Diver convicted in wife's drowning

[idocsteve]

Personally, I find it completely appalling that roughly 10% of those in prison don't belong there.

That's because you aren't interpreting the figures correctly.

Of the roughly 10% who are exonerated, many of them do in fact "belong there" but they have overturned their original court decision based on insufficient evidence, a technicality, poor evidence handling, interference with witnesses, or any one of a number of things.

It does not mean they didn't commit the crime.

Most people agree that it's better to let 10 guilty men go than to convict one innocent man and take away his freedom wrongly. Apparently you don't agree.

Those who are wrongly accused and convicted are casualties of war. It's unfortunate but it's unavoidable given the limitations of our court system and human nature in general.

According to your philosophy, and according to "most people" (as you put it), the jails should be empty and murderers should be roaming the streets freely because our system isn't perfect. You're right about one thing, I don't agree with you.

If the defendent who is the subject of this thread is in fact innocent, he is partially to blame for swinging the odds out of his favor by engaging in suspicious activity with another woman while still married. To some extent he's a "victim of circumstance" by having no recollection of any of the events surrounding the diving incident during which his wife died as well as a "detached response" - and from what I understand this was a big part of the guilty conviction-, because he was exposed to a traumatic incident in his youth and was unable or unwilling to properly deal with it subsequently.

I'll admit I don't know all the facts but from what I read on this thread he wasn't even there when his mother was murdered when he was a child? If that's correct then how can there be PTSD for a situation in which you weren't even present?

For example, my mother committed suicide when I was a child...in my case I found her. So if I was diving with a woman who perished, I could hope to use as my defense "I have no recollection of the events and I have no emotions because I have PTSD from when my mom died some 30 years ago?"

 

[idocsteve]

Solo diving skills are not the answer. They were essentially solo divers ... same ocean buddies. So, that's not the answer."

"Same Ocean Buddies" is not anything even remotely close to diving Solo.

When you're part of a buddy team you are responsible for the other team members' safety and health and well being during the course of the dive, and you are assuming liability. Just because you might be a poor buddy doesn't place you into the realm of a Solo diver.

A solo diver has no implied or inherent responsibility or liability for anyone other than him or herself.

 

[JanK]

<SNIP>
And of course, you chose the lower of the two statistics I quoted - the smaller UofM study of 255 death row prisoners only. The US Department of Justice (hardly a crazy liberal source) figure is the more accurate - they quote between 8 and 12.3% - which averages 10.1% of people in prison are innocent. You say that's a small percentage. Personally, I find it completely appalling that roughly 10% of those in prison don't belong there.
<SNIP>

I had no idea, but it's absolutely horrifying! To translate that into numbers (with the help of Wikipedia): As of year-end 2007, a record 720000 people in US were wrongfuly behind bars, on probation, or on parole, with 230000 of those actually incarcerated. We're talking about three quarters and one quarter of a million of people!

 

[AfterDark]

I had no idea, but it's absolutely horrifying! To translate that into numbers (with the help of Wikipedia): As of year-end 2007, a record 720000 people in US were wrongfuly behind bars, on probation, or on parole, with 230000 of those actually incarcerated. We're talking about three quarters and one quarter of a million of people!

With the over abundance of laws we here in the USA are subject to most of us are only one mistake or bad decision or one witnesses lying away from jail. That and people like some posting in this thread that apparently have no sense of justice or fairness are among the reasons the US has the highest or among the highest incarceration rates in the world. Since DNA testing was accepted by the courts people have been released after serving many years for a crime they didn't commit. That doesn't seem to bother some people which is one of the reason it happens. Of course this case wasn't tried in the US. It could have been but instead it was deferred to the BVI courts.

 

[K_girl]

The problems for Swain that led to conviction:

The case pivoted around the condition of the equipment that was found which could not be reasonably explained. A broken mask strap, missing snorkle mouthpiece and a fin that had been dug into the sand several inches by the toe. This equipment was found in this condition by the dive shop owner who booked their dive the next day. Meaning, Swain's wife was missing her mask and one fin completely when she was retrieved. The argument of a heart attack causing this damage to the equipment is a difficult one to make and my guess is, the jury didn't buy it. The more likely explanation for a potential heart attack (which was not established) would be that it was provoked by the struggle. For instance, there are usually cases of people who die of heart attacks in a severe earthquake. Even if the defense was able to establish that Swain's wife had a heart attack, the more reasonable explanation of a struggle for life for both the heart attack and the condition of the equipment would have probably prevailed.

When Swain returned to the surface and his friends asked him where his wife was, they felt he was acting strange. Swain would not go back into the water to look for his wife and his friend had to do it. The dive shop operator also testified that he received a visit from David 2 days after the death of his wife and told him to get rid of the equipment. David also expressed concerns to the shop owner about the medical examiner and appeared to be worried enough about it that he approached the police with a theory of his own: that his wife had been attacked from behind (by someone else).

As far as the "love" interest that David Swain had, prosecution produced a letter David Swain had written to Mary Basler in October 1998 (months before his wife's death) talking about how they could be together without hurting other people. Prosecution quotes the letter: "A lot of me would like to come hustle you up and leave the country for good to enjoy life elsewhere," the letter stated. "I'm waiting to be with you, but I can't change this mess I've gotten into anytime soon." In the letter, he called Basler "soulmate of mine." Whereas Basler was surprised to learn that Swain had these feelings for her and did testify that there was no intimate romance between them until 2 months after his wife's death.

Source: Warwick woman testifies about alleged affair during David Swain murder trial | WPRI.com

The fact that he was infactuated with this woman and wanted to be with her before his wife's death is not proof of guilt, but it does show motive. In other words, a lack of motive would have been better for his case. Also, the fact that there was a prenuptual agreement where he would not get any money in a divorce and there was a substantial sum of money. Without some kind of infusion of cash, he was on the brink of losing his dive shop. His divorce situation and money situation also did not help his "lack of motive" situation.

I'm not saying unequivocably that David Swain is guilty as I was not present for trial, and did not serve on the jury. I'm just saying that if the above as reported is true, it does explain the guilty verdict.

 

[idocsteve]

Swain would not go back into the water to look for his wife and his friend had to do it.

Wait...

The guy came out of the water, without his buddy, and he refused to go back into the water to search for her??

I haven't seen that mentioned anywhere on this thread, and I wonder how his friends who support him and protest the verdict explain that one?

By him abandoning his buddy on the bottom and returning to the boat, that in of itself could probably be enough for negligent homicide even if he was not directly responsible for her death.

Not to mention that it's very odd behavior.

 

[AfterDark]

K_girl, Would you please source this information this for us.

"When Swain returned to the surface and his friends asked him where his wife was, they felt he was acting strange. Swain would not go back into the water to look for his wife and his friend had to do it. The dive shop operator also testified that he received a visit from David 2 days after the death of his wife and told him to get rid of the equipment. David also expressed concerns to the shop owner about the medical examiner and appeared to be worried enough about it that he approached the police with a theory of his own: that his wife had been attacked from behind (by someone else)"

My understanding was that it was the other guys turn to dive as he had been topside waiting for Dave's or Shelly's return with his wife and son. Dave didn't go back in because he had just been at 85fsw for a time and didn't have the bottom time to do it. At that time it wasn't a concern as they dived like that often. They'd go down together separate to do there own thing and surface separately. Kinda like semi-solo diving. Dave and I dove the same way for years. I consume more air than Dave so I'd surface when I was done, he'd continue his dive and I'd wait for him. I never read anything about Dave acting strange when returning to the boat. Only after Shelly's body was found. (See SadiesMom post for that) This story about Dave suggesting another diver killing his wife is pure BS. They were diving in a secluded area there were no other divers around at the time. They'd have slapped the cuffs on him right there for lying instead of ruling it an accident. What you described was the expert "witness" speculation or "reconstruction" of events leading to Shelly's death.
The condition of the equipment was what lead to the speculation. Dave mostly stated he didn't know what happen because he wasn't with Shelly. There was some reconstructed time lines of how long it took Dave to swim around the wreck and how much air Shelly had left her in tank to support the theory of a struggle. The question I have about this is, that the rate of Shelly's air consumption was based on how long she was down. If there was a struggle would she not have used more than normal? Try digging the tip of your fin into the sand sometime like you where in a struggle and removing your foot from it, let us know how that works out. Dave told the dive shop owner to give the gear to someone or keep it for the shop, not get rid of it. He told the owner that at the request of Shelly's family. The dive shop owner held on to Shelly's gear for 10 years. That would not satisfy custody of evidence in this country. That's why evidence is locked in an evidence room at the police station, to protect the integrity of the evidence. Items stored in a dive shop for ten years are hardly protected from being tampered with, I don't mean to imply it was only that it goes to reasonable doubt. Personally, knowing Dave for over 20 years I have a hard time believing he would do this. During all the time I worked, dived and socialized with Dave never once did I hear him threaten anyone at anytime for anything. He was always a soft spoken, caring man. On a practical level I know that people do things at times totally of character. I'm not saying he did this or didn't just that the questions are many, answers are few and hard evidence is light. I know I wouldn't want anyone to be convicted and sentenced on such grounds, even those that might deserve it, but for the Grace of God there goes I. Whatever a government can do to one it can do to all. Denying people life and liberty is a serious matter and should be taken that way.

 

[openmindOW]

Of the roughly 10% who are exonerated, many of them do in fact "belong there" but they have overturned their original court decision based on insufficient evidence, a technicality, poor evidence handling, interference with witnesses, or any one of a number of things. "

You're wrong. You have no legal training. Please do not state a mere opinion as a fact unless it is established as fact.

 

[SadiesMom]

K-girl, your assumption is totally incorrect. David surfaced without Shelley. They had PLANNED the dive to separate at the bottom. He asked Thwaites if Shelley had surfaced yet and Thwaites said no. David came aboard and Thwaites went into the water - as he PLANNED TO DO when either David or Shelley came up. There WAS NO QUESTION of Shelley being "missing" or doing a "search" at that time. Thwaites went in alone, carrying along his camera. He *NEVER* asked David to do a search for Shelley as there was no concern about Shelley - she was well within the time frame of a normal dive for her to not have surfaced yet - there was no reason for alarm.

Thwaites went in - with his camera - (why would he have taken his camera if his purpose to go in was to search for Shelley????) and found Shelley after reaching the bottom and starting his dive. He DID NOT find the fin - BROWN found the fin THE NEXT DAY - along with Thwaites' camera - which is why he went to dive the site the next day to begin with - to retrieve Thwaites' camera.

There was NO question in Thwaites' mind of David "acting strangely" - at least not at the time many days later when he wrote a letter to PADI to explain why he and David stopped CPR on Shelley. In fact, Thwaites testified that he and David wept over Shelley's body on the way back to land.

You don't think gear gets broken during panic? Do some research about what people in a panic do not only to their equipment but to themselves. They not only break their own gear, but they break their own limbs. It's not at ALL unusual. You don't think when you're in a panic - especially at 85 fsw, when you're narced.

 

[SadiesMom]

Damn, Steve, but you sure are quick to jump to conclusions!!! Maybe the reason you didn't see it reported anywhere is because it ISN'T TRUE!!!!


David and Shelley had PLANNED the dive to descend together, go to the wreck together and then separate for the rest of the dive. No one "abandoned" anyone else. It was planned that way because they were doing two separate activities which were not particularly compatible. David was doing u/w photography, which those of us who do it know, requires us to move around very slowly and take a long time to cover any real distance. Shelley, on the other hand, was doing a fish counting project, which required HER to cover more area to count as many fish as she could. The two activities required two different styles of diving....so they planned to separate on the bottom at the wreck and meet back up on the boat.

For heaven's sake - the ability of people to jump to conclusions without any evidence whatsoever is truly stupendous. Why don't you just evaluate the evidence that EXISTS instead of making crap up?

As Afterdark said...you really should stick to optometry.