Diver convicted in wife's drowning

[Rhone Man]

Hi KGirl, just to clarify a couple of things about criminal procedure in the BVI:

- BVI is a separate legal system from the UK, so there would be no question of any reference to the CLRC which only applies to criminal cases from within the UK, and in respect of which the time for appeal has expired.

- Similarly, the legal aid system in the UK only applies to cases within the UK, and not the BVI.

- The normal method of appeal in the BVI is for an appeal to the Court of Appeal of the Eastern Caribbean circuit. Thereafter, further appeal lies to the Privy Council in London. I had heard an indication that an appeal would be lodged, but I don't know if this has actually been done. I think that they have 3 months to lodge an appeal (not sure, long time since I practised any criminal law), so if my recollection is correct they still have time even now to lodge an appeal.

- I was interested to read the interview with Keith Royle. I know Keith quite well (he certified me for my Rescue Diver back in 1988). I hadn't realised that he had been involved in the aftermath of the incident, or that he had been called as a witness. It is a bit difficult to separate out comment from evidence. For example, where Keith says "One thing I heard is that..." that would of course be completely inadmissible under the hearsay rule, so presumably he is referring to island gossip. Small point that Keith is neither owner nor manager of BWD, but hopefully the rest of the reporting on the material details in the interview are more accurate.

 

[ACES50]

Sadiesmom or Afterdark

A couple of questions;

Who first made the accusation that David turned off Shelleys air? Did her parents think that early on?
When was that accusation made?
Was it part of the filings for the civil trial?

 

[K_girl]

Apparently, the person Royle said referred to himself that he was a paramedic was Swain.

"..Swain, a former emergency medical technician, said he performed CPR for two to three minutes before concluding his wife was dead.."

Source: Now it’s a murder case | Rhode Island news | projo.com | The Providence Journal

***
Somewhere there is a conflict between the Thwaites "PADI letter" that Sadiesmom referrered to (that Swain could have worked on his wife up to 5 minutes) and the report above that Swain testified at his civil trial that he worked on her for two or three minutes.

***********
From an April 9, 2008 report:

.."[Swain] deserves a new civil trial in Rhode Island because he was forced to represent himself at trial, his attorney argued during an appeal to the state Supreme Court..

Swain's new attorney, Anthony Leone, appealed the verdict. He argued Tuesday that a judge should have delayed the trial because Swain's original lawyer was ill with cancer. Swain decided to represent himself at trial.

Renn Olenn, a lawyer for the Tyre family, said that Swain never voiced his objections at trial and cannot raise them now.

During the arguments, Chief Justice Frank Williams questioned how the court could order a new civil trial since Swain is no longer in the country. He did not indicate when the court would rule.."

Source: Swain's lawyer asks R.I. Supreme Court for new trial - Boston.com

*********

ItsBruce - could Swain have refused to represent himself? Can a civil court really force a defendant to proceed without a lawyer? What was the responsibility of the lawyer who fell ill to see to it that Swain was properly represented?

What about this report filed at the time of the civil trial? Does this hurt him in terms of making this argument?

"Later, outside the courthouse, Swain told a reporter he was not defending himself because the trial was really about money and nothing else.

"If there truly was a case, we would be in criminal court. There is no case," he said.."

Source: CDNN :: PADI Dive Shop Owner Accused of Murdering Wife Racked Up Huge Debts

[Tom Mooney is the original writer of this story from Providence Journal, Rhode Island and you will find many articles written by him on this story at projo.com] CDNN is a reprint of the story. I know many people don't like CDNN, but I have confirmed the stories that they reprint through Lexis/Nexis. As for their original journalism, I would not use them, but they do keep the reprinted stories on their website longer than some of the original sources do.

 

[K_girl]

RhoneMan - yes, you are right, he can only testify to what he personally saw and heard. The rest is just his opinion based on hearsay.

Any insight you can provide into the BVI system of justice would be appreciated.

 

[SadiesMom]

Sadiesmom or Afterdark
A couple of questions;

Who first made the accusation that David turned off Shelleys air?

Renn Olenn, a personal injury attorney in Warwick, RI, approached the Tyres with the suggestion that Shelley's death was not an accident.

Did her parents think that early on?

No. They wanted to have an answer as to why Shelley died (and I think we would all find that to be a totally reasonable desire from parents who've just lost a child). They were angry with David for not being with Shelley to prevent her drowning, but from what I've heard, they did not consider that this was anything other than an accident, as it was initially ruled until Renn Olenn approached them. He initiated the thought process that it was an intentional act. (For a little background on the kind of person he is - A quote from an article on him “The camera sees what the eye does not,” he liked to say. He kept rubber boots and an old coat in his car trunk in case a sudden personal injury accident, a fishing boat mishap or an insurance claim required him to step out of his pin-striped persona and take a closer look. Not for nuthin' but to me that's the very definition of an ambulance chaser.)

When was that accusation made?
Was it part of the filings for the civil trial?

The accusation was made somewhere around 2006 (7 years after Shelley died) as part of the civil trial.

 

[SadiesMom]

I don't believe that Royle was called as a witness. As I recall from reading that article during the trial, the columnist knew Royle because she had been to Tortola and had dived the Rhode before and had mistakenly said that the accident happened on the Rhone. When she was called on that by someone, she contacted Royle, since she knew him and he was in Tortola. As it turned out, he'd been involved, so I believe that's how that article was written. I may be incorrect in my recollection, but I believe that the only dive professional from the island who was called by the prosecution to testify was James Phillip Brown, who owned the dive shop from which Christian Thwaites rented the tanks and weights.

 

[SadiesMom]

K-girl - I'm sorry - have you read any of my past posts regarding the civil trial? I explained in detail how David ended up without any legal representation during the civil trial, based on talking to Jen Swain Bloom and several close friends of David's. David did not *chose* to represent himself. He asked for additional time to get another attorney as his attorney had become too ill with the cancer to continue representing him, was refused by the judge, and then was advised by that attorney that if he did not appear on the first day of the trial, there would be no trial and the Tyre's would just win by default. Since he knew there was no way he could win at a jury trial by representing himself with no legal knowledge whatsoever, that seemed the best thing to do. However, instead of the trial defaulting to the Tyre's, for some reason, it was allowed to move forward without him there. When he realized after a few days that he was completely screwed, he came in and put his daughter on the stand as his only witness - he had no clue how the court worked, what you could or should object to, when to stand to address the judge....nothing. What a nightmare!

 

[K_girl]

Sadiesmom - very sad if true. Are you saying that the reporter, Tom Mooney, lied about Swain's remarks outside the courtroom? It appeared to me that Swain was not taking the lawsuit all that seriously when he should have. Perhaps no one advised him that in a wrongful death lawsuit, its not just about money as there is always a chance that evidence from that lawsuit could lead to a criminal trial. Fact is, we have no right to a public defender or help with legal fees in a civil lawsuit and people can represent themselves. He had representation in the criminal proceeding and if there were any issues regarding the civil lawsuit, the appropriate time to raise those issues would have been during the criminal proceeding. Does this provide a basis for appeal for the criminal proceeding? Ouch - I think maybe that opportunity might be passed.

 

[SadiesMom]

Sadiesmom - very sad if true. Are you saying that the reporter, Tom Mooney, lied about Swain's remarks outside the courtroom? It appeared to me that Swain was not taking the lawsuit all that seriously when he should have. Perhaps no one advised him that in a wrongful death lawsuit, its not just about money as there is always a chance that evidence from that lawsuit could lead to a criminal trial. Fact is, we have no right to a public defender or help with legal fees in a civil lawsuit. Only in criminal proceedings. I think the next question would then be if you could make the point that he did not have effective counsel for his civil trial, how would that change the criminal trial? As that is a completely separate proceeding. He had representation in the criminal proceeding and if there were any issues regarding the civil lawsuit, the appropriate time to raise those issues would have been during the criminal proceeding. Does this provide a basis for appeal? I really don't know. Potential for some discussion.

I'm sorry - I'm not following where you're bringing up the issue of money for the civil trial. Money for an attorney had nothing to do with it. David didn't have a public defender, nor did I say that he should've had one. I'm well aware that public defenders are only available for criminal trials. But that's completely moot and I'm confused as to where you're coming from on this issue of money.

He had a private attorney (that he paid for) for the civil trial who developed cancer early on when David was informed of filing of the civil suit. David and the judge were informed of the cancer. The judge told David to get a new attorney, but the attorney told David that he felt fine and would be able to represent him. By the time the case went to trial, the attorney's cancer had unfortunately progressed. The week before the civil case was to begin he had a court date for another trial. Just being in court for that one date physically devastated the attorney and that made him realize that there was no way he was going to be able to physically stand up to handling David's case. They went before the judge to explain that, expecting her to give David time to find a new attorney and bring the new attorney up to speed. But the judge said no - that she had warned him to get a new attorney well before this and the trial would proceed as scheduled. That left him with no legal counsel at all to represent him for a civil trial. (Again - this had nothing to do with money - it was circumstance)

His attorney recommended that the only way for him to get out of this was to not show up on the first day of the trial and just let the Tyre's win by default. However, for some reason, when he didn't show up, a default didn't happen. The judge allowed the trial to move forward without David present.

I don't believe I ever said that what happened in the civil trial should be cause for appeal in the criminal trial. I'm aware that the two cases are separate and that the appeal for the criminal case will be based on what happened in the trial in Tortola alone. I do believe that if David had had defense counsel for the civil trial, things might never have proceeded to a criminal trial at all.

Did David take the civil trial too casually? I don't know. Maybe he did. I don't think for a second that he ever thought that he would be found liable for Shelley's death. When you haven't done something, how can anyone prove to a jury that you have? I think it's possible that he believed that the civil case was simply about the money. But that's not why he didn't have counsel nor is it why he didn't appear the first day - at least according to the people I spoke to.

As a rule, in terms of any media coverage, if it looked bad for David, it was reported - if it looked good, it was glossed over in a single sentence or not mentioned at all. During the criminal trial, I was getting daily reports from those in the courtroom in Tortola on what was happening and being said. Did you see the incident report when the judge strongly reprimanded the reporters for misrepresenting the trial proceedings in newspaper articles? No. You wouldn't. Doesn't mean it didn't happen...it means they sure as heck weren't going to report that. Do you see any real coverage of the defense's cross examinations of prosecution witnesses? No. But you see almost every word of the prosecution's crosses of the defense's witnesses.

For the record, both 48 Hours and Dateline are doing 1-hour stories on David. They obviously feel that there is enough ambiguity in what happened to be worth an hour of prime time. They have interviewed a ton of people up here, including the Tyres and friends of David's. If I find out when it airs, I'll alert people on the board in advance.

For now, though I'm tired - I want to have a nice Thanksgiving and I don't want to argue. I came here to answer questions if I can - because I happen to have information, like Afterdark does, about all of this. I've been given permission to talk about the information that I do know.

If you want to believe he did it, go right ahead. That's your perogative. I, on the other hand, firmly believe that he did not and when he comes back home, I'll be at the airport to welcome him back and I'll be at the party we have. And I'll come here and maybe - I hope - I'll see some congratulations, good wishes for him and some apologies.

 

[idocsteve]

His attorney recommended that the only way for him to get out of this was to not show up on the first day of the trial and just let the Tyre's win by default.

His attorney told him that the only way to get out of it was to "not show up and let the Tyres win by default?"

Exactly how, might I ask, is that "getting out of it?".

No disrespect intended however it does not make any sense to me that a competent attorney would recommend his client "get out of it" by doing something that is surely going to result in a guilty finding leveled against that client; and that furthermore that client would follow those bizarre instructions.

However, for some reason, when he didn't show up, a default didn't happen. The judge allowed the trial to move forward without David present.

I guess the judge in the civil trial wasn't all that unfair since she gave David a second chance to show up and present his side of the case.