ATLANTA — After the Supreme Court of Georgia announced Thursday it would overturn the felony murder conviction against Tex McIver for the 2016 killing of his wife Diane, it is now possible he could soon leave prison.
While Fulton County District Attorney Fani Willis could put McIver on trial for a second time, as of Thursday afternoon she hadn't signaled how her office will move forward.
A“The District Attorney will evaluate the case and make a decision on how to proceed in the near future," an office spokesperson said in a statement to 11Alive.
The state Supreme Court unanimously overturned the murder conviction because at trial the jury wasn't given the option by the judge to find McIver guilty of a lesser involuntary manslaughter offense.
In a summary of its unanimous opinion released Thursday, the Supreme Court of Georgia wrote, "Because the jury in McIver’s case reached its verdicts 'without a complete instruction on the grades of culpability between accident and felony murder' and the State’s evidence of McIver’s intent to shoot Diane was 'weak,' the trial court’s refusal to instruct the jury on the lesser involuntary manslaughter charge deprived the jury of the necessary tools to reach a verdict and thus constituted a harmful error.'"
11Alive legal analyst Page Pate said McIver's attorneys requested the jury be given the option to consider that lesser charge during its deliberations at trial.
"After the trial before the case went to the jury they requested a specific jury instruction be given by the judge saying that if you believe Tex McIver may have been holding his firearm in a lawful manner but in a careless way, you can find him guilty of the lesser crime of involuntary manslaughter and not murder. That carries a much, much less significant sentence," Pate said.
A misdemeanor involuntary manslaughter charge comes with a maximum sentence of up to one year in prison. McIver had been sentenced to life in prison with the possibility of parole for his felony murder conviction.
So far, McIver has already served nearly four years and 10 months in custody, according to Fulton County jail and state prison records.
Throughout the trial, McIver's attorneys argued he unintentionally shot his wife on September 25, 2016.
The two were riding in an SUV when he discharged a gun while traveling down Piedmont Road in Atlanta, court records show. Diane died after being shot in the back with a handgun while in the passenger's seat of the SUV. Tex was riding behind her and had a loaded revolver in his lap, evidence showed.
Pate says Fulton County could decide to put McIver on trial again, but the jury would need to be given the option to consider the involuntary manslaughter charge and that might be one of several reasons that lead to the case being dropped.
"Given his age and the fact that he is serving a sentence for another charge in the indictment they might decide not to do that. It was a lengthy trial, the jury was obviously having difficulty with this case. It took them days to reach a decision, they had a lot of notes and a lot of questions," he said. "So this is one of those cases where I could see the DA saying, 'Look it is just not worth the time and effort to bring this old man back to trial,' when he is already convicted of a lesser offense."
At trial, the jury also found McIver guilty of influencing a witness and the judge sentenced him to five years in prison for that crime. Based on the time served in custody already, he has nearly completed that sentence.
McIver's attorney Don Samuel told 11Alive Thursday he will now try to get McIver out of prison as soon as possible. Based on his time served in custody for his remaining conviction he would be considered eligible for parole.