Tex McIver confers with defense attorneys Bruce Harvey and Don Samuel (foreground) on Tuesday. (Pool photo by Hyosub Shin/AJC) Tex McIver (from left) confers with defense attorneys Bruce Harvey and Don Samuel on Tuesday. (Pool photo: Hyosub Shin/AJC)

When the jury begins deliberating in Atlanta attorney Claud “Tex” McIver’s ongoing trial over the fatal shooting of his wife, they will have the option of convicting him of something other than murder.

On Friday, Fulton County Superior Court Chief Judge Robert McBurney said he will add charges of involuntary manslaughter due to reckless conduct, a felony, and involuntary manslaughter due to criminal negligence, a misdemeanor, to the charges of malice murder and felony murder McIver already faces.

At a charge conference with prosecutors and defense lawyers Friday afternoon, McBurney also said he would allow the jury to consider that Diane McIver’s shooting death was an accident that would end in her husband’s acquittal. The conference came after the defense rested its case.

McBurney said he was adding the involuntary manslaughter charges sua sponte, or on his own motion.

“It’s a very reasonable interpretation of the evidence in the case and ought to be included,” he said. The jury would not be told that one count was a felony and one a misdemeanor, he added.

When McIver was first arrested in December 2016, Atlanta police obtained warrants for felony involuntary manslaughter and reckless conduct. In April 2017, a Fulton County grand jury elevated those charges to murder.

Closing arguments in the case are expected Tuesday after prosecutors call three rebuttal witnesses.

In addition to the two murder counts, McIver was indicted on charges of aggravated assault and possessing a firearm while committing a felony in connection with the Sept. 25, 2016, shooting.

McIver also was indicted on three felony charges of influencing witnesses. McBurney dismissed two of those charges Tuesday. Still pending is a charge that McIver attempted to influence Dani Jo Carter, a family friend who was driving him and Diane McIver home from a weekend at their 85-acre ranch when McIver shot his wife while they were stopped at a traffic light on a Midtown Atlanta street. McIver has said he fell asleep and woke up when the gun went off.

That remaining charge is based on comments McIver made to Carter after they drove to Emory University Hospital’s emergency room. While medical personnel were trying to save his wife, McIver suggested that Carter tell anyone who asked that she was at the hospital because she was a “family friend.”

On Friday, McBurney also denied defense attorney Don Samuel’s motion for a mistrial. Samuel made the motion based on McBurney’s earlier decision to throw out the charge that McIver had attempted to illegally influence Bill Crane, who ran interference for him with the press in the days following the shooting. The charge was based on McIver’s efforts to persuade Crane to retract statements he made to the media that McIver was holding a gun because he feared Black Lives Matter protesters. McBurney agreed with Samuel that it is not a crime to lie to the media.

Long before the trial, McIver’s defense tried unsuccessfully to persuade McBurney to sever the “Black Lives Matter” charge and try it separately from the murder case.  They argued it unfairly injected racism into the case.

“All you had to do was mention Black Lives Matter and the world went ballistic,” Samuel said Friday. Prosecutors, he said, “put it in opening statements. They asked numerous witnesses. … They mentioned Black Lives Matter … like it was an important element. That was exactly what we’re afraid of.”

As a result, Samuel said, “This racial argument has tainted this jury with inadmissible evidence” that, he added, “came in on a count that should never have been brought.”

But Assistant District Attorney Clint Rucker insisted it was “not the state’s intention to inject race into the case.”

Instead, he argued, “When he [McIver] made that statement to Bill Crane, he was trying to express a justification for having a loaded handgun riding down Piedmont Avenue that caused the death of his wife.”

Rucker argued that McIver thought that mentioning Black Lives Matter “was a pretty good story. … The fact that it backfired on him and the press took it to another level should not absolve Mr. McIver of the consequences of making a statement in an attempt to mislead.”

“His credibility is going to be an issue,” Rucker continued. “What the state has shown time and time again is that he is lying not only why he had the gun, but what happened once he had the gun. … The argument is not, ‘Hey, Black Lives Matter means he doesn’t like black people.’ … He has got to create a reasonable explanation for why he has his gun.”