FULTON COUNTY, Ga. (Court TV) — The trial for the former attorney convicted of murdering his wife is now on hold after the judge overseeing the case ruled in favor of the defense that the state can not tell the jury for the second trial that Claud “Tex” McIver intended to shoot his wife.
On the first day of jury selection, the attorneys met to argue whether prosecutors could tell the jury that McIver intended to kill his wife. Defense attorney Bruce Harvey argued the state should not be allowed to tell a new jury that he shot his wife on purpose because the first jury had already decided that the shooting was not intentional. Legal counsel for the prosecutor’s office, Kevin Armstrong, disagreed, arguing, “No one suggested he shot her but didn’t intend to kill her. No one did.” Judge Robert McBurney reserved a ruling on the matter.
On Tuesday morning, the third group of jurors was outside the courtroom, prepared to be questioned by the attorneys. Inside the courtroom, the prosecutors were waiting at the table, the pool photographer was setting up for the day, and two writers for law publications were waiting. The prosecutors were asked to meet with the judge in his chambers. After about 10 minutes or so, they went into one of the attorney rooms; McIver’s attorney, Don Samuel, went into a separate room to meet with his client. After their short meetings, they all returned to the courtroom. Moments later, Judge McBurney came out of his chamber.
The proceedings started as if a conversation was continuing where the attorneys left off when speaking to him in the judge’s chambers. The people in the gallery were confused about what was happening. Then Judge McBurney turned to a deputy and asked that he bring the jurors in to “give them the bad news and the good news.” The 17 jurors filed into the courtroom. Judge McBurney told them he had had news. He apologized for having them drive to the courthouse but told them they were free from the case, but they could be called again for another trial proceeding in a different courtroom.
After the jurors were excused, Judge McBurney said he wanted to discuss any other motions in the case because “who knows when we will meet again, possibly next year.” He then updated the record regarding the defense’s Motion in Limine – Intent to Kill. He acknowledged that the jury from the first trial handed down a verdict not to convict McIver on Count One – Malice Murder. The acquittal indicated that the jury did not think that McIver intentionally killed his wife, Diane.
Prosecutors told the judge that they plan to appeal the ruling.
Judge McBurney said he would have his written order published sometime this afternoon, and from there, “the clock will begin.”
Before the proceedings ended, the defense notified the judge that there needed to be a discussion regarding their pending motion to exclude any testimony that McIver tried to bribe then-District Attorney Paul Howard to drop the charges against him. They will argue the matter after the ruling from the Supreme Court.