Podcast examines verdict: Did jury misunderstand?

Jury in effect concluded McIver meant to shoot his wife but not kill her.

The public is likely to see Tex McIver just one more time: at his sentencing hearing May 23. After that, the 75-year-old man will disappear into the state prison system to live out his days.

The final episode of this season of “Breakdown,” now available, takes you through the climax of the seven-week McIver murder trial. Episode 11 explores the con

fused verdict and concludes that the jury did not fully understand the law it was trying to apply. In sum, the jurors were confronted with two crimes of intent: malice murder, which charges that the defendant meant to kill, and aggravated assault, which charges that the defendant meant to do harm. In acquitting McIver of malice murder but finding him guilty of aggravated assault, the jury in effect concluded that McIver meant to shoot his wife, Diane, but not to kill her.

The podcast episode also discusses the consequences of the defense strategy of clearing McIver of the most serious charges against him: malice murder, felony murder, aggravated assault, use of a firearm in the commission of a felony.

“From the beginning, I thought this was an involuntary case based on reckless conduct,” said Atlanta defense attorney Noah Pines, who was not involved in the trial. “While I thought the defense did a masterful job in closing argument, one of the things that concerned me was that they asked the jury not to consider the lesser-included offense of involuntary manslaughter. So this is really an all or nothing. It’s either murder and he’s guilty, or an accident and he’s not guilty.”

Pines added: “There’s always a danger when you ask a jury for an all or nothing.”

Most of Episode 11 of “Breakdown,” however, is devoted to the closing arguments — there were four — presented in the case. Lead prosecutor Clint Rucker spoke for 95 minutes, using his extraordinary voice and often soaring oratory to weave a convincing tapestry of greed, betrayal and murder. But many of the threads in Rucker’s tapestry were thin. He often spoke of things that either never occurred or, at best, were not proved in court. The podcast offers several examples of this. Here’s one:

Rucker makes much of McIver’s attempt to get a friend to take Dani Jo Carter home on the Friday before the killing. Rucker theorizes this was because McIver didn’t want Carter to be present that weekend to witness what he planned to do.

“Had he took Dani Jo home, he’d be alone on the ranch with Diane McIver,” Rucker said. “They talked about, why didn’t he kill her at the ranch? Why didn’t he kill her on I-20? Maybe that was the original plan. She’d have an accident on the ranch. He says, ‘You know what? Maybe I’ll have to go to a Plan B.’”

This is a compelling story, but

little of it was supported by evidence or testimony. Rucker surmised that McIver meant to kill his wife on the ranch. And he sur

mised that McIver came up with an alternate plan because Dani Jo Carter was there. Of course, Dani Jo Carter was present when McIver shot his wife — in the couple’s SUV on Piedmont Avenue late on that Sunday night.