took the lead and said, ‘Please Mr. McIver, have a seat,’ and pointed to a chair,” Sellers recalled.
Sayeed had barely finished speaking when McIver snapped, “Don’t tell me what to do, boy,” the surgeon recalled. “It was not in a threatening way, but in an aggressive way. … It caught us, I guess, off guard a little bit.”
Sellers also said McIver didn’t weep at news of his wife’s death or demonstrate any reactions “universally consistent with grief.”
Instead, Sellers testified that McIver said, “This is the hardest thing you do, isn’t it?” Sellers added that McIver then told him he made similar notifications when he was in the military.
McIver was in the U.S. Air Force during the Vietnam War. Sellers added that McIver told him, “I used to have to call and tell little Johnny’s parents that little Johnny didn’t survive, and I remember how hard that was.”
Sellers was not asked about Sayeed’s race. On March 30, after the jury was dismissed, Sellers’ testimony was the subject of heated debate among prosecutors and McIver’s defense.
At that hearing, McIver defense attorney Don Samuel repeatedly objected to Sellers’ testimony as prejudicial. He suggested the potentially inflammatory reference to “boy” should be omitted if the jury were to hear of McIver’s comments.
Prosecutors insisted that Sellers’ testimony had nothing to do with race and that they did not intend to ask Sellers to testify about Sayeed’s race. Prosecutors described Sayeed as a person of color during the hearing.
McBurney ruled that Sellers could testify about McIver’s comments because, “The defense has repeatedly and insistently portrayed Mr. McIver as the consummate Southern gentleman who is nice to everyone, who calls his wife, ‘Darlin,’… who is absolutely smitten with his wife and devastated by her loss.”
That argument by the defense, the judge said, “isn’t without consequence. Someone who is supposedly a Southern gentleman who is polite to everyone, when asked by the physician who just tried to save his wife’s life [says], ‘Don’t tell me where to sit, jerk,’ [or] ‘Don’t tell me where to sit asshole,’ or Don’t tell me where to sit, boy.’ … It is inconsistent with the way the defense has elected to portray Mr. McIver.”
“Everyone handles loss differently,” McBurney continued. “That particular line is a bit out of sync with other things we have heard throughout the trial.”
The judge also agreed with the defense that McIver’s comment “certainly has racial connotations.” Prosecutors, he said, would be “walking on thin mistrial ice if it doesn’t go the way it forecasted. If Dr. Sellers decides to tell it like it is, it could have a bad outcome.”
Sellers’ testimony adds to the specter of potential racism on McIver’s part. McIver spokesman Bill Crane told news outlets that McIver had asked his wife to hand him his gun, which was stored in the front console of the couple’s Ford Expedition, because he feared Black Lives Matter protesters on the downtown Atlanta street they were traveling.
Maples, McIver’s lawyer, attempted to walk back that statement after it went viral, claiming McIver had never said it—an assertion that led to one of three charges against McIver of influencing witnesses.
Crane testified Monday that, when he first heard about the shooting, he tried to find McIver, a longtime friend, family adviser and mentor who had worked with him on several political campaigns. When he reached McIver, Crane said he offered to contact local reporters because “It was clear a [media] storm cloud was brewing fast.”
McIver agreed. Crane testified McIver said the couple and a friend ran into heavy traffic and exited the interstate right before Diane McIver was shot. Tex McIver said he quickly grew concerned about the area of town, Crane said. McIver also told him he was “concerned about unrest” associated with Black Lives Matter protests in Atlanta that had locked down a major thoroughfare and closed upscale Lenox Mall that weekend near where the couple lived.
Crane said he relayed that information to the reporters at The Atlanta Journal-Constitution and The Daily Report. He later read them to McIver, who “was pleased at the time and thought the stories would be helpful to his case.”
But the references to Black Lives Matter attracted the attention of the national and international media, which Crane said “were sensationalizing what they saw was a racial aspect of the story that I never saw and turning that into the focus of their coverage.”
Crane said McIver “started getting a lot of flack about the story.”
McIver’s two original defense attorneys were upset, and he “was getting pushback’ from his law firm, Fisher & Phillips, which Crane said lost a client as a result of McIver’s comments.
Then, McIver asked Crane to call reporters and retract his statements about Black Lives Matter. In a series of conversations, McIver began claiming he “was not sure” he told Crane he was wary of Black Lives Matter protesters, then contended he did say it.
Crane said he told McIver, “You can’t put the genie back in the bottle.” He also warned him he didn’t need conflicting versions of his story.
While cross-examining Crane, McIver defense attorney Don Samuel pointed out that McIver never asked Crane to lie to police, prosecutors or the court. McIver also was “trying to tell you why he was scared that night,” he suggested.
Samuel also asked Crane if he thought the references to Black Lives Matter were racist.
“When you repeated that [to the media] you didn’t think there was anything bad about that at all?” the lawyer asked. “It was perfectly legitimate to be scared.”
“Yes,” Crane replied, calling it “a minor aspect of the initial coverage.”
“But, it went viral,” Samuel said. “It went ballistic … because of the mistaken spin put on it by the sensational media.”
What was missing context, Crane said. There were Black Lives Matter protests that weekend that became violent in Charlotte, where one man was killed and locked down Peachtree Street in Buckhead and downtown Atlanta.
“It was because my remarks were taken out of context … like an alternate world version of what I had said,” Crane said.
But Crane still insisted that McIver had pressured him to go to the media and retract his previous references to Black Lives Matter.
“I need you to fall on your sword,” Crane said McIver told him. “I need you to take back what you said. … I need you to help me make this go away.”