Fulton County prosecutors rested their murder case against Claud “Tex” McIver after 16 days of testimony, but not before a former media consultant testified Tuesday that the attorney suggested he could share a “success bonus” with Fulton County District Attorney Paul Howard if the DA reduced or dropped criminal charges against him.
Defense lawyers presented a single witness—the chief financial officer of a kaolin mining company in which McIver had held a 10 percent interest until he sold it in January 2017—before launching into arguments intended to persuade Fulton County Chief Judge Robert McBurney to toss out three counts of influencing witnesses.
The testimony of McKenzie Davenport, the chief financial officer of Arcilla Mining and Land Co., appeared to be an effort to at least partially rehabilitate McIver’s 2017 financial statements prosecutors claimed he vastly overestimated. Prosecutors have presented expert forensic accounting testimony suggesting McIver was broke and, without his wife’s cash infusions, would have had negative bank balances totaling more than $5,000 when he shot her from the back seat of the couple’s SUV. Prosecutors contended that gave him ample motive for murder.
Once Davenport testified, defense attorney Don Samuel appeared to score at least some points with McBurney in arguing that the judge ought to dismiss the influencing witnesses charges.
In addition to malice murder, felony murder and assault with a deadly weapon, McIver is also charged with influencing witnesses Dani Jo Carter, who was driving the McIvers’ SUV through downtown Atlanta when he shot his wife, Diane; Dani Jo Carter’s husband, Tom Carter; and Bill Crane, one of McIver two spokesmen who communicated to the media some version of McIver’s shifting narrative about how he shot his wife.
Samuel argued that McIver wasn’t attempting to silence Dani Jo Carter or, by extension, influence any statement she might make to police investigating the shooting when he called Tom Carter to say his wife was “about to send me to prison.”
“Never was that phone call interpreted by anybody to say, ‘Don’t talk to the police. Stop talking to the police,’” Samuel argued. “It was the exact opposite.”
Testimony by prosecution witnesses demonstrated that McIver was attempting to persuade Dani Jo Carter to go public with her story of the shooting, Samuel said, which she told police was an accident.
“It had nothing to do with law enforcement officers. It had nothing to do with ceasing communication,” Samuel argued. “It was 180 degrees opposite. It was, ‘Go talk to the people. We need them better informed.’”
Urging Dani Jo Carter to speak to his lawyer and the media about the shooting, Samuel said, is akin to “me yelling at my lawyer, ‘Go out in the press. Stand up for me.’ … Where is the lie?”
Samuel also argued the influencing charge linked to Crane should be dismissed because it referred to numerous attempts by McIver to get Crane to retract statements he had made to the media that McIver was holding his gun in the SUV because he feared Black Lives Matter protesters.
Crane testified Monday that McIver approved the statement and saw nothing wrong with it once it was published—until his fellow law partners at Fisher & Phillips urged him to retract it. McIver retired after his arrest in December 2016.
But Samuel said it’s not a crime to lie to the media. Prosecutors, he said, “are saying that lying to the press is a crime.” If that’s so, he added, “There are a lot of us who are in trouble.”
McBurney took the defense motion for a directed verdict under advisement.
A former media consultant also testified Tuesday that Claud “Tex” McIver told him he could share a “success bonus” with Fulton County District Attorney Paul Howard if the prosecutor reduced or dropped criminal charges filed in the death of the lawyer’s wife.
Jeff Dickerson, a former journalist who described himself as a crisis communications consultant, said he was contacted by one of McIver’s representatives in late December 2016. That led to a meeting with McIver and his then-counsel Stephen Maples, Dickerson said.
McIver reached out to Dickerson within a week of his arrest on charges of felony involuntary manslaughter and reckless conduct stemming from the Sept. 25, 2016, fatal shooting of his wife, Diane. McIver was free on a $200,000 bond at the time.
McIver eventually became the subject of national and international media stories stemming from comments Bill Crane, a friend and spokesman, made about McIver asking for his gun because he was wary of Black Lives Matter protesters as the couple and a friend drove through downtown Atlanta.
During a meeting between McIver, Maples and Dickerson, McIver explained the shooting was an accident and that he fell asleep with the gun in his lap, only to awaken when it fired, Dickerson said.
Dickerson said he’s known Howard for more than 30 years and told McIver and Maples he could help, “because I knew Mr. Howard and would be able to reach out to him.”
Maples left the room at one point during that meeting, Dickerson testified. That’s when McIver offered a “success bonus,” if Dickerson persuaded Howard to drop or reduce the pending criminal charges, he testified.
And, Dickerson said, McIver added, “It would be OK with him—those were his words—if I shared that with others.”
Dickerson said he was initially puzzled.
“The offer to share it with others was vague,” he explained. “I really didn’t know who else he might have on his team he would want me to share it with. I asked for a clarification.”
The response left him with the clear impression McIver meant Dickerson could share that bonus with the district attorney, Dickerson said.
“When it became clearer to me he was talking about sharing money with the district attorney, I told him in no uncertain terms I would never make such an offer to the district attorney and that he would never accept it,” Dickerson said. “It would have been, at the very least, an unethical thing to do and at most illegal. Criminal.”
Dickerson said McIver’s overture didn’t stop him from taking a job as a consultant on the former Fisher & Phillips’ partner’s legal defense team. Dickerson said he soon reached out to Howard via text message to set up a meeting. When Howard learned Dickerson wanted to talk about McIver, he broke off contact.
McIver was disappointed and urged him to try again, Dickerson said.
“I did not try again. I got the message loud and clear the first time from Mr. Howard,” Dickerson said.
McIver never mentioned any dollar amount when he first referenced the bonus, Dickerson testified. “I didn’t know if the district attorney would respond to an overture, so it seemed premature to talk to a bonus or success fee related to reducing or eliminating charges,” he said.
Dickerson said he remained associated with McIver’s legal team for about four months. During that time, he received at least four checks totaling $9,000 that were paid from Diane McIver’s estate.
Dickerson said he was let go in late April 2017 after McIver was indicted on charges for malice murder, felony murder and influencing witness and his bond revoked.
McIver defense attorney Don Samuel suggested during his questioning Tuesday that success bonus aren’t unusual in Dickerson’s business, which Dickerson agreed with.
Samuel suggested that, when McIver offered Dickerson the bonus, he never specifically suggested Dickerson pay some of it to the district attorney.
“Does he [McIver] say you could share the money with anybody you want to?” Samuel asked.
“Correct,” Dickerson replied.
“He didn’t say, ‘Offer Paul Howard money?’” Samuel asked. “He didn’t say, ‘Tell Paul Howard there is money in this for him?’”
“He did not say those words,” Dickerson said.