Anyone know how to reach David Swain?

[Rhone Man]

David Swain was supposed to have his case heard in the Assizes that were just held, but the court ran out of time due to an earlier manslaughter case grossly overrunning. Unfortunately in small countries with only one court (which alternates between hearing criminal and civil matters), you do end up with delays.

I have to say that the legal profession is slightly dreading the Swain trial down here. BVI juries are incredibly conviction minded, so if the prosecution puts together a half decent case (which will take a bit of doing after 9 years), there is an strong chance he could be convicted on some very slender evidence.

What invariably happens then is the Court of Appeal (or worse yet the Privy Council in London) then sets aside the conviction as being unsafe, and it just looks bad for the justice system in these highly publicised trials. We had a similar thing a few years back when 4 American tourists were accused (and convicted, later overturned on appeal) of killing a model who lived locally.

I know the prosecutor in the Swain case. He is a good man, and he has a genuine sense of injustice that drove him to seek Swain's extradition after all these years. But I honestly wish he hadn't done it because I am pretty sure it will end badly all around.

The problem is the same now as it was 9 years ago - very little evidence. The guy supposedly radios in, says he got separated from his wife, when he found her she was not breathing. Police are suspcious that maybe he sneaked up behind her, held her tank between his knees and turned her air off until she drowned and then turned it back on again. But there was bugger all physical evidence then, and don't think any has grown over the years. "Beyond reasonable doubt" is a pretty high threshhold to reach.

 

[Rhone Man]

spelling error

 

[RIOceanographer]

BTW, it's quite routine in MA that defendants wait for years in jail held w/o bail until they finally are brought to trial.

The poor abused Sixth Amendment to the U.S. Constitution:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."

I guess "speedy" left too much room for interpretation.

 

[neptune08]

David Swain lost his bid yesterday to overturn the 2006 wrongful death jury verdict instrumental in the former Jamestown Town Council member now facing a charge that he murdered his wife in the Caribbean.

In a 21-page decision, the Rhode Island Supreme Court rejected Swain’s arguments for a new trial, most notably his assertion that the Superior Court jury had no jurisdiction to find him a “slayer” and that the trial judge, Patricia Hurst, denied Swain legal representation by refusing to delay the start of the civil trial after his lawyer fell ill.

Related links
Read the Supreme Court's decision
No matter which way the Supreme Court’s decision had gone, it would have had no immediate effect on Swain personally. He remained yesterday locked in a prison in Tortola, in the British Virgin Islands, charged with murdering his wife, Shelley Tyre, during a 1999 diving vacation.

However, the decision did have one immediate consequence. Armed with a Probate Court order and a police escort, a representative of the law firm that represented Shelley Tyre’s parents in their suit against their former son-in-law set off to change the locks at Swain’s former dive shop, Ocean State Scuba, in Jamestown.

Ownership of the dive shop — and boxes of Shelley Tyre’s personal belongings — had for years been tied up in the courts as the wrongful death case and then its appeal dragged on.

“What this all means,” said J. Renn Olenn, the lawyer who represented Richard and Lisa Trye in their wrongful death case, “is that property now belongs to the heirs, which are the parents.”

Last weekend, Olenn said, Swain’s son, Jeremy, attempted to hold a “clean-out sale of the property,” advertising everything from kayaks to scuba gear. On Friday, when Olenn learned of the sale, he said he sought and received a restraining order forbidding any of the property to leave the now-closed shop.

Now, “the first order of business for the Tyres is to take custody of their daughter’s personal belongings, which have been so cruelly withheld by Mr. Swain,” said Olenn.

Shelley Tyre, 46, an experienced scuba diver like her husband, drowned on March 12, 1999, on the last day of a Tortola vacation she and Swain had taken with another couple and their son.

During a civil trial in 2006, Olenn presented several expert witnesses who advanced his theory that Swain had drowned Shelley Tyre for her money and at a time when he was seeing another woman. A second marriage for both, a prenuptial agreement prohibited Swain from getting any of Tyre’s assets if they divorced.

Swain, who maintains his innocence, has repeatedly said that Tyre’s death was an unexplained accident; that the two had separated, as they often did during dives, and that he had no idea what happened to her.

Olenn’s experts testified that Shelley Tyre died roughly eight minutes after she and Swain first descended some 80 feet down a mooring line and then swam along the sandy bottom to a pair of shipwrecks, where Tyre was later found.

In his appeal request for a new civil trial, Swain argued that the civil jury that found him liable for Tyre’s death did not have the jurisdiction to use the “slayer statute” against him. (Lawmakers approved the statute years ago to prevent someone who has killed from benefiting from the death.)

Swain argued that only the Probate Court is vested with determining whether an individual is a slayer.

The high court, however, ruled that parties in a civil lawsuit are entitled to a jury finding with respect to a defendant’s status as a slayer since the Probate Court can’t provide such a jury finding. “It then is within the province of the Probate Court to determine what effect, if any, that declaration has on the distribution of the decedent’s assets under a will or other instrument.”

Concerning Swain’s contention that he was denied legal representation because Judge Hurst refused to again delay the start of the civil trial, the high court again ruled against him.

Despite his contention, the court said, Swain failed to actually ask for a continuance before the trial started, a necessity for appeal purposes. Further, the court said, even if he had, it was clear by the case record that Hurst had urged Swain repeatedly to find another lawyer after one of his attorneys fell ill.

Hurst, the high court said, had to balance Swain’s interest in having a lawyer with the Tyres’ right to a speedy trial. And she did so properly, the court said.

In a related matter, Swain is expected back in a Tortola courtroom later this week, where prosecutors are conducting an official inquest into Shelley Tyre’s death.

If a magistrate finds there is enough evidence against Swain, Swain could go on trial this fall.

 

[neptune08]

the link for the courts
http://www.projo.com/news/2008/pdf/risc_swain_decision.pdf

 

[LobstaMan]

The poor abused Sixth Amendment to the U.S. Constitution:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."

I guess "speedy" left too much room for interpretation.

Quite often, it's the defendant himself through his attorneys who is mostly to blame for the lack of a speedy trial. Filing and hearing lots of motions, changes in defense counsel, continuances left and right(often requested by defendence attorneys because their client hasn't paid in full yet), requesting new dates in the hope of working out a plea agreement, etc. Most of these delays are allowed by the judges because they don't want to give the defendant an avenue of appeal later on. The court tries to accommodate the defense so they can't complain later that they were treated unfairly by the court.

To a lesser extent, the commonwealth can cause some delays if they are not ready for trial due to unavailable or difficult to locate witnesses, new or overlooked evidence, change in prosecuting attorney, etc.

Lastly, the court itself can slow things down by not having enough judges, juries and court dates available for trial. Some of it is just that the schedule of a trial has to go at a certain pace to accommodate all the pretrial motions, production of documents/evidence, motions to supress or dismiss, etc. These scheduling delays are just inherent in the system and aren't necessarily caused by either side.

It is my exerperience that defense attorneys account for most of the delays. But, when you combine all these items above, there's no wonder it takes years in most instances for murder cases to come to trial.

LobstaMan, Esquire

 

[RIOceanographer]

It is my exerperience that defense attorneys account for most of the delays.

Interesting. Seems kind of counter-intuitive. If I were sitting in jail charged with a crime I think I'd want to get my day in court as quickly as possible.

 

[LobstaMan]

Interesting. Seems kind of counter-intuitive. If I were sitting in jail charged with a crime I think I'd want to get my day in court as quickly as possible.

You would think so, but it usually doesn't work that way.

LobstaMan

 

[ClamBake]

Interesting. Seems kind of counter-intuitive. If I were sitting in jail charged with a crime I think I'd want to get my day in court as quickly as possible.

Yes. But your statement assumes one thing . . . innocence. There is a big difference between sitting in county jail awaiting trial and doing hard time in state prison! Remember, the time spent in county jail before going to trial counts as "time served" against any sentence ultimately imposed.

- ClamBake, Esq.

 

[RIOceanographer]

Yes. But your statement assumes one thing . . . innocence. There is a big difference between sitting in county jail awaiting trial and doing hard time in state prison! Remember, the time spent in county jail before going to trial counts as "time served" against any sentence ultimately imposed.

- ClamBake, Esq.

I wasn't really assuming innocence. Guilty people win trials all the time, so my thinking was more along the lines that if a person is already in jail, going to trial would be the only option for getting out whether guilty or innocent. I was not, however, accounting for the difference between "hard time" and county jail. I'll admit I don't have any first hand experience with the quality of life in various types of penal facilities.