Judge Chides Tex McIver's Lack of Apology in Imposing Life Sentence for Murder
Georgia law dictated McIver's life sentence, foreclosing any discretion by Fulton County Superior Court Chief Judge Robert McBurney, except on the question of whether McIver could be eligible for parole.
May 23, 2018 at 03:12 PM
7 minute read
Disgraced Atlanta attorney Claud “Tex” McIver was given a parolable life sentence Wednesday for the 2016 murder of his wife, Diane, ensuring that—absent a successful appeal—the 75-year-old former Fisher & Phillips partner will likely die in prison for a crime he's always insisted was an accident.
Georgia law dictated McIver's life sentence, foreclosing any discretion by Fulton County Superior Court Chief Judge Robert McBurney, except on the question of whether McIver could be eligible for parole. McBurney agreed with the recommendation of Assistant District Attorney Clint Rucker that McIver serve a parolable life sentence rather than life without parole.
For McIver, the distinction likely makes little difference. In Georgia, felons sentenced to life must serve 30 years before they are eligible for parole. McIver could not be considered until he turned 105.
But, after listening to McIver make an extended statement to the court, during which McIver talked about letters of support from strangers who watched his murder trial on television, about his love for his wife and his belief that she remained a presence in his life, McBurney said there was a “telling” omission from McIver's colloquy.
McIver had plenty of time to compose a statement “about what you thought was most important for me to hear. … I never heard you say you are sorry for what you did. To me that silence speaks volumes,” McBurney said.
A Fulton County jury convicted McIver on April 23 of felony murder, but acquitted him of malice murder in what McIver's lawyers and other members of the state's criminal defense bar branded as inconsistent. Inconsistent verdicts are permissible in Georgia.
The jury also convicted McIver of aggravated assault with a deadly weapon, possession of a firearm during the commission of a felony and influencing a witness. The influencing a witness charge stemmed from what prosecutors argued were McIver's efforts to persuade the sole witness to the shooting to not talk with police.
In issuing its verdict, the jury rejected an option to find McIver guilty of involuntary manslaughter as a result of reckless conduct. They jury also rejected a finding that the shooting was accidental.
McIver was also sentenced to five years for possessing a firearm during the commission of a felony and for influencing a witness. Both sentences were suspended.
McIver, who elected not to testify during his murder trial, addressed the court for the first time Wednesday. He began by asking for permission to sit “given the shackles” he was wearing over his blue jail jumpsuit.
McIver said he's received “a tremendous amount of mail” while in jail that challenged America's criminal justice system, “and asking why I am not a champion to some challenge to that system.”
“The outpouring of support has been beyond anything that any of us expected,” he said. He enumerated correspondence “from individuals on three continents, including an Irish woman who wrote him to say, “The injustice done to you is shocking.” Another woman, he said, “sends me recipes,” adding it was likely “more punishing” than she realized, given the sorry quality of jail food.
McIver said he also has struck up a correspondence with an Australian jockey whose girlfriend was killed.
“A lot of people have seen through these lies,” McIver said. “That seems to be the outpouring I have been finding.”
The convicted lawyer thanked neighbors who brought him meals while he was under house arrest, friends who delivered Chick-fil-A sandwiches, and lawyers and nonlawyers alike who offered to write amicus briefs for his appeal.
McIver also spoke of his grandchildren, who sent him drawings and stories in which he was the key character. He said he was the “proud godfather of approximately 23 children,” one of whom is Austin Schwall, son of Fulton County Superior Court Judge Craig Schwall. McIver said the boy was “a permanent part” of his relationship with his wife before he killed her, recalling that they held him shortly after his birth.
He then listed the child's accomplishments, boasting that he is a straight-A student and an All-Star in basketball and baseball as “the only left-handed pitcher” on the team. “He is a huge fan of the Golden State Warriors,” McIver said, “and, if anything I had to say, 'Go Warriors!”
McIver also thanked his sister, Dixie Martin, who attended the trial, calling her “filled with unfettered love.”
“She is America's last living saint,” he said.
McIver closed by saying that he wanted to thank his wife, “My Diane.”
He said he had found some descriptions of Diane during trial to be “painful,” perhaps referring to descriptions that she could be caustic and had a “sharp tongue.”
As president of a company, he said, “You need to be firm. You need to be difficult sometimes. You need to be hardened. That wasn't my Diane. The luckiest day of my life is when Diane chose me. In doing so, we started a relationship that could only be described as amazing. We loved each other like small children, unabashed and devoted.”
McIver said they “felt so strongly” about each other and were so connected, it was virtually telepathic. They could look at each other and often say simultaneously, “Is this truly real?”
“If it's not real, don't pinch me because it is the greatest dream I have ever had, and I don't want to wake up. … We just couldn't believe it was that good.”
“She was like a little girl growing up in Alabama with a new pink dress looking to show it off and please people,” he added. “That was my Diane. … And, I, of course, will miss her so.”
McIver then talked about the “corrections” his wife occasionally administered or what he said she referred to as “adjustments.”
“From time to time, she became frustrated with me,” he said, adding, “I believe guys are just dumb when it comes to maintaining quality relationships.”
His wife's corrections, he said, “were always delivered with love. … For that reason, I always accepted them with love. … I would receive corrections and go forward. That was the nature of our devotion to each other.”
McIver said that since “the tragedy”—a reference to fatally shooting his wife as the couple were driven home from their farm southeast of Atlanta by a friend—he has spent 263 nights in jail. But he said he was not alone.
“She has joined me there as a presence,” he said. “She has never said goodbye to me. It is as if she is on the other side of a curtain. … I have never felt alone in that respect.”
“On this Earth, she was my life and made me complete,” McIver continued. “If I just might say to her directly. I know she is here. Darlin', you have brought me more joy and fulfillment than few men on this Earth have ever known. Thank you, and, until we are together again, it is truly real. It is truly real. Thank you.”
McBurney was unmoved.
“Armchair jurists” who watched the trial remotely may have suggested that McIver's conviction was a miscarriage of justice, the judge said. But the jury sat and listened through weeks of testimony.
“What the jury said in the end was that it was not an accident,” McBurney said. “The jury concluded that you, Mr. McIver, intentionally pulled the trigger with that firearm, not with the intent to kill your wife. … But that you intentionally pulled the trigger. And they delivered a verdict that supported that contention.”
McBurney added that he was struck by what McIver thought was most important for him to hear before handing down a sentence.
“I heard about racehorses in Australia. I heard about Chick-fil-A … and telepathy and ghosts,” McBurney said. “I never did hear you say you are sorry for what you did.”
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