Diver convicted in wife's drowning

[AfterDark]

Sorry can't make sense of this.

His body was found naked. He got into such a state of panic that he shed all his gear including his shorts. Try staging that in the pool flaying your arms around trying to mimic panic.
Who knows what an individual does during a state of panic? Enjoy the pool.

 

[baz500]

I have been following this from the first post and trying to keep an open mind. I commend David's friends for defending him and would be happy to have friends like that if I ever got into trouble.

Anyway, as far as the evidence goes (or as much as we know) I can agree that it is not unusual for 2 divres to dive seperately after reaching the bottom, I can agree that the fin may have been placed as a Mark by Shelley(although not probable but possible), I can agree that she could have panicked and broke her own gear... BUT

The one bit that I cannot grasp is this,
Even if they did dive solo I still think that if either diver were returning to the shot to begin their ascent that they would glance around to see if they could see the other diver and would still be glancing around as they did their slow ascent. So how come if the following diver spotted the body so easily that David didn't see it or the fin? This is the one bit that is hard to believe and makes me think he had something to do with it.

 

[AfterDark]

I have been following this from the first post and trying to keep an open mind. I commend David's friends for defending him and would be happy to have friends like that if I ever got into trouble.

Anyway, as far as the evidence goes (or as much as we know) I can agree that it is not unusual for 2 divres to dive seperately after reaching the bottom, I can agree that the fin may have been placed as a Mark by Shelley(although not probable but possible), I can agree that she could have panicked and broke her own gear... BUT

The one bit that I cannot grasp is this,
Even if they did dive solo I still think that if either diver were returning to the shot to begin their ascent that they would glance around to see if they could see the other diver and would still be glancing around as they did their slow ascent. So how come if the following diver spotted the body so easily that David didn't see it or the fin? This is the one bit that is hard to believe and makes me think he had something to do with it.

Sound logic. I suppose it depends on the location of the boat in relation to the wreck and Shelly's fin and body. And or if Swain even came up on the line.

Similarly for much the same reason(s) I wonder why Dave would choose clear water and to have other divers on the scene the day of a premeditated murder. Suppose something went wrong topside and his friend needed to enter the water to get Dave and Shelly to surface and saw the act in progress. Doesn't make sense when here in New England we have limited visibility, strong currents and as stated often here buddy separation is what happens here. Chances are very good Shelly's body would never have been recovered. That fin wouldn't be hanging around Castle Hill (for example) after the tide changed.

Thanks for the compliment. But believe me if I saw real evidence of his guilt I'd slam the cell door shut myself.

 

[bsee65]

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.

I agree. I think the evidence is stronger than "more likely than not" myself. Those comments were relative to the civil case burden of proof. Where participants here fall in the vicinity of the reasonable doubt line on one side or the other, it seemed that it would be hard to argue that the evidence wouldn't at least support a civil verdict based upon a preponderance of the evidence.

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.

While I agree that it is critical evidence to the case, I don't agree that Shelley couldn't have done it herself. If she had some issue that placed her outside of her right mind or actually did panic, she could have done that damage to her mask. There is no sane reason why she would have done so intentionally, and I certainly never considered suicide as promising theory. It is very remotely possible at best.

I also think that we use words appropriate to our feelings to describe a situation. You say the "mask pins were ripped out", but I only recall reading that one of the pins was missing. I don't know what gear she was diving, and probably wouldn't be familiar with it if I did. I saw no photo of the mask. The description I read could be a broken strap and a pin intentionally removed as a part of maintenance take down (if it hadn't occurred at 90fsw). I think you may have spent more time reading actual case notes and reports than I, so you may have seen something more descriptive than what I recall. I suspect if there was any way that it could have been explained by Shelley attempting to replace her broken strap at depth, we would have heard about it, so you're view is probably is closer to correct in terms of the damage done.

I don't believe it was possible to determine what happened where. The fin was found in "open water", but Shelley was found between the wrecks. If the theory is murder, it could have happened anywhere. If the theory is "other", then you have to believe something strange occurred with the fin in open water, and Shelley then moved toward the wrecks where something fatal occurred.

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.

Good luck with that idea! I think someone trying to rip their own mask off their head in a panic could do quite a bit of damage. I don't think the problem is whether or not she could have done the damage herself, but rather under what set of circumstances she would be prompted to do so. Sticking her head in one of the wrecks, getting something caught, and then having to use force to get it free was one theory, but the experts say that wasn't the case. That pretty much leaves panic, insanity, or over-riding medical issue. Highly unlikely, but I don't think impossible. Doubt, but maybe not quite reasonable doubt?

Also, they had been diving on vacation all week. I didn't see any mention of their itinerary in terms of dive profiles. We also don't know what kind of sleep they got or what kind of night life they were enjoying. These are things that could affect them, and those affects might be magnified under water. 90fsw is getting to the depth where narcosis could start to hit as well. I suspect that Swain and his attorney would have explored these possibilities if they were pertinent, but it would be a question I sought an answer to.

 

[Ayisha]

...So how come if the following diver spotted the body so easily that David didn't see it or the fin? This is the one bit that is hard to believe and makes me think he had something to do with it.

This is one of the many things that puzzles most of us on this thread as well. Thwaites saw the fin immediately upon descent and found Shelley's body shortly thereafter. The prosecution placed Swain right around her body after the time of her death, which they say he would have had to have passed, yet he claimed he never saw her. He also claimed that he never saw the fin which he also would have had to have passed before his ascent, plus it would have been visible for probably 200 feet in any unobscured direction before getting to that area.

BTW, we do know the relation of the fin to the body (about 30 feet) and the body was between the wrecks. The fin was in immediate view from the descent line. This was all documented in previous links. K-girl posted graphics from the Dateline show way back showing the scene of Shelley's death.

 

[Ayisha]

...You say the "mask pins were ripped out", but I only recall reading that one of the pins was missing. I don't know what gear she was diving, and probably wouldn't be familiar with it if I did. I saw no photo of the mask.

K-girl posted pics of the damaged equipment way back with the Dateline discussion. The mask had come apart from the strap; one pin was missing; the snorkel was separate from the strap; the mouthpiece and entire lower section was removed from the tubing of the snorkel, which appears to never have been found. That is only the damage to the mask and snorkel, of course. The slate is missing. The left fin was off and stuck in the sand straight up. There were abrasions on her left hand. There were many bruises on her body, mostly the left side, the same as the damage to the mask/snorkel. Almost all of the damages/abrasions/bruises were on the left side of her body.

 

[AfterDark]

This is one of the many things that puzzles most of us on this thread as well. Thwaites saw the fin immediately upon descent and found Shelley's body shortly thereafter. The prosecution placed Swain right around her body after the time of her death, which they say he would have had to have passed, yet he claimed he never saw her. He also claimed that he never saw the fin which he also would have had to have passed before his ascent, plus it would have been visible for probably 200 feet in any unobscured direction before getting to that area.

The prosecution placed Swain right around her body after the time of her death,

And of course there is no chance this in incorrect. The prosecution placed him there so we must believe this to be true. After all they wouldn't lie and can't be wrong. Of course he would have had to pass her body it doesn't work otherwise. The fact that this is based on a series of unverifiable assumptions and of course Swain claiming otherwise has no bearing he's lying. How do we know because the prosecution said so. I'd make a lousy juror.

 

[Ayisha]

The prosecution placed Swain right around her body after the time of her death,

And of course there is no chance this in incorrect. The prosecution placed him there so we must believe this to be true. After all they wouldn't lie and can't be wrong. Of course he would have had to pass her body it doesn't work otherwise. The fact that this is based on a series of unverifiable assumptions and of course Swain claiming otherwise has no bearing he's lying. How do we know because the prosecution said so. I'd make a lousy juror.

You are twisting known facts again. Actually, Swain placed HIMSELF there after his tour of the wrecks and the prosecution used his testimony to show he couldn't have missed her body. If she was still alive at that location where he left her, he would have seen her alive. Either way he had to have seen her, as the prosecution claimed, and he claimed he did not see her, alive or dead.

In other words, Swain did not claim otherwise, as you say. It is an agreed statement of fact. He only claims he did not see her, not that he wasn't there.

 

[K_girl]

His body was found naked. He got into such a state of panic that he shed all his gear including his shorts. Try staging that in the pool flaying your arms around trying to mimic panic.
Who knows what an individual does during a state of panic? Enjoy the pool.

Different set of circumstances. He was trapped, he knew he was trapped and realized he was not going to get out before he ran out of air. Shelley had a over 2K of air, in open water and no impediment to the surface, so no reason to panic there. Her equipment was working, so that wouldn't be a cause for panic. She was an experienced diver, so there was no reason for her to panic because of lack of skill. Swain made it a point that they often separated for their dives and if a diver had a regular panic problem, that certainly would not be something that should be practiced. There was no current to fight, so there was no cause for her to become overexerted and panic. If she had a sudden heart attack, she would have been incapacitated and would not have had a chance to panic long enough to do anything to her mask. In addition, there was no evidence of heart attack. As far as TMJ is concerned, I provided links to diver discussions about this - they unanimously said that it was bothersome, but never enough to freak them out. TMJ was the defense argument to say that Shelley panicked, but the jury did not believe it. Shelley had been dealing with TMJ for quite some time. It never bothered her enough during diving to even mention it in her dive logs. If she had, the defense would have pointed it out, along with the other dive logs they published in which they tried to make the case that she had panic problems. But they did not. So there is no good reason to believe that TMJ caused her to panic. So the issue here is - that all the known, documented reasons that divers panic do not exist here. I question whether or not Shelley was alone and panicked, much less pulled off her mask in a panic.

The prosecutors made the point that their experts said that the damage to Shelley's mask during a panic attack had NEVER happened before. If you really want to help Swain get out of jail, this is the point you must disprove. The only way to do that is to pour through the DAN accident reports and try to match an incident to Shelley's situation where there was significant damage to the mask and mask removal, the diver was in open water with no entanglement either with either objects or other divers. (DAN provides excellent narratives for dive accidents.) A mask damaged and removed from struggling inside a cave or wreck or other entanglement would not match Shelley's case. Neither would a situation where another diver kicked-off the mask or struggled with the diver in a rescue effort, as Shelley was alone. Even if you do get this far, you have to make a case that she had a reason to panic in the first place and I don't think that has been shown.

 

[AfterDark]

Different set of circumstances. He was trapped, he knew he was trapped and realized he was not going to get out before he ran out of air. Shelley had a over 2K of air, in open water and no impediment to the surface, so no reason to panic there. Her equipment was working, so that wouldn't be a cause for panic. She was an experienced diver, so there was no reason for her to panic because of lack of skill. Swain made it a point that they often separated for their dives and if a diver had a regular panic problem, that certainly would not be something that should be practiced. There was no current to fight, so there was no cause for her to become overexerted and panic. If she had a sudden heart attack, she would have been incapacitated and would not have had a chance to panic long enough to do anything to her mask. In addition, there was no evidence of heart attack. As far as TMJ is concerned, I provided links to diver discussions about this - they unanimously said that it was bothersome, but never enough to freak them out. TMJ was the defense argument to say that Shelley panicked, but the jury did not believe it. Shelley had been dealing with TMJ for quite some and the defense found no mention of it in her dive logs, so there is no reason to believe that it would become an issue on this dive or a reason to panic. So the issue here is - that all the known, documented reasons that divers panic do not exist here. I question whether or not Shelley was alone and panicked, much less pulled off her mask in a panic.

The prosecutors made the point that their experts said that the damage to Shelley's mask during a panic attack had NEVER happened before. If you really want to help Swain get out of jail, this is the point you must disprove. The only way to do that is to pour through the DAN accident reports and try to match an incident to Shelley's situation where there was significant damage to the mask and mask removal, the diver was in open water with no entanglement either with either objects or other divers. (DAN provides excellent narratives for dive accidents.) A mask damaged and removed from struggling inside a cave or wreck or other entanglement would not match Shelley's case. Neither would a situation where another diver kicked-off the mask or struggled with the diver in a rescue effort, as Shelley was alone. Even if you do get this far, you have to make a case that she had a reason to panic in the first place and I don't think that has been shown.

If I understand the beginning correctly panic in a cave is different from panic in OW is that correct? So how someone panics depends on the situation they are in? Fascinating I thought panic was a sudden fear which dominates or replaces thinking. I didn't know there were different types depended on location. Thanks That must say something about cave divers that they'd want to be found in the dead in the nude.

There was evidence of a 22% blockage somewhere in her heart. I wonder if that could have been exacerbated by fining around at 85FSW with one fin? Oh shucks, the autopsy didn't explore that possibility and 10 years later it's too late. Convenient.