David Swain Guilty of MURDER
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mark_the_singer
Guest
The civil trials and criminal trials always seems like double jeopardy to me, even though in this case there were different jurisdictions. I happened across the NBC docu-drama on this a couple of weeks ago and it was interesting. Is there any news on the appeals process?
AfterDark
Contributor
When considering the vast difference in the evidence required to convict in a criminal case as opposed to a civil case the 2 should have no bearing on each other. Hate to us OJ as an example but he did win a criminal trial and lose a civil trial involving the same incident. The difference is how the evidence was treated. Double jeopardy is not issue as one does not lose life or liberty as a result of a civil action only money. Which is also why the difference in evidence requirements, the founders had this funny notion that life and liberty is more important than money.
cougar
Contributor
I've been a certified legal investigator for thirty something years. There are many things in the conviction of David Swain that disturb me.
1. Is it really the case that there was no thorough autopsy done? If so, why??? This leaves a lot of unanswered questions.
2. The eight minutes for 800 pounds of air calculation sounds wrong to me. I am female and a bit too heavy and I haven't used up 800psi in 8 minutes since my first dive. Shelley was evidently an expierenced diver and quite petite. That 8 minute calculation sounds wrong on its face, and not allowing expert witness testimony regarding her own dive logs and historical air consumption while allowing the prosecution to put in the 8 minute claim was not a good ruling.
3. The damaged equipment (mask strap torn, mouth piece missing from snorkle and fin strap out of position) prove exactly what??? Experienced divers shouldn't die from a missing mask even if it was snagged on something. The missing mouthpiece on the snorkle?? What good does a snorkle do underwater? As for the fin strap, on my last dive last week I felt a fin come loose. I reached down and pulled the strap tighter without looking at it and then realized the heel strap was under the heel of my bootie. I fixed it...this could have happened to Shelley also. Or, all of these things could have occurred while getting her to the surface and back on the boat.
I realize this event occurred ten years ago, however, I saw and heard no mention of her dive computer. I had a dive computer ten years ago and my husband doesn't own a dive shop. I think it's fairly unlikely even 10 years ago that they wouldn't both have been wearing computers which might offer a little more info than was discussed.
As for David Swain; I don't know the fellow, but I watched his interviews as he talked about his father's conviction for child molestation and the murder of his mother by his brother. It appears David Swain may have been convicted by his own "flat affect". Humans have a tendency to draw conclusions based on their own responses. Not all humans exhibit emotions in the same manner and David Swain has some obvious historical reasons for his "flat affect".
In addition, juries often don't understand the difference in evidence requirements between civil and criminal cases. They well may have figured since he lost the civil case, he must be guilty.
Criminal defense is not my favorite work, but I would love to work for the defense on this appeal. This guy needs a better investigator and lawyer. I am highly skeptical of his conviction.
Lynne Curtis Gudes (CLI retired)
"Common sense isn't."
1. Is it really the case that there was no thorough autopsy done? If so, why??? This leaves a lot of unanswered questions.
2. The eight minutes for 800 pounds of air calculation sounds wrong to me. I am female and a bit too heavy and I haven't used up 800psi in 8 minutes since my first dive. Shelley was evidently an expierenced diver and quite petite. That 8 minute calculation sounds wrong on its face, and not allowing expert witness testimony regarding her own dive logs and historical air consumption while allowing the prosecution to put in the 8 minute claim was not a good ruling.
3. The damaged equipment (mask strap torn, mouth piece missing from snorkle and fin strap out of position) prove exactly what??? Experienced divers shouldn't die from a missing mask even if it was snagged on something. The missing mouthpiece on the snorkle?? What good does a snorkle do underwater? As for the fin strap, on my last dive last week I felt a fin come loose. I reached down and pulled the strap tighter without looking at it and then realized the heel strap was under the heel of my bootie. I fixed it...this could have happened to Shelley also. Or, all of these things could have occurred while getting her to the surface and back on the boat.
I realize this event occurred ten years ago, however, I saw and heard no mention of her dive computer. I had a dive computer ten years ago and my husband doesn't own a dive shop. I think it's fairly unlikely even 10 years ago that they wouldn't both have been wearing computers which might offer a little more info than was discussed.
As for David Swain; I don't know the fellow, but I watched his interviews as he talked about his father's conviction for child molestation and the murder of his mother by his brother. It appears David Swain may have been convicted by his own "flat affect". Humans have a tendency to draw conclusions based on their own responses. Not all humans exhibit emotions in the same manner and David Swain has some obvious historical reasons for his "flat affect".
In addition, juries often don't understand the difference in evidence requirements between civil and criminal cases. They well may have figured since he lost the civil case, he must be guilty.
Criminal defense is not my favorite work, but I would love to work for the defense on this appeal. This guy needs a better investigator and lawyer. I am highly skeptical of his conviction.
Lynne Curtis Gudes (CLI retired)
"Common sense isn't."
Sasquatch
Contributor
I watched the re-cap on 48 Hours last night and found the whole thing quite disturbing. I saw the story of a deceased, experienced diver and very little evidence as to how she passed away while diving.
The one witnessed incident that really caught my attention was the lack of continued CPR by David Swain after they were out of the water. I could almost understand that the shock of death at hand might have frozen him from continuing CPR but, according to the captain of the first boat on the scene, Swain stopped CPR and refused to let anyone else continue.
This nags at me.
The one witnessed incident that really caught my attention was the lack of continued CPR by David Swain after they were out of the water. I could almost understand that the shock of death at hand might have frozen him from continuing CPR but, according to the captain of the first boat on the scene, Swain stopped CPR and refused to let anyone else continue.
This nags at me.
cougar
Contributor
My understanding is that Swain was a paramedic. For us medics who have actually done CPR most of us would tattoo "DNR" on our chests. CPR is not the panacea for all ailments that television suggests it is.
CPR can double the chance of survival for a cardiac arrest. However that only takes if from 5 percent to 10. Also, that statistic only goes for witnessed cardiac arrests when CPR administration begins almost immediately followed by the appropriate drug therapy within a very short time frame. Trauma arrests, stroke etc are so much lower as to negligible. You can't do effective CPR underwater. By the time Thwaites, who found her and brought her up, got her to the surface, assuming that was was more than about 3 minutes, it was already too late. Remember, this isn't cold water.
I'm not absolutely sure I would have wanted to do CPR either. If you believe him that he wasn't there and doesn't know what happened, then perhaps NOT continuing CPR was a reasonable choice coming from his assumed paramedic knowledge base.
Having done CPR many times in my life, I have some first hand understanding which is why I would have DNR tattooed on my chest. Every time I have administered CPR, I have felt that I was desecrating the dead. Being taught that when ribs break under your hands you must continue sounds fine in theory, in reality, well, that's a different matter. Law in our state says that in the absence of a DNR we MUST work the code. I've done it many times. The one and only time CPR actually brought a heartbeat back, the patient was already brain dead and lived a couple of days on life support. I was horrified that I had caused a heart to beat in a dead person. It was worse than ghoulish. If it were me or mine, I would ONLY consider CPR on a witnessed arrest.
Television teaches many untruths, especially in medicine. If a non medic who really believed CPR would make a difference had made this decision I would be more suspicious. That decision made by someone with the background and experience to know how miniscule the chances are is at least comprehensible.
Another thing I wondered about was his camera. IF he was shooting digital there is a great deal of information encoded in the .jpg files...included time and date. I wondered if anyone investigating the case ever looked at his camera to confirm or deny his claim that he went over to the reef to take photos?
I'm not saying he's innocent. I didn't investigate the case. I know as little as anyone else, but there are surely a lot of assumptions and unanswered questions. I'd sure like to see his attorney get a good investigator and look at computers, cameras and other possible evidence that has never been mentioned. I also think that failing to allow his psychologist to testify was legal error. The judge prefers an M.D.? A psychologist is certainly more apt to know more about the patient's frame of mind than a some psychiatrists who specialize in medicating rather than talking.
Regardless of whether you think this guy is guilty or not, there are questions to answer. In Shelley's dive logs, some of which are online, she mentions "panicing" more than once. Did the medical examiner do a good job? DO they KNOW she didn't have a heart attack or a stroke and then drown...or catch her mask strap on something and panic?
I keep reading the plaintiff's version of what happened. If someone came up behind me and turned off my tank and held me down...both of us would have some scratches and marks as I struggled to take his octopus or get away from him.
AfterDark
Contributor
First full disclosure here. Dave and I worked together for more than 10 years and were longtime diving partners. Dave would be among the last people I could imagine doing such a thing.
Cougar, you make very good points. I also wish you were involved in the case also.
To answer question #1. Is it really the case that there was no thorough autopsy done? If so, why??? This leaves a lot of unanswered questions.
There was an autopsy done. My understanding is that the "thorough" description is in dispute. Apparently there was some blockage found in Shelly's heart, it was noted but not pursued. I would guess because an accident was indicated?
I've always been of the mindset that if there is wide disagreement among reasonable people about a case such as this then the prosecution didn't do its job of proving guilt beyond a reasonable doubt. For if they had there wouldn't be such wide disagreement. Questions without good answers on both sides of this case have spawned this disagreement. However as we all know the defense is not required to prove innocence or answer questions. The prosecution is required to prove guilt. IMO and apparently in the opinion of others such as yourself with skills and life experience related to such matters,as well as those with no such insights, that was not done. Two wrongs don't make one right. Putting a person in jail for life with so many questions left without hard answers just doesn't sit well with me. To see it happen to someone I've known so well is surreal.
If you want more information you can go here: www.DavidSwainisInnocent.com
There is also a long thread in the non-diving related section of the forum. There are many links to information about this case in that thread you may find interesting. And clear evidence of wide spread disagreement. In any of K-Girl's posts you'll see this link Swain Reference Materials - No Comments clicking on that will bring to many links about this case. That's pretty much everything available that I know of. Thanks for your input.
Cougar, you make very good points. I also wish you were involved in the case also.
To answer question #1. Is it really the case that there was no thorough autopsy done? If so, why??? This leaves a lot of unanswered questions.
There was an autopsy done. My understanding is that the "thorough" description is in dispute. Apparently there was some blockage found in Shelly's heart, it was noted but not pursued. I would guess because an accident was indicated?
I've always been of the mindset that if there is wide disagreement among reasonable people about a case such as this then the prosecution didn't do its job of proving guilt beyond a reasonable doubt. For if they had there wouldn't be such wide disagreement. Questions without good answers on both sides of this case have spawned this disagreement. However as we all know the defense is not required to prove innocence or answer questions. The prosecution is required to prove guilt. IMO and apparently in the opinion of others such as yourself with skills and life experience related to such matters,as well as those with no such insights, that was not done. Two wrongs don't make one right. Putting a person in jail for life with so many questions left without hard answers just doesn't sit well with me. To see it happen to someone I've known so well is surreal.
If you want more information you can go here: www.DavidSwainisInnocent.com
There is also a long thread in the non-diving related section of the forum. There are many links to information about this case in that thread you may find interesting. And clear evidence of wide spread disagreement. In any of K-Girl's posts you'll see this link Swain Reference Materials - No Comments clicking on that will bring to many links about this case. That's pretty much everything available that I know of. Thanks for your input.
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I don't know this gentleman, so I don't have a dog in this fight. I'm not a lawyer, but have been an expert witness for numerous diving fatalities in various parts of Canada (a member of the British Commonwealth). Not knowing all the evidence, it would appear that an understanding of circumstantial evidence seems to be under appreciated.
As I understand it (lawyers please weight in here), such evidence must not merely be consistent with guilt, but inconsistent with innocence. Again there is a presumption of innocence and before the accused can be convicted, he must be found guilt beyond a reasonable doubt.
There are lots of nice guys that people have known for years that have done terrible things. That said, evidence can be misinterpreted and people on the jury are in-fact fallible.
I hope that this guy is treated fairly. There are many people in history that have been convicted when they were in-fact innocent. I hope that this wasn't the case, however if it was, I hope the conviction is overturned on appeal.
As I understand it (lawyers please weight in here), such evidence must not merely be consistent with guilt, but inconsistent with innocence. Again there is a presumption of innocence and before the accused can be convicted, he must be found guilt beyond a reasonable doubt.
There are lots of nice guys that people have known for years that have done terrible things. That said, evidence can be misinterpreted and people on the jury are in-fact fallible.
I hope that this guy is treated fairly. There are many people in history that have been convicted when they were in-fact innocent. I hope that this wasn't the case, however if it was, I hope the conviction is overturned on appeal.
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