Felony murder retrial of former Fisher Phillips partner delayed amid evidence dispute
Former Fisher Phillips partner Claud “Tex” McIver sits during closing arguments in his trial at the Fulton County Courthouse in Atlanta in April 2018. Photo by Bob Andres/The Atlanta Journal-Constitution via the Associated Press.
Updated: The felony murder retrial of former Fisher Phillips partner Claud “Tex” McIver, who is accused of fatally shooting his wife, has been delayed to allow prosecutors to appeal an evidence ruling for the defense.
“We’ll figure out when we’re prepared to saddle up again and try this,” McBurney said.
McBurney said Tuesday he would prepare a written ruling barring prosecutors from introducing evidence showing that McIver intended to kill his wife when he fatally shot her while riding in an SUV in September 2016.
Jurors had acquitted McIver of malice murder in April 2018 but had convicted McIver of felony murder, aggravated assault with a deadly weapon, possession of a firearm in the commission of a felony and influencing a witness.
Because of the acquittal, lawyers for McIver had argued, prosecutors could argue that their client intended to shoot his wife but not that he intended to kill her, Law360 reports. McBurney agreed with the defense.
The argument stems from the doctrine of collateral estoppel, which prevents rehashing issues necessarily decided in a prior trial. The issue in the McIver case is whether the doctrine prevents a “discussion about intent to kill and the evidence that flows from that,” McBurney said.
McIver was in the back seat and his wife, Diane McIver, was on the front seat passenger side at the time of the shooting. McIver had maintained that he accidentally shot his wife after falling asleep while holding a gun for protection as the car traveled through what he thought was a bad neighborhood.
Prosecutors had contended that McIver was facing financial problems and owed his wife hundreds of thousands of dollars when he shot her. McIver’s law firm income had dropped from an average of $570,000 to $275,000 during his marriage.
The Georgia Supreme Court reversed the convictions for felony murder and possession of a firearm in the commission of a felony in June 2022 because McBurney did not allow jurors to consider a misdemeanor charge of involuntary manslaughter.
A lawyer for McIver, Donald F. Samuel, told the Atlanta Journal-Constitution that he was surprised that prosecutors plan to appeal McBurney’s “obviously correct” ruling. Because of the acquittal on a charge of malice murder, he said, prosecutors can’t argue that the shooting was planned.
McIver will turn 81 on Dec. 22, according to the Atlanta Journal-Constitution. His lawyers say McIver now has problems with his memory and his ability to communicate logically, according to a Dec. 2 article by the Atlanta Journal-Constitution.
Updated Dec. 6 at 8:30 a.m. to include information from Law360.