Criminal Justice

Murder conviction of former Fisher Phillips partner is reversed; he claimed wife's shooting was an accident

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The Georgia Supreme Court has reversed the murder conviction of former Fisher Phillips partner Claud Lee “Tex” McIver III because the trial judge failed to allow jurors to consider a lesser misdemeanor charge.

The Georgia Supreme Court ruled June 30, reversing McIver’s convictions for felony murder and possession of a firearm in the commission of a felony. The charges stem from McIver’s fatal shooting of his wife while riding in an SUV in September 2016.

The judge presiding in McIver’s trial should have allowed jurors to consider a misdemeanor charge of involuntary manslaughter, the top Georgia court said.

McIver was sentenced in May 2018 to life in prison for the fatal shooting of his wife. McIver was in the back seat of the SUV, and his wife, Diane, was on the front-seat passenger side when the shooting happened.

McIver had maintained that he was holding a gun because he feared the neighborhood that they were riding in, and he accidentally shot Diane McIver after falling asleep. One witness had testified that McIver had a sleep disorder that could cause him to make involuntary movements if he was startled awake.

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 trial judge allowed jurors to consider a felony involuntary manslaughter charge for a slaying without intent that happens in the commission of an unlawful act. But the judge did not permit jurors to consider a misdemeanor involuntary manslaughter charge for a slaying without intent that happens in the commission of a lawful act in an unlawful manner.

The state supreme court said the words “unlawful manner” require a mens rea that is more culpable than ordinary or civil negligence but less culpable than the mens rea required for the crime of reckless conduct.

The failure to permit jurors to consider misdemeanor involuntary manslaughter was harmful enough to require reversal, the state supreme court said.

“We cannot say that the error was harmless because the evidence of McIver’s guilt of aggravated assault and felony murder was not overwhelming or even strong, and the evidence of criminal intent was disputed and circumstantial,” the Georgia Supreme Court said. “Indeed, the state’s evidence of intent was weak, as no witness testified to any disagreement or quarrel between McIver and Diane, and many witnesses testified that they were very much in love.”

“If McIver intended to fatally shoot Diane, why would he do it in the presence of [the woman driving the SUV], and why would he do it in midtown Atlanta, within a few miles of several major hospitals, instead of on a rural interstate, far from any medical aid?” the state supreme court asked.

If the case is retried, the court should not allow evidence that lacked relevance or that created a danger of unfair prejudice, the state supreme court said.

The court said the prosecution should not be able to introduce evidence of Diane’s supposed second will, which was never found. Nor could it introduce evidence that McIver directed the SUV driver to take his wife to a hospital that was not the closest facility.

But prosecutors could introduce evidence of McIver’s sale of Diane’s clothing, jewelry and furs after her death and could introduce evidence of McIver’s calm demeanor at the hospital, the court said.

The court also warned prosecutors to be aware of the impropriety of arguments implying that McIver harbored racial prejudice.

“While several portions of the state’s closing argument were questionable, we note particularly and with disapproval the prosecutor’s display of a PowerPoint slide with a bullet point reading ‘KKK’ during his closing argument,” the state supreme court said.

The bullet point was immediately below one referencing Black Lives Matter protesters. McIver’s lawyer had failed to object.

A prosecutor later acknowledged that there was no evidence to support an inference that the Ku Klux Klan was relevant to the case.

Black Lives Matter became an issue after a spokesperson for McIver told publications before the trial that McIver had his gun because he feared Black Lives Matter protesters. At trial, the spokesperson said had made the statements after they were vetted by McIver.

Hat tip to Law360 and the Atlanta Journal-Constitution, which had coverage of the opinion.

The Atlanta Journal-Constitution reports that McIver is 79 years old.

See also: “Lawyer convicted of wife’s murder argues only he can represent her estate in wrongful death case”

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