McIver trial re­mains set for Oct. 30

Mur­der trial for At­lanta at­tor­ney sched­uled to start at end of month.

The Atlanta Journal-Constitution - - FRONT PAGE - Cschnei­der@ajc.com

The mur­der trial for At­lanta at­tor­ney Claud “Tex” McIver re­mains on track for Oct. 30.

With the mur­der trial of At­lanta at­tor­ney Claud “Tex” McIver just 18 days away, the prospect of a plea deal emerged pub­licly on Thurs­day for the first time.

The sur­prise pos­si­bil­ity arose dur­ing a hear­ing of last-minute pre­trial mo­tions con­cern­ing jury se­lec­tion, wit­ness lists and ev­i­dence. While no deal was placed on the ta­ble, both sides in­di­cated that they wanted to hear what the other has to say.

Judge Robert McBur­ney set a dead­line of close of busi­ness Mon­day

for the pros­e­cu­tion to present any plea of­fer. The de­fense has un­til close of busi­ness Thurs­day to re­spond. If the two sides en­ter into se­ri­ous ne­go­ti­a­tions, the judge said he could ex­tend the dead­line.

Cut­ting a deal could be dif­fi­cult, said crim­i­nal de­fense at­tor­ney Es­ther Pan­itch, who is not in­volved in the case but has watched it closely.

McIver is ac­cused of killing his wife a year ago while the cou­ple were pas­sen­gers in an SUV near Pied­mont Park. He says the shoot­ing was an ac­ci­dent, but the district at­tor­ney has charged him with mal­ice mur­der, felony mur­der and ag­gra­vated as­sault. In the af­ter­math of the shoot­ing he has faced three ad­di­tional charges of in­flu­enc­ing wit­nesses, all felonies.

Hav­ing lev­eled such se­ri­ous charges, prose­cu­tors must show they’ve “got­ten their pound of flesh, that they’ve lived up to their obli­ga­tion to pro­tect the peo­ple

of Ge­or­gia,” Pan­itch said.

Mean­while, the de­fense is likely fo­cused on McIver’s age. At 74, even a 10-year sen­tence could mean “he never sees the out­side of a prison,” she said. She of­fered one pos­si­ble com­pro­mise: McIver pleads guilty and re­ceives a 5-year sen­tence fol­lowed by sev­eral years of pro­ba­tion.

For now, the case is mov­ing to­ward the trial start­ing at end of the month.

“Both sides are ready, and that’s the plan,” said McIver’s lead de­fense at­tor­ney Wil­liam Hill af­ter the hear­ing in Ful­ton County Su­pe­rior Court.

Both the pros­e­cu­tion and de­fense have said they could use more time. The de­fense only re­cently re­ceived 90,000 emails taken from Diane McIver’s work com­puter. The pros­e­cu­tion must still go through some 30 boxes of ma­te­ri­als that its in­ves­ti­ga­tors seized from the McIvers’ Buck­head condo.

The de­fense has said that it would not re­quest a post­pone­ment — which might de­lay the trial for months — un­less their client is re­leased from jail in the in­terim.

“Tex has been in jail since April 26. He’s lost 30 pounds,” said Hill, em­pha­siz­ing the strain of in­car­cer­a­tion on McIver. “We have to go to trial on the 30th.”

Lead pros­e­cu­tor Clint Rucker made clear that he op­poses bond for McIver.

Both sides say they ex­pect a trial to last three weeks or more.

On Thurs­day, Rucker re­vealed a wit­ness list with more than 80 names, in­clud­ing med­i­cal staff who treated Diane McIver at Emory Hos­pi­tal the night she died, as well as some doc­tors from Grady Me­mo­rial Hos­pi­tal.

These wit­nesses, Rucker said, will ad­dress a key ques­tion in the case: “Why was Diane McIver brought to Emory with a gun­shot wound? She should have been taken to Grady.”

Oth­ers on the pros­e­cu­tion’s list in­cluded the restau­rant worker who served the McIvers din­ner the night of the shoot­ing and the man­ager of the golf course where they played ear­lier that day.

Judge McBur­ney also granted Hill’s re­quest to have McIver ex­am­ined by a sleep ex­pert. Hill said McIver has been di­ag­nosed with para­som­nia, a sleep dis­or­der that can cause a per­son to make jar­ring move­ments while they sleep. That could be an im­por­tant part of McIver’s de­fense. McIver has said that, while nod­ding off in the back­seat of the SUV, he quickly awoke and in­ad­ver­tently squeezed the trig­ger on the gun in his lap, fir­ing through the front seat and strik­ing his wife in the back.

Prose­cu­tors clashed with the de­fense Thurs­day over whether the judge should ad­mit ev­i­dence of a 1990 shoot­ing in­ci­dent in­volv­ing McIver. He fired into a car of teens drink­ing beer at the end of his cul-de-sac, po­lice records show. McIver has said he be­lieved the teens were try­ing to hit him with the car. No one was in­jured and the ag­gra­vated as­sault charges were dropped when McIver ne­go­ti­ated a set­tle­ment that in­cluded pay­ing for the dam­age to the car. Rucker said the in­ci­dent speaks to the way McIver han­dles guns.

Hill said the in­ci­dent is 27 years old and has noth­ing to do with his state of mind the night of his wife’s death.

Rucker brought to the stand one of the teens, Kevin O’Neal, who is now 46.

“Mr. McIver opened fire on us as we were leav­ing,” O’Neal said. “You don’t for­get some­thing like that.”

BOB AN­DRES / AJC

Claud “Tex” McIver (left) watches as pros­e­cu­tor Clint Rucker ques­tions a wit­ness dur­ing the hear­ing. He was back in court for pre­trial mo­tions in ad­vance of his trial Oct 30. By Craig Sch­nei­der

Claud “Tex” McIver, 74, has lost 30 pounds since he went to jail in April, his at­tor­ney said.

BOB AN­DRES / BANDRES@AJC.COM

Judge Robert McBur­ney dur­ing dis­cus­sions with at­tor­neys. Claud “Tex” McIver is back in court for pre­trial mo­tions in ad­vance of his trial Oct 30.

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