Well, the Tex McIver verdict is in. Many of the regulars here at Law&Crime were shocked.
Former prosecutor Dan Schorr called it a “shocking verdict.” Former prosecutor and current criminal defense attorney Bob Bianchi followed his initial “holy cow!” by calling it a “stunning defeat.” Former prosecutor and current criminal defense attorney Jonna Spilbor said, “holy sh*t, I am shocked.” Mark Eiglarsh said, “wow.”
It’s a strange, strange verdict. Here, legally, is why.
As I have previously stated, Georgia prosecutors had an uphill battle trying to convict Tex McIver beyond a reasonable doubt of malice murder under state law. Jurors apparently agreed. McIver was acquitted of that charge. However, jurors convicted McIver of every single other charge the jurors could consider from the original indictment, including felony murder. Felony murder is defined in Georgia law as follows:
A person commits the offense of murder when, in the commission of a felony, he or she causes the death of another human being irrespective of malice.
The difference? The Georgia Supreme Court has said:
Felony murder involves a nonintentional killing committed in the prosecution of a felony. It is still murder and is subject to the same penalties as “malice murder.” The only difference is the absence of intent and malice. (Emphasis added.)
Felony murder in most states is charged in a situation where the underlying felony has nothing to do with wanting someone dead. The textbook example is a bank robbery. Let’s say a perpetrator and his accomplice want to rob a bank. The perpetrator gets a gun and the accomplice gets a sack to carry away the cash. They drive up and rush in. The perpetrator points the gun at the teller. The accomplice holds open the bag. As the teller forks over the money, someone sneezes, and the startled perpetrator jumps. He pulls the trigger, killing the teller. Both the perpetrator and the accomplice are guilty of felony murder. They only intended to rob the bank, a felony, and the killing was unintentional.
Here, the underlying felony is aggravated assault. Basically, jurors apparently agreed as to the following: that McIver wanted to “violently injure” his wife, Diane McIver (that’s “assault“), and that he did so either: (a) with the intent to kill her, (b) used a deadly weapon, or (c) shot her from within a motor vehicle (that’s the “aggravated” part).
What’s bizarre here is that (a) pretty much comes out legally to be the same thing as felony murder (notice the requirement of intent, which is a part of malice murder but not a part of felony murder). Felony murder is nonintentional, remember? Why is this charge even on the books? Because if someone intends to kill someone and they luckily don’t die, but are only in fact violently injured, there’s still something to throw at them. That’s not what happened to Diane McIver. So, that doesn’t work. If jurors believed this, they would have just convicted McIver of malice murder. They didn’t do that.
What about the other two possibilities? They also reek. Options (b) and (c) operate off the legal premise that McIver only wanted to “violently injure” his wife by shooting her. That’s what jurors ultimately agreed: that Tex McIver wanted to “violently injure” his wife (assault) and did so using a weapon and/or was in a car (that’s “aggravated”). Because she died during the commission of this “violent injury,” McIver committed felony murder. That’s, legally, what the jurors found, unanimously, beyond a reasonable doubt, happened to Diane McIver.
Factually, that was not the state’s case. The state was adamant, crystal clear, loud, and firm: Tex McIver wanted Diane McIver dead. He wanted her dead for financial reasons. He wanted her dead so he could have their property and money to himself. He wanted her dead to prevent her from giving things to the people she cared about. (The couple kept separate finances.) Nowhere did the state suggest that McIver wanted to hurt his wife and that she unintentionally died as a result of his desire to merely injure her.
So, the jurors legally convicted McIver of what the state never argued he intended to do. Was it a compromise? Were they confused? Only they would know.
Don’t get me going about the bizarre jury questions during deliberations, including the requests to sit in the actual vehicle with the actual gun. Jurors were allowed, one at a time, to sit in the vehicle, then to go back to the jury room to discuss what they each saw during their own experimentations. That jurors felt the need to conduct their own experiments suggests the state couldn’t prove its case beyond a reasonable doubt. It also raises confrontation clause issues. Jurors, no doubt, were telling one another what they thought they saw in the car, almost like expert witnesses who weren’t on the witness stand. The other questions from the jurors suggested a deadlock or an acquittal. That all changed at apparently the last minute.
Anyway — this convoluted logic is also why most states, such as New York, limit the use of the felony murder rule to a series of enumerated, underlying felonies: rape, robbery, arson, and the like — where intentional and unintentional deaths are kept legally separate. The punishments might be the same, but the definitions of the crimes are separate so as to not be vague. Georgia’s logic is more circular. The felony murder statute turns assault into murder where prosecutors can only prove assault, but not murder, as this case apparently teaches us. The states which keep the crimes separate are probably wary of prosecutors who might try to wiggle a murder conviction through the back door of the law where a jury won’t see it through the front door of the actual malice murder statute.
This is a verdict of strange, strange logic indeed.
[Editor’s note: This piece has been updated to correct a minor typographical error.]
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