This week’s withdrawal of four of the five lawyers defending attorney Claud “Tex” McIver, accused of killing his wife more than a year ago, leaves a daunting task for the remaining lawyer, noted criminal defense specialist Bruce Harvey.
As the March 5 trial date approaches, Harvey faces a mammoth trove of discovery material that includes some 90,000 emails the state turned over last month, and 39 boxes of seized documents and other materials being reviewed by outside lawyers to protect privileged information from being turned over to the state.
So far, Harvey remains McIver’s only counsel after a team of Polsinelli lawyers led by William Hill Jr., with shareholder Joseph Sharp and associate Alex Bartko, bowed out Monday.
Decatur solo Steve Maples, a friend of McIver who has represented him since last year’s arrest, said Tuesday he plans to step aside next week.
McIver, 74, remains in jail despite being granted a $750,000 bond last month.
The withdrawal notice for the Polsinelli lawyers, all of whom specialize in civil litigation, does not indicate why they withdrew. Maples, who handles criminal and civil law, declined to discuss the case further.
Harvey, whose Atlanta firm hosts three additional attorneys, was in court Tuesday but, in an email, praised his colleagues’ handling of the case thus far.
“William Hill and his firm have done an incredible job of managing Tex’s case, and standing up for him in court battles with the prosecution,” Harvey said. “Now is the time to focus on the trial, and that’s what we are doing.”
In response to a question concerning the mountain of materials that need to be reviewed, Harvey said “the defense is focusing now on trial prep and will be perfectly able to plow through the outstanding discovery.
“We are hoping to put all the pieces in place to get Tex out of jail and into a living space as soon as possible, and anticipate that will be very soon,” Harvey said.
A former Fisher & Phillips partner, McIver faces a seven-count indictment including murder, felony murder, aggravated assault, possession of a firearm during the commission of a felony and three counts of influencing a witness.
The charges stem from a Sept. 25, 2016, incident when McIver, a passenger in the rear seat, shot his wife through the back of the front passenger seat as they were driven by a friend near Piedmont Park.
Diane McIver died later that night during surgery at Emory University Hospital. McIver claims the shooting was an accident.
McIver’s trial was initially set to begin Oct. 30, but Fulton County Superior Court Judge Robert McBurney postponed it after prosecutors delivered about 90,000 emails in response to a discovery request less than a month before the start date.
On Nov. 14, McIver’s lawyers filed a motion objecting to the release of “documents and things” from 39 boxes of materials seized by investigators pursuant to a warrant.
McIver’s lawyers argued that many of the documents are protected by attorney-client privilege and that others are outside the parameters of the search warrant and were illegally seized.
The office of District Attorney Paul Howard Jr. has retained a “taint team” headed by Nelson Mullins partner Anita Thomas to review the materials before they are released to the state.
The search warrant authorized investigators to seize materials which “may contain evidence relating to the joint and individual business and personal finances” of the McIvers and Diane McIver’s estate.
In addition to correspondence and business records, however, the motion said the seized items range from greeting cards and a child’s artwork to blank stationery and liquor bottles.
“The D.A.’s seizure of such items was done in knowing violation of the scope of the warrant and in bold and blatant violation of this court’s warrant and Mr. McIver’s rights,” it said. The motion asks McBurney to hold a hearing on the issue and “order that the taint team release only non-privileged documents, and things that fall within the scope of the warrant.”
McBurney has not ruled on the motion.
Criminal defense attorney Benjamin Davis, who has followed the case and has called upon Harvey for advice, said he expected McIver to jettison Hill and his colleagues as the case approached.
“I never thought they were going to remain on the case—not for this kind of fight. This is a street fight, and it’s made for Bruce Harvey,” Davis said.
“If I’m a prosecutor, Bruce Harvey is the last attorney I want left on this case,” he added.
Davis is no stranger to document-heavy cases. He defended one of the 12 defendants in the Atlanta Public Schools cheating trial, where multiple CDs containing tens of thousands of documents were entered into evidence.
Davis said the state already indicated it was trying to buy time with last month’s document dump, and he doesn’t expect Harvey or McBurney—a former Fulton prosecutor and U.S attorney—to allow the pile of evidence to sideline the trial.
“Judge McBurney will understand what Bruce is going through,” said Davis. “I think they’ll have an exchange where [lead prosecutor Clint] Rucker will try to make it seem like they’re bending over backward to cooperate.”
“That’ll be like waving a red flag to a bull for Bruce,” Davis said. “I think he’ll remind the judge that he’s being put in an unfair position.”