Diver convicted in wife's drowning

[SadiesMom]

Seriously...are there moderators on this board? 'Cause if there are I'd like a button for "You're completely full of it" instead of a "Thanks" button. Because I'm absolutely amazed that there are people on this thread who are posting things as if somehow they are fact that they're making up out of their own heads! These "facts" haven't been quoted in the press anywhere - they aren't facts at all but fiction out of these poster's heads!

Look - I understand wanting to discuss this case and I understand that some people might think David is guilty - I get that. I don't agree with you, but I get it.

But what I do NOT get is people just making stuff up that never happened. And I think there should be a way to call them on it....

Shame on you who are doing it...because you'd better darned well hope that nothing ever happens to your buddy one day when you aren't watching that you can't explain...or you may end up in prison for the rest of YOUR life.

Sheesh!

 

[jupitermermaid]

SadiesMom, there is a "report" button if you want a moderator to step in. There is also an "ignore" button you can hit so if you don't want to read a particular person's posts it blocks them out and they can't "get to you." A certain person on this thread is a lurker and likes to stir up trouble (look at his others posts in other threads if you want). His only purpose on this board is to aggravate people and cause controversy. Block him if you find yourself getting upset by his posts.

 

[K_girl]

Per your request regarding Swain's odd behavior on the boat. You are correct that more of the "odd" behavior started after the retrieval of Tyre:

Swain then asked if his wife was back, Thwaites recalled, after which Swain replied, “no.”

Thwaites said he then dove upon the wrecks, when he noticed a diver’s fin lodged in the sand.

Swimming toward the stern of one of the boats, Thwaites said he saw Tyre, “on the ocean floor, facing upwards, with no regulator or mask on,” adding that he then performed a “rescue procedure,” and brought Tyre to the surface.

Swain soon came to retrieve them in a dinghy and they headed back to their boat, Thwaites recalled.

Thwaites said Swain then performed “some CPR” in the boat – an estimate he first made at 10 seconds, and then recanted, acknowledging that it would have been a considerably longer period during cross examination.

“Mr. Swain said words to the effect ‘she’s gone,’ and so I took my direction from and I didn’t do any CPR,” Thwaites said after prompted by prosecution. “He was in control of her and he was attending to her and doing the CPR, so when he said ‘she’s gone,’ and stopped doing the CPR, I didn’t do anything,” Thwaites said.

Thwaites said Swain told him not to use the radio for help, allegedly stating: “Don’t do that. I don’t want everyone coming around.”

“I was in a state of shock, and I had started to make the radio call, but he wanted to use the cell phone to call the emergency services,” Thwaites told the courtroom about his reaction.

Source: Prosecution presents case in Swain murder trial | www.jamestownpress.com | Jamestown Press
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So I guess what would be "considerably" longer than 10 seconds for CPR? One minute would be considerably longer, that would be ten times longer. But it sounds like it was for an extremely short period. Swain stopping a radio call for help was also extremely not helpful to his case. It must have been difficult for his friend to testify to this.

As far as people breaking legs to get out of equipment, yes, that has happened, but those stories are of entanglement. She was not found inside a wreck, a cave or in kelp. Tyre was found in open water. As far as a heart attack or panic causing the equipment to be "ripped" off Tyre, that is still difficult for me to envision in open water. The air usage by Tyre does not really help Swain as it could be an indication that she probably died early in the dive and not later. Indeed, her dive computer would indicate a long dive, but there is no information as to how long she was dead. It sounds like you are assuming she as alive up to the very end that her dive computer came to the surface. You cannot make that assumption. Since Swain is claiming poor memory due to Post Traumatic Stress Disorder and also claims that they separated for their different "purposes", he can't be of much value in providing information as to her dive.

Let me say that I am always glad to see that people are fighting for someone who is accused and convicted. We have to keep the system of justice honest and make sure that the prosecution prove their case beyond a reasonable doubt. It has been proven that many people have been wrongly convicted and it is even worse when that conviction is based upon prosecutorial misconduct. We know that it does happen, but instead of talking about this in a general sense, I think it would be prudent to discuss exactly how a miscarriage of justice could have happened in this case. If there is anything else that I have said that you want a source for - I will be happy to provide it.

 

[idocsteve]

David and Shelley had PLANNED the dive to descend together, go to the wreck together and then separate for the rest of the dive.

Were they Solo certified? Because if not it was irresponsible of them to take that course of action and I see significant liability issues there.

Were they carrying redundant equipment?

How do you know that was the dive plan...because David said so?

Throughout this thread I see reference to David's "personality" and comments from his friends to the effect of "He would never do that, I know what he's like".

You don't really know what someone is like and you see this all the time- some guy going through a divorce, job loss, or some other life crisis goes on the murderous rampage and wipes out a half dozen coworkers, and you see these first hand interviews of friends and neighbors who all say the same exact thing: "He seemed like such a nice guy I never thought he would be capable of doing something like that!"

If you can't stick to the facts then maybe you should stay off this thread, and stick to your chosen profession.

 

[SadiesMom]

From Vistandpoint.com News:

Thwaites said that he immediately brought Tyre to the surface, performed mouth-to-mouth resuscitation and shouted for help. His call alerted Swain who arrived in a dingy which was attached to the Caribbean Soul. When asked by Williams what Swain did, Thwaites told the Court that the dive instructor performed CPR for about 10 seconds before declaring words to the effect that Tyre was gone.

Thwaites also testified that once they got Tyre back to the Caribbean Soul, Swain prevented him from sending a “May Day” call over the boat’s radio on the public channel (Ch. 16). He told the Court, Swain stopped him from sending the call and proceeded to call the Virgin Islands Search and Rescue (VISAR) on his cellular phone.

Letter to PADI

However, under cross examination, Swain defence lawyer, Hayden St. Clair Douglas pressed Thwaites about the length of Swain’s effort to revive his wife.

Thwaites then stated that Swain’s effort might have been a bit longer than 10 seconds, but nowhere close to five minutes.

Douglas then produced a letter written by Thwaites to PADI which Thwaites identified as his. In the letter which was dated May 5, 1999, Thwaites claimed to have completed about 1,200 logged dives. Douglas then told Thwaites that he started out his correspondence to PADI by misrepresenting his own experience.
Douglas then read a section of the letter where Thwaites wrote that Swain applied CPR. “I believe I heard a rib crack, but cannot be sure. We both continued mouth-to-mouth for approximately five minutes. We gave up after it was clear there was no response,” Douglas read from the letter. Thwaites had testified that he was not totally satisfied Tyre was dead when Swain suggested “she was gone”.

In the letter acquired by StandPoint, Thwaites detailed to the governing body what transpired in 1999. Douglas attempted to have the letter admitted as evidence, but the presiding Judge Indra Hariprashad Charles upheld the objection from the prosecution.

In the letter, Thwaites pointed to Tyre’s death as an accident and assumed that she may have been frightened by the loss of her mask strap. He also assumed that she may have been spooked by a ray hiding in the sand. He also assumed that in an attempt to tighten her mask, the strap may have snapped and in an attempt to recover it, Tyre may have aspirated water that led to subsequent panic and death.

 

[idocsteve]

From Vistandpoint.com News:

Letter to PADI

From the news source and letter posted by one of the friends of the defendant:

- There is a discrepancy about the length of time CPR was performed. Was it 10 seconds as the defendent stated at the time of the accident, or was it 5 minutes as recalled by a witness some time later?

- The defendent STOPPED someone from making a radio call for help! For some reason we're supposed to accept that it was because he "had a better idea and decided to call someone else on his cell phone?"

- Tyre "may have aspirated water that led to panic and death, and she "may have been spooked by a Ray in the sand", and the mask strap "may have snapped" due to her own actions Yeah, and a zillion other assumptions can and have been made by anyone taking a stab at it. Just because this guy happened to be part of the rescue doesn't make his assumptions about things that "might have happened" any more credible than anyone else's.

"Thwaites had testified that he was not totally satisfied Tyre was dead when Swain suggested “she was gone”.

That testimony from a first hand witness and rescuer says that Swain stopped doing CPR while the victim was STILL ALIVE.

 

[SadiesMom]

K_girl...perhaps you're unclear on why the air usage question was important to the prosecution. They used the amount of air left in Shelley's tank to "prove" that she and David were together at the time she died. They accepted David's statement that they were together for 10 minutes. Ipsofacto, if Shelley had an "average" woman's air usage, then she used 8 minutes worth of air and they must've been together. At least that's what the jury believed.

However, Shelley a) was petite; and b) had much better gas usage than the "average" woman, based on her log book data of similar dives at similar depths under similar conditions. If one would assume that she breathed as she normally would for the majority of the dive (at least until right before she died), then she was alive for a lot longer than 8 minutes. If the jury accepted the fact that David and Shelley parted company at 10 minutes and Shelley was alive for, say 20 minutes, then it leaves reasonable doubt that they were together at the time Shelley died. Unfortunately, Dr. Egstrom was not allowed to present evidence of Shelley's actual air consumption. The court accepted the calculations only based on the "average woman's" air consumption, rather than using the data specific to Shelley herself based on her logbook. That in itself just seems wrong - if you HAVE the data for the decedent...why in the name of God wouldn't you USE the data????

David cannot "prove" that he didn't kill Shelley. He wasn't with her. He doesn't *know* what happened to her. All he can do is attempt to prove his innocence is to show that other scenarios are possible. If even ONE scenario is possible other than the one the prosecution put forth, then he should not be in prison. That's reasonable doubt - and that's the standard for a criminal trial.

And as a PADI DM myself, I can think of at least 5 explanations that are perfectly possible and reasonable. Therefore, I think that the appeal will be successful and the sentence will be overturned.

 

[SadiesMom]

BTW - MAJOR thanks on the Ignore thing, JupiterMermaid! Dang, but I wish I'd known about that yesterday when that certain person showed up! I owe you a drink the next time I get down to Jupiter...

 

[jupitermermaid]

BTW - MAJOR thanks on the Ignore thing, JupiterMermaid! Dang, but I wish I'd known about that yesterday when that certain person showed up! I owe you a drink the next time I get down to Jupiter...

Glad to have been of help! Looking forward to that drink and diving with you.....not in that order, of course.

 

[Teamcasa]

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