ATLANTA — The retrial of Atlanta attorney Tex McIver is on hold until "middle or later next year" after a judge on Tuesday issued an order ruling that prosecutors cannot argue McIver intended to kill his wife.
A jury found McIver guilty of felony murder, aggravated assault, and possession of a firearm during the commission of felony charges in his original trial in 2018.
He was, however, acquitted of malice murder, which incorporates the element of intent. That acquittal played into Judge Robert C.I. McBurney's determination that, in McIver's re-trial now, evidence or argument concerning an intent to kill on McIver's behalf cannot be introduced because of the Double Jeopardy Clause.
Judge McBurney's office told 11Alive that prosecutors plan to appeal the order to the Georgia Supreme Court.
On Tuesday in court, McBurney dismissed potential jurors - who had been gathered initially on Monday for the start of jury selection - and told attorneys of his intent to issue the order against the state. The state argued that an intent to kill was still "relevant and germane to the other charges" that will need to be addressed in the retrial.
McBurney had written in a pretrial order:
Defendant contends that the State should be precluded from arguing at the second trial that Defendant intended to kill his wife. This is so because the jury acquitted Defendant of malice (or intentional) murder. In other words, a jury already decided that Defendant did not intend to kill his wife, so the Double Jeopardy Clause of the Fifth Amendment bars any relitigation of that question. This appears to be a correct statement of law...
The order noted that under this interpretation, prosecutors would be "limited to presenting as motive evidence only those things that might arguably have prompted Defendant to grievously injure his wife" and not "evidence of financial benefits that would accrue to Defendant upon his wife’s death is irrelevant -- as that was not Defendant’s goal."
The retrial began on Monday. It is the second time he is to stand trial in his wife's 2016 death as the Georgia Supreme Court, in June, 2022, reversed his conviction on charges of aggravated assault and felony murder. McIver's attorneys had appealed his felony murder conviction to the state Supreme Court on the grounds that the jury was not properly instructed to consider a lesser charge of involuntary manslaughter. The high court agreed, sending the trial back to square one.
Diane died on Sept. 25, 2016, after being shot in the back with a handgun while in the passenger's seat of an SUV. Evidence during the trial showed McIver was riding behind her and had a loaded revolver in his lap. His attorneys argued at the time the shooting was accidental.
The state argued that McIver had a financial motive for shooting and killing his wife - McBurney's order will preclude them from returning to that argument, unless the State Supreme Court allows them to do so.
During the 2018 trial, McIver was also found guilty of influencing a witness stemming from an exchange he had with a family friend. He has remained in custody, first on that conviction and then the re-indicted charges - felony murder, aggravated assault and possession of a firearm during the commission of a felony - which will be the subject of the second trial.
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