Thanks a lot, Ken. This answers quite a few questions indeed. And it opens up a lot more as well.
I did not know that the party on the boat had an agreement to have two adults on board at all times. This factor certainly lessons the effectiveness of Swain’s potential explanation that he would never murder his wife with his friends present. They were not in the water, so in that sense they were also not “present” to witness him attacking his wife if that was his plan.
On a side note: If indeed he did do this and plan it as such, he would know that the Thwaites’ son would be there to see the recovery of his wife’s body. This would be pretty heartless in my book.
Thwaites finding the fin away from Shelley’s body is also significant. What I don’t get is why Swain’s comments about the fin are germane to anything in this case. The fin was resting where it was, and as far as I can tell Thwaites’ testimony is believable, so why would it be necessary to ask Swain about the fin other than to ask him if he’d placed it there in an attack of some sort?
There is no need to package this evidence in a veneer of deception if his primary defense is that he wasn’t there to begin with. The location of the fin speaks for itself as evidence, and this adds to the other information about his swim time around the wreck that was presented by Jenni. This is also potentially quite damning and bolsters the plaintiff’s evidence about the fin needing to be placed there by the only person in the water.
From the site: “[O]ne of Shelley Tyre's yellow swim fins sticking in the sand, toe-first.”
I may still be reading this wrong, but this “sticking” appears to be more of a resting position in the sand (tip down and inserted), which isn’t to stay that this helps Swain. It proves that Thwaites didn’t put it in that position by incidental or deliberate contact. If Swain was the only one in the water, I can see why this is very damning evidence. Not having seen Oliver’s video evidence myself, I can’t say for sure, but I can see where this could be the crucial piece that swayed the jury as Ken was talking about earlier.
Lying on her back…
This is interesting to me. Assuming for the moment that Shelley was in a panicked state and say in an upright position, she could have been kicking at the sand with her fins. If at some point the fin came loose as she struggled with her fears, she could have put the fin into the sand before moving on and settling backwards to rest on her back. Remember, the weight belt was still on. The big question would be if the fin was in the sand in an upright position relative to where she was resting or was it in an upside down position to her body? Does Thwaites even remember at this point?
I saw something like this on a trip a couple years back in Palau. My fiancée (now my wife) and I were doing an afternoon dive at Chandelier Caves. We were accompanied by an American father and his daughter who were traveling together. He was very new to diving at that time and had serious buoyancy issues. On a dive the day prior, we noted that he was doing the notorious bicycle kick that many do when they first learn to dive. Why the dive op chose to bring him to the caves on this day is beyond me.
Anyway, at some point at the mouth of the cave he became very uneasy and started kicking wildly (exercise bicycle style) while failing his arms out in some kind of attempt to balance himself. It wasn’t working.
We weren’t very deep, but he was slipping into full-blown panic pretty quickly anyway. As he flailed his legs out he pushed himself backward while kicking up sand and rock. His DM went to him at about the same time I did. I released his weight belt while the DM made sure he didn’t pull his reg out of his mouth. This stabilized things quickly and he was able to get back to the surface and then to the boat. We were also able to retrieve the weight belt.
Now I know a beginning diver is not a fair comparison to one with 350 dives, unless of course the fear and panic factors are considered a potential explanation. If she lost all rational thought at some point, she could have made some unfortunate decisions.
The article says that Thwaites found her with “her eyes and mouth open”. This is a clear indication that her reg was not in her mouth. For me, this could be consistent with her being attacked, sure, but it could also be indicative of a diver who panicked, ripped her mask off, and then pulled her reg out of her mouth.
So the entire account of the fin and how it rested remains tied to Thwaites’ memory of how he found it. I’m not questioning his integrity, but this becomes important in any scientific experiment. How exactly the fin rested and how it was described after the ordeal of finding a friend’s body underwater becomes very crucial if any details are altered or if the impart is being misconstrued. All of Oliver’s findings have to be tested against a memory, not a clear cut scenario where we know exactly how the fin rested and how far it was in the sand. Again, Thwaites’ testimony would have to have been challenged, and from the looks of it, this did not transpire in the civil case. Who knows if it was in the criminal trial.
We also find out that it may not have been Swain who told the CPR trained diver she was already dead. I still don’t know if this is material to anything in either case.
Yes, the condition of the mask is important. The force ripped the pin out of the support buckle, which does indicate something drastic has happened. Would a panicked diver rip a mask off in this way or simply slip it off over the head? I just don’t know. With the mouthpiece and the snorkel as well, this is also unclear, but definitely not inconsistent with a struggle. Ken is right about that. The combination of the two does seem to hurt Swain’s defense, but only if the other evidence holds up, I’d say.
And this is less obvious in my opinion:
“Finally, said Hyma, a certified diver for 36 years, there was no reason for Tyre to have drowned: she had plenty of air in her tanks; no medical condition that would have interrupted her normal breathing, and as a veteran of more than 350 logged dives, she was well versed in emergency response.”
and
“HAD TYRE ENCOUNTERED any other type of emergency than an attack, her first act would have been to drop her weight belt, so she could get to the surface as fast as possible. But Tyre was found with her weight belt still on.”
I have read on many discussion boards and in several magazines that there are an alarming number of people with a great deal of experience who are found dead in the water with 1) their regs out of their mouths and 2) their weight belts still attached. These unfortunate people with a heck of a lot of experience fell victim to primal fear apparently. Hyma may be right that the equipment hadn’t failed, but he is ignoring many cases where even very experienced divers undergo a panicked moment where all the experience goes by the side and who are later found with their weight belts still securely around their waists. To say there is no explanation for her to have her equipment working and to have drowned in this way is to be dishonest or plain ignorant about the realities of diving. True we may not fully understand why someone would not remove their weight belt, but that doesn’t change that fact that it happens.
Is she an advanced diver or a rescue diver? 350 dives is a lot of dives, and certainly grounds for questioning a panic attack, especially if her previous instances of panic are recorded at the start of her logbook. This remains a mystery to me. The plaintiffs don’t seem to want to leave even a crack of explanation open, and I am surprised that this went unchallenged given what really happens in the water. If this evidence is by and large the same as the criminal trial, there are still some serious questions about what some experts are asserting, though the possibility is certainly stronger on some points for the prosecution as well.
And Jenni’s testimony :
“Based on the amount of oxygen still in Tyre's tank when she was found, Jenni and other expert witnesses have determined Tyre was underwater for about eight minutes before she stopped breathing.
Divers normally swim about one foot per second while underwater, Jenni said. That is an important calculation when considering what Swain said during his deposition: that after about a five-minute descent to the wrecks together, he set off alone and made one revolution around one of the sunken boats.”
This is actually quite amazing to me. Yes, it might be true that divers swim on average 1 foot per minute, but then this calculation becomes moot when you put a camera in a diver’s hands. The speed is typically drastically reduced, as a photographer will sometimes spend several minutes in one location trying to get the perfect shot. Photographers like my sister’s husband will oftentimes not know what is going on around his location because he is looking for Macro or in some cases scanning the pictures taken while swimming. I’ve seen it many times with other divers in many contexts where photographers swim with one eye on the LCD and the other somewhere in the direction they are swimming.
That he would have seen her at the bottom without a camera is by no means an absolute for all divers, add the camera as a distraction and it is well within the realm of possibility that he could have missed seeing her entirely.
Also, this calculation seems to indicate that the evidence in question did not include dive computers, particularly a dive computer that monitors air consumption.
This 8-minute calculation is very clever, I grant them that, but how do we know that this is accurate? Is Shelley’s logbook complete enough to include her average air consumption totals? It is definitely possible. But then that only accounts for dives that went well. If a diver is in a panicked situation, one where he or she encounters the feeling of difficulty taking in air, is it not possible that quite a lot of air was consumed in a short amount of time before she spat out the reg? If that is the case, what does that do to the prosecution’s timeline one way or the other? I can’t imagine that it helps much. Again lots of presumptions delivered using a flawed the appeal to authority. How could Swain have let these issues go unchallenged?
He needs a better lawyer in a big way!
Cheers!
