March 3, 2024 • 43 mins
Late on a Sunday night in September of 2016, Atlanta power couple, Tex and Diane McIver, were driving back into the city and got caught in Atlanta’s notorious traffic. Diane’s best friend was driving as Diane rode in the passenger seat and her husband, Tex, sat directly behind her. When they were stopped in what they considered a dangerous part of town, Tex asked for his gun, and then fell asleep. What happened next would cause one of the most hotly debated criminal cases in recent Atlanta history.
I covered this case in August 2019. But In June 2022, the Georgia Supreme Court unanimously reversed Tex’s convictions. This episode is a refresher on the original episode and an analysis on the new developments in the case.
Hosted and produced by Erica Kelley
Researched and written by Gemma Harris and Erica Kelley
Original Graphic Art by Coley Horner
Original Music by Rob Harrison of Gamma Radio
Edited & Mixed by Brandon Schexnayder & Erica Kelley
Sources: https://southernfriedtruecrime.com/tex-mciver-update
This episode is brought to you by:
I covered this case in August 2019. But In June 2022, the Georgia Supreme Court unanimously reversed Tex’s convictions. This episode is a refresher on the original episode and an analysis on the new developments in the case.
Hosted and produced by Erica Kelley
Researched and written by Gemma Harris and Erica Kelley
Original Graphic Art by Coley Horner
Original Music by Rob Harrison of Gamma Radio
Edited & Mixed by Brandon Schexnayder & Erica Kelley
Sources: https://southernfriedtruecrime.com/tex-mciver-update
This episode is brought to you by:
- Indulge in affordable luxury! Go to Quince.com and use promo code SFTC for free shipping.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:04):
Southern Fried. True crime covers casesthat are not suitable for young listeners,
and there may also be some explicitlanguage used. Listener discretion is advised.
In twenty sixteen, Text and DianeMcIver had spent a hot Sunday in the
late September sun in Georgia, playinggolf and then going to dinner with a
(00:25):
colleague of Diane's and Conyers, atown about a half hour from Atlanta.
Danny Joe Carter, Diane's friend andmanicurist, had acted as chauffeur for the
couple that day after they played golf. She had gone horseback riding at the
couple's Putnam County ranch as they golfed, and then they picked her up and
(00:46):
she took over driving as they bothdrank wine in the car as they headed
to dinner. After dinner, itwas late in the evening as they were
headed back to Atlanta and its famouscongested traffic, with Danny Joe driving,
Diane in the passenger seat and Textin the back seat directly behind his wife.
Though red wine had been served atdinner, Text didn't drink much of
(01:07):
it. He didn't like it,but still on the way home he struggled
to keep his eyes open. Exhaustedafter a full day in the Georgia heat,
Diane kept turning around and fussing ather husband, arguing that if he
slept on the way home, hewouldn't sleep well that night. As they
neared Atlanta, traffic on the DowntownConnector was a parking lot. Even at
(01:30):
ten pm on a Sunday night,you can count on Atlanta traffic being the
worst. Diane told Danny Joe totake the Edgewood Avenue exit, and then
she turned around and told Text towake up. When he did, he
looked around and realized they were ina midtown area. He said, girls,
(01:51):
this is a bad idea. Thisisn't safe. He was talking about
the area of Midtown they were in. Diane said, we'll be on Piedmont
shortly. But then Tex said,Darling, hand me my gun, and
Diane reached into the center console andpulled out a snubnosed thirty eight revolver wrapped
(02:12):
in a plastic bag and handed itto her husband. Text took the gun
and laid it in his lap andthen knotted off back to sleep. What
happened next would be hotly debated foryears and Text McIvor would go on trial
for murdering his wife. There hasbeen a major update in this case since
then, and today we're going togo over it. Welcome to episode two
(02:38):
ten. Update on the Text McIvorcase. Four and a half years ago,
I released episode sixty six Text andDiane McIvor accident or murder. As
I said, there has been amajor update and the outcome is sure to
(03:00):
reignite strong debate as to whether,as the episode title implies, Text intended
to kill his wife or whether thetragedy was nothing more than a terrible accident.
I have remastered and re released episodesixty six if you want the full
deep dive when I originally covered thiscase, but for now, I'll do
(03:22):
my best to summarize before we getinto the new court rulings. Late in
the evening of September twenty fifth,twenty sixteen, seventy two year old Claude
Tex MacIvor and his sixty three yearold wife, Diane were on their way
home in Atlanta, Georgia. Earlierthat day, they had braved the heat
(03:44):
to play a round of golf,followed by dinner and conyers with Diane's best
friend, Danny Joe Carter, andone of Diane's colleagues. Afterward, Danny
Joe was driving the couple back tothe condo they shared in Buckhead. Diane
was in the front pass in yourseat, while Tex sat behind her in
the back. The couple were eachhigh flyers, professionally extremely successful in their
(04:09):
own right, well connected and wealthy. Tex was a corporate labor lawyer and
a partner with a prestigious firm,while Diane was CEO of Corey Enterprises,
where she had worked her way upthe corporate ladder since starting there as a
payroll clerk forty six years earlier.Diane was a shrewd businesswoman whose strong business
(04:31):
acumen, directness, and ability tomake tough decisions garnered her a tremendous amount
of respect. But underneath, shewas also a loving and generous person.
She was definitely a conservative, thoughnot as obvious with her politics, but
her husband was a loyal Republican whoserved on the American Bar Association Committee on
(04:56):
Gun Violence. It was a secondmarriage for both Text and Diane, and
those who knew them could see howdeeply in love they were, even after
five years of dating and ten yearsof marriage. That early fall night,
texts, Diane, and Danny Joedrove back to Atlanta after spending the weekend
(05:16):
at the mcivor's ranch in Putnam County, where Danny Joe had been riding horses.
After Text and Diane's golf outing,they picked Danny Joe up at the
ranch and their Ford Expedition SUV andall went to dinner given Text and Diane
both had a few drinks that afternoonand into the evening. Danny Joe was
the designated driver on the way home, but as they got closer to the
(05:42):
city, the SVU pretty much cameto a standstill as traffic was bumpered a
bumper on the Downtown Connector. AtDiane's suggestion, Danny Joe took the exit
at Edgewood Avenue. Text dozed onand off in the back seat. He
had spent hours in the sun earlierthat day, and it was late,
and he had now had some redwine under his belt, though he wasn't
(06:05):
intoxicated. When he awoke after noddingoff at one point and saw the area
of the group was driving through,he felt uneasy, saying, girls,
this is a bad idea. Thisisn't safe. Much would later be made
of Texa's assessment of this situation,given that Black Lives Matter protesters had been
(06:27):
out in force in Atlanta since Julyprotesting police shootings for reasons that would later
be debated. Text apparently felt unsafe, telling Diane Darling, hand me my
gun. Diane pulled Texas loaded thirtyeight calibre revolver, wrapped in a plastic
grocery bag, out of the centerconsole. She handed it back to her
(06:50):
husband and text set the gun onhis lap before quickly falling back asleep.
Not long afterward, the car wasstill at a red light on Piedmont Road
when Danny Joe heard what she laterdescribed as a big boom. Tex,
who had been jolted out of hissleep moments earlier, realized the gun had
(07:12):
discharged. Everyone seemed fine at first, but suddenly Diane realized she had been
hit. Breathing heavily, she said, I've been shot. Tex instructed Danny
Joe to drive to Emory Hospital,where Diane made a dying declaration that her
husband shot her accidentally. But asDiane deteriorated with her blood pressure dangerously low
(07:38):
and headed into surgery, the doctorasked if she wanted to see her husband.
She said no. Maybe she didn'twant him to see her in a
state she felt would be distressing tohim. Maybe she was just too out
of it to know what she wassaying. Who knows. Her death was
a heartbreakingly abrupt ending the well knowncouple who seemed to have it all.
(08:05):
I'm going to pause now for ashort commercial break. Following Diane's death,
Text told the police that he fellasleep with a gun in his lap and
at some point soon after it fired. He had previously commented at the hospital
that the gun discharged accidentally when thecar went over a bump. Knowing his
(08:30):
actions would be subject to strong scrutiny, and in an attempt at damage control,
tex hired pr consultant Bill Crane.Bill told reporters Text asked Diane for
the gun as he was concerned theywere at risk at being carjacked in relation
to the recent Black Lives Matter protests, even though there wasn't a protest in
(08:52):
the area that night. Bill's commentignited a storm of debate about Texas racial
bias, but Text denied it hadanything to do with Black Lives Matter.
Things got more complicated when, accordingto Bill, Text tried to change this
narrative, saying he was worried abouthomeless people in the area, not protesters.
(09:15):
These conflicting accounts would later be usedagainst Texts and court. In December
twenty sixteen, Atlanta pde initially chargedText with reckless conduct and felony involuntary manslaughter.
If convicted, he would face amaximum of ten years in prison.
(09:37):
But in April twenty seventeen, Textwas indicted on upgraded charges at the insistence
of the Fulton County DA's office.That is important to note a homicide investigator
with twenty years experience had not believedthere was intent or need for the more
serious charges. He believed it wasa tragic accident. Now the DA disagreed.
(10:03):
Text now faced one count of malicemurder where intent is the key factor,
like first degree murder and other states, and one count of felony murder
similar to second degree. He wasalso charged with aggravated assault with a deadly
weapon, possession of a firearm duringa crime, and three counts of influencing
(10:24):
a witness. But if it wasan accident, as Text claimed, why
a malice murder charge there was understandably, a lot of focus on the decisions
Texts made in the hours, days, and weeks following Diane's death. Like
I said in the original episode,even accounting for the grieving process, Texts
(10:46):
showed extremely poor judgment on multiple occasions. When Diane was initially shot, her
husband didn't call nine one one.Instead, he directed Danny Joe to Emory
Hospital, which wasn't even the closestmedical facility were the most equipped to deal
with a gunshot wound. However,Emery Hospital was one of his clients,
(11:11):
so he knew how to get therequickly. They didn't call nine to one
one and were rushing Diane to ahospital, so Tex chose the one he
knew the way to. The textalso asked Danny Joe to say she wasn't
in the vehicle when the shooting occurred, and it took two days for the
police to question texts. Much wasmade of this delay, making text look
(11:35):
bad, but we need to rememberthat the police did not insist on an
interview right away. Following Diane's death, Tex asked one of her co workers
if he could draw on his latewife's social security then he auctioned off Diane's
extensive, high end collection of clothesand jewelry that December on the advice of
(11:58):
all lawyer. Regardless of the rationalebehind these decisions, they look bad,
some would say quite callous. Thesethings reflected poorly on Texts in the eyes
of many, but questionable choices afterthe fact are not indicative of intent,
(12:20):
Meaning you can believe that Tex macIver was a rich, white and titled
asshole, but it doesn't mean hemurdered his wife. Those who believed it
was a case of murder argued thatTeX's request to Danny Joe was an attempt
to cover up something sinister from thestart, but the facts are more nuanced.
(12:43):
Text had been drinking in the hoursbefore handling the gun, and handling
a weapon under the influence in itselfis an offense, regardless of whatever does
or does not happen afterward, soit makes sense that Text wanted to avoid
the repercussions of this, hence hiscomment to Denny Joe. At Texas trial
(13:09):
in April twenty eighteen, the defensesubmitted that the jury should be able to
consider the charge of misdemeanor involuntary manslaughter. In Georgia, this is when someone
unintentionally causes the death of another personby engaging in lawful behavior but in an
unlawful way. But the request,strongly opposed by the prosecution, was denied
(13:35):
by Fulton County Superior Court Chief JudgeRobert McBurney. And I do have thoughts
on this, which I'll come backto later. I'm going to pause now
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terms for details. In my originalepisode, I referenced the Atlanta Journal Constitution's
(16:37):
excellent podcast Breakdown, which covered TexasTrial extensively. In twenty twenty two,
Vault Studios and eleven Alive WXIA Newsreleased a compelling long form podcast of their
own, entitled Intent the Text,MacIvor Case. If you're after blow by
(16:57):
blow accounts of Texas trial and theaftermath, I can recommend both of these
as essential listening, and you canwatch the entire trial on YouTube. The
way Texas trial played out, youwould have thought it was the role of
the defense to prove the shooting wasaccidental, when in reality, it is
(17:18):
the state's responsibility to demonstrate the burdenof proof that this was a murder.
There was a contentious debate from bothsides about the question of money. The
prosecution case was that Text wanted Dianedead so he could inherit her multimillion dollar
estate. The court also heard thatTex had recently become much more financially reliant
(17:42):
on Diane after he went from equitypartner at his law firm to income partner,
reducing his annual income from seven hundredthousand to one hundred and twenty thousand.
However, Tex was in his earlyseventies and semi retired, so it's
not as though he had gotten somesort of demotion and was panicking about money.
(18:04):
He was close to full retirement,but like his wife, he loved
working. The defense argued there wasabsolutely nothing for Text to gain financially with
Diane dead, as she earned morethan Texts. He was far better off
with her alive so she could continueto support their lavish lifestyle, and also
(18:26):
she could lend her husband money ifhe needed it. Loaning money was a
favor Diane did for those close toher. It might sound a bit unorthodox
in the context of a marriage,but Diana Text happily kept their finances separate
with no issue. They had bothgone through ugly divorces from their first marriages,
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so this arrangement was what they bothwanted. It's what worked best for
their marriage, which indisputably had beena happy marriage for ten years. Even
friends who later turned against Texts couldnot argue that he and Diane had marital
problems. After five years of datingand ten years of marriage. They were
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still the kind of couple who heldhands all the time. Everyone agreed they
had an extremely loving relationship. Theprosecution also tried to argue the existence of
a rumored new will, which Dianewas said to have made before her death,
naming the couple's godson as the soulbeneficiary, but no hard proof of
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such a will was ever produced.All the testimony about Text and Diane's relationship
spoke only to their undying love forone another. There was no mention of
conflict, upset, or tension betweenthe couple. At one point during the
jury's deliberation, they reached a deadlockon the verdict. Judge McBurney gave them
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an allen charge, fording them tocontinue deliberating until they had an outcome.
Finally, after further deliberation, TexMacIvor was found guilty of felony murder,
aggravated assault with a deadly weapon,possession of a firearm during a crime,
and influencing a witness. Despite expertevidence, it was impossible to confirm whether
(20:22):
the gun discharge as a result ofa single or double action mechanism. The
verdict on the major charges made nosense at all. How can you acquit
on malice murder but convict on bothfelony murder which requires the killing to occur
during the commission of another felony whereintent is involved, and aggravated assault with
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a deadly weapon. Judge mcbarney latersaid in December twenty twenty three that the
aggravated assault charge does not allege intentto kill. The jury's decision essentially meant
they believed Texts did not intend tokill his wife, but they did believe
he intended to seriously harm her.It's difficult to find the logic in that.
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What would Texts have to gain bymaliciously wounding the love of his life,
and not just in front of anywitness, but in front of her
best friend. And why do itin a car anyway? Who leaves themselves
open that way if an act isintentional, this too makes no sense.
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While no one is required to takethe stand in their own defense, the
fact that Tex chose not to giveevidence may have also worked against him in
the eyes of the jury. Butconsidering the many blunders he made after Diane's
death, causing him to be apr nightmare, I'm sure his attorneys believed
he would be a wild card onthe stand, But it seems that,
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based on how the information was presentedto the jury by both sides, they
simply did not believe that guns justgo off. The fact that Tex was
an experienced and passionate gun owner whoowned almost forty firearms made the suggestion of
an accident doubtful for the jury,and it appears the jury did not feel
(22:18):
the evidence about a sleep diagnosis oftexas the rim sleep disorder causes sudden involuntary
movements during sleep, but the jurydid not believe this was a sufficient explanation
for the gun discharging if Texas fingerwas on the trigger. In my episode
on Text and Diane, I notedthat much was made by the prosecution of
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whether tex would have had time tofall into rim sleep so quickly between asking
for the gun and then Diane beingshot, which was said to be around
ten minutes. But as I notedbefore, as witnessed by Danny, Joe
and Diane herself, at the time, Text kept nodding off, struggling to
stay awake, and as we fallasleep we can experience something called a hypnic
(23:07):
jerk, which is a sudden musclecontraction. While the defense did explain Texas
sleep issues, I'm not sure theywent into great detail to explain how he
could have jerked and pulled the trigger. For example, in the Handbook of
Clinical Neurology, the hypnic jerk isdefined as quote. Hypnic jerks or sleep
(23:30):
starts are normal physiological events occurring atthe transition from wakefulness to sleep, often
associated with sensory phenomena such as afeeling of falling, unexplained alarm or fear
in our electric shock or light flash. The most distinguishing feature of sleep starts
is that they occurred during drowsiness andthe transition from wakefulness to sleep before sleep
(23:55):
on set. We don't know ifthe gun was cocked because Tex said he
simply could not remember if it was, which makes sense given that Tex felt
uncomfortable enough to ask Diane for theweapon. The amount of pressure required to
discharge the firearm was less than twopounds. If it had not been cocked,
(24:17):
the trigger would have needed twelve poundsof pressure. Even after taking all
the evidence into account, the juryhad clearly decided, rightly or wrongly,
that Text did harbor intent to somedegree based on the verdict for aggravated assault,
yet they found him not guilty ofmalice murder. I personally don't get
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why Executive Assistant Da clint Rucker pushedback so hard against involuntary manslaughter, or
why the judge denied it. Juriesneed to have all the options. That
was quite the gamble, in myopinion, and one which obviously paid off
for the state, but one theywould now come to regret. And yes,
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I'm doing the told you so dancein my head right now. I
have talked about this gamble before,most recently in the Ray Caruth trial,
in which the gamble did not workfor the prosecution. I am more in
favor of what I call kitchen sinkcharges. Give the jury every option.
(25:22):
I believe it is so obviously muchmore fair to the defendant. But the
problem, as I see it,is that the state and defense attorneys would
often rather gamble with the defendants' livesin order to prove their theories right and
to be fair, the defense didnot want the involuntary charge either. Initially
(25:45):
they wanted their client found not guiltyon all charges, again a huge gamble
with their client's life. But itcould have gone either way for Texts,
and really should have. A convictionon the lesser charge would still have carried
prison time. Sure, it's notlife, but for the state, a
(26:06):
conviction against a prominent and affluent attorneystill would have had an impact and one
of the most high profile infamous trialsAtlanta had ever seen. Plus he was
seventy three years old. Chances arehe still could have died in prison even
on the lesser charge. But theDA's gamble worked, and Text was sentenced
to life in prison, with anadditional five years for influencing a witness to
(26:30):
be served. Concurrently for the weaponscharge, he received a suspended five year
sentence. Almost immediately, his legalteam began preparing an appeal, filing a
motion for a new trial in Februarytwenty twenty, I'm going to pause now
(26:51):
for a final commercial break. WhenI released the original episode at ten,
tue million dollar wrongful death lawsuit broughton behalf of Diane's estate, naming both
Text and Danny Joe was still onfoot. The suit alleged Danny Joe failed
(27:11):
to drive in a safe manner,focusing on her decision to drive for the
hospital and failure to call nine oneone. While there's minimal information available about
the outcome, including any impact onDanny Joe, it appears the suit was
confidentially settled with Texas Insurance Company inMarch twenty twenty. Over a year later,
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in July twenty twenty one, JudgeMcBurney denied Texas request for a new
trial. Undeterred, the defense tooktheir case to the Georgia's Supreme Court in
January twenty twenty two, arguing thatText did not receive a fair trial for
several reasons. One was how conflictedthe jury clearly was when it came to
(27:56):
the question of accident or murder.Judge mcburney's decision had meant there was no
option for the jury to consider involuntarymanslaughter, so they only had two choices.
The defense proposed what the jury shouldhave been presented with all along the
scenario where texs negligently fell asleep witha loaded gun in his lap. If
(28:22):
this had been considered, Text wouldhave possibly been convicted of the lesser charge
instead of being sentenced to life inprison. The maximum he would have received
would have been twelve months. Thedefense also argued that certain evidence at trial
was prejudicial and therefore inadmissible, especiallythat relating to racial bias on Texa's part,
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as well as the prosecution's speculative portrayalof him as money hungry. The
Supreme Court ruled on this as followsquote. With respect to MacIvor's contentions as
to improper argument by the state inwhich it was stated or implied that MacIvor
harbored racial prejudice, we caution thestate and the trial court to be mindful
(29:10):
of the impropriety of such arguments ifthere is a retrial. We note,
particularly, and with disapproval, theprosecutor's display of a PowerPoint slide with a
bullet point reading KKK. During hisclosing argument, the state ultimately acknowledged that
no evidence was produced at trial tosupport any inference that the klu klux Klan
(29:33):
was relevant to this case. Inaddition, the defense claimed Judge McBurney should
not have permitted jurors to examine theFord expedition to see how the gun could
have discharged. It was a compellingcase for the defense. In June twenty
twenty two, the Georgia Supreme Courtunanimously reversed Texas convictions for felony murder and
(29:59):
possession of a fire in the commissionof a felony. It was highly critical
of the Fulton County DA's office,particularly flamboyant Prosecutor Clint Rucker and Judge McBurney,
in their failure to offer involuntary manslaughteras an option to the jury.
According to Courthouse News, Justice MichaelBoggs wrote in the court's unanimous decision,
(30:23):
while the state's evidence was sufficient tosupport the appellant's conviction of murder, it
also could have supported a finding thatthe appellant killed the victim without any intention
of doing so. He added thatany evidence brought by the state pertaining to
intent was weak, therefore making proofof Texas guilt not overwhelming or even strong.
(30:48):
The court ruled that any evidence ofintent on Texas part was extremely weak.
On the other hand, it foundthe evidence supporting his actions as negligent
was much stronger, ruling quote,the jury could have concluded that the revolver
was discharged as a result of beingstartled awake, reflexively or involuntary clutching of
(31:10):
the bag holding the firearm, andinadvertently contacting the trigger. The DA's office,
again, particularly Clint Rucker, alsocame under fire for improper comments at
closing and some of the alleged prejudicialevidence brought against Texts. With the ball
back in the DA's court, therewas the option for no new charges to
(31:33):
be brought and the case to bedismissed. Instead, prosecutors doubled down.
In July twenty twenty two, theyannounced they would again try Text for felony
murder, aggravated assault with a deadlyweapon, and possession of a firearm during
a felony, but this time involuntarymanslaughter would be on the table for the
(31:56):
jury to consider. Three months later, in October, Texas bond application was
denied again by Judge McBurney, whofelt that the seventy eight year old was
a flight risk. Stated that astex was a man of means again facing
life in prison, there was strongincentive for him to flee the state and
(32:17):
not return. Nor was Judge McBurneyconfident Texts would not try to influence witnesses
or stay away from firearms. Partof texas proposed bond conditions was that he
go live with his sister in Texasand return to Georgia for the trial.
His attorney's foled a request for asecond bond hearing ahead of the retrial scheduled
(32:40):
for September twenty twenty three. InFebruary of that year, Text temporarily surrendered
his license to practice law in Georgia, pending the outcome of his trial.
The court accepted texas surrender of hislicense in April, but things weren't going
to be as straightforward the next timearound, as the prosecution hoped. Tex
(33:05):
had requested bond on the basis thathe required access to his defense team as
well as medical assistants. Given hisage. His attorney Don Samuel stated Text
was experiencing issues with memory and communicationthough there were no issues with competency,
the prosecution pushed for bond to bedenied. In mid November twenty twenty three,
(33:30):
Judge McBurney ruled that eighty year oldTexts would remain in Fulton County Jail
while awaiting his retrial, which wasdue to begin in early December. Despite
TeX's age, the judge noted thathe had previously violated his bond for improperly
seeking to influence a key witness,for which he was convicted on December fourth.
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Jury's selection for the second trial gotunder way. Text had the same
defense team by hisiameide as he hadsince day one, Bruce Harvey, Don
Samuel and Amanda Clark Palmer. Butno sooner had things got going than they
ground to a halt in accordance withinstructions from the Georgia Supreme Court and in
(34:15):
response to emotion and lemony, whichis emotion discussed in the absence of the
jury arguing that evidence be included orexcluded from trial. The prosecution was dealta
blow when Judge McBurney ruled that theycould not present evidence arguing intent to kill.
(34:35):
This was distinct from intent to shoot. Texts had already been acquitted of
malice murder after all. This meantthat key aspects presented as part of the
state's case at the first trial wouldnow not be heard. The state would
not be able to enter evidence aboutDiane's alleged second will unless they could prove
(34:55):
Texts suspected his wife intended to decreaseher husband Ban's entitlements as a beneficiary.
The state would first need to arguethis point without the jury present. Judge
McBurney stated the prosecution's evidence of asecond will at the first trial was not
particularly strong according to the AJC.The judge stated that the prosecution failed to
(35:22):
demonstrate that Texts knew of any suchsecond will, nor was the state allowed
to mention George's slayer statute, whichprevents convicted killers from profiting from the estate
of their victim. Among the evidencethe state could bring at retrial was TeX's
behavior at the hospital and his attemptsto both influence witnesses and bribe the then
(35:45):
district Attorney Paul Howard to drop thecharges. The prosecution could also argue that
text shot Diane in order to incapacitateher as a way to gain control over
her assets. As of attorney.The defense wanted this argument excluded, but
lost on this point. As forthe speculation that tex was having an affair,
(36:09):
prosecutors would be able to introduce thisevidence in terms of a possible motivation
for the shooting, but texas allegedinfidelity would have to be proven and there
was no proof. The prosecution announcedit would appeal Judge mcburney's decision to the
Supreme Court. Proceedings would again bedelayed, this time until mid to late
(36:31):
twenty twenty four, perhaps even indefinitely. According to the AJAC. Again,
Texas defense team planned on requesting bondbe granted, but late the following month
there was an unexpected development. OnJanuary twenty sixth, twenty twenty four,
(36:52):
eighty one year old tex MacIvor pledguilty to involuntary manslaughter, reckless conduct,
and possession of a firearms during afelony. There would be no retrial after
all, as one of the highestprofile legal sagas in the state came to
an end. At sentencing, texttold the court quote, Diane's the best
(37:14):
friend I ever had. She's thebest partner I could possibly imagine, and
I will always always love her.She died as a result of my actions,
plain and simple. I've worn mywedding ring since the day we were
married, and I intend to wearit until the day I die. I
hope we're at a point where we'renot judging each other and we can all
(37:36):
move on. She's my angel andshe's waiting for me in heaven. Others
from Diane's life were also given theopportunity to speak. Her best friend,
Danny Joe Carter, told the courther life had all but been destroyed by
Diane's death, saying distress has beentremendous. I'm just angry. A statement
(37:59):
by Diane Anne's former boss Billy Coreywas also read to the court, saying
Diane's death quote was no accident.One man, one hand and one bullet
ended her life and caused a lifetimeof misery and loss for so many others.
There will never be another Diane MacIver. Diane was full of life,
as she should never have been takenaway from us in such a careless and
(38:22):
malicious way. She is today missedas much as she was on that tragic
day. In accordance with Texas pleadeal, he was sentenced to fifteen years
in prison, with the last sevenyears to be served on probation. He
also had to agree to relinquish anyentitlement to any civil settlement arising from Diane's
(38:44):
death. With time already served andhis five year sentence for influencing a witness
completed, according to Texas attorneys,he could be paroled prior to the end
of his sentence in mid twenty twentyfive. Given that Texas has already served
at least six years in prison,this technically makes him eligible for parole right
(39:06):
now. His attorneys told Atlanta NewsFirst that the plea deal was struck to
bring an end to something that hadnow dragged on into its eighth year,
with Don Samuel saying, anyone whothinks this was a well planned murder,
nobody could think that. It makesno sense to even think that was intentional
(39:27):
or malicious. Whether it was reckless, whether you want to define it as
gross negligence, or whether it wasjust simply an accident, that's debatable.
Judge McBurney too seemed satisfied with whathe described as a healthier and cleaner method
of resolution that ultimately saved the statethe cost of further proceedings, saying mister
(39:50):
mc ivor shouldn't have had that loadedgun in his hand with his finger on
the trigger. For those who seekpurely punishment through this process, you're going
to be disappoint According to Atlanta NewsFirst, Text will serve the first five
years of his probation under home confinementwith a seven pm to seven am curfew.
He is not to have any contactwith Danny, Joe Carter, or
(40:15):
Billy Corey. As I explained inmy original episode, I do not believe
Text intended to kill his wife.I agree that much about Texas actions after
the fact did not look good whateverway you try to spin it. He
got a lot of bad advice andmade a lot of stupid mistakes, but
(40:36):
that doesn't make him a killer.I am probably pissing off my Atlanta area
listeners, who I know feel passionatelyabout this case. Tex mc ivor is
not popular there, but I'm sorry. I do believe the justice system finally
worked right for this man and forDiane McIver. I just believe him,
(41:00):
I always have. His story makesmuch more sense than a planned murder in
his car in front of Diane's bestfriend. After my original episode aired,
Text found out about Southern Fried andhis lawyer asked for a transcript of the
episode so Text could read it inprison, since he was not allowed to
(41:21):
listen to the podcast. Hopefully hewill be able to listen to this update
soon. It's not clear exactly whenText will be released on parole, but
it seems it could literally be anyday, and when he is, we
can only hope that, having donehis time, he can continue processing his
grief for his wife Diane and honoringher memory. Southern Fried True Crime is
(41:52):
hosted and produced by me Erica Kelly. Today's episode was researched and written by
me and Jimma Harris. As usual, any editorial comments and opinions are my
own. Southern Fred's original music isby Rob Harrison of Gamma Radio and the
original graphic art is by Kohley Horner. Today's episode was edited and mixed by
Brandon schck Snyder of Southern Gothic andErica Kelly. If you have any case
(42:15):
suggestions, please go to my website, Southernfred Truecrime dot com and click on
the listener's suggestion tab, or emailSFTC Research at gmail dot com. This
is the best way for me toget those little known cases, y'all always
send me. Please remember that Ido not accept suggestions on social media private
(42:35):
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(42:59):
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Take care,
Southern Fried. True crime covers casesthat are not suitable for young listeners,
and there may also be some explicitlanguage used. Listener discretion is advised.
In twenty sixteen, Text and DianeMcIver had spent a hot Sunday in the
late September sun in Georgia, playinggolf and then going to dinner with a
(00:25):
colleague of Diane's and Conyers, atown about a half hour from Atlanta.
Danny Joe Carter, Diane's friend andmanicurist, had acted as chauffeur for the
couple that day after they played golf. She had gone horseback riding at the
couple's Putnam County ranch as they golfed, and then they picked her up and
(00:46):
she took over driving as they bothdrank wine in the car as they headed
to dinner. After dinner, itwas late in the evening as they were
headed back to Atlanta and its famouscongested traffic, with Danny Joe driving,
Diane in the passenger seat and Textin the back seat directly behind his wife.
Though red wine had been served atdinner, Text didn't drink much of
(01:07):
it. He didn't like it,but still on the way home he struggled
to keep his eyes open. Exhaustedafter a full day in the Georgia heat,
Diane kept turning around and fussing ather husband, arguing that if he
slept on the way home, hewouldn't sleep well that night. As they
neared Atlanta, traffic on the DowntownConnector was a parking lot. Even at
(01:30):
ten pm on a Sunday night,you can count on Atlanta traffic being the
worst. Diane told Danny Joe totake the Edgewood Avenue exit, and then
she turned around and told Text towake up. When he did, he
looked around and realized they were ina midtown area. He said, girls,
(01:51):
this is a bad idea. Thisisn't safe. He was talking about
the area of Midtown they were in. Diane said, we'll be on Piedmont
shortly. But then Tex said,Darling, hand me my gun, and
Diane reached into the center console andpulled out a snubnosed thirty eight revolver wrapped
(02:12):
in a plastic bag and handed itto her husband. Text took the gun
and laid it in his lap andthen knotted off back to sleep. What
happened next would be hotly debated foryears and Text McIvor would go on trial
for murdering his wife. There hasbeen a major update in this case since
then, and today we're going togo over it. Welcome to episode two
(02:38):
ten. Update on the Text McIvorcase. Four and a half years ago,
I released episode sixty six Text andDiane McIvor accident or murder. As
I said, there has been amajor update and the outcome is sure to
(03:00):
reignite strong debate as to whether,as the episode title implies, Text intended
to kill his wife or whether thetragedy was nothing more than a terrible accident.
I have remastered and re released episodesixty six if you want the full
deep dive when I originally covered thiscase, but for now, I'll do
(03:22):
my best to summarize before we getinto the new court rulings. Late in
the evening of September twenty fifth,twenty sixteen, seventy two year old Claude
Tex MacIvor and his sixty three yearold wife, Diane were on their way
home in Atlanta, Georgia. Earlierthat day, they had braved the heat
(03:44):
to play a round of golf,followed by dinner and conyers with Diane's best
friend, Danny Joe Carter, andone of Diane's colleagues. Afterward, Danny
Joe was driving the couple back tothe condo they shared in Buckhead. Diane
was in the front pass in yourseat, while Tex sat behind her in
the back. The couple were eachhigh flyers, professionally extremely successful in their
(04:09):
own right, well connected and wealthy. Tex was a corporate labor lawyer and
a partner with a prestigious firm,while Diane was CEO of Corey Enterprises,
where she had worked her way upthe corporate ladder since starting there as a
payroll clerk forty six years earlier.Diane was a shrewd businesswoman whose strong business
(04:31):
acumen, directness, and ability tomake tough decisions garnered her a tremendous amount
of respect. But underneath, shewas also a loving and generous person.
She was definitely a conservative, thoughnot as obvious with her politics, but
her husband was a loyal Republican whoserved on the American Bar Association Committee on
(04:56):
Gun Violence. It was a secondmarriage for both Text and Diane, and
those who knew them could see howdeeply in love they were, even after
five years of dating and ten yearsof marriage. That early fall night,
texts, Diane, and Danny Joedrove back to Atlanta after spending the weekend
(05:16):
at the mcivor's ranch in Putnam County, where Danny Joe had been riding horses.
After Text and Diane's golf outing,they picked Danny Joe up at the
ranch and their Ford Expedition SUV andall went to dinner given Text and Diane
both had a few drinks that afternoonand into the evening. Danny Joe was
the designated driver on the way home, but as they got closer to the
(05:42):
city, the SVU pretty much cameto a standstill as traffic was bumpered a
bumper on the Downtown Connector. AtDiane's suggestion, Danny Joe took the exit
at Edgewood Avenue. Text dozed onand off in the back seat. He
had spent hours in the sun earlierthat day, and it was late,
and he had now had some redwine under his belt, though he wasn't
(06:05):
intoxicated. When he awoke after noddingoff at one point and saw the area
of the group was driving through,he felt uneasy, saying, girls,
this is a bad idea. Thisisn't safe. Much would later be made
of Texa's assessment of this situation,given that Black Lives Matter protesters had been
(06:27):
out in force in Atlanta since Julyprotesting police shootings for reasons that would later
be debated. Text apparently felt unsafe, telling Diane Darling, hand me my
gun. Diane pulled Texas loaded thirtyeight calibre revolver, wrapped in a plastic
grocery bag, out of the centerconsole. She handed it back to her
(06:50):
husband and text set the gun onhis lap before quickly falling back asleep.
Not long afterward, the car wasstill at a red light on Piedmont Road
when Danny Joe heard what she laterdescribed as a big boom. Tex,
who had been jolted out of hissleep moments earlier, realized the gun had
(07:12):
discharged. Everyone seemed fine at first, but suddenly Diane realized she had been
hit. Breathing heavily, she said, I've been shot. Tex instructed Danny
Joe to drive to Emory Hospital,where Diane made a dying declaration that her
husband shot her accidentally. But asDiane deteriorated with her blood pressure dangerously low
(07:38):
and headed into surgery, the doctorasked if she wanted to see her husband.
She said no. Maybe she didn'twant him to see her in a
state she felt would be distressing tohim. Maybe she was just too out
of it to know what she wassaying. Who knows. Her death was
a heartbreakingly abrupt ending the well knowncouple who seemed to have it all.
(08:05):
I'm going to pause now for ashort commercial break. Following Diane's death,
Text told the police that he fellasleep with a gun in his lap and
at some point soon after it fired. He had previously commented at the hospital
that the gun discharged accidentally when thecar went over a bump. Knowing his
(08:30):
actions would be subject to strong scrutiny, and in an attempt at damage control,
tex hired pr consultant Bill Crane.Bill told reporters Text asked Diane for
the gun as he was concerned theywere at risk at being carjacked in relation
to the recent Black Lives Matter protests, even though there wasn't a protest in
(08:52):
the area that night. Bill's commentignited a storm of debate about Texas racial
bias, but Text denied it hadanything to do with Black Lives Matter.
Things got more complicated when, accordingto Bill, Text tried to change this
narrative, saying he was worried abouthomeless people in the area, not protesters.
(09:15):
These conflicting accounts would later be usedagainst Texts and court. In December
twenty sixteen, Atlanta pde initially chargedText with reckless conduct and felony involuntary manslaughter.
If convicted, he would face amaximum of ten years in prison.
(09:37):
But in April twenty seventeen, Textwas indicted on upgraded charges at the insistence
of the Fulton County DA's office.That is important to note a homicide investigator
with twenty years experience had not believedthere was intent or need for the more
serious charges. He believed it wasa tragic accident. Now the DA disagreed.
(10:03):
Text now faced one count of malicemurder where intent is the key factor,
like first degree murder and other states, and one count of felony murder
similar to second degree. He wasalso charged with aggravated assault with a deadly
weapon, possession of a firearm duringa crime, and three counts of influencing
(10:24):
a witness. But if it wasan accident, as Text claimed, why
a malice murder charge there was understandably, a lot of focus on the decisions
Texts made in the hours, days, and weeks following Diane's death. Like
I said in the original episode,even accounting for the grieving process, Texts
(10:46):
showed extremely poor judgment on multiple occasions. When Diane was initially shot, her
husband didn't call nine one one.Instead, he directed Danny Joe to Emory
Hospital, which wasn't even the closestmedical facility were the most equipped to deal
with a gunshot wound. However,Emery Hospital was one of his clients,
(11:11):
so he knew how to get therequickly. They didn't call nine to one
one and were rushing Diane to ahospital, so Tex chose the one he
knew the way to. The textalso asked Danny Joe to say she wasn't
in the vehicle when the shooting occurred, and it took two days for the
police to question texts. Much wasmade of this delay, making text look
(11:35):
bad, but we need to rememberthat the police did not insist on an
interview right away. Following Diane's death, Tex asked one of her co workers
if he could draw on his latewife's social security then he auctioned off Diane's
extensive, high end collection of clothesand jewelry that December on the advice of
(11:58):
all lawyer. Regardless of the rationalebehind these decisions, they look bad,
some would say quite callous. Thesethings reflected poorly on Texts in the eyes
of many, but questionable choices afterthe fact are not indicative of intent,
(12:20):
Meaning you can believe that Tex macIver was a rich, white and titled
asshole, but it doesn't mean hemurdered his wife. Those who believed it
was a case of murder argued thatTeX's request to Danny Joe was an attempt
to cover up something sinister from thestart, but the facts are more nuanced.
(12:43):
Text had been drinking in the hoursbefore handling the gun, and handling
a weapon under the influence in itselfis an offense, regardless of whatever does
or does not happen afterward, soit makes sense that Text wanted to avoid
the repercussions of this, hence hiscomment to Denny Joe. At Texas trial
(13:09):
in April twenty eighteen, the defensesubmitted that the jury should be able to
consider the charge of misdemeanor involuntary manslaughter. In Georgia, this is when someone
unintentionally causes the death of another personby engaging in lawful behavior but in an
unlawful way. But the request,strongly opposed by the prosecution, was denied
(13:35):
by Fulton County Superior Court Chief JudgeRobert McBurney. And I do have thoughts
on this, which I'll come backto later. I'm going to pause now
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terms for details. In my originalepisode, I referenced the Atlanta Journal Constitution's
(16:37):
excellent podcast Breakdown, which covered TexasTrial extensively. In twenty twenty two,
Vault Studios and eleven Alive WXIA Newsreleased a compelling long form podcast of their
own, entitled Intent the Text,MacIvor Case. If you're after blow by
(16:57):
blow accounts of Texas trial and theaftermath, I can recommend both of these
as essential listening, and you canwatch the entire trial on YouTube. The
way Texas trial played out, youwould have thought it was the role of
the defense to prove the shooting wasaccidental, when in reality, it is
(17:18):
the state's responsibility to demonstrate the burdenof proof that this was a murder.
There was a contentious debate from bothsides about the question of money. The
prosecution case was that Text wanted Dianedead so he could inherit her multimillion dollar
estate. The court also heard thatTex had recently become much more financially reliant
(17:42):
on Diane after he went from equitypartner at his law firm to income partner,
reducing his annual income from seven hundredthousand to one hundred and twenty thousand.
However, Tex was in his earlyseventies and semi retired, so it's
not as though he had gotten somesort of demotion and was panicking about money.
(18:04):
He was close to full retirement,but like his wife, he loved
working. The defense argued there wasabsolutely nothing for Text to gain financially with
Diane dead, as she earned morethan Texts. He was far better off
with her alive so she could continueto support their lavish lifestyle, and also
(18:26):
she could lend her husband money ifhe needed it. Loaning money was a
favor Diane did for those close toher. It might sound a bit unorthodox
in the context of a marriage,but Diana Text happily kept their finances separate
with no issue. They had bothgone through ugly divorces from their first marriages,
(18:48):
so this arrangement was what they bothwanted. It's what worked best for
their marriage, which indisputably had beena happy marriage for ten years. Even
friends who later turned against Texts couldnot argue that he and Diane had marital
problems. After five years of datingand ten years of marriage. They were
(19:12):
still the kind of couple who heldhands all the time. Everyone agreed they
had an extremely loving relationship. Theprosecution also tried to argue the existence of
a rumored new will, which Dianewas said to have made before her death,
naming the couple's godson as the soulbeneficiary, but no hard proof of
(19:36):
such a will was ever produced.All the testimony about Text and Diane's relationship
spoke only to their undying love forone another. There was no mention of
conflict, upset, or tension betweenthe couple. At one point during the
jury's deliberation, they reached a deadlockon the verdict. Judge McBurney gave them
(19:57):
an allen charge, fording them tocontinue deliberating until they had an outcome.
Finally, after further deliberation, TexMacIvor was found guilty of felony murder,
aggravated assault with a deadly weapon,possession of a firearm during a crime,
and influencing a witness. Despite expertevidence, it was impossible to confirm whether
(20:22):
the gun discharge as a result ofa single or double action mechanism. The
verdict on the major charges made nosense at all. How can you acquit
on malice murder but convict on bothfelony murder which requires the killing to occur
during the commission of another felony whereintent is involved, and aggravated assault with
(20:45):
a deadly weapon. Judge mcbarney latersaid in December twenty twenty three that the
aggravated assault charge does not allege intentto kill. The jury's decision essentially meant
they believed Texts did not intend tokill his wife, but they did believe
he intended to seriously harm her.It's difficult to find the logic in that.
(21:08):
What would Texts have to gain bymaliciously wounding the love of his life,
and not just in front of anywitness, but in front of her
best friend. And why do itin a car anyway? Who leaves themselves
open that way if an act isintentional, this too makes no sense.
(21:30):
While no one is required to takethe stand in their own defense, the
fact that Tex chose not to giveevidence may have also worked against him in
the eyes of the jury. Butconsidering the many blunders he made after Diane's
death, causing him to be apr nightmare, I'm sure his attorneys believed
he would be a wild card onthe stand, But it seems that,
(21:55):
based on how the information was presentedto the jury by both sides, they
simply did not believe that guns justgo off. The fact that Tex was
an experienced and passionate gun owner whoowned almost forty firearms made the suggestion of
an accident doubtful for the jury,and it appears the jury did not feel
(22:18):
the evidence about a sleep diagnosis oftexas the rim sleep disorder causes sudden involuntary
movements during sleep, but the jurydid not believe this was a sufficient explanation
for the gun discharging if Texas fingerwas on the trigger. In my episode
on Text and Diane, I notedthat much was made by the prosecution of
(22:41):
whether tex would have had time tofall into rim sleep so quickly between asking
for the gun and then Diane beingshot, which was said to be around
ten minutes. But as I notedbefore, as witnessed by Danny, Joe
and Diane herself, at the time, Text kept nodding off, struggling to
stay awake, and as we fallasleep we can experience something called a hypnic
(23:07):
jerk, which is a sudden musclecontraction. While the defense did explain Texas
sleep issues, I'm not sure theywent into great detail to explain how he
could have jerked and pulled the trigger. For example, in the Handbook of
Clinical Neurology, the hypnic jerk isdefined as quote. Hypnic jerks or sleep
(23:30):
starts are normal physiological events occurring atthe transition from wakefulness to sleep, often
associated with sensory phenomena such as afeeling of falling, unexplained alarm or fear
in our electric shock or light flash. The most distinguishing feature of sleep starts
is that they occurred during drowsiness andthe transition from wakefulness to sleep before sleep
(23:55):
on set. We don't know ifthe gun was cocked because Tex said he
simply could not remember if it was, which makes sense given that Tex felt
uncomfortable enough to ask Diane for theweapon. The amount of pressure required to
discharge the firearm was less than twopounds. If it had not been cocked,
(24:17):
the trigger would have needed twelve poundsof pressure. Even after taking all
the evidence into account, the juryhad clearly decided, rightly or wrongly,
that Text did harbor intent to somedegree based on the verdict for aggravated assault,
yet they found him not guilty ofmalice murder. I personally don't get
(24:41):
why Executive Assistant Da clint Rucker pushedback so hard against involuntary manslaughter, or
why the judge denied it. Juriesneed to have all the options. That
was quite the gamble, in myopinion, and one which obviously paid off
for the state, but one theywould now come to regret. And yes,
(25:02):
I'm doing the told you so dancein my head right now. I
have talked about this gamble before,most recently in the Ray Caruth trial,
in which the gamble did not workfor the prosecution. I am more in
favor of what I call kitchen sinkcharges. Give the jury every option.
(25:22):
I believe it is so obviously muchmore fair to the defendant. But the
problem, as I see it,is that the state and defense attorneys would
often rather gamble with the defendants' livesin order to prove their theories right and
to be fair, the defense didnot want the involuntary charge either. Initially
(25:45):
they wanted their client found not guiltyon all charges, again a huge gamble
with their client's life. But itcould have gone either way for Texts,
and really should have. A convictionon the lesser charge would still have carried
prison time. Sure, it's notlife, but for the state, a
(26:06):
conviction against a prominent and affluent attorneystill would have had an impact and one
of the most high profile infamous trialsAtlanta had ever seen. Plus he was
seventy three years old. Chances arehe still could have died in prison even
on the lesser charge. But theDA's gamble worked, and Text was sentenced
to life in prison, with anadditional five years for influencing a witness to
(26:30):
be served. Concurrently for the weaponscharge, he received a suspended five year
sentence. Almost immediately, his legalteam began preparing an appeal, filing a
motion for a new trial in Februarytwenty twenty, I'm going to pause now
(26:51):
for a final commercial break. WhenI released the original episode at ten,
tue million dollar wrongful death lawsuit broughton behalf of Diane's estate, naming both
Text and Danny Joe was still onfoot. The suit alleged Danny Joe failed
(27:11):
to drive in a safe manner,focusing on her decision to drive for the
hospital and failure to call nine oneone. While there's minimal information available about
the outcome, including any impact onDanny Joe, it appears the suit was
confidentially settled with Texas Insurance Company inMarch twenty twenty. Over a year later,
(27:33):
in July twenty twenty one, JudgeMcBurney denied Texas request for a new
trial. Undeterred, the defense tooktheir case to the Georgia's Supreme Court in
January twenty twenty two, arguing thatText did not receive a fair trial for
several reasons. One was how conflictedthe jury clearly was when it came to
(27:56):
the question of accident or murder.Judge mcburney's decision had meant there was no
option for the jury to consider involuntarymanslaughter, so they only had two choices.
The defense proposed what the jury shouldhave been presented with all along the
scenario where texs negligently fell asleep witha loaded gun in his lap. If
(28:22):
this had been considered, Text wouldhave possibly been convicted of the lesser charge
instead of being sentenced to life inprison. The maximum he would have received
would have been twelve months. Thedefense also argued that certain evidence at trial
was prejudicial and therefore inadmissible, especiallythat relating to racial bias on Texa's part,
(28:45):
as well as the prosecution's speculative portrayalof him as money hungry. The
Supreme Court ruled on this as followsquote. With respect to MacIvor's contentions as
to improper argument by the state inwhich it was stated or implied that MacIvor
harbored racial prejudice, we caution thestate and the trial court to be mindful
(29:10):
of the impropriety of such arguments ifthere is a retrial. We note,
particularly, and with disapproval, theprosecutor's display of a PowerPoint slide with a
bullet point reading KKK. During hisclosing argument, the state ultimately acknowledged that
no evidence was produced at trial tosupport any inference that the klu klux Klan
(29:33):
was relevant to this case. Inaddition, the defense claimed Judge McBurney should
not have permitted jurors to examine theFord expedition to see how the gun could
have discharged. It was a compellingcase for the defense. In June twenty
twenty two, the Georgia Supreme Courtunanimously reversed Texas convictions for felony murder and
(29:59):
possession of a fire in the commissionof a felony. It was highly critical
of the Fulton County DA's office,particularly flamboyant Prosecutor Clint Rucker and Judge McBurney,
in their failure to offer involuntary manslaughteras an option to the jury.
According to Courthouse News, Justice MichaelBoggs wrote in the court's unanimous decision,
(30:23):
while the state's evidence was sufficient tosupport the appellant's conviction of murder, it
also could have supported a finding thatthe appellant killed the victim without any intention
of doing so. He added thatany evidence brought by the state pertaining to
intent was weak, therefore making proofof Texas guilt not overwhelming or even strong.
(30:48):
The court ruled that any evidence ofintent on Texas part was extremely weak.
On the other hand, it foundthe evidence supporting his actions as negligent
was much stronger, ruling quote,the jury could have concluded that the revolver
was discharged as a result of beingstartled awake, reflexively or involuntary clutching of
(31:10):
the bag holding the firearm, andinadvertently contacting the trigger. The DA's office,
again, particularly Clint Rucker, alsocame under fire for improper comments at
closing and some of the alleged prejudicialevidence brought against Texts. With the ball
back in the DA's court, therewas the option for no new charges to
(31:33):
be brought and the case to bedismissed. Instead, prosecutors doubled down.
In July twenty twenty two, theyannounced they would again try Text for felony
murder, aggravated assault with a deadlyweapon, and possession of a firearm during
a felony, but this time involuntarymanslaughter would be on the table for the
(31:56):
jury to consider. Three months later, in October, Texas bond application was
denied again by Judge McBurney, whofelt that the seventy eight year old was
a flight risk. Stated that astex was a man of means again facing
life in prison, there was strongincentive for him to flee the state and
(32:17):
not return. Nor was Judge McBurneyconfident Texts would not try to influence witnesses
or stay away from firearms. Partof texas proposed bond conditions was that he
go live with his sister in Texasand return to Georgia for the trial.
His attorney's foled a request for asecond bond hearing ahead of the retrial scheduled
(32:40):
for September twenty twenty three. InFebruary of that year, Text temporarily surrendered
his license to practice law in Georgia, pending the outcome of his trial.
The court accepted texas surrender of hislicense in April, but things weren't going
to be as straightforward the next timearound, as the prosecution hoped. Tex
(33:05):
had requested bond on the basis thathe required access to his defense team as
well as medical assistants. Given hisage. His attorney Don Samuel stated Text
was experiencing issues with memory and communicationthough there were no issues with competency,
the prosecution pushed for bond to bedenied. In mid November twenty twenty three,
(33:30):
Judge McBurney ruled that eighty year oldTexts would remain in Fulton County Jail
while awaiting his retrial, which wasdue to begin in early December. Despite
TeX's age, the judge noted thathe had previously violated his bond for improperly
seeking to influence a key witness,for which he was convicted on December fourth.
(33:53):
Jury's selection for the second trial gotunder way. Text had the same
defense team by hisiameide as he hadsince day one, Bruce Harvey, Don
Samuel and Amanda Clark Palmer. Butno sooner had things got going than they
ground to a halt in accordance withinstructions from the Georgia Supreme Court and in
(34:15):
response to emotion and lemony, whichis emotion discussed in the absence of the
jury arguing that evidence be included orexcluded from trial. The prosecution was dealta
blow when Judge McBurney ruled that theycould not present evidence arguing intent to kill.
(34:35):
This was distinct from intent to shoot. Texts had already been acquitted of
malice murder after all. This meantthat key aspects presented as part of the
state's case at the first trial wouldnow not be heard. The state would
not be able to enter evidence aboutDiane's alleged second will unless they could prove
(34:55):
Texts suspected his wife intended to decreaseher husband Ban's entitlements as a beneficiary.
The state would first need to arguethis point without the jury present. Judge
McBurney stated the prosecution's evidence of asecond will at the first trial was not
particularly strong according to the AJC.The judge stated that the prosecution failed to
(35:22):
demonstrate that Texts knew of any suchsecond will, nor was the state allowed
to mention George's slayer statute, whichprevents convicted killers from profiting from the estate
of their victim. Among the evidencethe state could bring at retrial was TeX's
behavior at the hospital and his attemptsto both influence witnesses and bribe the then
(35:45):
district Attorney Paul Howard to drop thecharges. The prosecution could also argue that
text shot Diane in order to incapacitateher as a way to gain control over
her assets. As of attorney.The defense wanted this argument excluded, but
lost on this point. As forthe speculation that tex was having an affair,
(36:09):
prosecutors would be able to introduce thisevidence in terms of a possible motivation
for the shooting, but texas allegedinfidelity would have to be proven and there
was no proof. The prosecution announcedit would appeal Judge mcburney's decision to the
Supreme Court. Proceedings would again bedelayed, this time until mid to late
(36:31):
twenty twenty four, perhaps even indefinitely. According to the AJAC. Again,
Texas defense team planned on requesting bondbe granted, but late the following month
there was an unexpected development. OnJanuary twenty sixth, twenty twenty four,
(36:52):
eighty one year old tex MacIvor pledguilty to involuntary manslaughter, reckless conduct,
and possession of a firearms during afelony. There would be no retrial after
all, as one of the highestprofile legal sagas in the state came to
an end. At sentencing, texttold the court quote, Diane's the best
(37:14):
friend I ever had. She's thebest partner I could possibly imagine, and
I will always always love her.She died as a result of my actions,
plain and simple. I've worn mywedding ring since the day we were
married, and I intend to wearit until the day I die. I
hope we're at a point where we'renot judging each other and we can all
(37:36):
move on. She's my angel andshe's waiting for me in heaven. Others
from Diane's life were also given theopportunity to speak. Her best friend,
Danny Joe Carter, told the courther life had all but been destroyed by
Diane's death, saying distress has beentremendous. I'm just angry. A statement
(37:59):
by Diane Anne's former boss Billy Coreywas also read to the court, saying
Diane's death quote was no accident.One man, one hand and one bullet
ended her life and caused a lifetimeof misery and loss for so many others.
There will never be another Diane MacIver. Diane was full of life,
as she should never have been takenaway from us in such a careless and
(38:22):
malicious way. She is today missedas much as she was on that tragic
day. In accordance with Texas pleadeal, he was sentenced to fifteen years
in prison, with the last sevenyears to be served on probation. He
also had to agree to relinquish anyentitlement to any civil settlement arising from Diane's
(38:44):
death. With time already served andhis five year sentence for influencing a witness
completed, according to Texas attorneys,he could be paroled prior to the end
of his sentence in mid twenty twentyfive. Given that Texas has already served
at least six years in prison,this technically makes him eligible for parole right
(39:06):
now. His attorneys told Atlanta NewsFirst that the plea deal was struck to
bring an end to something that hadnow dragged on into its eighth year,
with Don Samuel saying, anyone whothinks this was a well planned murder,
nobody could think that. It makesno sense to even think that was intentional
(39:27):
or malicious. Whether it was reckless, whether you want to define it as
gross negligence, or whether it wasjust simply an accident, that's debatable.
Judge McBurney too seemed satisfied with whathe described as a healthier and cleaner method
of resolution that ultimately saved the statethe cost of further proceedings, saying mister
(39:50):
mc ivor shouldn't have had that loadedgun in his hand with his finger on
the trigger. For those who seekpurely punishment through this process, you're going
to be disappoint According to Atlanta NewsFirst, Text will serve the first five
years of his probation under home confinementwith a seven pm to seven am curfew.
He is not to have any contactwith Danny, Joe Carter, or
(40:15):
Billy Corey. As I explained inmy original episode, I do not believe
Text intended to kill his wife.I agree that much about Texas actions after
the fact did not look good whateverway you try to spin it. He
got a lot of bad advice andmade a lot of stupid mistakes, but
(40:36):
that doesn't make him a killer.I am probably pissing off my Atlanta area
listeners, who I know feel passionatelyabout this case. Tex mc ivor is
not popular there, but I'm sorry. I do believe the justice system finally
worked right for this man and forDiane McIver. I just believe him,
(41:00):
I always have. His story makesmuch more sense than a planned murder in
his car in front of Diane's bestfriend. After my original episode aired,
Text found out about Southern Fried andhis lawyer asked for a transcript of the
episode so Text could read it inprison, since he was not allowed to
(41:21):
listen to the podcast. Hopefully hewill be able to listen to this update
soon. It's not clear exactly whenText will be released on parole, but
it seems it could literally be anyday, and when he is, we
can only hope that, having donehis time, he can continue processing his
grief for his wife Diane and honoringher memory. Southern Fried True Crime is
(41:52):
hosted and produced by me Erica Kelly. Today's episode was researched and written by
me and Jimma Harris. As usual, any editorial comments and opinions are my
own. Southern Fred's original music isby Rob Harrison of Gamma Radio and the
original graphic art is by Kohley Horner. Today's episode was edited and mixed by
Brandon schck Snyder of Southern Gothic andErica Kelly. If you have any case
(42:15):
suggestions, please go to my website, Southernfred Truecrime dot com and click on
the listener's suggestion tab, or emailSFTC Research at gmail dot com. This
is the best way for me toget those little known cases, y'all always
send me. Please remember that Ido not accept suggestions on social media private
(42:35):
messages, but please come join ourFacebook group, Southern Fried True Crime Fans
Discussion Group, where we swap recipes, worship Dolly Parton, and share means.
We do, of course discuss truecrime, not just Southern fraud,
but all kinds, but it isstill very much a Southern lifestyle group.
Our group is a safe and funcorner of Facebook, and by God,
we mean it when we say noshit ass is allowed. It's not just
(42:59):
a motto, it's how we runthe group. If you enjoy today's show,
don't forget to subscribe and please tella friend or rate and review.
I'm also on all large platforms likeiTunes, iHeart, Spotify, Amazon,
Audible and YouTube. Until next time, thanks so much for listening. Y'all
Take care,
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