Tex McIver appeal: Attorneys argue criminal negligence in wife's fatal shooting

Georgia Supreme Court justices heard arguments in the appeal of Claude "Tex" McIver's 2018 murder conviction

Attorneys for McIver insist a Fulton County judge made mistakes in the original murder trial, which they say warrants a new trial. 

McIver, 79, is serving a life sentence after being convicted of felony murder and other charges in the 2016 shooting of his wife, 64-year-old Diane McIver.

McIver never denied shooting his wife, insisting it was accidental. On Wednesday, McIver's attorneys believe prosecutors tried to make the jury dislike McIver, resulting in his conviction. 

"There is really one of three theories," Chief Justice David E. Nahmias. "Either Mr. McIver intentionally shot his wife, as alleged, that is committing aggravated assault and felony murder. Or he recklessly handled a firearm in the back of a moving vehicle, thereby committing felony involuntary manslaughter. Or the firearm discharged accidentally. … What is the fourth option that gets you to involuntary manslaughter?"

Attorney Don Samuel tried to convince justices the jury should have had the option to convict McIver on lesser charges: criminal negligence. 

"What we attempted to do in our brief and in the trial court was draw a line between the lawful act and the unlawful manner because that's what the statute says, and I think, with all due respect (Chief Justice) you're blurring them also," Samuel said.

Samuel insisted the Fulton County superior court judge should not have allowed the jury to sit inside the McIver SUV. He claims the state injected racial bias into the case. 

There was never any dispute that McIver shot his wife — the question at trial was whether he meant to. Prosecutors said he was driven to kill her because he coveted his wife’s money. Defense attorneys said that was nonsense, that McIver loved his wife dearly and her death was a terrible accident.

The Associated Press contributed to this report.