Diver convicted in wife's drowning

[idocsteve]

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".

You could ask the dive shop operator but would they even know? And even if they recalled the measurement after the fill, depending on how hot the tank got, the resultant psi at the time of the dive could be as much as 300 psi less.

I get my tanks filled at a busy dive shop and the fills can vary depending on how busy they are..if they've got several tanks to fill they're probably not going to leave the tank in the tub to cool and then top it off, if I stick around rather than dropping them off, they might return it to me 200 lbs shy because they don't want to keep me waiting...how can a dive shop operator recall the conditions in the shop that day? I doubt they'd remember what they had for breakfast that morning let alone how much psi was in a diver's tank after the fill.

 

[K_girl]

idocsteve - you help me make my point - see how messy and complicated it gets? And that is just one assumption of many. ItsBruce is a very smart guy - he found all the assumptions in the first place.

 

[idocsteve]

idocsteve - you help me make my point - see how messy and complicated it gets? And that is just one assumption of many. ItsBruce is a very smart guy - he found all the assumptions in the first place.

Yes I see we are in agreement regarding much of this (although you are infinitely more tactful and diplomatic than I am).

It was my understanding that ItsBruce was saying that those assumptions were reasonable and possibly "acceptable" in a court of law, which was not what we were saying...

 

[idocsteve]

Duplicate post- meant to edit not repost

 

[DandyDon]

Basing a time line assumption on residual air pressure is very weak. Fills vary greatlt and no matter what you SAC is, it can too. Ever had a free flow? I've my alternate second stage go off on me in tropical waters.

 

[K_girl]

IdocSteve - I'm sure if you had a really close friend that you felt you really knew, in Swain's position, you would staunchly defend him. I believe that if we want to believe in our system of justice - you must have a vigirous defense, a fair trial and a viable appeal process. These two murder-by-scuba cases really capture my attention and interest. Therefore, I dig and dig into the public record to learn as much as I can. It is not always easy to keep an open mind, but I try - I have not always succeeded, but I'm trying harder. I do that by staying away from asserting an opinion of guilt or innocence and just try to understand what happened and why it happened - and where it could potentially go from here. These are good people who are really in pain. We can never really understand what they are going through and we really need to be sensitive to that. You may dislike Swain intensely, but still have compassion for his friends. I also have compassion for the victim and the victim's family. I firmly believe you could place the same person on either side of this tragedy and the resulting feelings would be in-tune with that placement. A father or mother wanting justice for their daughter. A friend whose close friend is in jail for the rest of his life. How would you feel if you were any one of these people? Probably exactly how these people feel.

As for ItsBruce's potential appeal - I think he has the ingredients for an excellent appeal, and I'm taking a positive approach to possibly affect a change to approach it with the same information, but from a different direction. Since I'm not an attorney and he is, I could be wrong and I have no doubt he will let me know if he thinks I am wrong - and that's OK, I don't always have to be right. He and I have really butt heads in the past, but we've grown to respect each other. We figured out that we can actually learn more from a thoughtful opposing opinion, rather than from someone who agrees with everything you say.

 

[AfterDark]

Basing a time line assumption on residual air pressure is very weak. Fills vary greatlt and no matter what you SAC is, it can too. Ever had a free flow? I've my alternate second stage go off on me in tropical waters.

That's what the parents lawyers and the BVI prosecutor used to place Swain near his wife. If it's not reliable then how can it be allowed as evidence in a legal proceeding?
Nice to see you posting again Don. Welcome back.

 

[K_girl]

There is another thing I have a problem with in terms of Swain's civil attorney advising him not to show-up and default the civil case. Swain didn't have any money, or at least not much money left by the time of the civil trial. Tyre's lawyer had done a financial examination of Swain's assets and had to know that. Swain's attorney had to know that. It is just plain obvious that Shelley's parents wanted a venue to prove that Swain had killed their daughter - and that was the real purpose of the civil trial. They never received a dime and they probably knew that they never would. It was never about money for them. It was always about a wrongful death case that could potentially lead to a criminal trial. I also learned that Swain gave a deposition in the civil case and that is equivalent to testifying on the stand in a criminal trial. It was the same strategy used to go after former President Clinton. File a civil lawsuit, force him to give a deposition and then go to criminal charges from there. In that case, it would be for lying. Clinton's only choice to put a stop to it was to settle. The real goal was not to get money out of Clinton, but set him up for criminal charges for lying in a civil suit. I just don't get how Swain and his attorney didn't see it coming. I have to believe that Swain's attorney did indeed give him the advice not to show-up and default because it is a fact that Swain's attorney did not show-up for trial, nor did he send anyone to stand in for him. Sounds like Swain's attorney took Swain's money and took him for a ride. Would it have made a difference in the criminal trial? I'm thinking not - mostly because Clinton had the best lawyers and he could not stop the civil suit from its intended purpose which was a criminal charge hanging over his head.

 

[K_girl]

That's what the parents lawyers and the BVI prosecutor used to place Swain near his wife. If it's not reliable then how can it be allowed as evidence in a capital crime.
Nice to see you posting again Don. Welcome back.

From news reports: "Based on the amount of oxygen still in Tyre's tank when she was found, Jenni and other expert witnesses have determined Tyre was underwater for about eight minutes before she stopped breathing." However, you have to know the beginning level of air in the tank in order to make these calculations - which we seem to agree can have a variance of up to 700 pounds. There are only two potential ways I can think of that they can prove beyond any certainty how much air Tyre started with is: 1) she wrote it in her dive log; or 2) she had an air integrated dive computer that logged it. So - question - did that technology exist back in 1999 and did she have it? Did she write down her starting air in her log before the dive?

That is exactly what I am saying here. The appeal should not give any credibility to any attempt to calculate time of death. Now that I've learned that Swain gave a deposition, the prosecution was attempting to use these calculations to prove that Swain was lying about the time he parted from his wife. I think it can also be argued that the perception of 8 minutes versus 10 minutes or even 15 minutes in the human mind cannot be argued that someone is lying. That would be saying that the human mind is as good as a clock. The only thing that would negate that argument was if Swain admitted in his deposition that he looked at his dive computer and noted that it was 8 minutes (or however long) into the dive when he and his wife split. Since I don't have the deposition transcript, I don't know which way it went.

In other words - you need to make the prosecution prove every single element of their calculation. If there are any assumptions whatsoever - it should be thrown out. Make the prosecution prove their case. So, the only way that the prosecution should be allowed to hold on to their assertion of time of death is: 1) they must prove and not assume Tyre's starting pressure and 2) Swain must have admitted in deposition that he looked at his dive computer and noted that it was 8 minutes (or however long) into the dive when he and his wife split. You cannot assume that any human is able to distinguish the amount of time passage within a given 10-minute (up to 15-minute) period. If you find any studies on this, it would help your argument. I can't tell you how many times I've been shocked by the amount of time I've been diving versus the actual time. It can be substantial one way or the other.

By the way - if Swain was never facing the death penalty, it would not be a capital crime.

Another question for ItsBruce - can a deposition in a civil trial in the U.S. be used as evidence in a foreign crime?

 

[SadiesMom]

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".

I take your point in terms of what her starting tank pressure was on the dive in Tortola - but to be honest, I don't know for sure if that was recorded or not. The objection was based on figuring her SAC based on her previous dives.

Please remember that she and her husband owned a dive shop. She owned her own gear and tanks. And it's not like she had to grab just "any" rental tank filled at the last minute to do a dive. So figuring a SAC based on any dive done locally is overwhelmingly likely to have been done on her own tanks filled at their dive shop. And I would have to believe that a SAC figured on diving up here is going to be a worst case scenario - we dive in cold water, with extremely low vis (i.e. 5-10 feet on average).

My experience in our local shops (where I can leave my tanks) is that I get remarkable consistent fills. You're not getting a hot fill. I'll leave my tank and either come back a few hours later or the next day to pick it up. I consistently get 3200 psi in my steel HP80. Since I had my tanks filled many times at OSS, I know that to be the case there - and I didn't own the shop.

K-girl - I owe you an apology for a typo I made which was misleading. I said "did you see the incident report" when what I meant to type was "the incident reported." I apologize. There wasn't any kind of "incident report" that I know of other than what would appear in the trial transcript. I was told about it by the daily e-mails I was receiving during the trial from those in the courtroom. And obviously, the reporters in the courtroom were hardly likely to report that the judge "yelled at them" (those were the words that were used in what I read) about misrepresenting what was happening (to David's detriment).

I guess what I'm saying here is that if anyone is basing an opinion on David's guilt or innocence based solely on what they can find in news reports, they would be basing their opinion on extremely biased reporting and one side of the story. The reason Dateline and 48 Hours became interested in the story is that what they saw is that this is *not* an open and shut case of guilt as some would like people to believe - they felt that there was a very compelling case to be made that an innocent man may well have been railroaded because he wasn't the best husband in the world and he didn't handle money well. It's not just those of us who know David.