As the murder trial of Atlanta attorney Claud “Tex” McIver opened its 16th day of testimony last week, presiding Fulton County Superior Chief Judge Robert McBurney cautioned prosecutors about pursuing an “angle” involving a fellow judge.
McBurney’s warning came before the jury was brought in on April 10 and referenced previous testimony mentioning Judge Craig Schwall, who is Tex McIver’s longtime friend. McIver was a member of former Georgia Gov. Sonny Perdue’s Judicial Nominating Commission that recommended Schwall in 2005 and is friends with Schwall’s ex-wife. McIver designated Anne Schwall as the successor executor of a new will he drew up after he fatally shot his wife, Diane, on Sept. 25, 2016.
The Schwalls’ second son, Austin, is McIver’s godson. He’s also a primary beneficiary of McIver’s will and is integral to prosecutors’ contention that Diane McIver penned a new will that would have made the child the major inheritor of her estate.
McBurney warned prosecutors there was one direction “I want to make sure isn’t where the state’s heading.” That angle, he said, was suggested by a news article based on testimony from Bill Crane, who ran media interference for McIver after he shot and killed his wife.
Crane testified April 9 that McIver received a call from Schwall on Dec. 19, 2016—24 hours before Atlanta police issued warrants for McIver’s arrest.
“This doesn’t have anything to do with the jury,” McBurney continued. “But I did not understand the state to be suggesting, arguing, or intimating in any way that Judge Schwall somehow tipped Mr. McIver off through the phone call that Mr. Crane described happening at Roasters (restaurant) to say, ‘Hey, this just in.’”
“My understanding—independent of Mr. Crane’s testimony—was that there were efforts underway to connect with Mr. McIver and/or his attorneys to create a smooth, non-spectacle-like process of connecting Mr. McIver with [the Atlanta Police Department] once those warrants had been sworn out,” McBurney said. “Did I misunderstand what Mr. Crane said, or what the state’s angle is on this? Because if you think it was what we’re reading in the media, you ought to talk with [Atlanta police Detective Kevin] Leonpacher so you aren’t sharing something with the jury that’s inaccurate. That’s my thought.”
Leonpacher is head of the Atlanta Police Department’s fugitive squad. He has not testified in McIver’s trial, though he is listed as a “reserve witness” to testify about phone records.
The judge went on: “I don’t think Crane said specifically there was something good, bad, or odd about the phone call. Hey, Judge Schwall knows Mr. McIver and vice-versa. My understanding of the history of how things played out is nothing the jury needs to worry about—unless it’s going to be something you’re going to be arguing—is that APD was in the midst of trying to contact Mr. McIver so that there wasn’t any big spectacle in relation to the arrest.”
“I may be mistaken about that,” McBurney continued, “but the info I have is that that phone call wasn’t anything sinister.”
Assistant District Attorney Clint Rucker assured McBurney, “I’m not arguing that.”
McBurney didn’t specify the publication he thought “misconstrued” Crane’s testimony. “I got it thrust in my face by someone,” said the judge, who also did not identify the person.
The Daily Report, in recounting testimony in a story published online April 9, referred to Schwall’s call as “a tip” based on what Crane testified Schwall told McIver the day before Atlanta police obtained arrest warrants for felony manslaughter and reckless conduct.
Crane testified that McIver took the call, then said, “Thanks Judge Schwall.” McIver, Crane added, “hangs up and looks very sad, and tells me that he’s been informed that the Atlanta Police Department was swearing out warrants. And then he lists the charges to me. And then he said he needed to call Steve Maples, his attorney. And he did.”
Crane said the judge’s call prompted him to recommend that McIver turn himself in to avoid media attention.
The two men were also discussing a pending separation agreement between McIver and his law firm at the time, Fisher & Phillips, when Schwall called. Crane testified he advised McIver to “Accept the severance package and retire. And he did do that in front of me.”
McBurney declined to answer The Daily Report’s questions about where he got his independent information or who “thrust” the article at him. “The record speaks for itself,” he said.
On Tuesday, Schwall declined to comment through campaign spokesman Phil Kent. Schwall is up for reelection in May.
But at 8:30 p.m. April 9, Kent sent a written statement from Schwall to The Daily Report that included an email from Leonpacher. In his statement, Schwall said it was “misleading” to suggest “that I ‘tipped’ attorney Tex McIver that he was to be arrested by the Atlanta police for the shooting death of his wife, Diane McIver.”
“The fact of the matter is that [Atlanta police] Detective Darrin Smith called then-McIver attorney Steve Maples to urge his client to turn himself in immediately or a fugitive warrant would be issued,” Schwall said. ” Smith became frustrated when the attorney wanted to delay that decision. So Smith had fellow detective Kevin Leonpacher phone me to ask if I would urge McIver to turn himself in immediately. I did that. I made that call as an officer of the court to another officer of the court, and strongly urged McIver to immediately turn himself in. And he did.”
Kent also forwarded an email Leonpacher sent to Schwall on April 9.
“It’s very unfortunate and troubling to hear that there was a mischaracterization of this situation,” Leonpacher wrote in that email. “ Your response is 100% accurate. I’m still grateful for you having been willing to assist us in communicating with Mr. McIver and his attorney to avoid the involvement of our Fugitive Unit.”
Smith’s final report of the shooting investigation, dated Dec. 29, 2016, shows the homicide detective obtained arrest warrants for McIver on Dec. 20, 2016—a day after Schwall called McIver. The report said Smith contacted Maples on Dec. 20 and requested that McIver turn himself in to the Fulton County Jail by 8 p.m. on Dec. 21, 2016.
McIver turned himself in as requested on Dec. 21, 2016. There is no mention in the report of any call to Schwall or Leonpacher.
Kent told the Daily Report that he did not give Schwall’s statement or Leonpacher’s email to McBurney.
“I don’t have any knowledge” as to whether Schwall sent his news release to McBurney, Kent said. “I heard the statement was passed around,” he added. “It might have been emailed. I don’t know who all received the statement.”
It’s not the first time that McBurney has defended Schwall in connection with the McIver case. During McIver’s bond hearing last year, Rucker contended that McIver attempted to use his political influence to secure his release from jail after McBurney revoked bond.
Schwall had visited him in jail and told the lawyer in a recorded conversation, “Hey, man, I’m with you 1,000 percent.”
At that bond hearing, McBurney made clear that Schwall never attempted to influence him.
“Judge Schwall has never contacted me about this case,” McBurney said at the time. “We are friends. We are colleagues. … He has maintained an appropriate professional distance throughout the proceedings. He has not reached out to me in any way, shape or form about this case or Mr. McIver or Austin. He appreciates the need to keep that distance.”