Opinion

Opinion

There was just no way to bulletproof contemptible Tex

Posted April 26, 2018 2:22 p.m. EDT

ATLANTA -- For a while Monday afternoon, Tex McIver's legal team harbored good feelings. After four days of deliberating, jurors said they were hopelessly deadlocked on most charges against him.

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A hung jury after six weeks of trial would have been a victory of sorts for the defense. Tex would keep his feet on the street and prosecutors would be forced to make tough choices about whether it was worth trying him again.

But hours later, Tex was being handcuffed and attorney Amanda Clark Palmer was patting his back in consolation. It may be the last time the 75-year-old convicted murderer feels a woman's touch. He will likely die in prison.

Tex, of course, is the politically connected Atlanta lawyer who shot his wife, Diane, in the back as they rode home from their ranch in 2016. The case seemed like an accident until Tex did all he could to get himself locked up. He asked about getting his wife's Social Security not long after her body was cold. He repeatedly changed his story. He held a fire sale on his wife's possessions.

Worst of all, in the court of public opinion, he had his PR guy tell the media that he pulled out his .38 because he saw shady characters on the street downtown and feared they might be Black Lives Matter protesters. That turned this local shooting into an international outrage.

Until Monday, most observers of this trial thought Fulton County District Attorney Paul Howard's push for murder charges was an overreach.

Sure, Tex was a well-educated lout who in 1990 proved to be a danger after shooting at some teens outside his home.

But a murderer? That seemed a stretch. He was asleep in the backseat of his SUV and woke up after his wife's friend pulled off the Downtown Connector because of a traffic jam. Sensing danger, he asked his wife to grab his gun from the console of the SUV and hand it back to him. Minutes later, the gun went off and Diane, sitting in front of him, was dying.

Pulling off the interstate was not planned. He was asleep. And then he suddenly wanted to murder his wife in front of her best friend?

Clearly, this seemed to be a felony involuntary manslaughter case, a death resulting from this goof's recklessness. He needed to do time, I wrote a couple of weeks ago. And this charge would net him a few years.

I brought my doubts to Clint Rucker, the veteran prosecutor handling the case, as he walked out of court. He flashed a ye-of-little-faith smile and mentioned the case of Dionne Baugh, who killed Roswell, Georgia, millionaire Lance Herndon in 1996.

He mentioned there were no fingerprints, no witnesses, and that people criticized the Fulton County district attorney's office for continuing to prosecute her. But he eventually got her. (She copped to a voluntary manslaughter charge on the eve of her third trial and did 10 years.)

Interestingly, Don Samuel, one of Tex's lawyers, represented Baugh. After the second trial ended in a deadlock, Samuel said, "Anytime you don't lose, you win."

The trials of the Baugh case lead me to believe there would have been a Tex McIver II.

Paul Howard and Clint Rucker don't give up.

Turns out, some jurors don't give up, either. The Tex McIver panel eventually compromised on the charge of felony murder. Originally, five jurors wanted a malice murder conviction and seven argued for involuntary manslaughter, said juror Aubrey Gray, who wanted murder.

The compromise verdict, however, seemed to come from jurors underestimating the severity of a felony murder charge. That charge means a death occurred as the result of a felony, which prosecutors said was an aggravated assault: shooting at her.

But there's a breakdown: Here you had more than half the jurors thinking his recklessness caused her death (a charge with a 10-year sentence), but they drifted over to the felony murder charge, which carries the same sentence as malice murder -- life. A bad compromise on the first group's part.

Bill Corey spoke in a news conference shortly after verdict was read.

"No one thought it was an accident," Gray said. And no one thought much of Tex, either. "A lot of us thought he was not a good person, not a good guy. He was not someone you'd invite over for dinner."

Gray was one of the three black jurors but said the Black Lives Matter excuse didn't turn him against Tex.

But, Gray added, the inconsistencies did. "We perceived his stories as flat-out lies. The actions afterward, that stuff mattered and added up."

The gun went off after a bump in the street. Or he dozed off after feeling afraid. Or he was sleep-shooting.

"The gun just did not go off," Gray said. "Who falls asleep with his finger on the trigger? Especially being gun conscious like he was."

"I don't think the plan was to kill her at that moment. I think he meant to do it in Putnam County (where their ranch is). He had good relations with the sheriff. It'd be easier to do it there. But at some point during the ride, he saw the opportunity to do it."

Motive?

"Money had a lot to do with it," Gray said, adding, "But we'll probably never know."

Prosecutor Rucker did a good job of making chicken salad, arguing there were disputes over money and a second will. He even hinted that Tex had a sweetie on the side. But there was virtually no evidence of any of that.

I talked with veteran defense attorney Mike Mears, who has taken part in 160 murder cases.

"You never know what a jury is going to do. (Famed attorney) Bobby Lee Cook used to say The Holy Ghost descends upon juries when they go back there to deliberate."

He said prosecutors did well to paint Tex as a lying, conniving, greedy old racist. All of which he might have been.

"They weren't going to give him any benefit of the doubt," said Mears, who thought he would be convicted of involuntary manslaughter.

Danny Agan, a retired Atlanta homicide commander, always worked on the other side of the fence from Mears but agreed with him this time. "I saw an involuntary manslaughter on this," he said.

"But Tex McIver was shooting himself in the foot every other freaking day," Agan said. "Tex was trying to tamper with things. I think the jury saw that and it made them angry. They were going to suspect the worst."

Ultimately, Tex was privileged and contemptible, Agan said, which did him in.

"Who doesn't like to see an a-hole take a fall?"

Bill Torpy writes for The Atlanta Journal-Constitution. Email: btorpy(at)ajc.com.

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