Diver convicted in wife's drowning

[Ayisha]

I don't believe that Royle was called as a witness.

The article with Royle's interview quotes Royle as saying:

“I wasn’t in court every day, just the day I was asked to testify, and while there doesn’t seem to be one damning piece of evidence, there were many, many small pieces of circumstantial evidence.

bold added

It appears that he was called as a witness on one day of the trial.

One contradiction in Royle's interview is that he said that Tyre's mask was on the dinghy at the time of rescue (and he didn't notice a snorkel), whereas Brown stated that he found her mask in the water the NEXT DAY (with a snorkel but missing the mouthpiece).

Thank you K-Girl for your outstanding work once again in digging up and analyzing details.

 

[SadiesMom]

My mistake - thanks for pointing that out, Ayisha.

 

[AfterDark]

K_Girl in reference the civil trial and money. I've said several times that Swain is not one to be motivated by money. His aditude about the civil trial and money is evidence of that. The prosocution but forth as a movitive the fact that the pre nub they would prevent Dave from getting any of the families money when she died, he could however collect any life insurance in the event of Shelly's death. Also going to motive was a relationship he had with another women. The main motivation however was $$.
I think reasonable people would agree that Daivd's reaction to the civil trial and the money involved is evidence that money was not a motive for Dave, or why did he take his lawyers advise to conced by not showing up on the first day thus losing the money he supposly killed for? My opinion as to why the trial went on is pure Rhode Island corupption. Shelly's parents had money Swain didn't, here in RI the one with the fattess envelope wins. Sad, but I challenge anyone to prove me wrong.

 

[idocsteve]

why did he take his lawyers advise to conced by not showing up on the first day thus losing the money he supposly killed for?

Because he's an idiot?

That's about the only reason a person would intentionally not show up for a civil trial thinking they would lose by default as per the advice of their attorney.

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.

I mean...who does this? They hire an attorney to defend them and then the attorney gets sick at the wrong time and tells them "Don't show up and lose on purpose".

Right.

 

[ItsBruce]

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?

I can't answer the question as you framed it. What I can say is that when a judge says the trial starts now, it starts now. The plaintiff presents his or her case. The defendant has the right to object to questions asked of witnesses by the plaintiff. If the defendant makes an objection, the court rules on it. If the defendant does not object, the question stands and the answer is admitted into evidence with any basis for objection being waived. The defendant has the right to cross-examine witnesses called by the plaintiff. If the defendant does not cross-examine the plaintiff's witnesses, so be it. After the plaintiff is done calling witnesses, the defendant has the right to put on his or her defense. If the defendant does not put on a defense, do be it. Then, the jury deliberates and renders a decision. If the defendant has presented evidence, the jury weighs it against what the plaintiff has presented. If the defendant hasn't, there is not much to weigh, though the jury still can disbelieve the plaintiff's evidence. Thus, while the court cannot force a party to defend himself or herself, it can try the case without the defendant's actual participation.

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.."

I do not see this as helping or hurting.

 

[ItsBruce]

... 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.)

The bit about the camera seeing what the eye does not is, I believe, a very old comment and, IMHO, a very accurate one. The brain, which interprets what the eye sees, is very easily fooled and quickly forgets details. The camera accurately records and perceives what is there. For anyone who does not believe this, explain why your eye seems to see colors quite naturally, even under fluorescent light, while a camera, without a filter or special white balance, sees it with a green tint. Or explain why so many photos depict people with things like telephone seeming to grow out of their heads, while it did not look that way to the photographer.

As far as keeping rubber boots and an old coat in the car trunk, that is the sign of a good lawyer, not necessarily an ambulance chaser. Ambulance chasers advertise. Good lawyers want to see things first-hand and want to be able to service their clients promptly.

I would, however, be interested to know why he thought it was a homicide rather than just negligence resulting in death. Could it be that he approached the family on the premise that David was negligent in not sticking with his buddy and being available to assist in the event of a problem, and, as he delved into the evidence, concluded there was a homicide?

 

[ItsBruce]

Sorry for being verbose with all the posts.

As far as the bit about the attorney telling David not to show up, I am speculating that if that was the attorney's advice, the thought process was that without an attorney, David was bound to lose the civil case. Therefore, he could lose by way of a verdict after the presentation of evidence or by way of a default...and that a default was better because it did not actually entail a finding by a jury after hearing evidence.

However, as noted above, just not showing up will not support a default judgment. If the defendant has filed an answer to the complaint and has not been sanctioned for failing to comply with some order or other, the defendant is entitled to a trial, even if he or she does not actually attend.

 

[AfterDark]

I would, however, be interested to know why he thought it was a homicide rather than just negligence resulting in death. Could it be that he approached the family on the premise that David was negligent in not sticking with his buddy and being available to assist in the event of a problem, and, as he delved into the evidence, concluded there was a homicide?

My understanding was he presented a senerio to the parents, of Swain holding her tank between his knees, shutting off her air removing, her mask and holding her down until she drown. This with apparently no trauma to the Shelly or Dave.
No bruises, scrathes, bite marks nothing. The only equipment damage was a broken mask strap, a snorkle without a mouthpiece and a fin stuck in the sand 30 feet away (maybe, we don't really know for sure about the fin location, pictures of the crime scene anyone?). Thanks for your informative and thoughtful posts on this thread you come across as true pro and objective observer, others whom have posted here say nothing with their words and are not listened too.

 

[ItsBruce]

And, now for something really important!

Like it or not, I am seriously considering writing briefing on the Court's having sustained the prosecutor's objection to Dr. Egstrom's testimony relative to the deceased's air consumption. As a diver, I understand the mechanics. As a lawyer, I understand the relevance and the arguments about how it was prejudicial error. I will send a draft to SadiesMom outside of the forums and perhaps she will provide it to David's attorneys. It may save them time and fees.

For K_girl's reference, it has nothing to do with nitrogen loading. Here is the idea. Log entries from prior dives can give us a pretty good idea of a diver's SAC. We can compute SAC if we know (1) how much gas the diver started with, (2) how much gas the diver ended with, (3) how big the tank was, (4) the average depth of the dive, and (5) the duration of the dive. If instead of numbers 4 and 5, we have a dive computer that gives a profile of past dives, all the better.

If we do not have number 1, it is reasonable to assume a standard starting pressure of 3000 pounds. If we do not have number 2, it is reasonable to assume the dive ended with 500 pounds. If we do not have number 3, it is reasonable to assume an AL-80, since it is the most common size tank.

In any event, these three items tell us how many cubic feet of gas a diver has used on a dive.

Applying that to the depth and time provides us with an SAC for the diver.

If we have this information for a number of dives, we can get a pretty good idea of the diver's SAC.

Now, we should be able to tell how much air the deceased used before she died. This is the difference between the start pressure (probably 3,000 pounds) and what was left in her tank at the time she died, divided by the start pressure, multiplied by the size of the tank.

It is reasonable to assume that the deceased entered the water and descended to the bottom reasonably promptly. We should know the depth from her computer. The depth divided by 33 and multiplied by the SAC will tell us how much gas the deceased was using per minute. Dividing that figure into the total gas used tells us how long into the dive the deceased stopped using air, i.e. died.

It is sort of like saying a car gets 15 miles to a gallon of gas and used 5 gallons of gas: We know it went around 75 miles even if it was not in a straight line.

Now, if the deceased died x minutes into the dive and David's computer were to show that at that point in the dive, he had already returned to the boat, that would be pretty good evidence he did not do it. Even if David was not in the boat or on the surface, if x was after a point that David said he had parted company from the deceased, and the time stamp on his photos proved it, that would support the conclusion he did not do it.

Recall that the jury, to find David guilty, had to both believe the prosecution's evidence and disbelieve David's denial of guilt (assuming the testified in his own defense). As far as disbelieving David's denial of guilt, if his testimony placed him with the deceased within the same time frame as the prosecution's experts testified that the deceased died, that would tend to cast doubt on David's credibility. That is, either he lied about when he left the deceased or about not being with her at the time of her death or both. However, if the time frame were different, that might not cast doubt on David's credibility and therefore might not impeach his denial.

(Pretty good for explaining this without a lot of editing, huh?)

 

[ItsBruce]

IMy understanding was he presented a senerio to the parents, of Swain holding her tank between his knees, shutting off her air removing, her mask and holding her down until she drown. This with apparently no trauma to the Shelly or Dave.

I'm going to bed after this one. I promise.

Thanks for your reply. Unfortunately, it does not really answer my question. Perhaps, I was unclear. Sure, he may have presented that scenario to the parents. But, what would lead him to think that in the first place? Did he just pull the homicide theory out of thin air or was there something beyond mere speculation?

One could accuse the buddy of every diver who died underwater of holding a deceased buddy's tank between their knees and shutting off the air. However, that does not happen. It does not happen because there usually is no reason to even think it may have happened.

I cannot fathom a lawyer taking on a case and spending time and resources litigating it (especially on a contingent fee basis) without some basis for believing he would win. And, for me, saying "it might have happened this way" does not cut it. (Recall that the lawyer probably never expected he would get a "gimme" or default.)

There must have been something that led the lawyer to think there was a homicide. Any clues as to what that was?