In their quest to convince a jury that Atlanta attorney Tex McIver intentionally shot and killed his wife, Fulton County prosecutors have subpoenaed journalists who reported on Diane McIver’s death to testify at his murder trial.
Reporters from the Atlanta’s WSB-TV, WAGA-TV and the Daily Report have been subpoenaed, and a court order was also granted certifying a former Atlanta Journal-Constitution reporter, now living in New York, as a material witness.
The journalists published or broadcast interviews that included statements from McIver, a former partner with Fisher & Phillips; McIver spokesman Bill Crane; or McIver’s former defense attorney, Stephen Maples, about the circumstances surrounding the shooting. McIver has never denied shooting his wife inside the couple’s SUV on an Atlanta street as they were driven home by a friend. But he has always said the shooting was accidental.
In addition to the reporters, prosecutors have listed Crane and Maples as witnesses.
Maples, whom McIver summoned to Emory University Hospital on Sept. 26, 2016, as medical personnel tried to save his wife, is no longer a member of McIver’s defense team. McIver is now represented by Bruce Harvey and Don Samuel of Garland, Samuel & Loeb.
Maples and a team from Polsinelli led by former Fulton Superior Court Judge William Hill withdrew in November, leaving only Harvey, who later pulled in Samuel.
McIver is charged with murder and influencing witnesses. Those witnesses include Crane, Dani Jo Carter, who was driving the couple home, and Carter’s husband.
Media attorneys have filed motions to quash subpoenas for journalists Morse Diggs of Fox 5, WSB reporter Mark Winne, former AJC reporter Craig Schneider and Meredith Hobbs of the Daily Report. The lawyers contend in their motions that calling reporters to testify without any parameters could run afoul of the state’s reporter shield law.
Georgia law protects journalists from having to disclose information, documents or other items obtained or prepared in the course of their work in any proceeding where they are not a party, unless what is sought is material, relevant and necessary to the case and cannot reasonably be obtained by other means.
Duane Morris partner Cynthia Counts argued in motions to quash subpoenas for Hobbs and Diggs that compelling testimony from journalists “will chill news reporting because journalists will be viewed as, in effect, an investigative arm” of the courts. Common practice is for the parties to stipulate to the authenticity of a news report rather than subpoena a reporter to testify, she said.
“The state can’t just put reporters on the stand so they can fish for possible evidence,” she added.
Counts and Tom Clyde, a partner at Atlanta’s Kilpatrick Townsend & Stockton who represents Winne and Schneider, said prosecutors have been circumspect about what they want reporters to testify about and why they want to put them on the stand, rather than let the reporting speak for itself.
“So far, it has been difficult to pin down exactly what testimony the state wants to try to get with the subpoenas to our reporters,” Clyde said. “That’s concerning, because the burden is squarely on the state to show why the testimony is not protected by the reporters’ privilege. These are just journalists doing their job exactly as they are supposed to do it.”
Prosecutors Clint Rucker and Adam Abbate said in a petition to certify Schneider as a material witness that an article he published based on interviews with Tex McIver “directly related to the circumstances of the crimes charged” and “detailed critical facts related to elements of the crimes.” Information in Schneider’s article contradicted McIver’s previous statements, prosecutors said.
A review of the news reports referenced in motions associated with the subpoenas suggest a number of contradictory statements were made not by McIver but by Maples, who represented McIver and was trying to correct what he said were inaccurate statements Crane made about the shooting.
Those statements centered on Crane’s explanation that Diane McIver handed her husband the gun, which he kept in the vehicle console, after McIver expressed concerns about the neighborhood they were in and a fear of Black Lives Matter protests, which had taken place in Atlanta that weekend.
Maples also revised Crane’s claim that the gun fired when the SUV hit a bump in the road. And in an interview with Diggs, the lawyer said McIver fell asleep despite his concerns because he had been treated for “a sleep condition.”
McIver’s defense team has long fought to exclude testimony referencing alleged fears of Black Lives Matter. They have asked presiding Chief Judge Robert McBurney to exclude any testimony about race, claiming it would create an unfair prejudice and mislead the jury.
But prosecutors have countered that McIver’s attempts through his lawyer and spokesman to back away from claims involving Black Lives Matter illustrates McIver changed his story ”several times.” McIver didn’t mention any alarm about Black Lives Matter protesters in his interview with Atlanta police after the shooting.
McBurney has agreed to allow prosecutors to rebut McIver’s claim that the shooting was accidental “by exploring if and how [the] defendant sought to influence what others said to the investigating authorities,” including references to Black Lives Matter.