In June, Georgia’s highest court overturned McIver’s felony murder conviction, ruling that the jury should have been instructed that they could consider a lesser charge of involuntary manslaughter.
In a motion filed on Friday, Fulton County District Attorney Fani T. Willis asked the county superior court to set a new date for the trial within 180 days of receiving the Supreme Court’s ruling.
The district attorney’s office said it plans to retry McIver on felony murder, aggravated assault with a deadly weapon and possession of a firearm during the commission of a felony.
“The jury which served at the original trial of this case evaluated all of the evidence and unanimously convicted Defendant of intentional crimes of violence against his wife,” the district attorney’s office said. “This fact weighs heavily in the State’s consideration of how best to serve the interests of justice in this case.”
McIver remains in the custody of the Georgia Department of Corrections, according to jail logs.
In its request for a trial, the district attorney’s office said McIver is serving his five-year sentence for his conviction of influencing a witness, which the Supreme Court did not overturn, adding that while he “has not spent five years in custody, five years will have elapsed soon.”
In a statement to CNN, McIver’s attorneys maintained their client’s previous murder conviction was wrong.
“The Georgia Supreme Court unanimously declared that the evidence against Tex McIver was weak. The Court unanimously held that the prosecution behaved improperly and introduced evidence at the first trial that had no relevance or basis in fact,” attorneys Amanda Clark Palmer, Bruce Harvey and Don Samuel said. “The Supreme Court unanimously reversed the faulty conviction. Now, the prosecution brags that it is only seeking justice. It is better late than never, but justice would be recognizing that Tex McIver is entirely not guilty.”
In overturning McIver’s murder conviction last month, the Supreme Court said that based on the evidence and testimony during the trial, “the jury could have concluded that the revolver was not deliberately or intentionally fired, but rather, as McIver suggests, discharged as a result of his being startled awake, reflexively or involuntarily clutching at the bag holding the firearm, and inadvertently contacting the trigger,” according to the ruling.
The court further found that the evidence supporting McIver intent to kill his wife was “disputed and circumstantial,” adding, “No witness testified to any disagreement or quarrel between McIver and Diane, and many witnesses testified that they were very much in love.”