As jury selection got underway in the murder trial of Atlanta attorney Claud “Tex” McIver Monday, questions that county prosecutors and McIver’s defense want to ask prospective jurors offered tantalizing hints as to how each side hopes to shape the narrative in the shooting death of his wife, Diane McIver.
Fulton County Superior Court Chief Judge Robert McBurney said he intends to seat 12 jurors and four alternates in the murder trial of the 75-year-old former Fisher & Phillips partner. The trial is expected to last through March.
Tex McIver’s defense team on Monday intimated that whether the couple was drinking heavily, McIver’s combat service in Vietnam, Black Lives Matter and the relative wealth of the law partner and his executive wife all may play a role at trial. Diane McIver was president of Atlanta billboard company Corey Airport Services.
Attorneys’ questions for prospective jurors also focused on whether they have ever made a 911 call and, if so, under what circumstances. Others centered on Emory University Hospital, where McIver directed his wife be taken after he shot her, foregoing three hospitals that were closer.
Neither McIver nor Dani Jo Carter—a friend who was driving the McIvers’ SUV—called 911 after the shooting.
Attorneys also want to know how familiar jurors are with traffic on Atlanta’s Downtown Connector, the section of I-75/I-85 which runs through the city center, and the Auburn/Edgewood Avenue exit the McIvers took on Sept. 25, 2016, in the minutes prior to the shooting.
The answers to those questions may signal how credible jurors find Tex McIver’s explanation of the circumstances surrounding the shooting. McIver has never denied shooting his wife but has always insisted it was an accident. Diane McIver was shot inside the couple’s SUV on their way home from a weekend at their Putnam County farm.
Tex McIver and Carter told authorities that the lawyer, who was sitting in back, asked his wife, who was in the front passenger seat, to hand him a gun he kept stored in the SUV’s console after they ran into a traffic jam and exited onto a downtown Atlanta street.
Tex McIver, according to the lawyer’s spokesman and Carter, asked for the gun because he allegedly feared pedestrians he spotted as they drove through the neighborhood. McIver has claimed he dozed off with the gun in his lap, only to wake when it fired several miles down the road in an upscale neighborhood directly across from Piedmont Park.
After the shooting, McIver’s spokesman told news outlets that McIver wanted the gun because he feared they had rolled into a Black Lives Matter protest—a statement his lawyer at the time, Decatur attorney Stephen Maples, later attempted to retract. The day before the shooting, a Black Lives Matter protest held as part of a national effort by the organization to target majority-white businesses for nearly five hours blocked Peachtree Road at Lenox Square mall, which is near where the McIvers lived.
“There’s going to be a focus on Black Lives Matter. There’s going to be a focus on protests,” Atlanta attorney Bruce Harvey said Monday. Harvey has teamed up with Don Samuel of Atlanta’s Garland, Samuel & Loeb to defend McIver. The judge said he intends to ask jurors whether anyone followed Black Lives Matter, ever attended a protest, supported the organization or donated money to it.
McBurney said he also intends to ask if prospective jurors own a gun or have a gun in the household. Harvey also wants to know whether any juror kept a gun in their car. He also said the defense wants to know if any juror has been present when a gun was accidentally fired.
Harvey also wants to know if any jurors are veterans.
Nothing so far has surfaced in McIver’s defense about his service in Vietnam and whether his combat experience had any influence on his habit of keeping multiple guns around and, according to witnesses at pretrial hearings, his tendency to brandish them.
Harvey also asked McBurney if he would query jurors about whether they drink or have any objections to drinking.
“I know alcohol is going to be a factor in this case,” he said.
Prior to the shooting, the lawyer said, McIver, his wife, Carter and a friend had dinner at a suburban steakhouse where they ordered wine at the bar and then a bottle at dinner. Harvey said that, according to a toxicology report, Diane McIver’s blood alcohol content was 0.18 percent when she died. People with a blood alcohol content of 0.08 percent or greater are considered too impaired to legally drive.
Harvey also said there was a container of wine in the SUV in a Yeti cup that he said was passed back and forth during the trip home.
The defense attorney also wants to determine whether any jurors “have the idea that people of means get treated differently in the criminal justice system, whether they have a persistent belief that is true.”
“This case is going to involve, as I understand it, extensive testimony and documentation about the relative wealth of the parties in this case,” he said. It’s “very important” the defense to know if jurors believe that people like McIver “are treated differently than anyone else by the system,” he added.