The defense scored a major win in the Tex McIver murder trial on Wednesday as the judge threw out two counts against him.
Tex is currently on trial in connection with his wife's shooting death and Fulton County Superior Court Chief Judge Robert McBurney threw out counts 6 and 7 - both connected to witness tampering. He said the prosecution did not present enough evidence for them to stand.
On Wednesday, the defense brought up that Tex was asleep when he fired the weapon that killed his wife. They brought up a sleep expert, Dr. Dave Rye, who studied Tex almost 15 years ago to talk about his specific sleep disorder.
Tex has what’s called a REM Sleep Behavior Disorder or RBD.
Rye said Tex has suffered from RBD since at least 2004 when he studied him sleeping at a clinic in Jacksonville, Florida.
When most of us sleep, we experience what's called sleep paralysis, meaning we don't move when we're in a deep sleep. For people suffering from RBD, they do move during that deep sleep and can act out their dreams.
Dr. Rye said that people tend to move their arms and legs a lot if they have this RBD. He said those movements can be jerky and sporadic and that's how the defense is explaining how Tex pulled the trigger.
The doctor said people who have this disorder suffer from delusional arousals meaning when they wake up, they don't realize what they have just done and they're disoriented.
Dr. Rye did say they have never really studied finger movement in this disorder specifically. That's what the defense is trying to prove, that Tex's finger moved involuntarily squeezing the trigger to fire the shot that killed Diane.
McIver is accused of intentionally killing his wife, Diane McIver, on Sept. 25, 2016. Diane McIver died after being shot in the back with a handgun while in the passenger's seat of an SUV. Tex was riding behind her and had a loaded revolver in his lap.According to Tex, the revolver fired on its own and claims that the shooting was "a horrible accident."
Tex is an attorney with the Fisher and Phillips law firm. He is also on the advisory committee of the American Bar Association's Standing Committee on Gun Violence.
He was originally charged with misdemeanor reckless conduct and felony involuntary manslaughter in September 2016. He was released on a $200,000 bond with conditions that included wearing an ankle monitor, surrendering his passport and having no contact with anyone employed with Diane's business. At the time, he was also told he was not allowed to carry any weapons.
- Tex McIver murder trial resumes Monday after week-long break
- 'He wasn't distraught, he wasn't emotional. Nothing.' Nurses testify on Diane McIver's final moments
- Tex McIver murder trial begins | State zeros in on marriage, finances
- Tex McIver murder trial moves forward as jury is seated
- Juror bias on view in Tex McIver murder trial jury selection
- Ongoing Tex McIver Trial Coverage
- Watch LIVE on YouTube