K_girl
Contributor
More thoughts:
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.
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.
Hi ItsBruce, sorry I came late to the discussion, I was on vacation in Florida for three weeks. As always, you are providing great information. One thing I learned from your post that I did not know was the value (or lack of value) of providing alternate explanations. That indeed will make it more difficult.
I still have some difficulty with the air-usage argument. Are you talking about taking information regarding her nitrogen saturation from her computer? And if so, doesn't that mean that you are assuming that she was alive and still breathing at the time the computer surfaced in making those calculations? I feel I could easily argue against that on the prosecution side. I don't believe the prosecution would concede it as a fact that Swain last saw her 8 minutes into the dive. There would be no case if that was the case. They would be conceding that he and his wife separated and he did not stay beyond that point and proceed to kill her.
In order to establish her exact time of death, wouldn't the defense need tissue samples from her and have an expert do an actual calculation on her nitrogen saturation from her body and not her computer? If such science and expertise even exists? It would be interesting to know exactly what Dr. Egstrom's testimony would have been. Do you think he was hinging his entire testimony based on the 8-minute point in the dive that Swain gave as the last time he saw her? Without some other corroboration of that point in time, do you think this may have been the reason they excluded his testimony? It could be that if his scientific testimony hinged on that unprovable moment in time, his testimony may have been excluded. If I were the prosecutor, that would have been the argument I would have made.
Certainly, however, if you can simply make the argument that the defendant did not receive a fair trial because the testimony was excluded and be successful, you get a whole new crack at it with a new trial.