What was Tex McIver thinking when he asked for the gun that would kill his wife?
We know what he said that night from the back seat of their Ford Expedition, his wife in the seat in front of him, their friend Dani Jo Carter behind the wheel, driving them the last few miles from the McIvers’ 86-acre spread in Putnam County to their 15th floor condo above Buckhead. Carter had run into traffic—“just a parking lot,” she would tell police—on the Connector, so she exited onto Edgewood Avenue, rousing Tex from his slumber. “This is a bad idea, girls,” Carter remembers him telling them. “This is a bad area.”
We know what he told Atlanta Police Detective Darrin Smith three days later, when he was recalling their exit off the highway, the left turn that took them through the underpass beneath the interstate, a fear that feels more suited to the downtown Atlanta of 20 years ago than to late September 2016. “My dismay was [it] seemed like every turn we made, the street was darker and there were more people milling about. I mean it was the kind of thing that rose the hair on the back of your neck.” (These remarks are contained in the transcript of McIver’s interview with police on September 28, 2016, reported here for the first time.)
We know what he told his friend Bill Crane. Well, strike that. We know what Crane said McIver told him, that McIver didn’t know what the intentions were of those people milling about. Were they homeless? Were they Black Lives Matter protesters? It had, after all, been a summer of anger across America. Just four days earlier, in Charlotte, protests over the police shooting of an unarmed black man led to one person shot dead. And the day before, while Tex was in Putnam County buying feed for his cattle and grocery shopping for dinner, there were more Black Lives Matter protests at Lenox Square, a block and a half from their Atlanta condo. To Tex McIver—then 73 years old, a partner at one of the city’s most prestigious law firms, a Republican loyalist whose money and privilege insulated him from the realities at the heart of those very protests—the nation may have seemed like it was fraying at the edges.
In the days and weeks after Crane, acting as Tex’s spokesman, uttered those three words to reporters—Black. Lives. Matter.—the narrative of Diane McIver’s sad and tragic death became freighted with something much more complicated. Now race was part of the story. And in the year since, and with Tex’s murder trial set to start next March, it’s never left. The whole tragic, hubristic affair sounds like something that Tom Wolfe would dream up. In fact, he kind of already did, except it took two novels—The Bonfire of the Vanities and A Man in Full—to anticipate the McIver drama, from the fateful turn off the highway (Bonfire) to the prideful lawyer stuck in traffic outside the Piedmont Driving Club (Man in Full). Turned out that Diane McIver was even shot not far from the Driving Club’s front entrance.
And so Tex McIver has become a symbol. What kind of symbol says more about who we are than who he is. To those close to him, convinced that he loved Diane without question and could no more shoot her intentionally than sprout wings and fly out of his jail cell, Tex is a victim of reverse prejudice, a convenient scapegoat for a society riven by class and racial resentments. Or is he, surrounded by his half-dozen defense attorneys, nothing more than a rich white man who believes the rules do not apply to him, who has spent decades with his thumb on the scales of power, who’s cynically exploiting race-based fears to cover up the opportunistic murder of his wife?
Not long after Diane Smith moved into the Villa at Buckhead Heights on Kingsboro Road, someone slipped a note under the door of her condo. Diane wasn’t home at the time, but one of her best friends, a cosmetologist named Dani Jo Carter, happened to be there. She called Diane, who had risen through the ranks at U.S. Enterprises, the advertising and media company founded by Bill Corey, owner of the Corey Tower.
“Read it,” Diane told Carter from her office. The note was from one of Diane’s new neighbors, who wanted to welcome her to the building. The name on the note said Claud “Tex” McIver.
Carter told Diane, “I’d change my name to Tex, too.”
Tex kept pursuing her, but Diane was not interested. As successful as she’d been in business—at her death she was U.S. Enterprises president—her first marriage at age 40 had been a mistake. But Tex was persistent, and she finally agreed to join him for dinner at his apartment. She didn’t have high expectations, though, judging by what she chose to wear—a baseball cap and some workout clothes.
Sure enough, they started dating; Tex even leased out his unit and bought one next to hers. They tore down the wall between the two to make one super-sized condo (now for sale for $674,900). And then one day Tex told Carter he needed her help picking out a setting for a $60,000 diamond. He was going to propose to Diane. In 2005 they married at the ranch; guests sat on hay bales.
Every marriage is a merging of assets and liabilities, both literal and figurative. To their union, Diane brought a frankness that could be disarming. “Not much filter,” as one person close to her described it. She wasn’t above remarking on a friend’s weight gain, but then she’d follow up with tips and encouragement for shedding the pounds. At U.S. Enterprises, visitors would be surprised to see that the woman arranging the food before a lunch meeting turned out to be the very person running the meeting. Over the years, Diane had built up a small but fiercely loyal support network that Tex would enjoy now too. There was her housekeeper. There was her assistant. There was the man who detailed her cars and ran errands. And there was Dani Jo Carter.
For his part, Tex brought a Rolodex of contacts throughout Georgia’s political and legal communities, acquired since 1972 at Fisher Phillips, one of the nation’s most prominent employment law firms. A strident conservative, Tex supported—financially and otherwise—the campaigns of some of the state’s most recognizable Republicans, among them Nathan Deal, Mike Bowers, Newt Gingrich, Paul Coverdell, Johnny Isakson, Lynn Westmoreland, Casey Cagle, and Brian Kemp.
In Tex’s mind, a candidate’s conservative bonafides excused all manner of sins. When a federal grand jury indicted former Congressman Pat Swindall in 1988 on 10 counts of perjury amid a money laundering investigation just weeks before he was up for re-election, McIver doubled down on his man. “I support him more than ever and intend to give him additional money because it looks like he needs it more than ever,” McIver told the Atlanta Journal-Constitution, adding he’d back Swindall even if the congressman was convicted. (He was, on nine counts, and sentenced to a year in prison.)
As the balance of political power in the state shifted to Republicans at the beginning of the 21st century, McIver’s loyalty was rewarded. For 12 years, until his resignation last spring, he served on the State Election Board, where he used his position to vigorously push forward a voter photo ID law, even authorizing the mailing of 300,000 letters touting the new law though it had been deemed unconstitutional. In early 2005 Governor Sonny Perdue appointed McIver to the Judicial Nominating Commission, which recommends to the governor names for vacancies on court benches. McIver was a party stalwart with both hard and soft skills, a potent combination of means and desire.
Those means allowed him to purchase his country retreat in Putnam County, with its private lake, guest house, and horses. Tex, born in the state that inspired his nickname, called it a “ranch.” There, he’d entertain clients, politicians, even the entire Putnam County Sheriff’s Office. And Diane loved it, too. “She was so driven in her career, but when she got to the lake it was jeans and T-shirt and just relax,” said Andrew Ward, who first met McIver after Ward offered to buy the ranch from him. Tex chuckled. “I don’t think you could afford it,” he told Ward. Ward instead bought a lot across the road, built a house, and the two men—and their wives—became fast friends.
Tex brought other things to his 2005 marriage with Diane, not the least of which was his regrets from his first marriage, which had ended five years before in a divorce so acrimonious it poisoned his relationships with two of his three grown children.
Oh, and Tex brought his guns.
• • •
Janie Calhoun lives across the hall from the McIvers’ condo in the Villa at Buckhead Heights. One afternoon, about four or five years ago, she looked out her window and saw, sitting on her terrace, a buzzard.
The next day, Calhoun was at the McIvers’, joining them for dinner and telling them what she’d seen. She glanced out on the McIvers’ terrace—and there sat the same buzzard.
“Oh my God, there he is!” she exclaimed.
“Well, we can scare him,” Tex said. He got up and returned with a pistol. The sliding door was open, and he pointed the gun through it.
According to Calhoun, she and Diane were sitting in the dining room, closest to the terrace. Austin Schwall was in the condo, too, but in the kitchen. Austin is 11 years old, so he would have been six or seven at the time. He is the godson of Tex and Diane McIver and the second child of Craig and Anne Schwall, who are divorced. Craig Schwall is a Fulton County Superior Court judge and was appointed to the bench in 2005 by Governor Sonny Perdue to succeed Judge Rowland Barnes, who’d been shot to death in the courtroom by Brian Nichols, a defendant who’d escaped custody and went on a rampage that ultimately claimed four lives. Schwall was recommended to Perdue by his Judicial Nominating Commission, of which Tex was, back in 2005, a new member. This kind of connection between Tex and Georgia power brokers is typical.
Tex raised his pistol and shot at the buzzard through the screen door. The bird flew away, uninjured. Austin laughed.
Calhoun told this story in court on April 25. At that point, the most serious charge against Tex in connection to his wife’s death was involuntary manslaughter. One of the conditions of his bond was that he not possess any guns. But eight days before the court hearing, in the process of executing a search warrant to look for evidence that Diane may have had a second will, investigators from the Fulton County District Attorney’s office found a Glock in Tex’s sock drawer. After three days of testimony from witnesses such as Calhoun, McBurney revoked Tex’s bond and sent him to jail. On April 27, he was indicted on seven counts, including felony murder.
Calhoun and the McIvers, it turns out, have a mutual acquaintance: Howard Sills, who’s been sheriff of Putnam County for 21 years, which is about how long Tex has owned his ranch. Calhoun works for Trinity Services Group, which provides food services to the corrections industry, including the Putnam County jail, over which Sills presides. In many ways, the McIver case illustrates just how small a town Atlanta really is.
Calhoun and Sills both became de facto custodians of Tex’s guns in the days and weeks after Diane’s death. Calhoun actually helped clear all the guns from Tex’s condo twice—first because she was worried he was so distraught he might kill himself, then later, after he’d reclaimed them, when his bond conditions forbade them.
Calhoun retrieved about four pistols from his closet floor, another from his armoire, plus one long gun. She put them all in her closet. (They’ve since been moved to a safe at a law firm.)
Last Christmas Eve, Sills backed up his car to the garage at the ranch and loaded his trunk with the guns Tex kept there. Sills told me he transported about 35 guns from the ranch to the evidence room at his office.
“That might sound like a lot of guns to you,” he said. “That’s not a lot of guns to me. That’s not a lot of guns to the average middle-income rural Georgian man.” Sills said most of the rifles were lever action. “Tex was queer for lever action rifles. I guess it’s a Texas thing. I think 20 of them were lever action, and I’d say six or eight were handguns.”
A few days after Diane’s death, Sills and his wife hosted Tex for dinner. He seemed still in shock. In years past, Tex had joined Sills and others on a pheasant hunting trip to South Dakota. The annual trip was approaching, and Sills asked Tex if he wanted to come. “I don’t want to touch a gun,” Tex told him.
• • •
On November 4, 1999, Donald Wright was deposed in Tex McIver’s divorce case. Wright was a partner at Fisher Phillips and had interviewed Tex before he joined the firm in 1972. Lawyers, of course, often have to set aside their personal beliefs in order to best serve their clients, but no doubt Tex found the work of Fisher Phillips, which represented exclusively management in labor disputes, to square neatly with his own conservative beliefs.
By the time of Wright’s deposition, Tex was already into the third year of a protracted divorce battle with Nancy (who goes by “Jinx”) whom he’d married in 1966. In her initial filing for divorce, in July 1997, Jinx said the marriage, which had produced two sons and a daughter, was “irretrievably broken.” In subsequent filings, she accused Tex of having an affair “for several years” with a woman who lived on the Putnam County ranch, then valued at $510,000. Although Tex claimed in a deposition that the woman was merely a tenant, Jinx said in court papers that Tex and his alleged paramour had taken trips and attended parties together. (The woman was not Diane McIver, whom Tex began dating years after his divorce.)
The divorce dragged on for years, and the case file fills two deep cardboard boxes in the Fulton County court clerk’s office. Motion after motion by Jinx’s attorney accused Tex of not disclosing fully all of his business interests, which included an investment in a kaolin mining operation in middle Georgia. In one filing, Tex detailed his net worth as amounting to $987,449 with a net monthly income of $17,000. But his monthly bills totaled more than $21,000, thanks to mortgage bills on his condo and his ranch, college expenses for his daughter, plus $8,000 in monthly payments to his estranged wife.
Wright’s 1999 deposition was one of dozens taken during the three-plus years Tex and Jinx sparred in court. In his deposition, Wright described Tex as “team captain” in the firm, responsible for managing a group of a dozen or so lawyers. Asked to describe Tex’s performance at Fisher Phillips, Wright said, “He’s been a moneymaker. He’s put money in my pocket and in all the other lawyers’ pockets. A good producer, worked hard.”
Just a day after Wright’s deposition, Jinx’s attorney, Harmon Caldwell Jr., stood before Fulton County Superior Court Judge Melvin Westmoreland and recited a long list of documentation he was still waiting on from Tex that would, Caldwell argued, give a complete picture of how much he was worth. “Mr. McIver is a very, very good lawyer,” Caldwell said in court. “He knows what he’s supposed to do in this case, and he has made a conscious decision that he’s not going to do it.” In court that day, Westmoreland found Tex in contempt, which Tex described in subsequent testimony as “probably one of the most devastating events of my life.” Six months later, he was declared in contempt a second time.
Finally, on July 31, 2000, the two sides struck a settlement. For Tex, who’d testified in Westmoreland’s court just three months before that his attorney fees alone had already cost him more than $100,000, ending his 34-year-old marriage came at a steep price. Tex agreed to pay Jinx $686,275 in alimony. She also got half his retirement account (valued at $727,484 at the time of the settlement), roughly $400,000 from dividing up their property, and he agreed to pay $100,000 for her attorney fees. The settlement even stipulated how Tex could visit their dog, Malone. “The wife shall allow the husband to use her garden hose if necessary to wash the dog after one of his visits.”
Any mention of his first marriage “caused a change in [Tex’s] temperament,” Crane said, according to a transcript of his interview with the district attorney’s office. Crane told me that Tex was especially hurt when he was not invited to the wedding of his daughter, Meredith. “He didn’t know that he’d ever recover not being invited to his own daughter’s wedding,” Crane said. “He tried to go. He was not happy about being left out.”
When I reached Meredith by phone, she said, “This is a family matter and we want to keep it in the family.”
After the divorce settlement, Tex and the lawyer who’d represented him, James Macie, became friends. One year, before Tex had met Diane, Tex joined Macie and his wife for Christmas Eve church services. After he married Diane, the two couples went on a cruise together. “These people had an incredibly high lifestyle,” said Macie, who has written to Tex since his friend has been in custody. “They loved to go to the Kentucky Derby. They would fly to [Louisville] and have Dani Jo or her husband drive their limo there, so they’d have the use of the limo to drive around the Derby. I mention it only because it demonstrates that these were people living extraordinarily beautiful lifestyles.”
When I spoke to Macie, he was rooting for his friend but acknowledged passing doubts that I had yet to hear from any of Tex’s other friends.
“This is what happens when you’re crazy about guns,” he said. “The society we live in, the people who bang the drum about Second Amendment rights that we should carry guns everywhere, this is what happens—if it’s accidental. You don’t need to be driving through downtown Atlanta with a loaded pistol in your car.”
Before he was an attorney, Macie spent nine years as a Catholic priest, a position that gave him a rare insight into human behavior. “Having heard confessions for nine years, and having heard people talk about their lives in an intimate manner, I’m fully cognizant of the fact that the best people can, shall we say, sin,” Macie said. “It’s been my life experience that even good people can do bad things.”
• • •
Rachel Styles was working as a secretary for Ted Turner at the Braves when she first saw Diane at a Corey company picnic some 35 years ago. She saw a woman hustling about, wearing a hat, clearly in charge. “I said, I’ve got to meet this woman,’” Styles recalled. “As a female in the business world, she was someone who struck my eye. I wanted to be like that woman. So I introduced myself to her. Sometimes when you meet somebody you just click.”
Styles had a cousin who lived in the penthouse apartment in Diane’s building, and he’d host a Fourth of July party every year to watch the Lenox Mall fireworks. It was there that Styles first met Tex McIver.
“He was the perfect match for Diane,” Styles told me. “Diane was a very strong woman. She intimidated a lot of men. They just didn’t want to compete with her. But Tex didn’t want to compete with her; he was just infatuated with her.”
Styles coordinated their 2005 wedding and saw Diane revel in her life with Tex, especially at the ranch. “Diane loved the outdoors,” Styles said. “She loved hunting. She loved horses. It was just a perfect setting for her.” They’d spend most weekends there, and usually drive back to Atlanta on Sunday evening. Occasionally they’d stay an extra night and get up early on Monday to make it to work on time.
“They really were lovebirds,” Styles said. “Everybody argues, everybody disagrees a little bit. But never would they disagree to the point where there was any hostility or whatever. Diane might get a little fired up, and then Tex would say, ‘Honey, we need to think about this.’”
In the fall of 2012, Diane coaxed Styles out of retirement. A receptionist working under Diane at Corey was on sick leave. Would Rachel be interested in filling in for a few months? Styles stayed more than three years. One day at the office in late 2015, Diane asked Styles to make copies of some confidential papers for her. Because they were personal papers, she didn’t look at them before she handed the copies to Diane. “Thank you,” Diane said. “This is my new will.”
Did Diane McIver execute a second will to replace her 2006 will? Styles’s remarks to prosecutors indicated that perhaps Diane had at least drafted one and gave the district attorney a possible motive for why Tex may have intentionally shot his wife. The search warrant that turned up the gun in Tex’s condo was focused on looking for evidence of a second will or codicil to the first one; prosecutors even searched the office and home of Harold Hudson, the attorney the McIvers hired to do their estate planning.
At a court hearing in early September, Hudson took the stand while chief prosecutor Clint Rucker tried to jog his memory. Among the documentation that Hudson turned over to investigators, as a result of the search warrant, was a 2011 email from Hudson to Tex and Diane. The first part of the email is titled “Diane’s New Will.” It recaps a meeting from the previous day. One significant difference: Austin Schwall was named in the email outlining the proposed new will. (The will in probate court now was executed in 2006, before he was born.) If Diane died, according to the email, the farm would go to Tex, and if he were not alive, it would go into a trust for Austin. Likewise the condos and their contents—to Tex, unless he predeceased Diane, in which case it went to Austin’s trust, paid to him when he turns 30.
Rucker was particularly interested in deliberations between the McIvers and Hudson—deliberations around possibly changing the ownership designation of the ranch to a limited liability company. Such a move, Hudson said, would have meant tax benefits for both McIvers. But Diane apparently objected, because if she died first, then Tex’s children could potentially have a claim to her share of the ranch upon Tex’s eventual death. She wanted to protect her share for Austin Schwall. From the testimony:
Rucker: You knew that Diane’s objection was, she didn’t want Tex’s children to be able to take an interest in the ranch, right?
Hudson: I believe that’s correct.
Rucker: Yeah! And they disagreed, or talked about that, in your presence, right?
. . .
Hudson: I got a feeling that issue had been going on for a long time before I met with them. . . . I believe that you are correct, that the objection to putting the property into that [entity] was that if Diane died first, she wanted her ownership interest in the property to pass as she directed and did not want it necessarily to go to Tex’s children.
. . .
Rucker: She wanted her interest in the ranch to go to her godson, Austin Schwall. You knew that that’s what they were disagreeing about, right?
Hudson: No, I think Tex also wanted—they were both very, very keen on Austin.
Rucker: I’m not talking about keen. I’m saying Diane specifically told you for the preparation of her second will, she wanted her interest to go to her godson, Austin Schwall.
Hudson: I don’t remember. It’s in the email.
Rucker: What was the codicil about?
Hudson: I think the codicil was about the jointly held property.
Rucker: The ranch.
Rucker: What changes did the codicil make to the will?
Hudson: I can’t remember.
Rucker: You can’t remember. But you know that Claud McIver signed that codicil and Diane McIver did not?
Hudson: That’s my understanding. I know Claud McIver signed it. I don’t believe that Diane ever signed it, because I don’t think she was ever willing to go forward with it.
Summer was still very much hanging on during the final weekend of September last year. In Putnam County, where Tex and Diane McIver were spending the weekend at their ranch, the temperature peaked at 93 degrees on Sunday. That morning, Tex had made coffee and breakfast for Diane, as well as for Carter, whom the couple was hosting. Too hot for golf? Not for Diane, who would shoot 76 that afternoon at the course on Lake Oconee. Tex and Diane were not known to be particularly competitive, except on the golf course. Diane could talk some trash.
Early that evening, with the sun going down, Tex and Diane picked up Carter at the ranch, where she’d spent the day horseback riding. Diane drove everyone to Longhorn Steakhouse in Conyers, where they met Craig Stringer, a Corey vice president. Over dinner, Diane ordered a bottle of wine and drank a couple of glasses. Tex had one glass, Carter recalled, though Tex later said he’d taken just a couple of sips from it. Around 9:30 p.m., they said goodbye to Stringer. Carter, who doesn’t drink, took the keys to the Ford Expedition. During his first interview with police, three days later, Tex was asked if they took the unfinished bottle with them. “No,” he said. “Left it on the table.”
Tex was tired. He fell asleep in the back seat behind Diane. This wasn’t unusual; after all, Tex was 73, he’d had a drink at dinner, and he’d spent four-plus hours in the Georgia sun playing golf. “When I get off the golf course, I’m really tired,” he told police later. But there’s another thing, as Steve Maples, one of his attorneys, told me: Tex had been diagnosed with parasomnia, a term that covers a broad spectrum of sleep disorders, such as sleep paralysis, confusion on awakening, and involuntary movements. When Tex would doze off, Diane would often fuss at him, saying he needed to wake up or he wouldn’t be able to get to sleep later.
From the restaurant in Conyers, it’s a straight shot west on I-20, so it probably wasn’t much more than 25 minutes before they were merging onto the Connector on their way to the condo in Buckhead. Traffic was backed up due to road maintenance, so Carter took the Edgewood Avenue exit.
“Tex!” Diane said, according to Carter. “Tex, wake up and look at Waze!” Carter wasn’t sure why Diane didn’t consult her own phone. Tex woke up. Carter had most likely taken a left at the bottom of the off-ramp, which took them under the Connector briefly as they headed west on Edgewood.
Tex told APD Detective Darrin Smith he doesn’t sleep well in cars, that it’s “kind of a twilight zone thing for me.” The hard-right turn off I-20, and then the downward roll on the Edgewood exit, roused him. “And I came up and I said, ‘Girls, where are we, and what’s happening here?’” he told Smith. He looked around. “We were clearly off our path,” Tex said. “We went through an area I thought that was particularly dangerous at night. I’d seen police vehicles there. It’s a route I take from my office to [Diane’s] office. And I see police vehicles there with the blue lights on, and they’re doing things with people that are there.”
Tex described the underpass as “very dark” with a “particularly high population of homeless people. At least in the daytime and—but at night there were a lot of people there. And I quickly said this is a big mistake, and we’re in a place that we don’t belong. And, of course, here we are in an almost new SUV and two women in the front seat and all that.” (Detective Smith asked Tex if perhaps they had been near the Peachtree-Pine homeless shelter, and Tex replied, “I’m not sure where that is.”)
From the back seat, Tex said, “This is a bad idea, girls. This is a bad area.”
“We’ll be on Piedmont shortly,” Diane replied, according to Tex.
“Darling,” Tex said, according to Carter, “why don’t you just hand me my gun.”
In his interview with police, Tex explained that there had been some car break-ins at his office, “where the only thing they’re looking for seems to be a gun,” so he had wrapped his .38 caliber Smith & Wesson in a Publix plastic grocery bag. “If you open the console, you had no clue what you’re looking at other than a flashlight and some stuff like that.” (Police photos of the console’s interior show a holster for a pistol.)
The .38 in his lap, Tex told Smith, “I laid back again and went to sleep.” As Carter drove north on Piedmont and approached the intersection with Ponce de Leon, Carter started talking about the Clermont Lounge. Maples told me Carter was educating Diane about Blondie, the legendary stripper who crushes beer cans between her breasts. “She’d never heard of [the place],” Carter told police, “but that didn’t surprise me because that wouldn’t entertain her at all.”
They crossed Ponce, continuing on Piedmont toward 10th. Past 10th, because Carter recalled remarking on a restaurant at the intersection. At the next red light—14th, possibly, because Carter remembered they had not reached Ansley Mall yet—“Diane and I were just chattering away.” Then she heard a “boom.” At first, Carter thought another car may have struck theirs. “I’m looking around, and I see Tex putting the gun down, and he said something about he had fallen asleep, and I don’t know what image was in his mind when he woke up,” Carter told Smith.
Tex: “Dani Jo came to a stop, and anyway I’m just—it was just time to wake up. Anyway—but she came to a stop and I was handling the gun. You know, I realized it was in my lap, and it went off.”
During the subsequent investigation, forensic examiners from the Georgia Bureau of Investigation determined that, if the hammer had been cocked while it was in Tex’s lap, pulling the trigger would have required two-and-a-quarter pounds of pressure—effectively a hair trigger. To fire the gun with the hammer uncocked would require more than five times as much pressure. It’s unclear whether or not the hammer had been cocked.
When Diane indicated she’d been shot, Carter thought she was joking. But then Diane was “breathing funny,” and appeared to pass out. “Darling, darling,” Tex said to her, cradling her head as he leaned forward from the back seat. He directed Carter to drive to Emory University Hospital on the Emory campus, 4.3 miles from the intersection of Piedmont and 14th. “I made the judgment that Emory was the closest hospital,” Tex told police later. “They’re a client of our firm, and I’m there a good bit.”
Tex’s judgment was poor. “All I could think of was Piedmont Hospital,” Carter told police, but she wasn’t sure how to get there. Her instincts were right; from the intersection at 14th, Piedmont Hospital was just 1.9 miles away. Emory University Hospital’s Midtown hospital was even closer—1.5 miles. And Grady, with its Level One Trauma Center? Just 2.7 miles in the direction from which they’d traveled.
The Ford Expedition sped up Piedmont, through the Monroe intersection, then past the manicured lawns of Morningside. The bullet had passed clean through Diane, taking a slightly downward trajectory through her body, even though a rod placed through the seat where the bullet entered and exited “suggested the bullet traveled down to up.” In a few thousandths of a second, the bullet penetrated where Diane’s eleventh rib met her eleventh vertebra, scattering pieces of bone along the bullet’s path. The bullet went on to slice through her left adrenal gland and left kidney, before severing the blood vessels leading to and from her spleen, then through her pancreas and stomach. At that moment, blood began spilling into her abdominal cavity. Bullet wounds like these, the emergency room doctor, Susanne Hardy, told police later, “wreak havoc in this area.” (Police later found the bullet on the seat where Diane had been sitting.)
When Hardy first laid eyes on her in Room 2 a little after 10:15 p.m., Diane was not talking. But she came to a bit. Hardy saw two wounds—in the back and in the front—and asked where the gun had been. Behind her, Diane said. “It was an accident.”
Diane’s blood pressure was so low it was almost undetectable. She was given a “massive transfusion,” according to hospital medical records. While Hardy went to fetch the equipment to intubate Diane, her patient said, “I’m gonna die.”
Before she put the tube down Diane’s throat, Hardy asked if she wanted to see her husband. “I don’t know why that came to me,” Hardy told police. “And she said no.” Five minutes later, Diane went into cardiac arrest. Surgeons opened her chest, spread her ribs, and cross-clamped her aorta to stanch the bleeding from her wounds. Her pulse finally steady, she was rushed to the operating room. It was 11:03 p.m.
The hope was to stabilize her sufficiently to send her to Grady, but, according to the emergency doctor’s report, Diane “never was stable enough to transfer.”
In the operating room, surgeons opened her abdomen, only to find “several liters of blood, what would be expected to be her near-total blood volume.” For over an hour, surgeons fought to save her, removing pieces of the damaged organs, tying off the damaged blood vessels, but her blood pressure kept dropping. “Her chance of survival was zero at this stage,” the attending surgeon’s report reads. “There was no disagreement whatsoever among anyone involved, including all of the surgeons and anesthesiologist, that we could have done anything differently and given her a chance to survive.”
• • •
If doctors make for bad patients, lawyers make for lousy defendants. From arranging estate sales of Diane’s belongings in the immediate weeks after her death, to sitting for Bible-clutching jailhouse interviews with local TV reporters, to allegedly leaving a message on Carter’s husband’s voicemail urging him to tell her to stop talking to the police, to having a pistol in his sock drawer when a judge had declared firearms off-limits, Tex McIver’s biggest problem, as his friend Howard Sills put it to me, “is his fucking self.”
And that’s by no means a complete list. One day last December, Crane and Tex were having lunch in Buckhead. According to Crane, Tex was asking him to reach out to reporters and retract the Black Lives Matter comment. This wasn’t the first time, Crane told me, that Tex had asked Crane to walk back the remarks; at Diane’s memorial service, Tex made a similar request.
Crane said he refused all of Tex’s entreaties, simply because those three words, Crane said, had been “spoken to me” and there was no putting the genie back into the bottle.
“Tex would say he never uttered those words,” Crane said. “What I think did happen is that he got negative feedback from his employer, he got negative feedback from his legal counsel, and that this is the crux of the [district attorney’s] case, which is political and not criminal.” Indeed, Tex’s alleged request of Crane is the basis for one of the three witness-influencing charges against him; the other two involve Carter.
“Atlanta as a city may be miles ahead of most major cities in the country in terms of actual race relations,” Crane said, “but the news media is inordinately focused on and foments any issue of race. I should have known with my decades in the market that there’s a better way to phrase that. If I’d made that choice—if I’d said ‘activists’ or ‘protesters’—perhaps you and I wouldn’t be talking. It was a judgment call on my part to repeat it.” (Tex’s lawyers insist he never mentioned Black Lives Matter. In the transcript of Tex’s interview with police on September 28, he does not reference it or protesters.)
Rachel Styles told me she believed Tex never uttered the words either. “But it doesn’t matter,” she said. “If you go through that area late at night, it’s a little scary. I would probably want to pull my gun out if I was there. Of course, Tex and Diane had this nice SUV—and there were all these carjackings going on around Atlanta.”
Styles said she can think of no other motivation behind the prosecution of Tex than race. “Even Diane told doctors it was an accident!” she said. And Sills, who knows a thing or two about criminal cases, calls it “the worst case of malicious prosecution I’ve ever seen.” Fulton County District Attorney Paul Howard’s office declined to comment.
Indeed, Detective Darrin Smith concluded the shooting was an accident. From his report: “After an extensive investigation . . . I determined that Claud McIver was holding the gun in a careless and reckless manner, that if [discharged] would cause significant injury or death if anyone was directly in front of said gun.” It was the DA’s subsequent investigation—prompted no doubt in part by Tex’s own actions in the weeks and months after Diane’s death—that led to the grand jury’s indictment on malice and felony murder charges, along with witness influencing.
There’s no small irony that some of Tex’s own friends are listed as witnesses for the prosecution. They are left to wrestle with two choices—that Tex shot his wife intentionally, or that a man who was around guns all his life handled one in a way that was inexcusably and tragically reckless.
After Diane’s body was released to Tex, he asked Styles to oversee the cremation. “I had to get Tex to sign the papers to do the cremation,” she said. “He knew once he signed those papers that it was the end. It took him a day and a half to do that. He’d look at them and start crying. I went down to identify the body and check out the facility. It was one of the hardest things I ever had to do. But I promised Tex. And Diane was just as beautiful that day as she was every day. No makeup on, but she was still Diane. It’s been horrible. It’s wrecked so many lives. She could have lived if it had been God’s will. Maybe God said it was time, ‘You’ve done your duty here. It’s time to come home.’”
On the first Tuesday of September, in courtroom 5B of the Fulton County courthouse, one of Tex’s five attorneys stood before Judge Robert McBurney with a simple request: Would the judge permit Tex to come into court free of leg irons and shackles?
“He has a right,” said the attorney, Joe Sharp, “to attend these hearings without being in chains.” His client was no threat, Sharp argued. “I would think that someone in middle school could take him down in his condition.”
Sharp was not exaggerating. Tex had appeared ever frailer at each successive appearance in McBurney’s courtroom. The extra weight that Diane teased him about while she was alive (she once bet him $5,000 that he couldn’t lose 30 pounds) was gone. At his arraignment on felony murder charges a few weeks before, Tex had seemed almost unrecognizable from the distinguished attorney he’d been. For one thing, Tex seemed to be boycotting the jail barber: His shock of white hair had grown over his ears and now seemed on a collision course with his eyebrows. He’d also stopped shaving. Between his unruly head of hair and his bushy white beard, Tex looked less like the rainmaker he’d been than a casting director’s idea of a startled moonshiner down from the hills.
On this day, though, as Sharp pleaded for his client to appear in court unfettered, Tex was once again clean-shaven. Still, he looked tired, glassy-eyed. To his right sat William Hill, a former Fulton County Superior Court judge himself who was heading up Tex’s defense. Tex has known Hill for decades; when he was in the midst of his bitter divorce, it was Hill who Tex called on for legal advice. On his immediate left was Steve Maples, a Decatur attorney whose connection to Tex also goes back a generation; when McIver was charged in 1990 with firing his pistol at a car with three young men inside, Maples defended him. (The matter was settled out of court.) To Maples’s left was Bruce Harvey, the closest thing Atlanta has to a celebrity attorney. Harvey sat quietly for most of the proceedings, hands folded, his thin braided ponytail lying flatly against his lapel. McIver has so many lawyers there wasn’t room for all of them at the defense table, so the fifth member, Alex Bartko, sat in the first row behind it. Occasionally he’d whisper over Tex’s shoulder before passing him a note.
“Can anyone in this courtroom really think of a reason why he can’t attend these proceedings without shackles, chains, and handcuffs?” Sharp was saying from behind the podium, clutching his reading glasses in both hands, his suit jacket unbuttoned. “And if there exists no compelling reason, then what is goin’ on? Because if there exists no such reason, then we’ve moved into a situation where we have a pretrial detainee that’s bein’ punished, and that’s not appropriate. So, your honor, we ask that Mr. McIver be freed of the chains in pretrial proceedings, and we also ask that he be allowed to attend all pretrial proceedings in street clothes.”
McBurney had been busy hearing motion after motion from both sides in the case. Sharp’s request was the day’s first order of business, and the judge didn’t waste any time, invoking Brian Nichols’s 2005 rampage immediately.
“I have learned, as a lawyer in this courthouse who appeared in front of Rowland Barnes, and as a judge in this courthouse,” McBurney said, “you cannot judge a book by its cover, and that it is inappropriate—and likely unconstitutional—to have a policy that says, ‘If you’re over 50, you don’t need handcuffs.’ Or, ‘If you’re white, you don’t need handcuffs.’ Or, ‘If you’re wealthy, you don’t need handcuffs.’ That’s not a policy that would withstand any sort of scrutiny.
“There are no special privileges for anyone here.”
This article originally appeared in our November 2017 issue.
More about the trial:
We’ll know next week whether Tex McIver will accept a plea bargain