Diver convicted in wife's drowning

[Dadvocate]

Wow, that is a sad letter. This case reaches lots of people and it doesn't seem that this is ever going to end in a way where someone doesn't feel jilted. She is absolutely right. The jerks who bear the brunt of the blame for how this played out are the investigators who botched the job.

Pathetic, really. That the investigation was inept is about the only thing we do know. Sad indeed. I really feel for her.

Cheers!

 

[AfterDark]

Here a to a post in the Northeast US forum post 19

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.

 

[SadiesMom]

Hi all -

Like Afterdark, I know David Swain and like Afterdark, I also firmly believe that the David Swain that I know is completely incapable of committing an act of violence in any way, shape or form.

However. That aside, I spoke at length with Jen Bloom a few days ago and have a lot of answers to questions that have been asked here. I also know a number of David's closest friends and have a good deal of information from them, through daily e-mails from his children during the trial process. That is where my information comes from.

I didn't know that this thread existed until Afterdark told me about it today, so forgive my late arrival here.

I've seen a great deal of information on this thread that's been a bit faulty. Someone said that David "took up with" Mary Basler "two weeks" after Shelly died in Tortola. Incorrect. They started dated two MONTHS afterwards. Granted, too soon in some folks' opinions, but a big difference from two weeks. There was no physical involvement (other than one kiss) prior to Shelley's death - that's based on testimony both from David AND Mary. So to say that he was an adulterer is not correct. Was he husband of the year? No - I think that's probably clear. But that doesn't make a man a murderer. And the purpose of the trip to the BVIs was an effort by both David and Shelley to get their marriage back on track.

An autopsy *was* performed by the Tortolan medical examiner, but his conclusion was that Shelley drowned. He did find a 22% blockage of the left anterior descending coronary artery (commonly known as "the widow maker"), but he did not follow up on that finding with any tissue examination. He also did not perform an x-ray of the body - something which would be considered standard here for a dive fatality.

Concerning the civil trial (from what I've been told): David originally had an female attorney (I've forgotten her name) and she became pregnant and had to drop the case. She referred him to a male attorney (again, I've forgotten the name). The male attorney developed cancer shortly after taking the case. At that time, the judge advised David to get another attorney. David asked his attorney about doing that, but was told that he felt he was well enough to finish out the case. However, shortly before the civil trial was to start, the attorney had to go to court on another issue and was phsycially wiped out by it. He then realized that he was *not* going to be able to hold up physically for David's civil trial. He told David that, who went to the judge, expecting to be given time to find a new attorney and get them up to speed on the case. The judge said in essence "Hey - I told you to get a new attorney months ago" and then denied him any time to find anyone else. So David was stuck with no legal counsel - essentially he had to defend himself - with NO legal knowledge. He was advised (by counsel) that if he didn't show up on the first day of the trial, the Tyres would win by default and he wasn't likely to win by defending himself anyway, so just don't show up. Unfortunately (and I don't have a clue why this happened), instead of giving the Tyres a win by default when David didn't show up the first day, the judge let the trial move forward anyway without David present. David was totally screwed. He had no lawyer, no witnesses, and no case prepared. Frantic to do *something*, he put his daughter Jennifer on the stand the final day. He got crucified - both financially and in the press.

David's "demeanor": Afterdark has clued you in to that. David's upbringing was more rough than I would guess 99.9% of any of ours were. His way of protecting himself is by being very emotionally reserved - particularly to people he doesn't know. He's very kind and friendly, but he's not a man who "emotes." There are those who have met him who are turned off by that. When I met him, I simply chalked it up to his being a more difficult person to get to know. That doesn't make him a murderer.

Rhoneman, I'm intrigued when you said that there's no time limit on jury deliberation. Everything I read, and have been told, was that the jury was only given 4 hours to come up with a decision. Is that incorrect? Because I've heard that from multiple sources....and I'm confused.

 

[SadiesMom]

As for the fin evidence: This is one bizarre thing. From what Brown says, he found the fin 30 feet away from where Christian Thwaites says he found the body (although how he knew that, I have no idea - it was the next day and Christian likely did not mark where he found Shelley's body while attempting to rescue her) with the blade 3 inches into the sand and the heel strap under the foot plate.

The prosecution contended that Shelley dug it into the sand during a violent struggle with David. Couple of things wrong with that, in my opinion.
1) I don't know about you, but there's no way at ALL that I could drive the blade of my fin 3" into sand while wearing it. It would bend either forwards or backwards, but it's very doubtful that I could ever drive it straight in - even if I tried to, much less during a struggle.
2) The heel strap was found (according to Brown) pulled down under the foot plate. How the heck did that happen???? Even when my fins are loose, I'd have to PULL the heel strap down and under the footplate. There's just no way in hell that would happen spontaneously - even during a struggle.
3) Let's say that the prosecution's contention was right - that Shelley drove the fin in, blade first in a struggle. Then what? How did she get her foot free without dislodging the fin from the sand? Even if for some reason the heel strap were pulled down, it would be far too easy to dislodge the fin from the sand while pulling your foot free of the foot pocket. It just makes absolutely NO sense.

However, I have two alternate theories of how the fin ended up there that make much more sense to me:
A) Shelley took her own fin off and placed it blade first into the sand, perhaps to mark something she wanted to come back to - she was doing a fish count - perhaps she saw something unusual and wanted to find it again? In any case, it's a possibility.
B) The dive site was not secured against other divers between Shelley's death and Brown going back the next day and finding the fin. It's entirely possible that someone else dove the site, found a fin lying in the sand and, not knowing whose it was, but wanting to secure it somewhere in case the owner came back looking for it, they buried it blade first in the sand. That makes FAR more sense to me than some kind of explanation that it somehow came off is a hypothetical struggle and ended up blade first, with the heel strap pulled down.

 

[SadiesMom]

I don't know where your understanding comes from. David was / is broke. Unless they paid their own way and testified for free, I doubt he had any "expert" witnesses.
I've tried to keep up as best I can on this case and I don't recall Dave have any witnesses other than himself.

I can clarify a little on this. Remember there are two cases - the civil trial here in RI and the criminal trial in Tortola.

In the civil trial, David had only one witness - his daughter Jen, who testified as to his character.

In the criminal trial, David did have several expert witnesses, but their testimony was severely limited by the judge (see my post above). Also remember that the Crown has unlimited funding for their experts - David's were paid for by the Defense Fund - money raised by his family and friends. In the case of one of David's experts, the prosecution delayed his testimony so long that he could no longer stay on the island and had to leave for home. There's some speculation that that was a calculated effort on the part of the prosecution team to keep the expert from testifying for the defense.

 

[SadiesMom]

Answering some questions about Shelley's gear:

To the best of my knowledge from what I've been told, when David spoke to Shelley's sister from Tortola to inform her of Shelley's death, he asked her what she wanted him to do with the gear. She told him not to bother to bring it home, but to donate it to someone who could use it. He then offered the gear to Mr. Brown, who had rented them the tanks and weights the previous day. Mr. Brown apparently found this strange and kept the gear for 10 years, until Renn Olen got the gear from him. It was never in police custody, nor did the police ever test it - it was in Mr. Brown's charge (he tested it for functionality), he stored it, and then he gave it to attorney Olen, who prosecuted the civil case. It was not secured by any authority - ever. Can you say "chain of custody issues?"

As an editorial note, IMO, giving the gear away makes perfect sense to me. If my husband had just drowned diving and I had to bring his body home, the last thing I'd want to haul home would be his gear. In fact, I'd never want to see his gear again. It would just be a horrible reminder. But maybe that's just me. And remember - Shelley's death had been ruled an accidental drowning both by the Tortolan medical examiner and the Tortolan police - no one ever mentioned murder at that time.

It was Mr. Brown who dove the site the next day at Christian Thwaites request - Mr. Thwaites had dropped his camera when he found Shelley's body and asked Mr. Brown to attempt to recover it. It was Mr. Brown who says he found the fin (one, not both) stuck in the sand. He claims it was 30 feet away from where Mr. Thwaites said he recovered Shelley's body, but it remains unclear to me how he knew exactly where that was.

An interesting point regarding Mr. Brown's testimony. He testified that David had come into his shop when he rented the tanks and weights and specifically asked for directions to a dive site where there would be no other divers. Oooh - very incriminating, right? Not to divers...! Who wants to dive where there are a whole bunch of other divers mucking things up - especially if you're shooting photos??!! Oh - and one last thing - Mr. Thwaites (the other man on the boat - the one who brought up Shelley's body) testified that David didn't rent the tanks and weights - or pick the dive site. He did (Thwaites). David was acting as captain of the boat, so he was seeing to that, while Thwaites was seeing to the diving - David never left the boat and therefore never even went into Brown's shop until after Shelley's death. So Mr. Brown was either mistaken - or lied.

It's my opinion that Mr. Brown saw his 15 minutes of fame in a trial covered in an international forum and wanted to take advantage of it. But maybe that's just me being cynical.....

 

[SadiesMom]

One last thing that truly puzzles me. When I talked to Jen the other day, I asked if anyone ever brought up the fact that an 85 foot dive is technically a deep dive. Most of us know (if we've taken Deep Diving) that we're all narced to some degree at 85 fsw. We may not feel it overtly by wanting to give our regs away or feeling paranoid, but most of us don't perform at 100% at 85 feet. Given that a) Shelley had been drinking the night before; and b) she was doing a deep dive and it's certain that she had some degree of narcosis, I would say that there's a strong likelihood that if she did panic, she did not respond in the same way she would've had she been diving at 20 or 30 feet. Reaction times are slowed and thinking is somewhat blurred when you're narced.

Jen said that no one ever brought that up - which actually surprises me. I hope that the appeal will result in overturning of the verdict entirely and his exoneration - but if it were somehow to result in a second trial, I believe that the subject of narcosis will be brought up.

 

[AfterDark]

SadiesMom, Thanks for post here. I'm glad I saw your post in NE USA and told you about this thread! You've clear up quite a few things and have made some very good points and observations.
I'm glad your out there.

 

[ItsBruce]

I’ve been away on vacation, so I’ve missed some of the discussion and want to catch up. I use bullet points to avoid lots of separate posts and the necessity of transitions.

* I was going to say that I personally spoke to an expert who was involved in the defense and that as a result, I know David was not without experts. I subsequently saw a post referencing Dr. Egstrom. It was the good Professor to whom I spoke.

* As a general rule, in a criminal case, the State must pay for defense experts if the defendant cannot afford them. The State’s failure to do so is grounds for reversal on the basis that the defendant is not being afforded due process. I assume that BVI follows this practice.

* Ken, I’m glad to see you join the discussion. And, I’d dive with you any place, any time, so long as I did not have to pay you to be my buddy and the dive is not beyond my training. (If I’m paying you, which I gladly would, I’d be a bit more choosy about where and when.)

* At the risk of repeating myself, I find it fascinating how many SB members “support” David, here, but did not “support” Gabe Watson in the case against him. When I say “support,” I mean see the evidence as not supporting a guilty verdict.

* As far as the media, I agree with Ken that the media is generally pretty good about reporting the percipient facts. I know it is “air” and not an “oxygen” tank, but that is really irrelevant However, I feel that the media does tend to spin stories to make them more sensational. Some elements of the media are worse than others, but the reality is that the audience would be tiny if there wasn’t some effort to make stories “interesting.”

* Regarding Watson: Almost nothing Watson said or did passes the smell test. Were I the authorities, I would hope I would have investigated the heck out of the incident. However, from what I can tell, there is no good explanation of how Watson would have killed his wife. The witness who saw him in a “bear hug” with his wife before she sank, seems to negate any possibility that (1) Watson turned her air off or (2) removed her regulator from her mouth. According to the reports, when she was found, her air was on and her regulator was in place. If Watson had turned his wife’s air off, held her until she died, and then turned it back on, the witness would likely have seen it or at least would have seen the struggle end before Watson turned the air back on.

* AfterDark asked: “So it wasn't possible that she tried to push off the bottom to reach the surface and lost her fin(s) stuck in the bottom?” As I understand it, the answer would be I think that that is contrary to the defense theory. SadiesMom covers this quite well.

* Circumstantial evidence is “hard” evidence. As I’ve said before, it is harder to fake than eyewitness testimony.

* While I cannot vouch for every state in the United States, I’m pretty sure that the rules of evidence are essentially the same for civil and criminal cases in every jurisdiction where I’ve had to check. The big differences are the burden of proof and whether the verdict has to be unanimous.

* SadiesMom’s post satisfies me regarding chain of custody. We know where the gear has been at all times and the keepers were in a position to say what did or did not happen to it while it was in their possession. There is no requirement that something be in “official” custody. That it isn’t locked up by an official goes to the credibility of the evidence, not its admissibility.

* As far as disposing of the gear, see the thread “If I Should Die While Diving.” Many dives say “If I should die while diving, its my own fault; don’t blame the dive operator or my buddy; my buddy probably feels bad as it is, so don’t make it worse for my buddy; and give my gear to my buddy as thanks for being my buddy.”

 

[SadiesMom]

* As a general rule, in a criminal case, the State must pay for defense experts if the defendant cannot afford them. The State’s failure to do so is grounds for reversal on the basis that the defendant is not being afforded due process. I assume that BVI follows this practice.

I don't know that this was the case. I know that the money from the fundraisers went to a great deal towards paying the expert witnesses and their expenses staying in Tortola during the trial (which, obviously, is not inexpensive, as the trial happened during high season in Tortola). I know at least one witness had to leave prior to being able to testify because they ran out of money to keep him there. So I don't think that the BVIs follow this practice - or at least they don't pay lodging for defense witnesses.

* As far as the media, I agree with Ken that the media is generally pretty good about reporting the percipient facts. I know it is “air” and not an “oxygen” tank, but that is really irrelevant However, I feel that the media does tend to spin stories to make them more sensational. Some elements of the media are worse than others, but the reality is that the audience would be tiny if there wasn’t some effort to make stories “interesting.”

Since I know David, I followed all of the news coverage of the trial (print) very carefully - I had a google alert for any news with David's name in it. I was also getting copies of daily e-mails from David's daughter Jen, updating a group of us who were David's friends of what happened each day in the courtroom. The media coverage was extremely biased against David and towards the prosecution. During the prosecution's case, if David's defense attorney cross-examined a prosecution witness and disproved his/her testimony, the only thing reported was the initial statement by the witness - no mention was made that it had been disproved on cross examination. In fact, it got so bad that one day, David's attorney took the AP news article into the courtroom and handed it to the judge and said basically, "What exactly *is* this??? This isn't what happened in this courtroom yesterday!" When she read it, she agreed and called the reporters in the courtroom up and took them to task for it. The words I read were "she basically yelled at them"...apparently she was quite upset at the bias in the news articles. Factual errors were rife as well. For example, during the sentencing, the newspapers reported that the judge was going to delay David's sentencing by a week because Hayden (his BVI attorney) had handed her 14 (or 17, depending on which newspaper you read) letters of character reference. The actual number was 45. Hmmm.

* Circumstantial evidence is “hard” evidence. As I’ve said before, it is harder to fake than eyewitness testimony.

It may be harder to fake, but it's also quite easy to misconstrue. Case in point. David's shop ran what they called "Fun Dives" every Saturday and Sunday at 10am. If you showed up, there was a DM there to lead a dive - so you always at least had a buddy (essentially a pickup dive). I have a number of dives in my own log book from my first year of diving that say "OSS Fun Dive." The prosecution, however, noted "Fun Dive" in Shelley's log book and incorrectly assumed that that notation meant that she had a "fun" time on the dive. Even on dives when she reported having panic attacks and gear problems. The prosecutor made a big point of the fact that "even though she had problems, she still said she had a fun dive in her log book." Umm...NO! That's what they were CALLED!!! The defense apparently did make that point, but again - a) it was not reported; and b) it was pretty much tossed aside and disregarded.

* While I cannot vouch for every state in the United States, I’m pretty sure that the rules of evidence are essentially the same for civil and criminal cases in every jurisdiction where I’ve had to check. The big differences are the burden of proof and whether the verdict has to be unanimous.

I hope that that's not the case. Because in David's civil trial, the prosecution put together a video that they showed the jury of their theory of how David killed Shelley, with actors portraying David and Shelley. I find that completely appalling that anyone could present videotaped supposition as "evidence" in ANY kind of trial - surely something that visual is completely prejudicial!!!

Thank you so much for your thoughtful post, Bruce. I'm happy to answer any questions I can from what I've learned in talking to Jen and David's close friends. For the record, fundraising has already started for David's appeal. If anyone is interested in contributing, you may contact me by PM.