The jury deliberating the fate of Atlanta attorney Claud “Tex” McIver in his ongoing murder case notified the judge Monday that they’re deadlocked on murder, aggravated assault and witness influencing charges.
“We don’t see a path to overcome our differences on the defendant’s intent on charges one, two, three and five,” according to a note Fulton County Superior Court Chief Judge Robert McBurney read in open court.
That note prompted McBurney to deliver an Allen charge, often called a dynamite charge, to compel jurors to resolve their differences and reach a verdict. McBurney spent nearly an hour negotiating with prosecutors and McIver’s defense over the specific language before he delivered the charge.
The jury has been deliberating five charges: malice murder, with an option of the lesser included offense of involuntary manslaughter; felony murder, which also includes the involuntary manslaughter option; aggravated assault; possession of a firearm during the commission of a felony; and influencing the sole witness to the 2016 fatal shooting.
McIver’s defense team has claimed the former Fisher& Phillips partner accidentally shot and killed his wife, Diane, as they returned to Atlanta from a weekend trip. Prosecutors claim McIver had a financial motivation.
The jurors’ note indicated they have been unable to reach a verdict on four of the five counts because they cannot agree on McIver’s intent following three questions they submitted to the judge earlier Monday. Two of those questions dealt with the aggravated assault charge and whether intent is required in order to find McIver guilty.
The third question dealt with the influencing a witness charge.
The jury asked:
- How does intent affect the charge of aggravated assault with a deadly weapon?
- For an assault to occur, does there need to be intent to cause violent injury or just an action that causes violent injury?
- Misleading conduct—does this mean the person subjected to the offense needs to be tricked into performing an action? Or does it mean the subject just needs to be asked to say or do something?”
McIver defense attorney Don Samuel suggested any answer to the jury on the aggravated assault questions ought to begin with “yes.”
“Yes, these crimes require an intent to commit an assault,” he said.
Samuel also said the influencing charge requires that the defendant must mislead the witness.
“Asking someone to lie is not enough,” he said. “The perpetrator, the defendant, the accused must mislead the witness … in order to achieve results.”
“I appreciate they seem confused,” McBurney said, adding the law doesn’t say a person actually needs to be tricked by the accused.
McBurney suggested that, when McIver told witness Dani Jo Carter that she should tell police, if they asked, that she was at the hospital where Diane McIver died as a friend of the family.
By saying that, McIver could be “attempting to mislead her [that] it’s OK to get out of there,” McBurney said.
For the assault charge, McBurney replied that, “For an assault to occur, there must be an intent to commit a violent injury to another,” and referred jurors back to the charges.
He also instructed the jury that prosecutors must prove beyond a reasonable doubt that the defendant intended to mislead the witness to withhold information from the police, but that Carter ultimately did not have to be misled for the crime to have occurred.