In nearly every way, the Tex McIver verdict is confounding

A look at what jurors decided and what form an appeal could take
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Tex McIver verdict
Tex McIver watches Don Samuel during closing arguments on April 17.

Photograph by Bob Andres /Atlanta Journal-Constitution via AP, Pool

Occasionally during the course of Tex McIver’s six-week trial in the shooting death of his wife, his bookkeeper and friend Rachel Styles would drive to the Cobb County condo where he was staying to drop off some meals for him. Pot roast one time. Crab cakes another. “Just comfort food,” she told me. She’d leave the meals with the concierge, because she was, to her chagrin, a witness for the prosecution, meaning she and Tex were forbidden from communicating. It was Styles who had made copies for Diane McIver of what Diane had described as her second will, a will that ultimately was never found, but which became a key facet in the prosecution’s argument that Tex wanted Diane dead.

Styles was in Florida when yesterday’s verdict came down, watching a live stream on YouTube. On the first count—malice murder—the jury foreman announced, “Not guilty.” But then came guilty verdicts on counts two through five, including felony murder. “I just started bawling,” Styles said this morning. “I was just hysterical.”

The Tex McIver trial was that rare murder case that compels our attention for reasons that transcend the voyeuristic. There were the circumstances of Diane’s death itself—Tex in the back seat of their Ford Expedition as they made their way from their Putnam County ranch back to Buckhead one late summer night in 2016; his request to Diane that she hand him his gun when they exited at Edgewood Avenue to avoid Connector traffic; Tex allegedly dozing off; and then the gun in his hand discharging after, he claimed, he was startled awake; the bullet passing clean through Diane’s abdomen, mortally wounding her. But the trial was about much more than that night. Through a parade of 80-plus witnesses, we got a look at a life of privilege—a stable of horses, trips to Europe, assistants and drivers and masseuses and caretakers, even a ranch—the kind of cossetted existence most of us can only imagine. And in addition to the details the witnesses laid bare—the elaborate birthday parties for their godson Austin Schwall, Diane’s fastidious control of her finances, the question of why she never formally amended her will despite clear evidence she wanted to—the trial itself was an opportunity to see attorneys at the top of their game.

Defense co-counsel Don Samuel

Photograph by Bob Andres /Atlanta Journal-Constitution via AP, Pool

In McIver’s corner were three attorneys, two of whom—Bruce Harvey and Don Samuel—are the legal equivalent of having Messi and Ronaldo on your soccer team. Harvey was so courtly it was almost easy to miss when he lapsed into sarcasm. Samuel played the heavy, at times leveling a look of such disdain at either a witness or Judge Robert McBurney he seemed like a tired professor fed up with his students. (On day 14, the ever-patient McBurney closed a long colloquy with Samuel with the admonition, “Don’t call me ‘your worship’ again. Okay? Thank you.”)

Tex McIver verdict
Chief Assistant District Attorney Clint Rucker, with a photo of Diane McIver behind him, makes closing arguments for the prosecution on April 17.

Photograph by Bob Andres /Atlanta Journal-Constitution via AP, Pool

Then there was chief prosecutor Clint Rucker, whose closing argument felt like the kind of summation you see in a movie. First, he set up a portrait of Diane McIver bigger than a desktop in front of the jury. He considered the photo for a moment, his hands clasped in contemplation, and then recited a poem. A poem!

“Who will stand for the little girl who was murdered and all alone?
Who will stand for the little girl who was now dead and without her own?
Who will stand for the little girl who came from humble means?
Who will stand for the little girl who fulfilled all her dreams?
Who will stand for the little girl who achieved much success?
Who will stand for the little girl whose love for Austin was endless?
Who will stand for Diane McIver?
She knew betrayal, hurt, and pain.
He was just coveting her money, again and again.
Who will stand for Diane McIver? A great woman she tried to be.
Who will stand for truth and justice—truth and justice—as she cries out, ‘Who will stand for me?’”

Within just hours of starting deliberations last Wednesday, the jury had a question: If we acquit on counts 1 through 4—which include the murder and aggravated assault charges—can we still convict on count 5, witness influencing? (The answer: Yes.) Jamila Hall, a partner at Jones Day law firm and former federal prosecutor, recalled to me a joke among prosecutors. “There’s always one jury question you don’t want to have and that’s, ‘How do you spell acquittal?’” she said. “That first series of jury questions were about as close to ‘How do you spell acquittal? as you can get.”

But then Wednesday turned to Thursday, then Friday, and then the weekend. Yesterday, the jury said it was deadlocked. McBurney gave them an Allen charge, essentially a plea to the jurors to reconcile their differences. With hours, they announced the verdict. McIver himself showed no emotion when the verdict was read, despite knowing the felony murder conviction, if upheld, means the 75-year-old would likely die in prison, even if McBurney makes him eligible for parole.

In many ways—in just about every way—the jury’s verdict was confounding. Acquitting Tex of malice murder meant the state had not proven that he had planned to kill his wife. But convicting him of aggravated assault meant he had intended to shoot her. “That he intended to hurt her but not kill her is totally inconsistent with the state’s theory, which is that he needed her dead in order to resolve his financial problems,” Hall said. Convicting him of aggravated assault was the felony the jury needed to convict him of felony murder, which is when a defendant kills another person in the commission of a felony. Intent to kill is not required.

Hall believes the McIver verdicts represent what’s called “jury nullification,” in which the jury could not agree on intent to kill, so compromised with a conviction of felony murder. “It doesn’t make legal sense,” Hall said. “There’s going to be a significant number of post-trial motions on this.” A central question the verdict raises, Hall said, is simply, “Was this decision just because the jury was convinced Tex McIver was a bad person?”

Beyond the apparent inconsistencies of the verdicts themselves, the trial was unusual for the number and scope of questions the jurors asked. Toward the conclusion of each witness’s testimony, McBurney would collect written questions from the jurors, and consult with the prosecution and defense about which to ask the witness. McBurney is the rare judge who permits them, and told the Fulton Daily Report that he was inspired to adopt the practice from the federal judge in the 2007 Scooter Libby trial. “I think folks seeking the truth ought to be able to do their job,” McBurney told the Daily Report. “It shouldn’t be a passive job. Lawyers don’t have a monopoly over common sense and what is relevant to a fact-finder’s mission.”

But the sheer number of questions—298—raises a potential avenue of appeal for the defense, Hall believes. “What defense lawyers will argue is that Judge McBurney’s policy of allowing jury questions allowed the jury to consider a case that hadn’t actually been put up,” she said. “The state has a burden of proof beyond a reasonable doubt, and if it fails to put forward certain theories or evidence, having this panoply of jury questions that might have been on issues that the state hadn’t raised could be an issue. For 298 juror questions to come in, you start to wonder if that tips the scale away from the state’s burden.”

Finally, by Rucker’s account and at least one juror’s, viewing the Ford Expedition where McIver shot his wife was pivotal in reaching its guilty verdicts. That the SUV was not admitted into evidence by the state—McBurney did it himself—is another potential path for appeal, Hall said. “Without the judge admitting the SUV after the close of evidence, the jury would not have been able to sit in the SUV while handling the firearm, something they did not do before the close of evidence. This is a potentially reversible error.”

Hall believes Rucker and his team of prosecutors overcame significant obstacles—a lack of a second will, and no real explanation for why Tex would pick that particular moment to ask for the gun, when by all accounts he had no part in the decision to exit the highway, giving him the excuse to ask for the gun. “I don’t know that the state did a good job at fleshing out opportunity and how that opportunity matched the intent they were trying to prove,” Hall said.

But Tex’s behavior after he shot Diane (directing their driver to take them all the way to Emory University Hospital, for example, when three hospitals were closer) and after her death (fretting about Social Security benefits; letting her cremains languish; auctioning off her belongings; the list goes on) was all grist for the prosecution. Says Hall: “What they did prove was that Tex acted in a completely callous and reckless manner after Diane was shot. They did a fantastic job of laying that all out. You can’t be convicted of murder for being a bad, awful person, but I think that’s what the government accomplished.”

Last Tuesday, as closing arguments were wrapping up, Styles, her testimony complete, finally had a quick chat with Tex. “He was just trying to keep his faith. I told him how much I missed him. He said he missed me and to keep praying.”

Now that verdict is in, Styles knows there’s a good chance her friend will never breathe free air again. “I’m crushed about it. I just have to put it in God’s hands that there’s a purpose out there, and we’ll just wait and see what that is. I’ll go to my grave knowing that Tex McIver did not kill Diane McIver on purpose. There is no way, because he loved that woman unbelievably.”

Correction: A previous version of the story said Tex McIver was staying in a Buckhead condo. This has been updated to reflect he was staying in a Cobb County condo.

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