Diver convicted in wife's drowning

[K_girl]

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.

 

[openmindOW]

I hate to see all this nastiness. We should be able to talk to one other in a civilized tone.

Amen. Unfortunately, this is how a lot of SB discussions tend to disintegrate.

Too many boors at the keyboards. I have a new word for them: "keyboors."

 

[openmindOW]

I have tried to follow this case, but there is so much about it that makes it hard to really understand what occurred LEGALLY.

The criminal trial in this case took place in BVI. Let's face it, we don't know much about the legal system and its rules in Tortola.

We have not heard from the jurors as to what made them decide to find the defendant guilty. Unless we hear what moved the jurors, we may never know what evidence was most persuasive.

One of the posters on this Board indicated that the defendant would appeal his conviction. So, the criminal case may not be over.

Regarding the civil trial, which took place in Rhode Island, the defendant was in big trouble as soon as he started proceeding pro se (representing himself). Was the civil trail a bench trial or was it a jury trial?

 

[K_girl]

openmindOW - I have to agree with everything you say. You can't say what the jury did not find most persuasive, but you can say what was not persuasive enough to change their minds and speculate on the potential reasons why.

Appeals can be limited in terms of what they accomplish unless they are able to win a new trial. Not an easy thing to do. It is a real uphill battle.

Civil trial was a jury trial. As for the differences between British and U.S. criminal law - don't really know except that U.S. criminal law was born out of British law and that historically, U.S. was more progressive in terms of the rights of the individual, most especially in the 1970's. However, British law may have caught-up since that time.

 

[DandyDon]

Appeals can be limited in terms of what they accomplish unless they are able to win a new trial. Not an easy thing to do. It is a real uphill battle.

Didn't Rhoneman say that the conviction can be overturn from the UK, and often are...?

 

[K_girl]

Well, if Swain loses his appeal, he has a real problem:

"..Someone who has been convicted and sentenced, lost their appeal or been refused permission to go to the court of appeal, can apply to the CCRC..

Applications to the CCRC are supposed to be user-friendly, involving completion of an eight-page form, and should be possible without the help of a lawyer. The application must focus on fresh evidence that was not raised in the initial proceedings..

The numbers show how hard it is for applicants to meet this test. Since 1997, the CCRC has reviewed more than 11,600 cases, only 385 of which it has referred back to the court of appeal. As of March 2009, 273 convictions had been quashed as a result. In the vast majority of cases, the CCRC forms the view that there is not a real possibility of having a conviction overturned or a sentence reduced..

Funding applications to the CCRC can be a serious problem, since legal aid runs out once a criminal trial and appeal has concluded. Limited "legal help" is available to pay for advice from solicitors, although this is means tested and not available to everyone. Many solicitors say they are no longer attracted to this kind of work because of the low pay it attracts.."

Source: Last resort: how the Criminal Cases Review Commission works | UK news | guardian.co.uk

I haven't found a source yet in terms of a first appeal, but obviously it had better be real good.

 

[K_girl]

Here is a tidbit on criminal appeals from a legal aid website in the UK:

"Criminal Appeals – A Brief Guide
Mary Monson Solicitors have represented clients who wished to appeal in the Crown Court and the Court of Appeal. We have assisted in finding and putting forward new evidence which wasn’t available to the first trial court, and have successfully challenged judge’s decisions on sentence. Not every case is appealable, but we try to give everyone a chance to have their appeal considered at least initially. Legal Aid is limited in this area, and our advice to anyone who can afford it, sadly, is that paying privately provides a much better chance. However, we do our best with the tools we have, even if a client comes to us with only legal aid funding, and provide a positive and professional service.."

Criminal Appeals Solicitors, Appeal against Conviction & Sentence | Lawyers in London, Manchester and all England and Wales

 

[K_girl]

EXCLUSIVE INTERVIEW WITH SWAIN SCUBA MURDER TRIAL WITNESS KEITH ROYLE GIVES HIS ACCOUNT OF '99 EVENTS

Keith Royle, owner/manager of Blue Water Divers, knows the waters surrounding Tortola, and what lies below them, like the back of his hand. This year, he and his brother celebrated 30 years of maintaining their dive operations in the British Virgin Islands. Ten years ago, he would never have predicted that this year he also would be called as a witness in a murder trial.

Royle’s involvement as first responder to an emergency call on March 12, 1999, led to his being called to testify about the events of that tragic incident on the second day of the trial. The defendant was David Swain, a former dive shop owner in Rhode Island, accused of the drowning death of his wife, Shelly Tyre, while scuba diving on the wreck of the Mary L, part of an area known as Wreck Alley.

The day of the drowning

Recounting that day’s events, Royle recalls, “The weather was sunny, with winds about 10 to 15 mph. The seas were slightly choppy; visibility was about 80 feet on the Rhone and would have been about the same on the Mary L.”

He had picked up divers from a sailboat at Cooper Island earlier that day and had completed a 2-tank dive at nearby Salt Island on the wreck of the RMS Rhone before returning them to their boat. “I was about 15 minutes out of Cooper Island, headed back to our base at Nanny Cay, when I heard the VISAR (Virgin Islands Search & Air Rescue) call, stating there was an emergency diving accident, asking any nearby boats to respond to it.”

“I headed straight toward the Caribbean Soul, which was moored right off the Mary L, and pulled up alongside. That is when I met Mr. Swain and saw Shelley. She was lying motionless in the cockpit with a wetsuit on that was still damp; her hair was still wet, and she was blue in color.
There were two gentlemen in the cockpit; one was David Swain, the other was a guy named Christian, Swain’s friend, who was chartering the boat with the Swains, along with his wife and son.”

“I asked permission to come aboard, they gave it, and then I offered to do CPR, which was refused. He told me he was a paramedic, said he had done CPR, but didn’t say how long and that was it. He basically said not to do CPR, that she was dead, and there was no need to do any CPR. I then suggested if you don’t want to do CPR, rather than waiting for the VISAR boat, that we get her to the hospital. We put her on my dive boat and went full steam towards Road Harbor, with Shelley lying on the engine cover and Mr. Swain at her feet.”

“He sat very solemnly, very quiet, with his head down. He didn’t say anything to me; I didn’t say anything to him. Obviously, people react differently in that situation, and I didn’t think much of it then, but the only thing I did think was very strange was that he wouldn’t allow me to do CPR. My personal opinion is, if it had been my wife, I’d have been happy if anybody offered to try to revive her.”

When they arrived at the ferry dock, Royle reported that an ambulance and police were waiting for them. “As soon as we got there, the ambulance staff jumped on board, transferred her to the ambulance, Swain got in with her, and they took off.”

Source: David Swain sentenced to 25 years in '99 scuba murder of his wife in Tortola

 

[K_girl]

Continuation of Royle interview:

Trial testimony about the equipment

Testimony in the trial given by an expert in analyzing scuba diving equipment called attention to the condition of Shelley Tyre’s dive equipment. It included a torn mask and a snorkel separated from its mouthpiece, which he attributed to “an unusual force applied to the mask and snorkel” and concluded “this damage is not consistent with normal diving practices.” Also baffling was the location of one of Tyre’s fins, found more than 30 feet from her body, and its position, “stuck by the blade three inches into the sand.”

In my interview with Keith Royle, I asked if he had noticed the equipment when he was called to the scene, and if he had an opinion about the evidence concerning equipment.

“The mask was in the dinghy,” he recalls, “ but the snorkel I didn’t see, which is really irrelevant because she would’ve had a regulator in her mouth and not a snorkel. I didn’t think much about that at all, since they could’ve broken the mask and snorkel trying to lift her up from the water to the dinghy.”

The fin, however, is another story. Royle says, “One thing I heard is that she took it off to mark her way back, but that would be one of the most stupid things to do, to take off your one means of propulsion under the water, and it was stuck deep in the sand.” He then described going back to the dive site last week with reporters in an effort to try to simulate how the fin may have been driven into the sandy bottom. “I actually put a pair of fins on just like Shelley was wearing and tried to wiggle one into the sand with it on; there was no possible way. I had to take it off and do a soaring motion down into the sand (with some force) to get it to stay up there.”

The prosecution’s supposition was that the state of her dive equipment, including the fin’s placement in the sand, was indicative of a violent struggle between Shelley and her husband, one that resulted in her death by drowning. Defense suggestions that, while she was an experienced diver, she was prone to panic also did not ring true to Royle. “It doesn’t seem plausible, as I’ve been told she’d done more than 300 dives, and there’s nothing on the dive site to panic over, really. In my experience, when people panic they bolt to the surface. She would have been found on the surface rather than the bottom in that case. For her to stay on the bottom, her BC (buoyancy compensator) must have been totally deflated and she must have been slight overweighted.”

http://www.examiner.com/x-12498-Dal...ars-in-99-scuba-murder-of-his-wife-in-Tortola

Interview is even longer - click on link to read entire interview. It is not that often you get this much direct information from an eye witness.

 

[SadiesMom]

Regarding the civil trial, which took place in Rhode Island, the defendant was in big trouble as soon as he started proceeding pro se (representing himself). Was the civil trail a bench trial or was it a jury trial?

K-girl is correct - it was a jury trial. Remember that it was not David's choice nor his desire to represent himself. I believe that in an earlier post I talked about the circumstances that led him to be without legal representation (for anyone who may not have seen my post a few days ago). What I wrote there is the explanation I got from a very close friend of David's after I specifically asked why he didn't have an attorney - that I didn't understand that piece of the puzzle.

You're correct that there is an appeal in the works. The attorneys in Boston are already working on it. I have no idea exactly what the specifics are - in any case, I'm not an attorney so they are likely esoteric legal issues that I wouldn't understand - K-girl and Itsbruce might. If I find anything out that I'm free to disclose, I'll do so - but only with explicit permission from the family.