Diver convicted in wife's drowning

[bsee65]

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.

The time of death was computed by the prosecution based upon some questionable gas math. There is no factual time of death on record. Since we don't have any statements or a GPS track for Shelley, we can't say where she was at any point in time. We don't know if her fish counting had her attempting to circumnavigate the wrecks behind Swain such that she was out of site on the opposite side when he came back around.

 

[bsee65]

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.

My recollection of Thwaites' testimony was that he had completed his descent and started looking around when he came pretty quickly upon the fin. That's not anything like seeing it from the line at a couple hundred feet.

 

[K_girl]

K_Girl do you know for sure that Swain went up the line or are you assuming he did? I don't know and being more of a rock hop diver than boat diver I don't use a line to ascend. The times I did do boat dives in clear water I'd just look up see the boat and surface. I'm wondering if Swain may have done something similar? Seems likely as our diving experiences were similar for a long time. Seems to me if I was investigating this incident and Dave told me he went up the line and didn't see the fin, then Christian told me he went down the line and found the fin right off, I'd be oiling my cuffs. Seems quite unlikely Dave would have left the BVI under those circumstances.

There is an assumption that he would have returned to the point of origin of his dive which was the wrecks in order to find his way back to the boat - the line was in that vicinity. Even if he didn't follow the line up, he should have been in the vicinity in order to see the boat. They were not diving off a dive boat that can hold some 30 divers, they rented the boat and it is much smaller than that. From straight up, he would need 90 feet of visibility, but he is not directly under the boat, he is off somewhere on the reef, and he would need even more visibility to see the smaller boat. I understand he could have navigated his way back, but here are the real gnawing questions with regards to this. Swain says he circled the wrecks within about 5 minutes and went on to the reef. He is a photographer, but he doesn't seem to be very interested in taking any pictures of the two wrecks because 5 minutes is not much time to circle two wrecks and take very many pictures. 1999 was not the digital age for underwater photography where you could snap a lot of shots and delete. It was still the age of film, where you had to be selective and take your time with your shots. It would seem that the twin wrecks are the major point of the dive, but he essentially decides to forego them and never returns. He never returns to the point of origin where he last saw his dive buddy. Even if they separated for the dive, most divers who jump in the water together at least try to meet-up for the ascent. He never made any effort to even find his dive buddy before making his ascent. I find that very strange for someone who is supposed to be a dive instructor. For a man diving with his wife that he is supposed to care about. Ascending is the riskiest part of the dive. I can understand where people lose each other and surface separately, but I do not understand why he made no effort whatsoever to find her or return to the point of the dive origin in his 30 minutes of diving after they separated.

 

[K_girl]

When you look at the case as a whole, there is nothing that makes Swain look good. Almost every piece of information we have about this case makes Swain look bad. He tried to have an affair, so you can't say he was a good husband. He burned through $670K of Shelley's money in three years, so he was not capable of managing money, even a lot of it. Shelley had to support him and his dream, so not only was he not contributing to the marriage, he was a financial drain. Even as a city counselman, he looks crooked. He was a lousy dive buddy, not caring where his wife was at anytime after they separated, even though he was a certified dive instructor. He stopped the radio calls for help. He gave up on CPR and stopped two others from trying. He tried to give her equipment away immediately after the incident - twice. He gave her dog away and got rid of all her personal possessions almost immediately upon his return from BVI. He said a ton of stupid, insensitive things like, "I've seen dead bodies before." He pisses off the judge in the civil case by ignoring her warnings to find another attorney for three years. The mask was severly damaged, along with the missing snorkel mouthpiece, the most damning piece of evidence. The fin sticking into the sand points to Shelley, lying helpless 30 feet away. All this stuff that has to be explained away. There is nothing that makes him look good, nothing. It all looks bad. There is only so much you can explain away before it becomes ridiculous. You have to say, if it looks like a duck and walks like a duck - its a duck.

 

[AfterDark]

Yes, go way back in the links to where this was first discussed before. Swain put himself in that place (where Shelley was later found) at about 5 minutes into the dive, when he left Shelley. He then proceeded to tour the wreck, and we do not have a timeline from him as to how long that took, and he returned to the same spot before heading to the reef. The prosecution says the tour took 3 minutes. You and Sadies Mom say much longer with a camera - which, BTW is in the prosecution's favour. At anytime from 8 minutes when the prosecution determined her time of death up until 35 minutes, Swain would have passed Shelley either alive or dead. Her body was still in the same place where he claimed to have left her alive and well.

He told the BVI police that he passed that spot after his tour on his way to the reef but he did not see Shelley. Sorry, as K-girl said, you can't make that go away.

In regard to all the damage to the equipment, BTW, don't forget that one of Swain's own first theories to the police was that some unknown person went behind Shelley and attacked her and murdered her. That theory was discounted by the police and prosecution because it was a secluded spot and there were no other boats in the area.

I understand Swain grasping at straws, but not you. You have been trying to provide a defence for Swain with arguments that he hasn't even made himself and are sometimes counter to what he has actually said. I applaud your tenacity, but we can't change known facts now... Perhaps if Swain had you both advising him during the time of his trials, he wouldn't have put his foot in his mouth so many times and he would have helped the prosecution a lot less with their theories...

Ayisha, Funny you should ask me to go back to the start of this thread. I just got done a few days ago reading this entire thread (682 posts at the time) for research for the new website that is being worked on. Nowhere in those posts did I read an estimate made by ME of how long it took Dave to go round the wrecks. I used the prosecutions estimate. I had / have no idea how long it took him. I do remember Swain said something to the effect that he left the wrecks at some point and went to the reef, how long he spent there I don't know.

K_Girl has responded that it is assumed he went up the line so it follows that it would also be an assumption that he would/should have seen the fin or Shelly's body. How about if I make the assumption that he made an ascent from the reef and swam to the boat on the surface? Or something we did quite often, ascent to the depth of our safety stop and swim to the boat / shore while doing our safety stop. Of course those aren't valid because I'm a "Swain supporter" the only valid assumptions seems to be the ones that are damning of Swain. This brings me back to my original position that there is a plethora of assumptions but not a lot of provable facts. I have knowledge that I can't divulge at this time, of the way that, and the circumstances under which Swain was interrogated by the BVI authority. It's not pretty and would rattle even someone who wasn't personally involved in the incident. I agree and have said so before that much of what we know doesn't make Dave look good but IMO falls short of making him a murder.

The only thing I am a supporter of is the truth. As I've said before I'd have slap the cuffs on him and slammed the cell door shut myself if I saw proof of his guilt.
I'm not willing to see anyone serve one minute of time regardless of their guilt unless that guilt is proven with solid evidence. I'm just an old fashion guy.

 

[SadiesMom]

I think it's very clear that some people who are absolutely sure what Shelley *would've* done if she'd panicked have never been in a panic situation themselves.

While I won't wish it on anyone, you cannot understand what happens when you panic underwater until it happens to you. It *has* happened to me. Once, about 5 years ago. I was lucky enough to have finished my Rescue Diver course literally the week before and I was (barely) able to tamp the panic down enough to remember my training from just 7 days prior to "stop, think and then act."

I consider myself a much better diver having been in this situation. Because I know how quickly a tiny little thing - something that any other day might never cause a problem - can blossom into a life-threatening situation. It made me a more careful diver, and it made me much more aware - of myself and the details of my own diving situation and the other divers with me and their diving situations.

Maybe that's why I can see every single piece of the u/w gear damage having happened because of Shelley panicking.

It's funny - I used to be a little ashamed of admitting that I had been in a panic situation underwater. When I told my best friend, who has over a thousand dives, he told me, "Look - anyone who won't admit to panicking at least once either doesn't dive much or is a liar."

 

[idocsteve]

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.

Panicked divers remove their gear.

Tell us something we don't already know.

I was away for a week and I come back to this thread and it's the same old thing.

David's friends saying "I know him and he's not the type that would do this and there's at least one other possibility and no one saw what happened therefore he shouldn't be in jail".

Yeah ok.

There comes a point when it's time to consider stepping off the merri-go-round because at such a point you don't get anything else out of it besides dizziness.

 

[K_girl]

I have to agree with idoc on this one. We are in a circular argument that has pretty much run its course. I've put out many challenges that would be presented to the defense that have remained unanswered. If Swain were to get a new trial, those challenges would have to be addressed and they have not been.

For instance, Sadiesmom says she does believe that Shelley could have done the damage to her mask via panic. The challenge has been - first, is it reasonable that a jury must be convinced that you must have a reason to panic? I noticed that Sadiesmom did not give a reason for her panic episode. The defense must have thought it was necessary because they came up with the TMJ theory as the reason that Shelley panicked. Next, the jury did not accept TMJ as the answer, so if there is another trial the defense either has to come up with a reason that the jury can believe it or they have to somehow strengthen the TMJ argument. On the prosecution side, I presented a link to multiple posts of divers who said TMJ never freaked them out enough to cause panic. Someone who believes in the defense side needs to come up with a stronger argument. It's not going to be enough to get in front of a jury and say - because I am a diver, I believe it is possible to panic for no reason. And the reason that would be so tough is - the jury is going to be comprised of non-divers. You would need a panel of diving experts to say - yes, I believe it is possible for a diver to panic for no reason - then you may have a chance to get past the first hurdle of no reason for panic.

The second hurdle - the damage to the mask and snorkel mouthpiece. It is not enough to tell a jury comprised of non-divers that you personally believe it is possible to do that kind of damage to the mask because you never know what you might do in a panic. The prosecution had diving experts who told the jury they did not believe it was possible and that there were no reported incidents of a similar nature to Shelley's. If you want to win Swain's freedom, you have to go further than your own personal belief. You may be able to convince a limited number of divers, but the jury will be comprised of non-divers. You have to get your own panel of experts to say they found such incidents and that they believe it could occur. So the best thing that Swain supporters can do is to find those incidents and find the divers who can qualify as experts to testify to that.

Other than that it just becomes a circular argument on this thread of - some who say I believe it could happen and some who say they don't. That doesn't really accomplish much of anything here. If I were a Swain supporter, I would be doing much more than the people are doing here on this board are doing. Trying to garner support through a website may get some donations maybe? But I would be researching and looking for much better ways to present a defense and not ignoring the points that the prosecution won.

 

[bsee65]

When you look at the case as a whole, there is nothing that makes Swain look good. Almost every piece of information we have about this case makes Swain look bad. He tried to have an affair, so you can't say he was a good husband. He burned through $670K of Shelley's money in three years, so he was not capable of managing money, even a lot of it. Shelley had to support him and his dream, so not only was he not contributing to the marriage, he was a financial drain. Even as a city counselman, he looks crooked. He was a lousy dive buddy, not caring where his wife was at anytime after they separated, even though he was a certified dive instructor. He stopped the radio calls for help. He gave up on CPR and stopped two others from trying. He tried to give her equipment away immediately after the incident - twice. He gave her dog away and got rid of all her personal possessions almost immediately upon his return from BVI. He said a ton of stupid, insensitive things like, "I've seen dead bodies before." He pisses off the judge in the civil case by ignoring her warnings to find another attorney for three years. The mask was severly damaged, along with the missing snorkel mouthpiece, the most damning piece of evidence. The fin sticking into the sand points to Shelley, lying helpless 30 feet away. All this stuff that has to be explained away. There is nothing that makes him look good, nothing. It all looks bad. There is only so much you can explain away before it becomes ridiculous. You have to say, if it looks like a duck and walks like a duck - its a duck.

Being insensitive, stupid, and unable to cope combined with lousy people skills doesn't make you a murderer. With regard to CPR, there are accepted rules that exist mostly for the sake of liability and not for anything related to actually saving lives. Attempting and maintaining CPR on someone who is clearly already dead would be a very hard thing for me to do. If we're talking about a loved one, I think it would be that much harder. Those things may have been allowed to impact the judgment of those involved with determining the outcome of the case, but they aren't proof of a crime.

That said, the evidence in the water has to tell the story. The story it tells is that Swain was likely responsible for the death of his wife. It doesn't guarantee that to have been the case, though. I believe the sane among us have already come to agreement on this point. If there is anything left to discuss, it relates to the process of the trial and the future of appeals until the situation is completely settled.

About the only place I will completely disagree with you is in your characterization of him as a lousy dive buddy. The two descended and separated. If that was the plan, then I don't think you can condemn anyone's buddy skills based solely on the separation. Obviously, a buddy who attacks and kills his partner is a special kind of lousy, but I don't think you were referring to that supposition as much as the admitted fact of separation.

Is there anyone on this thread who can't agree with the following statements?:

The evidence in this case provides significant proof that Swain probably killed his wife. Whether Swain killed his wife or not, there is clearly enough evidence to support a civil verdict against him. While he didn't have proper representation to fight the civil charges, it seems nearly impossible that he could have won such a case by any means other than employing technicalities of the law with the low burden of proof.

However, the proof of his guilt is not absolute, so each person is entitled to their own gut feel for what actually happened. There is significant support, including the actual jury that saw all of the evidence and heard all of the arguments directly, for a verdict of guilty beyond a reasonable doubt that Swain is guilty of murder. That doesn't make it the objective truth. Objectively, it would be hard to argue that the jury is way off base to have convicted based solely on the evidence they saw and assuming no prior personal knowledge of any of the participants.

 

[bsee65]

I have to agree with idoc on this one.

Oh please! Will you stop feeding the troll? Whether he is mostly accurate or not on this one point, his only purpose here is to harass the couple people who are friends of Swain and to create discord. That is evidenced by the rudeness of his follow-up post.

For instance, Sadiesmom says she does believe that Shelley could have done the damage to her mask via panic. The challenge has been - first, is it reasonable that a jury must be convinced that you must have a reason to panic?

For me, the first question is what sort of force would it take to get you from a functional mask to the mask as it was found? Could a person of Shelley's size and strength have possibly accomplished it under any circumstances? Is it possible that the mask could have had some cracked plastic before entering the water and still worked perfectly until it failed as a result of some lesser amount of force? If so, is it possible that damage could have gone unnoticed? I don't recall, did they demonstrate that a person trying to rip the mask off a dummy head could result in this damage?

Other than that it just becomes a circular argument on this thread of - some who say I believe it could happen and some who say they don't. That doesn't really accomplish much of anything here. If I were a Swain supporter, I would be doing much more than the people are doing here on this board are doing. Trying to garner support through a website may get some donations maybe? But I would be researching and looking for much better ways to present a defense and not ignoring the points that the prosecution won.

Other than one or two friends of David Swain, I'm not sure that anyone here cares to "accomplish" anything more than to evaluate this incident as an academic issue. Personally, I'm only interested in the truth, whatever that may be.