Diver convicted in wife's drowning

[K_girl]

I hate to see all this nastiness. We should be able to talk to one other in a civilized tone. I appreciate David's friends coming to his defense and there is some interesting information that is being shared. I am not familiar with BVI law, but if it is anything like U.S. law, the conviction will stand unless: 1) an appeal shows ineffectivness of counsel; or 2) new esculpatory information is found that could produce a different result; or 3) prosecutorial misconduct where evidence is withheld or manufactured; or 4) jury misconduct; or 5) an error or errors by the judge that is so grievous, it merits a new trial because the result could be different.

Thank you Sadiesmom for sharing the existence of the PADI letter. However, very tough to impeach Thwaites for the testimony you want (in the letter) versus the testimony he gave on the stand. As a lawyer, you have to be careful about impeaching a witness, you impeach a witness, you turn that person into a liar who lies about everything. And it would have been very dicey for the defense to brow-beat the best friend of the defendant who has nothing to gain (as far as the jury is concerned) by lying. Does the letter really help? I would suggest not. Even if you stretch 10 seconds up to five minutes, five minutes is still not very long to give CPR. We are instructed to give CPR until help arrives or it becomes too tiring to do so. Tough to argue that 5 minutes is too tiring. Then you have testimony that help could have been in the immediate area and contacted quickly by radio, would have been delayed by insisting on making a cell phone call to only one agency who may not have been as close. That is what that testimony may have meant to me. Does exclusion of this letter rise to the level of a grievous error on the part of the judge and would produce a different result? I would have to say no at this point.

The air usage - if I weren't a diver, I would probably not understand the argument, either given by the prosecution or the defense. I barely get what it is you are trying to say. All I know is, I would probably end-up thinking - no one can say for sure exactly when she died during the dive, so how in the world can anyone calculate air usage? As far as accepting the defendant's word as to the last minute he saw her - well, if he is claiming memory loss for certain things because of Post Traumatic Stress Disorder, but knowing the exact minute that he and his wife split - I would tend to think of that as selective memory that benefits him and I would discount it. Here you would be attempting to impeach the jury's judgment on their finding of fact on this issue - it could not be argued in an appeal.

The other scenaios as to how the equipment was damaged would certainly need to be argued if David manages to get a new trial to help with reasonable doubt. However, don't forget the missing snorkle mouthpiece - it wasn't just the strap that was ripped apart. You will need an explanation for that as well and the current explanation given does not account for it. Impeaching the jury on their finding of fact in this issue cannot be done in appeal.

I am not the one, nor anyone else on this board, the people you need to convince that your friend is innocent if you are to get him set free. I would suggest that information I am giving you be used to find counter-arguments for a new trial, assuming that you can get a new trial through appeal. You need to show one of the following in order to get a new trial: 1) his counsel did a lousy job; or 2) there is new information that was not presented at trial that could produce a different result; or 3) prosecutorial misconduct; or 4) jury misconduct; or 5) judge made at least one bad error that could have produced a different result. What is really important here is to understand, that unless there was evidence of jury tampering on the part of the prosecution, or inappropriate juror behavior during the trial or diliberation process, you cannot appeal a jury's finding of facts as a basis for appeal.

Good luck. I really think you are going to need it if you hope to help your friend.

 

[K_girl]

Chain of custody regarding Shelley's equipment. Interesting argument put forth regarding the chain of custody of the equipment. That being, that the dive shop owner held onto Shelley's dive equipment for over ten years and it should have been taken into police custody soon after the incident to preserve the evidence. Certainly, because the police did not take custody of the equipment and it was in the possession of the dive shop owner for more than ten years, the equipment should have been excluded. I couldn't find any reports that stated if the equipment was presented to the jury as evidence. An argument regarding the chain of custody of the equipment would not have precluded the dive shop owner from testifying about the condition that he found the equipment in. In that case, the defense might have wanted the prosecution to produce the evidence in order to hopefully refute the dive shop owner's testimony by their own expert's examination of the equipment. I don't know which way the defense went, but apparently, it did not work out for them, not because of a chain-of-custody argument, but because they could not exclude or refute the dive shop owner's testimony regarding the equipment.

If evidence had been seized in an illegal search, you could exclude any testimony in relation to that evidence. Or, if the evidence had been improperly handled by the police, any testimony about the evidence by a police officer or prosecution expert would be impugned, but not excluded. The jury would make a determination (as in the O.J. Simpson case) as to how badly the police handled and examined the evidence. But neither of these scenarios can be applied here as the dive shop owner is not a police officer who is bound by police protocols and his observations did not require him to be an expert to determine his reported condition of the equipment.

 

[Docc]

Hey K!! :wavey:

 

[K_girl]

Hey Docc! Boy - do I know some happy people.

 

[ItsBruce]

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.

It might support a negligent homicide conviction in Australia, but probably nowhere else. And, even then, even Australia might not buy the theory unless there was some evidence that the deceased had not already died. That is, if the one buddy had died and was lying on the bottom while the other buddy looked for her for one minute and then surfaced, a refusal to go look for her is not even a proximate cause of the death.

 

[Ayisha]

... 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.

SadiesMom and/or AfterDark:

Did Thwaites' wife dive? If so, why did she not dive with Thwaites during this dive? If not, was it customary for Thwaites to dive alone?

BTW, 35 minutes on a wreck sitting at 85 feet, which may not be a multi-level dive, could be a long dive depending on the gas used and profile. If a diver does a square profile to 85 feet on air, then 35 minutes, including a safety stop, is beyond the NDL's.
If it is a multi-level dive, where the diver descends to 85 feet for a fairly short time, then ascends to a shallower depth (or several) for a longer time, then 35 minutes would be on the shorter side. It all depends on the dive profile and gas used.

 

[ItsBruce]

More thoughts:

1. Presenting alternate explanations does not necessarily create a reasonable doubt. There must be some admissible evidence that would support the alternate explanations.

2. As far as grounds for reversal, the ones that traditionally work are (1) the verdict is not supported by substantial evidence, (2) the trial court excluded admissible evidence and thereby prejudiced the defendant, (3) the defendant was deprived of a fair trial because he was not allowed to examine or cross-examine witnesses and was thereby prejudiced.

I have not seen, and probably will never see, a transcript of the trial and therefore cannot comment on the sufficiency of the evidence. Note, however, that just because there is contradictory evidence, that does not mean there was not sufficient evidence. It is for the jury to decide what evidence to believe and what evidence to disbelieve and an appellate court will not upset the jury's determination on what to believe or disbelieve.

I understand that the trial court excluded Dr. Egstrom's proposed testimony relative to the deceased's air usage and therefore excluded evidence that would have tended to show that David was not with the deceased at the time she died. I do not know why the trial court excluded this testimony, but that could support a reversal and remand for a new trial and if I were the prosecutor, I would be very concerned.

Based on data from past dives, and in particular depth and duration, one could calculate the deceased's approximate SAC. While this would not be an exact figure, it would certainly be more accurate than the SAC for an "average" diver. Given an SAC, depth and amount of air remaining, it is an easy calculation as to how far into the dive the deceased stopped using air, i.e. died. If that point was after the time David said the two separated, it would corroborate, rather than impeach, his testimony that he did not kill his wife.

I am not an appellate justice, but I would certainly want to see the argument as far as the exclusion of Dr. Egstrom's testimony.

In addition to the foregoing, I understand that because of delays in the trial, the defense was unable to call one of its witnesses. I have a vague notion that this may have been an expert witness. I also have a vague notion that because of the delays, the defense could not continue to keep the witness in the BVI to testify. That fact, too, might provide a basis for a reversal and remand.

I do not know whether defense counsel created an adequate record to support an appeal and the success of an appeal will turn on whether he did so. Many cases are affirmed simply because the appellant did not create an adequate record at the trial court level. It is unfortunate but true.

FWIW, I am reminded of an interview I once saw on television. There was a panel discussion by some very high profile and very well respected attorneys. These included Jerry Spence, Leslie Abramson, and a few others whose names escape me at the moment. Ms. Abramson is probably best known for her defense of Lyle and Eric Menendez, two brothers who were accused of killing their parents. The gist of one of the things Ms. Abramson said in the interview was that she had a knack for saying things in a way that tended to alienate judges. It may have had to do with the tone of her voice or her very demeanor. In any event if the judge ruled in her favor, that was great. However, if the judge ruled against her, she had a basis for an appeal, and, she noted, in an appeal, all the appellate court would have is a transcript of the proceedings. The "cold" transcript did not contain any of the tone of the argument and would not alienate the appellate justices and would often lead to a reversal. The bottom line is that Ms. Abramson often got "two bites at the apple."

I mention the foregoing because in any appeal, the appellate court will be faced with a "cold" transcript and with the written argument of counsel. Assuming there is a good record and that he can afford it, this could give David a real advantage on appeal.

Just my 2 cents worth.

BTW (again): I am so glad to see K_Girl participating here. For those who don't know it, she is outstanding at compiling and correlating information on cases that interest her.

 

[SadiesMom]

Thank you for your input Bruce. In answer to your question on Dr. Egstrom's testimony, I was told that the reason for the limitation of Dr. Egstrom's testimony to not include calcuations on Shelley's SAC were because he was "not a medical doctor." The objection was raised by the prosecution and sustained by the judge.

 

[SadiesMom]

SadiesMom and/or AfterDark:

Did Thwaites' wife dive? If so, why did she not dive with Thwaites during this dive? If not, was it customary for Thwaites to dive alone?

BTW, 35 minutes on a wreck sitting at 85 feet, which may not be a multi-level dive, could be a long dive depending on the gas used and profile. If a diver does a square profile to 85 feet on air, then 35 minutes, including a safety stop, is beyond the NDL's.
If it is a multi-level dive, where the diver descends to 85 feet for a fairly short time, then ascends to a shallower depth (or several) for a longer time, then 35 minutes would be on the shorter side. It all depends on the dive profile and gas used.

Hi Ayisha. I don't know if Bernice Thwaites was certified to dive or not for sure, but I *believe* that she was. However, I was told that the four adults had an agreement for the trip that there always be two adults aboard the boat at all times with the Thwaites' son. That would explain why even if Bernice were certified, she didn't enter the water with her husband - she would've been waiting for Shelley to return before getting in so that there were two adults onboard.

I can't help you with anything related to the profile in specific. I haven't dived the site nor seen a site map, so I don't know it. I do know that there was some testimony of both a reef and the wreck...which would lead me to think that there was some sort of relief for a multilevel dive - but that would be purely speculative on my part.

 

[ItsBruce]

Thank you for your input Bruce. In answer to your question on Dr. Egstrom's testimony, I was told that the reason for the limitation of Dr. Egstrom's testimony to not include calcuations on Shelley's SAC were because he was "not a medical doctor." The objection was raised by the prosecution and sustained by the judge.

There is an old saying that is very apropos to legal work: "Be careful what you wish for, you may get it." If the objection was that Dr. Egstrom was not a medical doctor and thus could not opine on air usage, the trial court's ruling was probably wrong and that alone could result in a finding of prejudicial (reversible) error. It is not a matter of an opinion based on physiology, but rather on calculations that would be known to an expert on scuba diving. (It is like saying that the victim had a heart rate of 62 beats per minute ... it does not require a medical doctor to opine as to how many times the victim's heart would have beaten in 5 minutes, although it may not require any special expertise to do THAT calculation.)

In any event, the prosecutor may have kept the testimony out, but that could give David a reversal.