Deadly Fortune | 7. Extended Family

Summary

Summary of "Deadly Fortune | Episode 7: Extended Family"

Hosted by Sony Music Entertainment as part of The Binge Crimes series, Episode 7 titled "Extended Family" delves deep into the intricate and contentious aftermath of the tragic demise of Atlanta power couple Tex and Diane McIver. This episode uncovers the legal battles, questionable plea deals, and familial conflicts surrounding the distribution of Diane's substantial estate.

---

1. Introduction to the Case

The episode begins by revisiting the tumultuous relationship between Tex McIver, a prominent cowboy lawyer and political kingmaker, and Diane McIver, a charismatic executive. Their seemingly perfect marriage ends abruptly when Tex is accused of murdering Diane, leading to his imprisonment and raising suspicions about his motives and the true circumstances of her death.

---

2. The Trial and Initial Guilty Verdict

Frank Schenck, a criminal law professor at Western Carolina University, provides firsthand insight into the trial. He recalls:

"The whole story, both sides, didn't make sense. The prosecution theory and the defense theory... Diane made sure that Tex gave her a promissory note for his part. That's not your typical marriage arrangement." [02:16]

Despite Tex's influential status, the jury finds him guilty of murder and felony murder, a verdict that shocks the Atlanta community given Tex's standing.

---

3. The Supreme Court Appeal and Conviction Reversal

The episode details how the Supreme Court overturned Tex's original murder conviction. Frank Schenck critiques the decision:

"I think the Supreme Court was second guessing the jury here... it was a mistake that didn't need to be made." [05:09]

He explains that the reversal was not due to insufficient evidence but because of an error in the jury instructions regarding lesser included charges.

---

4. The Slayer Statute and Inheritance Issues

The discussion shifts to the implications of Texas's potential inheritance of Diane's fortune under Georgia's Slayer Statute, which prevents perpetrators from benefiting from their crimes. Frank elaborates:

"Any of those would stop him from inheriting. So we have a group of heirs out there... if Tex is feloniously guilty, how do you prove that?" [21:44]

This statute becomes a pivotal element in determining the rightful beneficiaries of Diane's estate.

---

5. Controversial Plea Deal and Estate Distribution

The episode exposes the controversial plea deal that Tex enters, aiming to resolve the criminal charges without a retrial. However, this agreement leads to questionable distributions of Diane's estate:

• $420,191.13 directed to Tex for personal items like condominium and wedding rings.
• $323,000 already spent by Tex before charges, totaling over $743,000 while he remains incarcerated.

J. Tom Morgan criticizes the plea arrangement:

"The whole plea bargain agreement and what they were trying to do there without some of the interested parties... doesn't pass the smell test." [27:01]

---

6. Legal Perspectives and Criticisms

Frank Schenck voices strong opposition to the handling of the case:

"The Schwals were friends with both Diane and Tex, but... the judge gave his approval. Now, there's... the appearance of a conflict can be just as powerful as a real conflict." [09:55]

He questions the ethical boundaries of the involvement of Judge Robert McBurney and other legal officials, suggesting potential conflicts of interest.

---

7. The Role of Extended Family and Lawsuits

Mary Margaret Oliver, the state-appointed executor for Diane's estate, initiates a lawsuit challenging the distribution of funds. This action brings Diane's extended family into the fray, with her cousins asserting their rights under the Slayer Statute. Frank Schenck highlights the complexity:

"Under our Georgia slayer statute... if Tess McIver is feloniously guilty, how do you prove that?" [21:44]

The extended family's involvement complicates the inheritance, leading to ongoing legal disputes.

---

8. Current Status and Ongoing Legal Proceedings

As of the episode's release, the legal battles continue with Mary Margaret Oliver's lawsuit involving Diane's first cousins. Frank Schenck has temporarily withdrawn his suit pending the judge's decision, emphasizing the unresolved nature of the case:

"They are entitled under Georgia law to be an heir of the estate. If Tex McIver is feloniously guilty... he is not entitled to any of the money." [25:32]

---

9. Conclusion and Reflections

The episode concludes by highlighting the paradoxical situation where Tex McIver, the man accused of killing his wife, stands to inherit both her substantial estate and a $1.4 million insurance settlement. The involvement of high-ranking legal officials and the extended family's fight for rightful inheritance paints a picture of a deeply flawed and emotionally charged legal saga.

"If the phrase 'you can't make this stuff up' doesn't apply here, I don't know when it ever would." [25:32]

Deadly Fortune: Extended Family serves as a compelling exploration of how wealth, power, and legal loopholes intertwine, leaving Diane McIver's legacy mired in controversy and legal uncertainty.

---

Notable Quotes:

• Frank Schenck on Trial Theories:

  "The whole story, both sides, didn't make sense. The prosecution theory and the defense theory." [02:16]

• Frank Schenck on the Supreme Court Reversal:

  "I think the Supreme Court was second guessing the jury here... it was a mistake that didn't need to be made." [05:09]

• J. Tom Morgan on Inheritance Rights:

  "The godsons aren't entitled to it at all. They don't have a say." [25:32]

• Frank Schenck on the Plea Deal and Ethics:

  "The appearance of a conflict can be just as powerful as a real conflict." [09:55]

• Payne Lindsey on the Inheritance Paradox:

  "The man who killed his wife is now in line to not only inherit her 3 million dollar estate, but also the $1.4 million insurance settlement." [29:19]

---

For those intrigued by the complexities of true crime intertwined with legal drama and familial disputes, Episode 7 of Deadly Fortune offers an in-depth and thought-provoking narrative that highlights the far-reaching consequences of tragic actions.

Transcript

[Payne Lindsey]

From the team that brought you up and vanished comes an all new podcast that brings you a weekly dose of true crime cases. She's in an unknown area. Do you know if she's here now or was she released? They said she was released. I'm Payne Lindsey. And I'm Maggie Freeling. This is up and Vanish Weekly. Join me as I talk through cases with special guests and true crime experts. There's gotta be something at the heart of that evidence that they've got. It's gotta be DNA.

[Judge Robert McBurney]

Yeah.

[Payne Lindsey]

Tune in as Payne Lindsay lays lays out the crime in true up and vanish style. A late night knock at the door, a missing car and a mysterious shadowy figure caught on camera.

[Javier Leyva]

We cannot see that person's face. Ever Luckiest person in the world.

[Payne Lindsey]

What new evidence will it take to solve one of Florida's most high profile missing persons cases? Up and Vanish Weekly is available now. Listen for free on Apple Podcasts, Spotify or wherever you get your podcasts. Listen to all episodes of Deadly Fortune ad free right now by subscribing to the binge. Visit the binge channel on Apple Podcasts and hit subscribe at the top of the page or visit getthebinge.com to get access wherever you listen. The binge feature True Crime Obsession.

[J. Tom Morgan]

The Bench.

[Frank Schenck]

I would meet Billy at the Downwinds restaurant there at Peachtree de Camp Airport. And if you didn't know it was Billy Corey, you thought it was a poor homeless man sitting at the table hoping somebody would buy him a cheeseburger. But once you got to know him and to know Diane as well, you can see they were very talented at making money. Billy would make money with Democrats, Republicans, independents, it didn't matter.

[Payne Lindsey]

This is J. Tom Morgan, who knew most of the circle of players in this story and who has his own strong opinions on how this all played out.

[Frank Schenck]

I met Billy Corey when I worked for a law firm in Atlanta and he was one of our clients. And that's how I got to know Diane as well. I'm a professor here at Western Carolina University where I teach criminal law, criminal procedure and legal ethics to students.

[Payne Lindsey]

J. Tom was there for the trial, watching each move by both sides like a hawk.

[Frank Schenck]

And I sat through a good bit of the trial just as a curious observer, not for any particular person. The whole story, both sides, didn't make sense. The prosecution theory and the defense theory. Again, having known Diane and I didn't know tets, but I knew a lot of people who knew tets. Their relationship seemed okay, though when they bought Their piece of property that, you know, in middle Georgia that Tets like to call a ranch. Most of us from Georgia would call it a farm. But, you know, Diane made sure that Tets gave her a promissory note for his part. That's not your typical marriage arrangement. I think it goes back to the. That Diane was the one who had the business sense. They did not have any children. Tatts had children from a previous marriage. So I think Diane wanted to be careful with her assets. To be honest, I think Diane would take business over a marriage any day.

[Payne Lindsey]

If you were in Atlanta during the trial, you saw the reports each and every night on the local news. The fact that Tex, a prominent lawyer, had done this at all was shocking. But how it all played out in court was different than anything most of us had seen before, including Jay. Tom.

[Frank Schenck]

It is bizarre, both from the legal criminal and the civil as well. So I was not terribly surprised to see that Tess McIver was found guilty of murder and felony, certainly felony murder. Eventually the judge gets reversed, not on the sufficiency of the evidence, but for the jury charge. Supreme Court said he should have given a lesser included charge. Well, the jury is found him guilty of the most serious charge and felony murder, two very serious charges.

[Payne Lindsey]

In Jay Thom's opinion, it didn't have to turn out this way.

[Frank Schenck]

Well, I think this is really sloppiness on both the prosecutor and the judge in this case, as I tell prosecutors and I tell my students, is that if the defense asks for a lesser charge, give it to them, let the jury hear everything, because if they're going to be found guilty of a lesser charge, they're guilty of a lesser charge. In this case. I am 100% believe that had the judge given the lesser charge, he still would have been found guilty of murder and felony murder. It would have not made a difference. But it was a mistake. It was a mistake that didn't need to be made.

[Payne Lindsey]

The Supreme Court decision to overturn Tex's original murder conviction does not sit well with J. Tom.

[Frank Schenck]

I think the Supreme Court was second guessing the jury here, and the Supreme Court did not see the case as much as I did. I think this was a good question for a jury. That's why we have juries. Jurors decide issues of fact and law. And these 12 people hearing all the facts decided that he was guilty of murder.

[Payne Lindsey]

Is it something the Supreme Court shouldn't have reversed?

[Frank Schenck]

I don't think in this case, giving the lesser. I think the lesser charge, failure to give it, should have been a harmless error instead of a reversal.

[Payne Lindsey]

And the saga continues to spin in new and strange directions as questions arise as to who should receive Diane's fortune from both the insurance settlement and the additional assets she had that no one was discussing publicly at least.

[Frank Schenck]

So here we go again. And then now we end up with a civil case that is in the plea. The judge directs that part of the settlement go to the son of another superior court judge who is not an heir in this case, who doesn't have a fight in this case. It's just that is where things really seem to go off the rails of common sense, that we have a plea agreement between a prosecutor, a defense attorney, and a judge takes all three. And part of that plea agreement is that the money from the wrongful deathsuit, not the rest of the estate. And again, the public doesn't know there's a few million in the rest of the state. All we know is that the proceeds from the wrongful death suit are going to this third party who has not filed a lawsuit. It's just we all agree that this third party somehow should get, what, 1.5 million. I'm going, how so? It's the craziest case I've ever seen in Georgia history.

[Payne Lindsey]

From Sony Music Entertainment and Waveland Road, you're listening to Deadly Fortune. This is episode seven, Extended Family.

[J. Tom Morgan]

Oh, Lord, she would not be happy.

[Payne Lindsey]

She would have a lot to say about it. All of our ears would be burning if she had, you know, a chance to say her peace and thank God she's in heaven and not having to worry about this. But, yeah, she would not be happy through all of this. There's one thing Danny Jo does believe. Diane would have wanted Austin to have money. Yes, Diane crossed all of her I's and dotted all of her T's, and she knew where every quarter of a penny was. So I don't know if not having anybody look at, I mean, with Craig and she would want it looked after to make sure that things happen like she thought they would should. J. Tom Morgan has a lot to say about how those close to Diane should have been told what was going on with the proceeds from her estate after she passed.

[Frank Schenck]

I agree with Billy 100% because this plea deal took all everybody involved. And you're not just sitting there getting 1.5 million without knowing what's going on. The Schwals were friends with both Diane and Tess, but you and I have a lot of friends that we're not going to give $1.5 million to for this deal to go through, and the judge gave his approval. Now, there's. I know Judge McBurney. I think he's extremely, highly ethical. But at the same time, as I teach my students in ethics, the appearance of a conflict can be just as powerful as a real conflict. So for a judge to give his blessings to a plea deal that gives 1.5 million to the son of another superior court judge, we need to bring somebody else in.

[Payne Lindsey]

The Schwal's claims that the McIvers wanted Austin to receive Diane's inheritance was not news. In fact, In March of 2018, Ann Schwall testified at Texas trial about Diane and Tex's wishes for Austin to have the ranch. Now, can you tell the jurors, with respect to the ranch, did Diane McIver ever tell you what she wanted to do with the ranch when she died? Yes, she. She did tell me that she wanted Austin to have the ranch. Do you remember when she told you that? A time frame. I don't know the exact year. It was a while ago. Austin was younger. It was not recent. And what did Diane say to you with respect to wanting Austin to have the ranch? She told me that she wanted Austin to have the ranch.

[J. Tom Morgan]

She felt like this was a special.

[Payne Lindsey]

Place for them, and she wanted him to have it. Can you tell the jury, after the Death of Diane McIver, did you have a conversation with the defendant about Diane's 2006 will? I did. Can you tell the jury, when was the first time you would have had this conversation with him about Diane's 2006 will?

[Javier Leyva]

It was after her death.

[Payne Lindsey]

I think a couple of days, A day? A week?

[J. Tom Morgan]

A month?

[Payne Lindsey]

It was a couple days after.

[J. Tom Morgan]

Okay.

[Payne Lindsey]

And can you tell the jurors, what did you say to him about Diane's 2006 will? What did I say to him? How did the conversation come up as.

[J. Tom Morgan]

Far as that question?

[Payne Lindsey]

He told me that his biggest regret was that they did not get a chance to change their wills, update their wills. Think about this for a second. Austin Schwall, the godson to Texan Diane McIver, was not named in Diane's will at the time of her passing. Austin's parents, Craig and Ann Schwall, were also close to the McIvers, but they weren't blood relatives either. The Atlanta Journal Constitution published a phone call, audio and video of Ann, Craig, and young Austin Schwall having a conversation with Tex MacGyver in prison before the start of his trial. In this audio, you can hear a young Austin talking to his dd. Tex. Hey, Dee Dee.

[J. Tom Morgan]

I'm right here, Austin.

[Payne Lindsey]

Can you see me? I miss you a lot.

[J. Tom Morgan]

Well, I miss you. How you doing, Judge?

[Payne Lindsey]

Hang in there. You got a hearing? Number six? Yeah, they tell me the one on.

[J. Tom Morgan]

The eighth has been postponed because nobody's in town, but.

[Payne Lindsey]

Yeah, you want to make sure it's.

[J. Tom Morgan]

Not the next week.

[Payne Lindsey]

That's when the boys will be gone with him. Yeah. When it's bond here, you're gonna have to.

[Frank Schenck]

Yes, sir.

[J. Tom Morgan]

I know you are.

[Payne Lindsey]

I can. I can use it.

[J. Tom Morgan]

I'm.

[Payne Lindsey]

I'm ready to come home, sir. I'm ready. I will.

[J. Tom Morgan]

Thanks for coming, Judge.

[Payne Lindsey]

It means a lot.

[J. Tom Morgan]

Okay, sir. Thank you.

[Payne Lindsey]

Fast forward to the present day. And now the Schwals are asking for Diane's money to go to Austin because they believe that's what Diane would have wanted. Craig Schwall is a Georgia Superior Court judge, as is Judge Robert McBurney, who presided over Tex's original trial and his eventual plea deal being accepted. We asked Judge McBurney about this.

[Judge Robert McBurney]

So judges have a responsibility to recuse if they believe that either they would have trouble being impartial or there's a reasonable appearance of partiality. So I might be convinced that I could be perfectly neutral in some civil matter involving my sister. But the appearance would be, look, one of the parties is your sister. How can the other side think they're getting a fair shake? So I ought to recuse. I ought not to require one of the lawyers to say, judge, you should step off that. It is just as powerful a principle of law that judges should not recuse from situations that don't create that either sense of partiality. I'm going to have trouble being neutral or an appearance of partiality. And I didn't for a moment feel like I had any difficulty being neutral in this case, because the case wasn't State versus Schwal. He wasn't being prosecuted. His child wasn't a victim in the case. The victim in the case was the defendant's wife, who was also a friend of Crickshaw. Second, when the case was assigned to me, I was unaware of the depth and breadth of the connection. I knew that three or four of my colleagues knew texts called him friend, had benefited from his influence and maybe getting their judgeship, but that was it. So I was already knee deep in the case before it came to light that Craig Schwall and his family at one point had been particularly close with. With the MacGyvers. It also came out during the trial that Craig Senior, the judge, wasn't so close by the time the dust settled. So I don't think it's correct to say consistently and universally it's been a close situation. I think that relationship became very different and quite strained after the divorce, and different people lined up behind different Schwals. But it's also important to explain that while I didn't see an issue, none of the lawyers involved did either. It would have been perfectly appropriate for any of the many lawyers for Mr. McIver, any of the many prosecutors who would speak with one voice, for the state to say, oops, now that we're seeing more these connections with what I'll call the Schwal family, we think. And it wouldn't be just McBurney. It would be. No judge in Fulton county should hear this because we're all colleagues. And so we need to bring in a judge from a different jurisdiction. And that didn't come up. It didn't come up because I didn't flag it, because I didn't see it as an issue. It didn't affect my assessment of evidentiary rulings or whatnot or the guilt or innocence of the accused. And it didn't rise to any level of concern for the lawyers to say, let's bring in a different judge. And I'll tell you, lawyers are not shy about doing that, especially if they feel like this isn't going well for us with this judge, because clearly his connection with X, Y, or Z. And so we need to get someone else. But it bears repeating. The case was not about the walls. It was, did Tex MacGyver. He admitted he shot his wife. Did he intentionally shoot his wife? And in the orbit of that was, look at all this money, and where's the money going? And maybe the money's not going to Tex. And so that's a motive for to shoot his wife. It's really the Schwa connection to the first trial.

[J. Tom Morgan]

How does a guy working for a fire department go out and snuff out.

[Payne Lindsey]

A mobster in front of 300 people and go home the next morning and feel good about himself? Well, you got to understand this people, all you civilians out there, these people are evil garbage.

[J. Tom Morgan]

The world is a better place without them.

[Payne Lindsey]

You have no idea what these people have done and will continue to do. Not unless their lives are snatched from them.

[J. Tom Morgan]

So did I feel bad?

[Payne Lindsey]

No. Not one bit. It was just a normal kill. That's all. Because I really believe I did the world a favor. I don't know what else to fucking tell you.

[J. Tom Morgan]

And if you can't live with that.

[Payne Lindsey]

Grow the fuck up.

[Javier Leyva]

Welcome to Crook County.

[Payne Lindsey]

Available now listen for free on the iHeartRadio app, Apple Podcasts, Spotify, or wherever you get your podcasts.

[Javier Leyva]

Do you love stories about con artists and scammers, people pretending to be someone they're not? I'm Javier Leyva, the host of Pretend, the podcast where I interview real con artists and uncover why they do what they do. Like the family who claimed that they were being stalked only to find out that the messages were coming from their own house. Yeah, they were the stalkers.

[Payne Lindsey]

It's ridiculous when I. I get death threats about him wanting to go and.

[Frank Schenck]

Blow my husband's head off, and then.

[Payne Lindsey]

I get accused of having a split personality. And maybe you're doing it and you don't realize it. That's ridiculous.

[Javier Leyva]

Or the true crime author accused of harassing the very same victims that she was writing about.

[Payne Lindsey]

I am being honest with you. I am not Fetish Master. I don't know what to say, but I am being completely honest with you. I don't know what's going on.

[Javier Leyva]

These are real people with real stories. If you love podcasts with a good twist, subscribe to Pretend. Wherever you're listening to right now, Pretend stories about real people pretending to be someone else.

[Payne Lindsey]

It's possible that Austin Schwalz's receipt of Diane's fortune might be a more straightforward exercise if it wasn't for a slew of Diane's cousins coming forward once word got out about the money.

[Frank Schenck]

As we now know, they're Diane's heirs who are getting ready to file a lawsuit. Under our Georgia slayer statute. We've got a defendant in a criminal case who may or may not be entitled to even have access to this money, directing that this money go to this third party.

[Payne Lindsey]

To the possible surprise of everyone, on May 20, 2024, Mary Margaret Oliver, the state appointed a state executor for Diane McIver, files a lawsuit in DeKalb county challenging the distribution of Diane's wrongful death settlement and the remainder of her estate. Even though she apparently condoned it as part of Tex's plea deal. Lead prosecutor Adam Abate said Mary Margaret Oliver condoned the condition of allowing Tex to direct the insurance settlement money to his godsons. Should he have done that?

[Frank Schenck]

Mary Margaret is a tremendous trust and estates lawyer. I've known her for 40 years. I don't think she saw that the slayer statute would come into play from these other persons. I can't second guess what Mary Margaret's doing. If I needed a trust in estates Lawyer. I would probably go to Mary Margaret, but at the same time, she's caught up, too, I think, in this plea deal in a criminal case.

[Payne Lindsey]

Let's talk about that a little bit. As a veteran attorney who's seen it all, where should this money go? What's the path for the 1.4 million? What's the path for the residual 3 million?

[Frank Schenck]

That's where the Slayer statute kicks in. You should not inherit if you cause the death feloniously according to Georgia law, which means murder, felony murder, and voluntary manslaughter. So any of those would stop you from in Harrington. So we have a group of heirs out there. They may be distant heirs. They may not even have known Diane. That doesn't matter. They are entitled under Georgia law to. To be an heir of the estate. If Tess McIver is feloniously guilty, how do you prove that? One is a criminal case, as was done in this case. The second is a civil case. Those heirs have the right to sue, and everybody knew that. They were there, they were out there, and so they should have been brought in in this criminal case, but they weren't.

[Payne Lindsey]

And Oliver's filing notifies nearly two dozen of Diane McIver's first cousins that as blood relatives, they have a right to stake a claim to Diane's estate. Remember, our circle was surprised by the turn of events that happened with this money. But imagine what blood relatives thought when they were not notified as to Texas upcoming plea deal and therefore had no say in the disbursement of the wrongful death funds that were okayed at Tex McIver's plea deal. January 26, 2024. Things, it seems, are now only getting messier as the news starts to travel.

[J. Tom Morgan]

My name is Francis Carl Schenck, and my last name is spelled S, C H, E, N, C, k. She has 21 first cousins.

[Payne Lindsey]

Frank's deceased wife, Sandy, and Diane were close cousins as kids.

[J. Tom Morgan]

They grew up together. They were the best friends for years before they got out of high school, and then they kind of went separate ways. But up to then, they were together all the time. Their mothers were sisters.

[Payne Lindsey]

Frank lives in Peachtree City, Georgia, about an hour outside of Atlanta, and is an attorney, and he's kept a sharp eye on these recent developments.

[J. Tom Morgan]

It's my understanding that the money is still sitting in the account of an appointed administrator, and it's not going to be distributed until the question of his entitlement to it has been resolved. I certainly don't think he's entitled to any of it, but there are factual and legal questions that need to be resolved before that money can be distributed. As a moral issue, I certainly don't think he's entitled to a penny of it. What makes it so complicated is that he was found guilty of murder, and they set that aside. So everything went back to square one. And so the question that had been resolved by the finding that he was a murderer being set aside and then entering into a settlement, a plea bargain agreement that meant that the state didn't have to retry the case, did not resolve the civil issues that are still pending. And that's the reason that the money shouldn't be distributed to anyone until the civil questions have been resolved.

[Payne Lindsey]

At the end of the day, who should get the proceeds? Tex, his godsons or the cousins?

[J. Tom Morgan]

Well, the godsons aren't entitled to it at all. They don't have a say. The only two options are Tex and the heirs, which are the first cousins in the case. Tex can only get it if he's not barred by the slayer statute. The parties that entered into the plea bargain agreement can't do an end run around the slayer statute or try to avoid the slayer statute simply by him making some kind of an agreement as to what he did or didn't do. They're trying to give the money to. They can't give it to the Godsons. If it's MacGyver's money, he can give it to the godsons. Godsons. But in my mind, he doesn't have anything to give because he doesn't have any interest in the money. At least at this point. Until that fact question has been resolved as to whether the slayer statute applies, he's not entitled to any of the money that's being held by the administrator of the estate.

[Payne Lindsey]

The prosecutor told Diane's loved ones that. That there was only about $70,000 left in the estate, and it would be gobbled up by the attorneys. And today we know that it's at least $3 million, not including the settlement. Is that just an oversight?

[J. Tom Morgan]

Hardly. I don't see how that could possibly be an oversight. It appears to me that they were trying to rush something through behind the scenes in order to make this whole thing go away and put the money in Tex McIver's pocket so that he could pay his attorn. The DA wouldn't have to try the case. The administrator could to get the money out of her escrow account and be done with the matter. And then everybody would go home. But nobody said anything to the heirs about, what do you people think about This I didn't even know. I mean, I knew that Tex was the executor and that he couldn't do anything because the court appointed an administrator because of the slayer statute. His attorneys were trying to get him out of jail and decided to enter into the plea bargain agreement. That whole thing doesn't, in my mind, doesn't pass the smell test. That whole plea bargain agreement and what they were trying to do there without some of the interested parties. I don't even know if Mary Margaret Oliver was involved in it. And she's the one that was holding onto the money at the bequest of the. At the behest of the state.

[Payne Lindsey]

So what is Frank Schenck looking for in this case?

[J. Tom Morgan]

Well, I want the matter to be resolved in accordance with the laws of the state of Georgia. Either Texas entitled to it because they find that the slayer statute doesn't apply, which reinstates him as the executor, which gives her at least the residual of the estate. But a separate issue still remains in my mind as to who's entitled to the proceeds of the wrongful death action because it involved the heirs suing him as the wrongdoer as the cause of her death. And so to say that he can now step into the shoes of the heirs and take the money that they won because he killed her doesn't make sense to me. I mean, as I told you, I don't see how anybody could conclude from everything that I know that he didn't pull the trigger on purpose.

[Payne Lindsey]

After our interview, Frank has temporarily withdrawn from the Mary Margaret Oliver suit without prejudice, pending the outcome of the judge's decision. Let me take a minute to put all of this into perspective. The man who killed his wife is now in line to not only inherit her 3 million dollar estate, but. But also the $1.4 million insurance settlement his dead wife's estate won against him. And according to Diane's cousins, in order to make it smell better, he stands up in court and announces he's directing that tax free insurance money to the sons of a superior court judge who happens to be a friend and colleague of the judge who's agreeing to make this all happen. If the phrase you can't make this stuff up doesn't apply here, I don't know when it ever would. Oh, Sheet. Honey, chill. It's just laundry. Not that I'm talking about these arm and hammer power sheets. All the power of arm and hammer. Laundry detergent and a convenient tossable sheet. Oh, Sheet. That's what I'm saying and arm and hammer Power sheets deliver an effective clean at a great price. Think of all the laundry we'll do and all the money we'll save. Oh, sheet, arm and hammer. More power to you. This episode is brought to you by Lifelock. During tax season, your personal info travels to a lot of places between payroll, your tax consultant and the IRS. If your W2 gets exposed, that's just the ticket for identity thieves. That's why LifeLock monitors millions of data points every second. If your identity is stolen, they'll fix it, guaranteed, or your money back. Don't let identity thieves take you for a ride. Save up to 40% your first year. Visit lifelock.com podcast Terms apply in an effort to add clarity to the situation, Judge McBurney shared what he did and did not know during the plea agreement from conversations with the prosecution and defense.

[Judge Robert McBurney]

In any negotiated plea, the agreement is between the two sides, state and defendant, and however many lawyers are involved, they then present a proposal to the judge who can accept it, reject it, modify may be that a defendant is allowed to withdraw his plea if the judge rejects what has been negotiated. But the important thing to keep in mind is that the agreement is not with the judge, is not binding on the judge, but the judge is limited in knowing whatever is included in that agreement. In terms of keeping members of Diane McIver's family apprised of how this would unfold, that responsibility falls on the District Attorney's office. What was relayed to me when this plea was presented was that Mr. MacGyver would be pleading guilty to certain crimes, reduced crimes, and would be agreeing to a certain number of years to serve with credit for time served. But that number was greater than the time he had already served, so he would remain in custody and that there were certain financial resolutions that the insurance settlement would go one way, and that the residual of Diane MacGyver's estate, which was represented to me to be under $100,000, would also be distributed in a certain way. But because it was so small, it was effectively legal fees. That's what I heard. I heard I was presented with no objections from any family members. In fact, I don't know that I was ever introduced ever to a family member. Mr. Corey I got to know quite well, and other members of what I'll call the Corey family. So these would have been work colleagues of Ms. MacGyver, but I don't believe I was ever introduced to a blood relative of Ms. McYver. If that should have happened, that would have been the state's obligation to say, here's a cousin, here's an uncle, here's a. Whatever the relationship might be. But I wasn't presented with any of that input at the plea hearing. Should a man who pled guilty to taking her life, even though it was through recklessness, through the plea, but a jury found that it was intentional, the shooting was intentional, benefit in any way financially? And that's how I cast it more as benefiting as opposed to maybe actually some of that money was his. I don't think he should lose his money. I think everyone would agree you shouldn't benefit. You shouldn't be able to write a book or make money off a podcast because you were involved in killing your wife. That's not how this plea was structured as it was presented to me. It was not a financially advantageous plea for Tex MacGyver.

[Payne Lindsey]

In my conversation with Tex's defense attorney from the trial, Don Samuel, I asked him about how the plea agreement conditions evolved. Paul Howard told us that the original plea agreement restricted Tex from getting her estate, the one offered before trial.

[Javier Leyva]

The only offer we had before trial was that he would plead guilty to murder with a very reduced sentence, which is an odd feature of Georgia law, because it was murder. You can't collect. That's the slayer statute. Involuntary manslaughter. You can, because it's not an intentional killing. Did you know that the state offered us five years back then? Yes, total of five years. What did Billy think about that? I'm curious. You know, I didn't think that was an unreasonable offer because I thought we were likely to get convicted of involuntary manslaughter, which could get you 10 the way it was. If I could just finish. The way that's a little bit complicated is the 10 years was parolable. The five would not be. So it was a close call. And Tech said, no, I'm not pleading guilty to murder.

[Payne Lindsey]

If the slayer statute was removed by statute, then how did the court have the authority to accept Mr. McIver waiving the 2.5 million insurance settlement?

[Javier Leyva]

Well, that's different than the. There was. As I said, there's more to this than I can explain, which is why we hired a lawyer to deal with the estate issues. With two lawyers. And Mary Margaret Oliver is a very fine lawyer who I've known since the day I set foot in Georgia 50 years ago. And as I said, there's the life insurance prong, there's the wrongful death benefits, however much they were. There's the estate, there's the property. There's the jewelry and the furs that were sold, all of those came under different provisions of law that governed what goes to the heirs and who are the heirs. So they're going to be litigating that until Tex is in his grave.

[Payne Lindsey]

Texas already received $420,000.

[Javier Leyva]

I have no idea. I have no idea. I'm not sure that's true. You may be right. I'll accept what you're telling me, but if you were just told that, I'd want to find out.

[Payne Lindsey]

Ms. Oliver filed a declaratory judgment action?

[Judge Robert McBurney]

Yes.

[Payne Lindsey]

And she said we're going to acquiesce $420,000 of this?

[Javier Leyva]

I don't know whether she did or not, but. Okay, I've seen the declaratory judgment action.

[Payne Lindsey]

So remember, we're not making up these numbers. Mary Margaret Oliver's filing shows the trail of money that is already flowing. It says in part. The partial distribution agreement contemplates the sum of $420,191.13 to be paid to Tex MacGyver for the three items referenced condominium wedding rings and condominium personality. This, in addition to the $323,000 of Diane's estate Tex had already spent before the state charged him with killing her, bringing the total to over $743,000. And this is while Tex is still in prison. What does Don Samuel think of Tex potentially becoming a millionaire when he gets out?

[Javier Leyva]

I'm not sure he's becoming a millionaire. I mean. No, I think that's a. That's an odd way to phrase it. She. She died as a result of an accident. He was negligent. You know, the fact that he recovers the real estate that they own together, that he collects, that. That there was life insurance that has to pay. You know, I guess, you know what he wanted to do? He should tell the life insurance company. Give it to charity. Give it to Billy Corey. You want the money? I mean, what do you do with a life insurance policy where you're the beneficiary? Tell the life insurance company, give it to an orphanage in Ethiopia.

[Payne Lindsey]

It is an odd situation.

[Javier Leyva]

Yeah, I mean, I think that's. It's unfair. I don't know. If you posed it to him, he'd probably say, the only thing that matters to me is I've lost my wife.

[Payne Lindsey]

You know, so, Don, you've had a lot of cases under your belt. Is this the strangest one? One?

[Javier Leyva]

Well, there's different kinds, but this is certainly one that I will remember forever. And I doubt My epitaph will have the names of cases, but if it did, this would be one of them.

[Payne Lindsey]

And maybe a tragedy all around.

[Javier Leyva]

Yeah, but that's not off. That's often the case. It's often the case. Whether it's a, you know, a murder case or even, you know, vehicle homicide cases are unbelievably tragic.

[Payne Lindsey]

It's likely that no one would have ever known how much money was involved in this. Had Ken Rickert not been the trustee of Diane's estate, no one would have ever known how much was left in the pot.

[Javier Leyva]

I don't know. So that was not my job. My job was to get a disposition. I consulted with those lawyers. I said, if we plead the involuntary, is that going to have an impact on the money? And they said, no, that's not going to impact it. But that wasn't. I told Tex a long time ago, if we can get the prosecution to give you involuntary, to sentence you to involuntary, and that wasn't any deception on the part of Adam Abadi.

[Payne Lindsey]

If that sounds confusing, we agree. We've interviewed multiple people about the story, and each has a different version of the events.

[Javier Leyva]

I mean, this was meeting with Fani Willis. This was not some secret deal done, you know, in the closet with Adam. Fani Willis spent a long time talking to us repeatedly. Me and my partner, Amanda Clark Palmer, met with Fonny repeatedly to talk about, you know, this case and the prosecution laid out to her. She became our jury as to what the settlement would be. And I know she met with Billy too, so maybe Billy was unhappy with her. But, you know, it, It. It is a case. That's odd, you know?

[Payne Lindsey]

Yeah.

[Javier Leyva]

Yeah, odd maybe is an understatement.

[Payne Lindsey]

Next time on Deadly Fortune. I mean, it was hell waiting on.

[J. Tom Morgan]

The school bus to come home and.

[Judge Robert McBurney]

Tell him he was 10.

[Payne Lindsey]

To your knowledge, did Judge Swall and Tex ever discuss this insurance settlement and the remaining money in the estate? I enjoy the conflict.

[J. Tom Morgan]

So I'm in a solitary cell and it gets a little lonely sometimes.

[Javier Leyva]

So.

[Payne Lindsey]

Look at you now, you son of a bitch. Unlock all episodes of Deadly Fortune ad free right now by subscribing to the binge podcast channel. Not only will you immediately unlock all episodes of this show, but you'll get binge access to an entire network of other great true crime and investigative podcasts, all ad free. Plus, on the first of every month, subscribers get a binge drop of a brand new series that's all episodes all at once. Search for the binge on Apple podcasts and hit subscribe at the top of the page, not on apple. Head to getthebinge.com to get access wherever you listen. Deadly Fortune is a production of Sony Music Entertainment and Waveland Road. I'm your host and reporter, Dale Cardwell. Jason Hoak wrote and produced the series. Our associate producer is Marnie Zambri. Production support provided by Tim Millard. Audio engineering by Shane Freeman. The original score for Deadly Fortune is by Thomas Avery. Jason Hoak is the executive producer. On behalf of Waveland Road. Executive producers for Sony Music Entertainment are Jonathan Hirsch and Kathryn St. Louis. If you love the show, tell your friends and don't forget to leave a review. Thanks for listening. SA.