Lawyers fighting to acquit Atlanta attorney Claud “Tex” McIver of murder argued Tuesday that prosecutors built their case on innuendo, red herrings and the unfulfilled promises they would prove Diane McIver’s 2016 fatal shooting was anything other than an accident.
But Assistant District Attorneys Clint Rucker and Cara Convery countered during more than five hours of closing arguments that McIver was driven to kill his wife by increasingly dire financial difficulties.
The stakes for McIver got higher Monday night as Fulton County Superior Court Judge Robert McBurney eliminated misdemeanor involuntary manslaughter from the charges the jury will consider. The remaining charges, all felonies, include malice murder, felony murder, aggravated assault, possession of a pistol during the commission of a felony and one count of influencing a witness. That witness was Dani Jo Carter, who was driving the McIvers home when Tex McIver fired a single shot from a Smith & Wesson .38-caliber revolver through the front passenger seat where Diane McIver was sitting.
Defense attorney Don Samuel attacked the notion that Diane McIver’s death was deliberate due to debt that prosecutors claimed he owed his wife, a reduction in salary and the loss of his partnership at Fisher & Phillips.
“They were in love,” Samuel insisted. “You can pooh-pooh that, you can say that’s ridiculous. [But] there was no doubt about it. They were like little teenagers in love. … They were together all the time. Nobody ever saw them fight. Nobody ever saw them argue. Nobody ever heard her say, ‘I am going to foreclose [on the ranch] if you don’t pay me my money.’”
He also suggested that the couple’s relaxing weekend at their ranch and dinner with friends immediately before the shooting “is not the behavior of someone who is going to commit a murder. … If you are going to murder someone, why would you shoot her in front of her best friend? Why would you do that?”
“We aren’t talking about reasonable doubt here,” Samuel said. “We are talking about astonishing improbabilities. It’s outstandingly improbable that it was a calculated, well-planned-out murder.”
Defense attorney Bruce Harvey attacked the prosecution’s theory as “an accident in search of a motive.”
Everyone in the SUV said the shooting was an accident, Harvey said.
Carter told police she was “sure” McIver fell asleep while holding the gun, he said. Diane McIver also told an Emory physician working to save her life that the shooting was an accident.
Addressing the alleged financial motive for Diane McIver’s death, Harvey said, “There is no doubt that Tex McIver depended on his wife’s money.” But, he added, that is proof “It would have been financially detrimental to him to concoct a plan to deliberately take the life of his wife.”
Rucker painted Diane McIver’ death as a betrayal by a husband coveting her money.
“Who will stand for Diane Mciver, a great woman she tried to be,” he said. “Who will stand for truth and justice as she cries out, ‘Who will stand for me?’”
Rucker noted that Diane McIver was independently wealthy when she married Tex McIver in 2005. She lent him $750,000 in return for a half-interest in the 85-acre ranch near Lake Oconee even before the couple married. McIver owned the ranch for nearly a decade when the couple married.
But after their marriage, as Diane McIver continued to lend her husband hundreds of thousands of dollars, the couple began a long-running disagreement over who would inherit the ranch. Diane McIver wanted the couple’s godson, Austin Schwall, to inherit it; McIver wanted his son from his first marriage to inherit it.
“This was a source of contention,” Rucker said. Diane McIver, he said, “was a woman with a sharp tongue. She would tell you exactly how she felt without cutting any corners. She was a great businesswoman, and she was serious about her money.”
She lent money to her friends, but she drew up promissory notes, charged interest and expected loans to be repaid monthly.
“You think there was an exception for that man over there?” Rucker asked, as he pointed at McIver. “No.”
The defense, he said, “want you to believe everything was all lovey-dovey. … The image you portray to the rest of the world oftentimes is not the truth about what is really going on. And Diane was extremely private.”
Tex McIver, Rucker said, may have wanted “to rely on the sugar mama. … But the problem was she wasn’t that kind of woman.”
Diane McIver deposited $20,000 in her husband’s bank account to prevent him from being more than $5,000 in the red just weeks before he shot her, Rucker said.
“Man, this is Tex McIver,” Rucker said. “He’s on the state election board. He’s friends with the governor. He’s got judges who call him. He goes to lunch with famous people. He’s always at the [state] Capitol. … When he killed Diane McIver, you know it was like hitting the lottery, because if she had stopped supporting him in the manner to which he was accustomed, he had a problem.”
When Diane McIver died, her husband became the executor of her will, and the beneficiary of more than $1 million, Rucker said.
“He would regain his sold ownership of the ranch,” Rucker said. “He was taking back his legacy, taking her money, and regaining control. … He is much better off with her dead than with her alive.”
McIver was a stickler for gun safety, Rucker said. Witnesses said McIver could shoot a water bottle out of the air, routinely fired guns at a makeshift range at the ranch and told police he hadn’t fired the gun he carried in the SUV for more than two years.
“He said to a reporter, ‘Guns are not my thing,’” Rucker said. “Why would he lie about that? It is because he is guilty.”’
Rucker then began listing McIver’s ever-changing versions of the circumstances surrounding the shooting, what made him ask his wife to hand him the gun and how and where it happened. Emory nurses and physicians who treated his wife testified that McIver offered at least four different versions of the story.
“Why would they lie?” Rucker said. But McIver, he added, “lies because he’s guilty. If you believe the nurses, he’s guilty.”