Jury Questions Are the Norm in Tex McIver Murder Trial
A Fulton County jury posed 298 questions to witnesses testifying in the ongoing murder trial of Atlanta attorney and former Fisher & Phillips partner Tex McIver. They didn't stop, even after they began deliberating.
April 19, 2018 at 05:51 PM
7 minute read
The blockbuster question late Wednesday hinting at a possible acquittal of Atlanta attorney Claud “Tex” Mciver on charges stemming from the fatal shooting of his wife has not been their only question.
Jurors asked 298 questions of witnesses during 20 days of testimony in McIver's ongoing murder trial. Fulton County Superior Court Chief Judge Robert McBurney has screened all of those questions, some of which he has not allowed.
They have also not shied away from questions during deliberations, which began Tuesday.
The jury asked to reenter the Ford Expedition where McIver shot his wife—this time with McIver's gun. The jury also asked to see a recording of McIver's first interview with Atlanta police three days after the shooting. Their first question after getting the case was to see the Smith & Wesson .38-caliber revolver that fired the fatal shot.
Allowing jurors to ask questions following direct and cross-examination of witnesses is unusual, but it is not unprecedented.
Asked why he was letting jurors pose questions, McBurney replied “Why not?”
McBurney said he decided to adopt the practice after learning that Judge Reggie Walton of the U.S. District Court for the District of Columbia allowed jurors to pose questions to witnesses during the 2007 trial of attorney Lewis “Scooter” Libby, chief of staff to former U.S. Vice President Dick Cheney.
Libby, who was convicted of perjury and obstruction, was pardoned by President Donald Trump last week.
McBurney said Walton also permitted jurors to question witnesses during the 2011 perjury trial of baseball great Roger Clemens.
McBurney said he called Walton, then researched Georgia law and decided “it just might work” here, although he said the practice initially engendered “funny looks” from some of his colleagues.
McBurney said he first allowed the practice during the murder trial of Fernando Hernandez, who was convicted of malice murder and possession of a firearm during the commission of a felony.
In 2016, the state Supreme Court affirmed the practice because juror questions were shared with counsel, who were given an opportunity to object before the questions were asked. The high court also said the questions McBurney posed to the witnesses on the jury's behalf did not improperly convey the judge's opinion. The lawyers were then permitted to pose follow-up questions.
“I think folks seeking the truth ought to be able to do their job,” McBurney said. “It shouldn't be a passive job. Lawyers don't have a monopoly over common sense and what is relevant to a fact-finder's mission.”
If jurors have questions that go unasked, they might Google it themselves, he added. At least one juror picked up on a reference early in the criminal case to a civil trial in which Diane McIver's company was embroiled and in which Tex McIver served as counsel. The jurors wanted to know more, and one juror said it deserved a response or else someone might Google it.
“I'm just stating the obvious,” McBurney said. “If there is a burning inquiry out there, they will look it up.”
McIver attorney Bruce Harvey has objected to the juror questions since the beginning, saying the practice has Sixth Amendment implications regarding a defendant's right to a fair, impartial trial.
“There are questions you may not have asked, particularly by design to fit in with your defense strategy and representation of your client,” he said. “And then a juror may ask that very question, and the judge may say, 'Sure,' which completely undoes that particular strategy you have for that witness.”
Harvey added that the practice also allows the court to interject itself into questioning.
“The Georgia Supreme Court has approved the practice,” he said. “But nobody has raised that critical constitutional implication.”
Assistant District Attorney Clint Rucker said the McIver trial is the first his in 25 years as a litigator that he's fielded jury questions. Rucker called the practice “very insightful for lawyers and very educational for jurors. If it doesn't create unnecessary delay, it can be very helpful.”
Rucker said that, while prosecutors strategize their presentation of the evidence, jurors may not understand it.
“It's like putting together the pieces of a puzzle,” he said. “If jurors are thinking the same way we are … sometimes it's a trigger for me to go further.”
Rucker also took issue with Harvey's Sixth Amendment concerns, saying it's not a violation.
Jurors began asking questions the first week of the McIver trial. By the time the final sleep disorder experts testified, the jury was passing McBurney as many as 20 questions per witness.
One of the first questions—what was the date of the auction of Diane McIver's clothes, antiques and other possessions.
Jurors wanted to know why prosecution sleep expert Mark Pressman said it wasn't possible for someone to wake from a deep sleep, fall back to sleep and immediately slide into dream sleep. They wanted to know why during a sleep study, sensors were placed on the head and chin but not the limbs.
In questioning Emory neurologist and sleep expert David Rye, jurors asked whether alcohol consumption has any effect on REM sleep behavioral disorder or confusional arousal—both conditions McIver was diagnosed with. They wanted to know whether fatigue from physical activity, such as playing 18 holes of golf, could affect an individual's ability to fall into a deep sleep.
They wanted to know if McIver was taking medication for a diagnosed sleep disorder and whether other treatments were recommended or other medical diagnoses made.
The jury also had questions for witnesses who testified about McIver's finances. They wanted to know whether a business partner estimated the value of McIver's investment in a kaolin mining company ranged from $1.5 million to $2.5 million, which McIver cashed out of for $700,000. They also wanted to know if the mining company intended to make an additional payment to McIver that would cover his taxes when he sold his share.
They also repeatedly asked about a $350,000 loan Diane McIver made to her husband in return for mortgaging his share of their ranch and whether he ever paid down the principle or paid off the balance, which was due last year. They also wanted to know whether the court-appointed administrator for Diane McIver's estate could foreclose on Tex McIver's interest in the ranch.
They asked the lead Atlanta homicide detective who investigated the fatal shooting why he said it sounded like an accident before he completed his investigation and whether he was obligated to coordinate with the district attorney. They wanted to know how many cases he worked at any given time.
After crime scene technicians testified about the Ford Expedition, jurors wanted to know why the vehicle was seized by law enforcement for a second time after Atlanta police had returned it to McIver. And they wanted to know where the SUV was.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllGlynn County Judge Rejects Ex-DA's Motion to Halt Her Misconduct Trial in Ahmaud Arbery Investigation
Trump Election-Interference Prosecution Appears on Course to Wind Down
4 minute readJudge Sets Early 2025 Trial for Ex-Prosecutor Charged With Meddling in Ahmaud Arbery Investigation
3 minute readRapper Young Thug Is a Free Man. Here Are Things to Know About His Plea.
8 minute readTrending Stories
- 1Call for Nominations: Elite Trial Lawyers 2025
- 2Senate Judiciary Dems Release Report on Supreme Court Ethics
- 3Senate Confirms Last 2 of Biden's California Judicial Nominees
- 4Morrison & Foerster Doles Out Year-End and Special Bonuses, Raises Base Compensation for Associates
- 5Tom Girardi to Surrender to Federal Authorities on Jan. 7
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250