Diver convicted in wife's drowning

[AfterDark]

Itsbruce, this is what I have also in the thread you'll find references to the thought process used to arrive at his conclusion. You sir are a angel for trying what your suggesting. SadiesMom is closer to this than I but please PM me with anything you think I may help with. Thank you.
CDNN :: Woman Testifies David Swain Made Romantic Advances 8 Months Before Wife Died Scuba Diving

 

[AfterDark]

K_Girl, Thank you also for you advice and referral. Feel free to PM me for anything.

 

[Rhone Man]

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.

It actually happens all the time for tactical reasons. A judgment obtained in default of appearance by the defendant is much harder to enforce than a judgment given after a contested hearing. Usually it happens after people contest jurisdiction and lose, then rather than fight on the merits they allow judgment to be entered in default and then try and prevent it being enforced in any jurisdiction where they have assets. Obviously that plan does't really work if you have assets in the same jurisdiction as the court.

 

[idocsteve]

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.

It actually happens all the time for tactical reasons. A judgment obtained in default of appearance by the defendant is much harder to enforce than a judgment given after a contested hearing.

^^Thanks for explaining this. I could not fathom why an attorney would "throw his client to the dogs" because he took ill at just the wrong time. This clears it up for me.

If I understand correctly the attorney figured a default judgement due to a no show would be better than the likely guilty verdict at civil trial based on the evidence.

Either way it does not appear that David chose to "represent himself in the civil trial because he didn't care about the money".

It was for reasons beyond his control:

1) overwhelming evidence against him
2) his attorney being fairly certain his client was guilty and figuring a default judgement was better than a guilty verdict
3) an ill attorney who had no law partner or associate to fill in for him (?)
4) the judges refusal to postpone the trial

 

[openmindOW]

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.

Good points.

 

[K_girl]

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..

The problem was that if Swain told a reporter outside the courtroom that he thought the trial was only about money, then he did not take it seriously enough to understand that he could be exposing himself to criminal action and it sounds as though his attorney grossly misled him in that regard and led him to believe it was really only about money. His consideration to allow the case to go into "default" because it is more difficult to collect money - does make it about money in Swain's mind and his attorney did him a great dis-service by leading him to that point.

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.

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.

This is the worst advice I have ever heard. Swain's lack of presence in the courtroom the first day hurt him a great deal because it probably pissed off the judge and likely the reason the judge pressed forward with the case. You don't waste the time of a judge and the court by not showing up - you just don't do that. If Swain revealed the same attitude to the judge that he "reportedly" showed to the reporter outside the courtroom, I can see why the judge forced him to press forward with the case. As far as the "default" that ItsBruce is talking about, I can understand that if the case did only involve money. But this was a wrongful death case, in which case there is always the possibility of criminal action. I don't think you have to be a lawyer to figure that one out. We saw lots of discussion on TV news in the O.J. Simpson case and more recently, the Michael Jackson case about this very issue.

There is a reason why Swain did not go through with allowing it to "default" by not appearing and showing up the next day. Can't help but think that maybe someone else advised him that it could leave him criminally exposed.

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.

I understand Swain did appeal the civil trial - I assume that this issue was brought-up and for whatever reason, rejected. If it wasn't brought-up in the criminal trial to exclude any "evidence" that came from the civil trial, it should have been. But the test would probably be, would the police been able to find the witnesses to testify at the criminal trial independently? If the answer was yes, then what happened in the civil trial would not matter. I should clarify that I am not trying to say that the argument shouldn't be tried - I'm just looking at why it would or wouldn't work.

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..

No, I didn't see the incident reports, but would be interested to. Would be even more interested in seeing the trial transcripts. I admit, I was not in the courtroom, so I am going off mostly what was reported and I know there can be misreprentations by the press. You will find me arguing on both sides of this case. My interest is not to make my own conclusions as though I were a juror. My interest is more to figure out why the prosecution won and why the defense lost and what are the possibilities in the future. If there is a second trial, I will try to figure out all the different ways an argument may be viewed by a jury. I think others will also contribute to that because we do not all think the same. During "moot courts" - you want to see every kind of possible reaction, to learn more about people who compose juries.

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.

I would be very interested in seeing those reports. Please keep us posted. I have TIVO, so I can keep a recording of it.

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.

My puropse is not to argue Swain's guilt or innocence. I am looking for the reasons on why he was convicted, why his defense failed and what are the possibilities for appeal. But remember, I am not a lawyer, I have no real experise in this area. I am just interested and I am only expressing a personal opinion. If Swain does manage to get a second bite at the apple with another trial, he does not want his counsel to make the same exact arguments that were made in the first trial and hope for a different result. Believing that the only reason Swain lost is because the jury was stupid is a set-up for a second failure. Apologies for pointing out the weaknesses in the defense case? Well, if I was on the defense team, I would be thanked for that, not maligned. Through the recognition of mistakes in failure comes the birth of success. You are obviously a loyal friend and a good person and I would definitely want you on my side if I were in trouble.

 

[K_girl]

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.

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.

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.

I definitely think that the exclusion of the expert needs to be appealed; however, I see an awful lot of "assumptions" here. You also have to assume the death at "x" minutes and that is the point I have been trying to make. "x" is a scientific unknown. I think rather than trying to fight fire with fire - expert against expert in trying to establish a time of death. What you do is attack the prosecution's attempt at trying to establish time of death and making all of their assumptions (because the prosecution had to make all the same assumptions) and get the prosecution expert's testimony called into question. With all these assumptions - there is no real science. To me, that is the argument and that is what you want your expert to say. You don't want your expert to re-calculate what cannot be calculated in the first place. It is an easier argument to make, easier to understand, easier to attack and win because people want things simplified. The more complex it is, the harder it is to win.

O.J. Simpson's "dream team" did not win the blood evidence argument by trying to prove that the blood belonged to someone else (fighting fire with fire) - they won it by creating doubt about the lab's handling of the blood evidence (it's "bad science".) If the appeal can show that by disallowing the defense's expert to testify about the "bad science" the prosecution was practicing, then you have an argument that the defense was denied their opportunity to refute the "time of death." You remove the establishment of the prosecution's "time of death" then you could have a different result in the case. You win a new trial and start over. Trying to prove a different time of death based on the defendant's "testimony" of when he last saw Shelley is a mistake in my opinion. I emphasize "testimony" because maybe you don't want Swain testifying, not only at trial but through an appeal either.

I think you take all the "assumptions" above and point out in an appeal all the "assumptions" the prosecution would have had to make in order to establish a time of death and you kill it because of all the "assumptions." The more assumptions you can find - the better for your argument.

 

[K_girl]

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.

Excellent observation Ayisha - that caught my eye as well. I believe Royle did not testify as to the equipment, the reporter was asking his personal opinion about the equipment he may have seen. However, it very well could be that the mask Royle saw in the dinghy belonged to Swain's friend who retrieved Shelley. He would have removed it very quickly, along with his other gear. There would probably be no way to Royle to establish that he knew exactly who the mask belonged to. This is the reason I didn't bring it up.

Thanks for posting the quotes that Royle did testify.

 

[idocsteve]

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.

I've had bad fills, or good fills that became bad fills after the tank cooled, with a starting pressure as low as 2700 PSI. I've had "extra good fills" that are closer to 3200 lbs. I've known divers to return to the surface with plenty of air remaining due to them either being cold, or having accomplished their dive objective, or preferring a larger reserve, or for a multitude of other reasons.

I've seen divers return to the boat and say they ran out of air at their safety stop, others return to the boat with 200 or 300 lbs because they tend to push the limits and maximize their dive times.

Lots of divers use steel tanks.

The margin for error can be HUGE, I don't see how you can make "reasonable assumptions" about ANY of that.

 

[K_girl]

I've had fills up to 3400 pounds - that is a margin of error of 700 pounds! Way too much for an "assumption." The only way to establish it, would be to ask the dive shop operator - what was the tank she was using and at this particular date in time, can you testify exactly how much air you were putting into those tanks? Messy and complicated and still leaves you with other "assumptions".