The jury deliberating the murder case against Atlanta attorney Claud “Tex” McIver on Wednesday asked whether they can find McIver guilty of influencing a witness, even if they acquitted him of all other charges.
“If not guilty on Counts 1-4, can McIver be found guilty of Count 5?” the jury asked.
Counts one through four include malice murder with a lesser included offense of felony involuntary manslaughter resulting from reckless conduct, felony murder, aggravated assault and possession of a firearm during the commission of a felony.
Count five is the charge of influencing a witness. That charge accuses McIver of attempting to influence Dani Jo Carter—who was driving the couple’s Ford Expedition when McIver shot his wife. Carter is the sole witness to the shooting.
McIver is accused of attempting to influence Carter to mislead police, if questioned, by saying she was at the hospital as “a friend of the family.”
Urged by defense attorney Don Samuel to answer the jury’s question with a resounding “Yes,” Fulton County Superior Court Chief Judge Robert McBurney agreed and said, “Yes. The defendant can be found not guilty of some, all or none of the counts of the indictment. “
“The question was a very simple yes or no question,” Samuel argued when McBurney initially said he intended to repeat what he said during the jury charge—that the defendant could be found not guilty of some, all or none of the alleged crimes. “The answer is yes.”
And, prompted by his co-counsel Bruce Harvey, Samuel added, “With an exclamation point.”
The jury also asked the judge if they could be allowed to get back in the Ford Expedition where McIver fatally shot his wife, Diane, on Sept. 25, 2016, this time with the Smith & Wesson .38-caliber revolver he had on his lap.
McIver has always insisted the shooting was an accident, while prosecutors claim he had a financial motive.
On Monday, the jurors were taken to the SUV and were allowed to sit in the back passenger seat where Tex McIver was sitting when he fired the fatal shot. At that time, they could view a rod demonstrating the bullet trajectory through the seat Diane McIver was sitting in. But they were not given an opportunity to hold the gun.
The jury has that gun and has been allowed to hold it and pull the trigger.
The jury also asked for copies of emails that were introduced as evidence. Those emails featured exchanges between McIver and his wife—some over a dispute involving rewrites of their wills, especially hers, as well as McIver’s growing financial difficulties.
McBurney replied to the jury’s question about getting back in the SUV by saying, “Perhaps,” adding he would give the jury “a more definitive answer in the morning.”
In response to the third question, McBurney said that at least some of the emails in question will be made available Thursday.
The jury ended its first full day of deliberations at 5 p.m. Wednesday, but it had one final request. They asked to see McIver’s interview with Atlanta police three days after he shot his wife. McBurney told the jury that they will be allowed to view the video Thursday morning.
The jury began deliberating about 4 p.m. Tuesday but adjourned after an hour following five hours of closing arguments and the jury charge.