Diver convicted in wife's drowning

[AfterDark]

Dadvocate, I was shocked myself. I dont know if or whan any of the "expert witnesses" saw the equipment. The lack of any hard evidence is what I think stopped a criminal trial in the US. Part of the reason IMO that the civil suit was lost by Dave was that he didn't have a lawyer. Judges take a dim view of anybody stiffing their fellow lawyers, which Dave did by representing himself. In addition he made mistakes of omission and didn't have any "expert witnesses". I never knew Dave to be overly concerned with money. He may have thought that if he lost and his in-laws left him broke they'd be satisfied they'd hurt him enough. If he did that was a serious mistake. There's so many unanswered questions I don't see how the reasonable doubt threshold was crossed.

 

[Dadvocate]

Hi, After Dark

There is a lot left unanswered for sure, and from what an earlier poster said a few pages back, it is strange that the information related to the trial is not available now that he has been convicted.

I’d like to know more about a lot of things, as I am sure others are wondering as well.
For instance, from the link you posted:

“During the trial, several expert witnesses for the plaintiffs testified that they had concluded -- based largely on the condition of some of Tyre's recovered scuba equipment -- that Swain attacked his wife from behind, shut off her air tank and held her down long enough to drown her in 80 feet of water.”

This suggests that the equipment was available, but then the civil trial didn’t take place until much later. How and when was this equipment attained and studied?

The contention from Olenn was that Swain turned off her air at circa 25 meters and in the struggle to kill her used up so much air that he had to surface early at 30 minutes. He also attacked Swain for not fallowing his training.

Swain said that he lost track of his wife because he was shooting pictures. We know that this can happen. I know from my own behavior, which has prompted my wife and I to be more watchful of each other when one of us is shooting pictures.

If he was at 25 meters and he lost sight of his wife, and he followed appropriate protocol for surfacing a minute after he realized she was missing (including the time needed for a safety stop after being at 25 meters), then this is well within the bounds of reason for an early rise to the surface. Does anyone know how much air was left in his tank or in his wife’s? It doesn’t look like it. So this story is fanciful to say the least. How the heck did this hold up?

There is also the issue of the equipment that apparently showed telltale signs of the struggle they are asserting happened. What are these indicators that they are indisputable compared to any other contingency under the water? I mean seriously, the valve on tanks gets turned on and off who knows how many times? Straps snap on masks and fins a lot. On my old Mares fins, one brand new strap snapped as I was putting it on to replace an old one. People carry extra masks for this reason. People train to deal with lost masks at depth because things like this happen. It isn’t as though the only way a mask strap snaps is when someone is trying to kill you.

“One witness said Swain instructed him to get rid of the scuba equipment.”

Okay, this might have some teeth to it, but the background info from others suggests that Swain wanted the equipment used as rentals (locally) or given to another diver, not nearly disposed of. A lot of the relevance here comes in when he asked his friend to do this relative to his “odd” demeanor about the autopsy. Was his being impatient really enough to warrant suspicion? Was his ready acceptance of her death on the boat indicative of callousness or shock? If it is as the prosecution suggests, why did it take so long after the fact to raise these flags that went by and large unnoticed by others until the family wanted it looked at after they won a civil case?

Also, Swain didn’t appear to be worried about permanent damage to the equipment that could show tampering if he was willing to have it used as rental equipment elsewhere or given to someone else.

He could just as easily have changed parts on the equipment and said nothing “suspicious” if he was trying to cover things up. What if he’d kept the equipment and used it in his business? Wouldn’t that be “suspicious” behavior to some, him keeping the equipment she died in and still “heartlessly” using it to make money when we ALL know a person in mourning would get rid of it?

No matter how you slice it, this demeanor evidence isn’t worth squat! People react differently to these types of stressful situations, as is abundantly accounted for by Swain’s background and his standoffish approach to things. This is a house of cards on several levels; yet it skated through all the same.

It could just as easily have been sadness and the association the equipment had to her death that prompted his wanting it gone. This happens all the time in other contexts, so why not with him in a benefit of the doubt kind of way?

From what was said earlier many people in the diving community in the BVI thought he’d done it earlier on when the case broke. The link says that PADI has dumped him as well. I have no idea if this has played a role in his conviction, warranted or otherwise, but it is sad to me that the things being cited in the case to date are woefully wanting when an experienced diver looks at what is available. It might be that his fellow divers have done him a disservice if indeed they jumped on the same prosecutor bandwagon that Rhone Man cited earlier, especially when we think about how as a community we are meant to protect our own. If he’s guilty let this evidence show it, show it in ways that divers can say is justifiable, not a bunch of people easily swayed by a panel of experts who never touched the most valuable pieces of evidence in this case.

I hope that there is more light shed on this over time. It is a dangerous precedence when people can throw together a case on speculation, innuendo and half truths about diving to a jury that doesn’t understand what happens down there and have it stick.

If procedure wasn’t followed in this case, it wasn’t David’s alone. The police did everyone a disservice in this case, and a man may rot in jail because of it, not to mention a family who may go on thinking their daughter was murdered when she may very well have died of an accident. A better, more thorough investigation might have saved a lot of people a lot of anguish one way or the other.

Cheers!

 

[Scott L]

Dadvocate, I was shocked myself. I dont know if or whan any of the "expert witnesses" saw the equipment. The lack of any hard evidence is what I think stopped a criminal trial in the US. Part of the reason IMO that the civil suit was lost by Dave was that he didn't have a lawyer. Judges take a dim view of anybody stiffing their fellow lawyers, which Dave did by representing himself. In addition he made mistakes of omission and didn't have any "expert witnesses". I never knew Dave to be overly concerned with money. He may have thought that if he lost and his in-laws left him broke they'd be satisfied they'd hurt him enough. If he did that was a serious mistake. There's so many unanswered questions I don't see how the reasonable doubt threshold was crossed.

Afterdark, I know this has probaly been discussed many, many times earlier but why was extradition waived? I brought the case up with several very experienced attorney friends who looked in disbelief when this fact came up....

 

[AfterDark]

Afterdark, I know this has probaly been discussed many, many times earlier but why was extradition waived? I brought the case up with several very experienced attorney friends who looked in disbelief when this fact came up....

I wish I knew the answer. He did say he welcomed a criminal trial after he lost the civil suit. Be careful what you ask for. Maybe he thought that being innocent he'd walk. Also he didn't have a lawyer at the time to drag things out.
I was thinking about the senerio last night. The experts claim that Dave put her tank between his knees and shut off the air. Seems to me someone could ditch the BC and head up if that happened. How often does a life and death struggle not leave marks on either person? No bruises no scratches no bites it all seems very strange to me.

 

[Ken Kurtis]

Perhaps you or anyone else familiar with the case can help me understand this.

I've followed this case only superficially, but I do happen to know one of the experts used by the prosecution, at least in the civil case. (Don't know if he testified in the criminal matter.)

When exactly did Olenn and the authorities he used in the civil trial get their hands on the equipment?

Although things will vary jurisdiction to jurisdiction, it's pretty common for scuba gear used in a fatality to be impounded by the police directly following an accident. It's not released to anyone until everyone's satisfied that there are no suspicious cirumstances.

Secondly, had the equipment been used by other divers prior to being handed over?

Doubtful. Like I said, normally (but I can't speak for the situation in BVI) the gear is impounded when the police or authorities respond to the accident scene.

Lastly, Was David's dive computer part of the evidence that was gathered as well, not to mention readings on his air when he hit the surface?

It should have been but I don't know. In L.A., we frquently will use the buddy's computer along with the victim's computer and do an overlay of the two profiles starting from a known time point, to get a picture of who was where and when during a dive.

The computer can be a very powerful piece of evidence because it's the only unbiased witness to the tragedy (and they don't lie). There's a case I'm involved in now as an expert where the plaintiff says one thing but the computer says something else.

One thing to understand when you look at these matters is that sometimes you reach conclusions or diagnosis based on exclusion. In other words, if we have 10 possibiliites and we rule out nine of them, it has to be #10.

As far as the expert I mentioned above, that would be Bill Oliver who's very well-known and well-respected in the expert field. My understanding is that Bill took a close look at the fins.

The key thing is that the fins - as best I recall - were found sticking out of the sand, fins tips down, foot pocket up. Swain said that they came off his wife's feet and sank or something like that.

But when Bill Oliver did the tests, that specific pair of fins ALWAYS sank foot pocket first, fin tips up. There was no way Bill could replicate the way the fins were found underwater except by sticking/burying the fin tips in the sand by hand.

So the logical conclusion is that, if this is the way the fins were found, they had to be put there by someone. And the only someone around was Swain. And if he's giving some story about some alternate way this happened, especially when his story can't be replicated, then it's likely he's not telling the turth.

Sometimes all it takes is one piece of evidence to be clearly shown to not even remotely match what the accused says happened and it's enough to throw all of his other statemeents into question and get a verdict.

- Ken (Forensic Consultant - LA County Coroner)

 

[Dadvocate]

Hi, Ken! Thanks for an excellent post!

I didn’t hear the testimony and only have news postings to rely on, so I will tread carefully here in my prognostications. As I read, Swain’s defense (or a significant part of it at least) is that he wasn’t with his wife when she died underwater, not that he knew categorically that the fins fell off at any particular depth or that she panicked or what have you.

I personally would be very interested to know if and/or how he was questioned about his ascent time after noting his wife going missing. Again, a computer would be fantastic in helping in this case, as would his specific clarifications about where he was at certain times on that dive. Perhaps this is evidence and is simply not being made public.

Anyway, if it is his contention that he saw the fins fall, then certainly there is an inconsistency that raises alarms, important alarms. Not only that, why wouldn’t he have been the one to retrieve her body and bring it to the surface, or do a rescue before she died, etc if he was there to see this happen? As it stands, his primary defense is that he had gotten separated from Tyre and surfaced not knowing where she was.

This becomes an important point in the elimination process you outline for a couple of reasons, I’d say. A defendant categorically saying that he saw the fins drop and then getting caught by the evidence is a different fish from a man claiming he wasn’t there and then having to speculate to investigators as to how he thinks those fins came to rest in the position they were found. I’m not saying this difference exonerates him, but the liability isn’t as clear-cut in the latter case as it would be in the former.

This is where the computers become very important, as you have already noted. If we have data that puts Swain at depth at the same time as his wife, a depth where the fins were found in that position, then we certainly have something more substantial to tie him to the scene and to her body at 25 meters. Again, none of us know if this is the case, so I am speculating about aspects of the case and data I am not privy to.

Also, the process of elimination needs to go further. He was not the only person in the water, as we know he had friends with him, and we also know that one of his friends brought Tyre to the surface.

Assuming the diver who found her was interested in getting her to the surface quickly, he might not have paid attention to whether or not the fins were secured on her feet or perhaps even loosely attached (say after a panic attack that had Tyre at the bottom with her fins in the sand but not tightly attached to her feet). If these had been loose with her body resting on the bottom but already in the sand, the diver bringing her to the surface may have pulled her up leaving the fins there sticking out of the sand. Later, when they were recovered, the people might have taken better notice of their location. I’m not saying that this is how it played out.

I’m only saying that this could have been a scenario where 1) the fins were left in that position and 2) David’s not knowing how they came to that resting place is completely understandable. If he wasn’t there and he was asked how the fins came off, he (like many of us) might mistakenly assume they simply fell off. Not knowing that they would fall boot-side first is evidence of ignorance for sure, but not necessarily deception.

Nonetheless, I appreciate that you added this piece to the puzzle. I hope there are more to come. If this and other evidence points to him being guilty, then it seems as though there was more to it that meets the eye. Thanks for pointing this out.

Cheers!

 

[AfterDark]

Ken, could you comment on this statement please: How often does a life and death struggle not leave marks on either person? No bruises no scratches no bites it all seems very strange to me.
Thanks

 

[Ken Kurtis]

Ken . . . How often does a life and death struggle not leave marks on either person? No bruises no scratches no bites it all seems very strange to me.

Let's amend it a little bit to a life-and-death struggle underwater because that may change things a bit.

In the early 1990s, I was a member of an LA County Committee that met quarterly and discussed scuba fatalities in our area. This happens to be how I first met the guys from the Coroner's Office. We were talking one day and I said to them, "I think I've come up with the perfect murder." They skeptically said, "OK . . ."

I said, "You and your buddy are swimming along in the kelp. I stay on your right side and am watching your breathing pattern. When I see you exhale but before you start the inhale, I rip the regulator out of your mouth. Now the tricky part if that I need to prevent you from getting the reg back or getting an octo or breaking away from me. But since you just exhaled, you may either inhale water or at the very least you won't be able to hold you breath very long.

"Once you've passed out, I move your body and wrap it in the kelp. I then swim away maybe 50 yards or so. I wait at least six minutes (so brain death sets in) and then I surface and start screaming madly that I've lost my buddy and will someone please come help me. By the time they find you, you'll be dead."

The Coroner said, "We'll get you." I said, "How?" he said, "Well, there will be trauma around the mouth when you ripped out the regulator." I said, "Yes, but that's consistent with the reg getting caught in kelp and getting ripped out." He said,
"Oh, good point."

"Well," he continued, "when you're holding the person down, you'll cause blood pooling that we'll see." I said, "But they're wearing a thick wetsuit and I may be able to hold them down with the reg hose or the thank or some other non-body part."

"Oh, good point," he said. He thought for another moment and said, "You may be on to something here."

The point of this is that it may be easier to kill someone underwater than one would think. To your specific question, I think it's very possible to do something like this without leaving marks, even in warm water where there's less thermal protection and more exposed skin.

Don't lose sight of the fact that all you need to do is wait for the person to go unconscious. Now some of you may be reading this thinking, "Well, I can hold my breath for two minutes and I'd fight like hell." Yes, but how long can you hold your breath after you've exhaled? Not very long, I'd assume.

Plus, if you're prone to panicking anyhow (as I think someone said this victim was) that may be an added "bonus" for the killer.

Once the victim's unconscious, it's a question of moving the body in such a way as to not leave marks and not be readily discovered. (As I said previous, you only need 4-6 minutes for irreversible brain death.) Then you wait a little bit so it can seem you were looking, surface, and either calmly or excitedly talk about how you've lost your buddy. If you're REALLY a cool killer, you might be very calm about it saying you're sure they're all right and they frequently go off on their own, delaying further the start of an underwater search. Then, when the body's found you play the sobbing buddy and see if you can get away with it.

This is also why the Coroner hires someone like me (just for the reciord - as a scuba instructor and experienced diver, not psychotic would-be killer) to help them with the analysis because I might spot things as out of kilter that might not be readily apparent to someone who doesn't dive.

And we even had a case here in LA a few years ago where a number of us still think the guy did the victim in but all we've got is circumstantial evidence. But the cause of death has been left as "Undetermined" and the manner of death "Undetermined" so that the case can be reopened if any new info surfaces.

I'm certainly no expert on underwater murders. But from what I know of the Swain case, there are just too many little things (and some big things like the fins that I mentioned in a previous post) that seems a bit out of kilter and the explanations don't seem to wash. (And then there's the whole Gabe Watson thing.)

And the biggest problem in investigating any underwater accident is that there are rarely eyewitnesses so you rely a lot of circumstance, instinct, and just looking at what makes sense and what doesn't. And as I said in yet another previous post, look at things in a way that if A happened then it would have produced B and then C and if that chain isn't there, then A didn't happen and someone's not telling the truth.

So . . . anyone want to go do a kelp dive with me? Just the two of us?? And I may have a small insurance form for you to fill out before we go . . . )

- Ken (Forensic Consultant - LA County Coroner)

 

[AfterDark]

Ken, All very good points and all applicable to the Swain case except for the regulator part. There was no kelp to rip the reg from her mouth, but then there was no autopsy to determine if there was tramua around there either. Too much doubt for my liking but, Dave is a friend so I'm somewhat bias, though I try to be objective. Thanks Ken.

 

[ACES50]

Ken

Just curious what you mean by "And then there's the whole Gabe Watson thing"