David Swain Guilty of MURDER

[islandscuba]

Really? As some one from the BVI that is in their final yr of law school in the UK ...I know for one those statistics are wrong! There are a very limited amt. of bvi cases that reach the court of appeal.....and the very few that are overturned are often returned to their original judgement by the Privy Council. See for instance the Varlark case (also a Murder case). Show me the 90% of case you speak of and we can talk......Until then do ur researh!

 

[Rhone Man]

Speaking as a BVI attorney, just wanted to clear a few things up here:-

• There is in fact a presumption of innocence under BVI law (and a right to remain silent, and a right to trial by jury).
  
• In BVI you are entitled to have a lawyer appointed by the Government and paid for by the legal aid scheme if you cannot afford one for yourself. As far as I know Swain did not avail himself of this but paid for an attorney of his own choosing.
  
• BVI is not in Europe. It is in the Caribbean.
  
• I am not sure what the percentage of convictions overturned on appeal, but I suspect it is a good deal less than 90%. However, there are a lot of successful appeals for two reasons. Firstly, BVI juries by and large have a very pro-conviction mentality, whereas the appeal judges tend to take a softer line. Secondly, the final level of appeal is the Privy Council in London, and generally speaking British judges tend to be slightly skeptical of Caribbean justice, and so tend to err on the side of freeing defendants unless the trial was run absolutely by the book.

It wouldn't shock me at all if Swain was freed on appeal. The evidence was heavily circumstantial and the facts occurred long ago, so I suspect the appellate judges will scrutinise every facet of the case very closely indeed.

Just my 2 psi.

 

[Scott L]

Speaking as a BVI attorney, just wanted to clear a few things up here:-

• There is in fact a presumption of innocence under BVI law (and a right to remain silent, and a right to trial by jury).
  
• In BVI you are entitled to have a lawyer appointed by the Government and paid for by the legal aid scheme if you cannot afford one for yourself. As far as I know Swain did not avail himself of this but paid for an attorney of his own choosing.
  
• BVI is not in Europe. It is in the Caribbean.
• I am not sure what the percentage of convictions overturned on appeal, but I suspect it is a good deal less than 90%. However, there are a lot of successful appeals for two reasons. Firstly, BVI juries by and large have a very pro-conviction mentality, whereas the appeal judges tend to take a softer line. Secondly, the final level of appeal is the Privy Council in London, and generally speaking British judges tend to be slightly skeptical of Caribbean justice, and so tend to err on the side of freeing defendants unless the trial was run absolutely by the book.

It wouldn't shock me at all if Swain was freed on appeal. The evidence was heavily circumstantial and the facts occurred long ago, so I suspect the appellate judges will scrutinise every facet of the case very closely indeed.

Just my 2 psi.

Sorry about the Europe reference. I do not what I was thinking! (British Overseas Territories)

 

[ItsBruce]

Why is it that I keep having to defend circumstantial evidence? People seem to confuse circumstantial evidence with weak evidence or evidence that is subject to multiple interpretations.

I cannot think of any scientific evidence that is not circumstantial. Finger prints on the murder weapon are circumstantial evidence that the owner of the prints is the one who used the weapon. Evidence that one's credit card was used in a particular location at a particular time is circumstantial evidence that the person was there at that time. (That is, IMHO, better than an eye witness identification as the eye witness could be confused about just who he saw.)

Just because it is circumstantial does not mean that it does not prove the case.

 

[Scott L]

Why is it that I keep having to defend circumstantial evidence? People seem to confuse circumstantial evidence with weak evidence or evidence that is subject to multiple interpretations.

I cannot think of any scientific evidence that is not circumstantial. Finger prints on the murder weapon are circumstantial evidence that the owner of the prints is the one who used the weapon. Evidence that one's credit card was used in a particular location at a particular time is circumstantial evidence that the person was there at that time. (That is, IMHO, better than an eye witness identification as the eye witness could be confused about just who he saw.)

Just because it is circumstantial does not mean that it does not prove the case.

With sophisticated modern criminal investigations including DNA evidence in place, cases with just circumstantial evidence are considered weak compared to yesteryear. Unfortunately I do not know what I am talking about as I am just an insurance person...

 

[AfterDark]

Why is it that I keep having to defend circumstantial evidence? People seem to confuse circumstantial evidence with weak evidence or evidence that is subject to multiple interpretations.

I cannot think of any scientific evidence that is not circumstantial. Finger prints on the murder weapon are circumstantial evidence that the owner of the prints is the one who used the weapon. Evidence that one's credit card was used in a particular location at a particular time is circumstantial evidence that the person was there at that time. (That is, IMHO, better than an eye witness identification as the eye witness could be confused about just who he saw.)

Just because it is circumstantial does not mean that it does not prove the case.

The reason you have to keep defending it is because in this case it's WEAK!

Have you reviewed the circumstantial evidence in this case? If you haven't you shouldn't be painting with such a broad brush. Hard circumstantial evidence: You go to bed and there's no snow on the ground. You wake up and there's snow on the ground. You don't need an eye witness to tell you it snowed while you slept.

Weak circumstantial evidence: Two divers enter the water the dive plan is to seperate after reaching the bottom. Only one surfaces alive. Conclusion one diver killed the other. That's pretty much the extent of the evidence in this case. If that's enough for you to send someone to jail, then please post your name and picture so that fair minded people will object to you being on a jury.

 

[mark_the_singer]

This is very interesting and thanks to everyone for sharing. Please correct me if I'm wrong but isn't the US justice system based on the British judicial system, ie, jury trials, etc.? Thanks again, especially the law types from both the US and Britain who have shared. Let's hope justice is served, no matter what happens.

 

[Missdirected]

Thanks for the post Cerich. Funny I thought about this man the other day and was wondering what the outcome had been.

 

[SadiesMom]

Apparently there were some very interesting decisions made by the judge as to what defense evidence would be allowed and what would not. David's psychologist was not allowed to testify (as to the grief counseling he received following Shelley's death, among other things) because he was "not a medical doctor." Apparently the judge felt that a licensed clinical psychologist was not enough of an expert to provide an expert opinion. As we all know, psychologists aren't "real" doctors.

In addition, Glen Egstrom, Ph.D., the Director of the Underwater Kinesiology Laboratory at UCLA (since 1954) and a Professor Emeritus of Kinesiology was limited to exclude from the scope of his testimony Shelley's air consumption based on the data from previous dives in her log book - also, because he was "not a medical doctor." (Being an expert in underwater kinesiology for 40 years wasn't good enough.) So the prosecution was allowed to present a "definitive" air consumption rate of 0.8 cubic feet/minute for Shelley (the "average" rate for all women of all experience levels as well as all heights and weights) rather than what Dr. Egstrom could calculate from Shelley's log book data of previous similar dives at similar depths under similar circumstances. And remember - Shelley was very petite and quite an experienced diver.

And lastly, although the autopsy showed that she had a 22% blockage in her left anterior descending coronary artery (commonly known as "the widow maker"), the Tortolan medical examiner did not follow up on that finding - he never took any tissue samples to determine whether or not she had had a heart attack. He screwed up.

Had there been a single diver on the jury, the combination of these things might have raised some red flags...but there were none. And how do non-diving attorneys describe the kind of esoteric stuff like differences in air consumption to non-divers so that it makes sense to them?

I know that all of these things raise a lot of doubt for me - enough for me to doubt not only the fairness of the trial but the validity of the verdict.

Sadiesmom.

 

[Dadvocate]

I know that all of these things raise a lot of doubt for me - enough for me to doubt not only the fairness of the trial but the validity of the verdict.

As well they should, as they should for anyone interested in proper jurisprudence.

Cheers!