Here are the things I took note of that I thought was new information in the "48 HOURS MYSTERY" program:
1. David consistently showed no emotion for Shelley the numerous times the interviewer got him to talk about her. Even several dramatic close-up of his blank, emotionless stare to emphasize the point. The one time David talked about the death of his mother, he did show emotion. If time is the factor that takes emotion away, Shelley's death was many, many years after David's mother's death as David was only 22 at the time of his mother's death. David was present for the Shelley's death, however, not present for the death of his mother (although he claimed to Shelley's parents that he did witness the beating death of his mother in response to their demand that he show some kind of emotion). I think the long-lasting emotional impact of witnessing someone die would have much greater and longer-lasting effects. However, that is not the case here. I think there was a purpose in this program for David showing no emotion for Shelley as opposed to showing emotion for his mother - and that was to bolster the idea that his mother's death had a deep impact on him and "changed" him. However, if he is indeed a "changed" and "non-emotional" person, why does he now, at this time, show emotion for his mother's death? I find his behavior confusing to follow.
2. David used the exact same words as he used in the courtroom when the interviewer asked him if he killed his wife - "I did not, would not, could not..." That indicated to me that there was a lot of rehearsal with that line and an indication of an insincere response.
3. I thought that David was often confrontational with the interviewer when challenged about what certain words or actions mean. Several times David challenged the interviewer by turning the question around and asking the interviewer what it meant and David seemed quite annoyed. In a courtroom, it would have been ruled as "non-responsive" and does not make a witness look good at all. Does this behavior go to the defense's argument that David does not have the capacity to respond as expected? Perhaps. It might also be interpreted as an element of a psychopathic personality.
4. For the first time we heard that David denied that his overtures to Mary Bassler were sexual in nature and that he had invited her (in writing) to join him for a weekend while still married to Shelley. David claimed that everything he wrote to Mary was based on only desiring a "friendship" with her. He described the moment he tried to passionately kiss Mary as foolish. He ignored the fact that Mary told him she was not interested in getting involved with him because he was a married man as she pulled away from this attempted kiss. Fact is that they did strike-up a sexual relationship two months after Shelley's death. I don't think the jury bought the idea that David had only friendship on his mind and he lost a great deal of credibility with the jury. It would be easy for the jury to conclude that David was lying to them about this, therefore, he would be capable of lying about anything else.
Two points of defense. Two witnesses not allowed to testify.
1. Calculation of air usage and time of death. I agree that the defense could have shown that the prosecution could have gotten the air usage wrong, but I don't think it would have changed the case. However, you do have to factor in the air usage, the fact that Shelley went through some kind of struggle underwater and that can quickly use up air. This was not a shallow dive, it was about 80 feet. I don't think either the prosecution nor the defense can accurately calculate Shelley's time of death on this dive. Only David knows when he split-off from Shelley and knowing that exact moment is not knowable with the evidence. Does it matter? No. Not really. It could only help the defense if the defense could prove that Swain came up to the boat well before Shelley had died - that cannot be proven and more likely air usage would show that David was still in the water when Shelley died. That is the only pertinent fact in terms of air usage. The prosecution tried to take it a step further by showing that David was actually with Shelley when she died and that went too far. They really could not prove that.
2. Swain psychologist. The reason this testimony was not allowed is a psychologist cannot qualify as an expert witness. They must be a psychiatrist in order to qualify. Would this have made a difference in the result of the trial? Some will see it as "manufactured" evidence, but certainly psychiatric evaluations are used in the U.S. cases all the time, but rarely is it successful in setting aside a conviction for a new trial. Psychiatric evidence is something that is usually used to explain why someone did the thing they did and to reduce the sentence. It is almost never successful in showing innocence of the crime as appears to be the basis of argument here. The court could potentially rule that a court-appointed psychiatrist be allowed to examine Swain. If the psychiatrist finds that Swain is a psychopathic personality, or if they get Swain's psychologist to admit that Swain's behavior could also be consistent with psychopathic behavior, it would be detrimental to his case. And since Swain's psychologist is not a psychiatrist, his testimony (if allowed) could more easily be impeached in favor of a psychiatrist's testimony.
However, as I have said many times, every possible point for appeal should be made and I will be very interested to see the appeal.
