Diver convicted in wife's drowning

[Ayisha]

It should also be noted that there was effectively no legal defense offered in the civil trial.

This sentiment has been repeated ad nauseum throughout this thread. The fact is that Swain's lack of defence council, the reason for the lack of defence council and the lack of witnesses (bar one), and the errors and omissions Swain believes were made in the civil trial were considered and deliberated on by the Supreme Court Judges and Swain LOST the appeal. End of story. Those arguments were made and did not stand in a court of law.

In one of the links way back when we first read about the extent of the delays (3 years), I believe that when Judge Hurst denied the request for a further delay, Swain still had 2 months before going to trial. Even after ignoring all the earlier requests to retain new council, Swain still could have retained council in those 2 months. A lawyer could have been brought up to speed on all, if any, work the previous lawyer had done. A new lawyer at the very least would have been able to help with the matters of law and procedure. In addition, a continuance could have been filed, but it was not. Regardless, in the two months plus the years before, there was arguably ample time to support a defence that should have been at the point of proceeding to trial anyway.

The civil trial was not brought up without reason or by itself. There has been a continuing claim in this thread that the jury "got it wrong", the press is biased and the Rhode Island judicial system is corrupt, and none of us were privy to the evidence or proceedings and NONE of us knows all of the facts. The fact is, the people in the know in each case chose to support a conclusion of murder and/or to convict unanimously. The point is, it doesn't matter what anyone outside of those courtrooms thought. All of the experts involved in the prosecution as well as all who were charged with deciding Swain's fate were in agreement with the guilty verdict.

 

[AfterDark]

It should also be noted that there was effectively no legal defense offered in the civil trial.
This sentiment has been repeated ad nauseum throughout this thread.

And will continue until people get it, people routinely get released from prison because they were wrongly convicted with a lot more evidence than Swain was convicted on. I keep hearing that we'll never know for sure what happened, then why is a man in jail?

 

[K_girl]

Since all of the evidence in the criminal trial could have been gathered without the civil trial, there is no legal argument available with regards to the civil trial that can affect the criminal trial outcome. The most it can get you is sympathy on boards like this one.

Swain was convicted on the basis of beyond a reasonable doubt, not beyond a shadow of any doubt which was so eloquently explained by ItsBruce sometime back. The jury does not need to know if Swain came up behind her and turned her air off and she drowned at that point or if he ripped the mask off her face and she drowned at that point. They found that she did not die from any other cause other than someone denying her air and the only other person in the water with her - was Swain. It is not necessary to prove what happened every single second of the incident.

Such was the case with Scott Peterson - they think he killed her in a rage in their home. They didn't find blood in the home, but they found evidence of bleach, which is used to clean-up blood. The evidence that convicted him was the fact that his wife was eventually found in the area where he said he went fishing the day she disappeared. She was clearly murdered. Scott was the one with the motive, the means and the opportunity. It was also a circumstantial case. Do we know what happened every second during the incident? No. We will never know that unless Scott Peterson decides to confess.

 

[Ayisha]

And will continue until people get it...

Actually it seems that bringing up the repeated arguments that were over-ruled and laid to rest in a court of law years ago have served to divide the posters of this thread, rather than increase support for David. It looks like an attempt to appeal to people's emotions and sympathy rather than to scrutinize the known facts of the case. Good diversion tactic, but it's really not as effective when written.

Combined with all the misinformation that was posted by Swain's friends such as:

1) They said there were NO bruises on her body, when in fact she was covered with bruises
2) They said that the rescue-boater Royle did not testify when in fact he did
3) They said that Dr Egstrom was not allowed to testify when in fact he did testify about her air consumption and history of panicking u/w
4) They said that he was not given time to replace his lawyer when in fact he had 3 years of delays granted.
5) They said that there was no "affair" before Shelley's death when in fact it is documented that he went to the mistress' home alone; discussed his marriage that he wanted to get out of and to be with her; had a kiss with her that SHE stopped after the fact; and wrote letters to the mistress about his intent to be with her shortly before his wife's death, all of which is a matter of public record.
6) They said that the damaged equipment may not even have been Shelley's when it was all accepted into evidence by the defence.

Those discrepancies are simply off the top of my head and are the ones that stand out the most. They make it obvious that Swain's supporters know little more about the case than we do, if at all. This is what people refer to when they say that no one knows all the facts, including Swain's friends. When it was first said by Swain's friends that they know him and he wouldn't murder his wife, my first thought was the same as idoc's: If they don't know that he was pursuing an affair, then they do not know him as well as they think and they do not know what he was capable of. I resisted asking to defer to his friends and idoc was the only one brave enough to write it. All of the other discrepancies in what they would like to believe and what is fact further showed that they do not have the facts.

I keep hearing that we'll never know for sure what happened, then why is a man in jail?

It is not required for anyone to know "for sure" what happened.

The people who were entrusted with the pertinent information gave their learned opinion on the matters and the decision-makers have spoken unanimously. The burden of proof was challenged on appeal in the civil case and it was determined to have been met by the highest court in your country. The burden of proof will surely be challenged in the criminal case appeal and we will have to wait and see...

 

[K_girl]

Ayisha - you make an interesting point. I've been arguing that his attempt to have an affair with Basler and the way he tore through a large amount of money in a short period of time - showed motive. But it is also about character, which a jury will judge. His behavior also did damage to his character. It is extremely difficult for people who support Swain to convince the rest of the world that Swain is really a great, upstanding guy with those three things that hang over his head: desire for extramarital love, his flamboyent burning through money and his behavior. Swain tried to override all of this with the testimony of his daughter in the civil trial, but I can see where it just would not be convincing.

I think that we all know that people can be quite capable of fooling other people into thinking they are someone they are not. People who have extramarital affairs must believe that they are capable of fooling their spouse. When the spouse finds out, does it hurt the ability for them to trust? Yes, indeed it does. Does it cause them to question their own ability to judge good character? Yes, it does. For those affected by it, it makes them question whether or not they really know this person that they loved and believed in. When you look at it from this perspective, you can understand how a jury would come to the conclusion that people who believe in Swain's character may not really know him at all. That is because many of the jurors will have been close to such experience at one point in their lives. Or perhaps they might even feel that deep down, they are not always the person they appear to be.

 

[bsee65]

I suppose I have a scientific view of words like "for sure". Ideally, we'd never put someone in jail if we weren't "sure" of their guilt. It can't work that way in practice. Knowing "for sure" when a crime was committed would require a tremendous invasion of privacy on the part of governments with cameras everywhere, or crime would be too easy to get away with. Instead, we have the concept of "reasonable doubt" for criminal cases and a lesser standard for civil trials. A conviction or judgment is not a guarantee of truth. We can believe that something is almost definitely true, have a valid and proper conviction, and still be wrong. In short, a vast number of people are in jail where we don't know "for sure", but they are almost universally guilty.

In this case, absent a believable confession on Swain's part, I don't think we can know "for sure". The evidence can get us in the vicinity of the reasonable doubt line. That's way beyond the standard for civil liability whether he did it or not and I'm not sure that Swain could win the civil suit once if they re-tried it 100 times just because of the circumstances. That doesn't mean he did it, only that the evidence available makes it seem more likely than not that he was involved.

But, we should be mostly concerned with the criminal procedure. None of the alleged ills of Rhode Island would factor into that. It is a different environment with different rules and different issues that could get in the way of justice. Other than providing leverage to restart the investigation in Tortola, nothing that occurred in Rhode Island has any direct bearing of the outcome of the criminal case.

With regard to the expert statements, I can't believe that any of them could answer "no" if directly asked if there was any other possible explanation for the state of Shelley's gear. It is certainly possible that whatever was done to her mask was done by her. It is possible that she stuck her fin in the sand. It is possible that she lost her slate somewhere outside the immediate area of the wrecks. Is it likely? That would be a stretch, but it is possible. That's why I objected to the expert statements saying that murder was the only explanation. It isn't. It may be the only explanation that passes the reasonable doubt test for the expert, but making a final determination of reasonable doubt isn't up to the witness, that's the jury's call.

With regard to convictions that are overturned later on, they almost universally rely on new evidence cropping up, or some determination that there was misconduct by the original prosecution. The problem here is a lack of direct evidence and I don't expect the sea to give up anything new to us. When there is more evidence available, then there is both more to convict, but also the greater possibility of finding some piece that acquits. There's not much here, but what there is points at Swain. Any doubt I still have is based upon the minimal evidence and an understanding of the sea's potential for cruelty.

 

[K_girl]

bsee65 - I highly respect your efforts to be fair and I think you've done a very good job with your last post. Just a couple of minor comments for you.

I think that your statement that "..evidence available makes it seem more likely than not that he was involved.." is rather soft for the reasonable doubt line.

Your statement "..It is certainly possible that whatever was done to her mask was done by her.." minimizes the damage done to the mask. The mask strap was broken. The mask pins were ripped out. The mouthpiece on the snorkel was gone which would take two hands to forcefully pull apart. There was no obstruction for her struggle against as she was in open water. If Shelley had done this, you would have to say that she set-out to commit suicide and frame Swain for murder. If you think through how panic would be involved in this kind of damage to the mask - it is impossible to describe each of the elements of damage to the mask. You have to set-aside each element of damage, including the removal of the mouthpiece from the snorkel and pretend it doesn't exist. The damage to the mask strap, mask pins and the missing snorkel mouthpiece are pivotal, key evidence in this case. I agree that Shelley could have removed her fin and stuck it in the sand, but it is a more "reasonable" explanation that Swain did it in light of the damage to the mask.

I think it would be interesting to have several divers who are not so involved with this discussion do an experiment. Get into your pool with all your gear on in the deep end and wave your arms around in panic as violently as possible as though you were panicking, without actually grabbing the mask with your hands and purposefully removing it, and see if it is possible to do the kind of damage that was done to Shelley's mask - all three elements: broken mask strap, broken mask pins, mouthpiece removed from snorkel (by the way the snorkel was also separated from the mask), as well the mask coming off the face. I think any divers who try this should have at least one registered scubaboard witness.

 

[AfterDark]

I just reread portions of the book Submerged that referenced a cave diving fatality years ago involving a young man who got lost and eventually ran out of gas. He was found sans equipment even his shorts.

 

[K_girl]

..He was found sans equipment even his shorts.

Sorry can't make sense of this.

 

[bsee65]

Sorry can't make sense of this.

I think the point there was that a dieing person might do strange things. At least, that's what I get out of it.