ATLANTA — Attorneys for Tex McIver are once again looking to get him out of jail as he awaits a retrial in his murder conviction for the 2016 death of his wife, Diane.
McIver, once a high-profile Atlanta attorney, had his conviction overturned by the Georgia Supreme Court in June. They ruled that in the original trial the jury was not properly instructed to consider a lesser charge than murder he could have been convicted on, involuntary manslaughter.
The Fulton County District Attorney's Office has filed a motion for a new trial in the case, and in October Fulton County Judge Robert C. I. McBurney denied him bond.
McBurney expressed concern McIver, who proposed going to live with relatives in Texas if he were released, would be a flight risk ahead of a second trial.
In their filing for a new bond hearing, his attorneys argue McIver has been looking for a place to live in Georgia if he were granted bond and is "now prepared to provide details of his proposal" to the court.
The filing also notes that two of McIver's attorneys also represent clients in the RICO case against rappers Young Thug, Gunna and the alleged Young Slime Life street gang. They argue that with that trial set to begin on Jan. 9 and potentially last as many as six months, there would be "conflicts for a lengthy period of time" with their representation of McIver.
At the time his murder conviction was reversed, McIver was still being held on a conviction of influencing a witness from the original murder trial. While the Georgia Supreme Court reversed his convictions for felony murder and possession of a firearm during the commission of a felony, it had upheld the influencing a witness conviction.
However, the new court filing notes "the time that has passed since the expiration of his sentence" on that conviction, as well as "the unknown date of his retrial" in requesting a new bond hearing.
McIver's attorneys told 11Alive they are awaiting a court date for their motion to be heard.
When his conviction was overturned, attorneys Don Samuel and Amanda Clark Palmer said their client had not received a fair trial and “look forward to showing the next jury that he is not guilty of murder.”
When it made a motion for a new trial, the district attorney's office said that the Georgia Supreme Court found there was enough evidence at trial for a rational jury to conclude beyond a reasonable doubt that McIver was guilty of the crimes for which he was convicted.
“The jury which served at the original trial of this case evaluated all of the evidence and unanimously convicted (McIver) of intentional crimes against his wife,” the motion says. “This fact weighs heavily in the State's consideration of how best to serve the interests of justice in this case."
It is undisputed that McIver shot his wife. At trial, jurors had to decide whether they believed he did it intentionally.
His attorneys argued he unintentionally shot his wife on Sept. 25, 2016. The two were riding in an SUV when he discharged a gun while traveling down Piedmont Road in Atlanta. Diane died after being shot in the back with a handgun while in the passenger's seat of the SUV. Tex was riding behind her and had a loaded revolver in his lap, evidence showed.
With traffic heavy on the interstate, a close friend of Diane's driving the three exited downtown Atlanta. McIver said, “Girls, I wish you hadn’t done this. This is a really bad area,” and asked his wife to get his gun from the center console and hand it to him. A short while later, McIver fired the gun once, striking his wife in the back. Carter drove to a hospital where Diane McIver died.
At the time of the shooting, Tex McIver was no longer a partner at his firm, and his income had dropped significantly. He and his wife kept separate finances, and prosecutors alleged he killed his wife because he needed her money to cover his expenses. Defense attorneys disputed that, saying McIver deeply loved his wife and her death was a tragic accident.
A jury found the prominent Atlanta attorney guilty of felony murder. The jury acquitted him on the more serious charge of malice murder.