Diver convicted in wife's drowning

[Ayisha]

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.

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Bruce, it seems that time stamps on a camera or computer should not be relied on, since they can be adjusted by the user. If someone were to plan a murder, for example, they could very easily set their date and time stamp to be, let's say, half an hour earlier, making it look as if they were not in the water when the victim died. Adjusting the time on the camera or computer is commonly and easily done when travelling to another time zone. In addition, how often do people not have their time set correctly?

 

[AfterDark]

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Bruce, it seems that time stamps on a camera or computer should not be relied on, since they can be adjusted by the user. If someone were to plan a murder, for example, they could very easily set their date and time stamp to be, let's say, half an hour earlier, making it look as if they were not in the water when the victim died. Adjusting the time on the camera or computer is commonly and easily done when travelling to another time zone. In addition, how often do people not have their time set correctly?

If I understood it correctly the time stamp would be a second check. The air consumption is the "real" clock in ItsBruce's proposal. If there was a difference then the SAC rate would be the toughest thing to fudge. And also a piece of evidence that would not bode well for the defendant especially if the time stamp was sent to a time favorable to the defendant by the defendant. Just my opinion, ItsBruce may have something else in mind.

 

[SadiesMom]

The point is moot anyway. To my understanding the photos aren't available.

It is important to remember that this happened in the spring of 1999. It was ruled an accidental drowning at the time. The last thing I can think of wanting to do after the dive when my husband died is have photos developed of that dive. If it had been me, the first thing I'd do is pitch out that role of film (or erase those photos as the case may be).

 

[Ayisha]

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.

bold added

Bruce, it seems that time stamps on a camera or computer should not be relied on, since they can be adjusted by the user. If someone were to plan a murder, for example, they could very easily set their date and time stamp to be, let's say, half an hour earlier, making it look as if they were not in the water when the victim died. Adjusting the time on the camera or computer is commonly and easily done when travelling to another time zone. In addition, how often do people not have their time set correctly?

I understand that there are no time-stamped photos. I am just commenting in regard to the above post that Bruce should be cautious about accepting anything like a recorded time on a camera or dive computer, since they are easily manipulated.

 

[DandyDon]

The point is moot anyway. To my understanding the photos aren't available.

It is important to remember that this happened in the spring of 1999. It was ruled an accidental drowning at the time. The last thing I can think of wanting to do after the dive when my husband died is have photos developed of that dive. If it had been me, the first thing I'd do is pitch out that role of film (or erase those photos as the case may be).

I understand that I am addressing a moot point about photos not available here, but then I wonder...???

If the local authorities shrugged it off at the time as an accidental death, they may well have done little. I have long suspected that locals like these stories to get as little attention as possible in the news and elsewhere to avoid hurting tourist business. If they did not examine the camera and film closely at that time, then info may have been lost. (Digital photography existed in 1999, but was not commonly used so I am guessing that it was a flim camera?)

On the other hand, if my loved one died on a dive while shooting pics, I would want them examined - by me or investigators. SMom wouldn't, ok fine - but I would want to see the last pics, as well as consider any possible information with regard to the cause of death.

Now, if the locals had taken steps in this area, I don't know if they could acquire timing from a film camera and its film shot? It'd be easy enough to do from a digital camera, regardless of whether it had the right time & date on it or not. One could take the working time & date whatever it might be from the camera, compare the real time and date to acquire the needed adjustments to make on pic data, then look at the pics downloaded from the Compact Flash card or SD card. Even if a time stamp is not recorded on the visual pic, that time & date info is in the EXIF data on the card and it's quite easy to read today. EXIF data can be lost or changed on a pic, sent thru emails or posted on sites, but downloaded directly from the card in a camera - very easy to acquire.

I just do not know if that info would have been stored on a film pic? I am guessing not, but I don't know about film? If not, could a time & date even be recorded on a film pic in 1999, and if so would a diver shooting pics perhaps do so - since EXIF data wouldn't be available from the pics?

I'm just going over a lot of questions in my mind about what info might be obtained from the pics she was shooting. If the officials took an interest at the time, or kept the camera & film evidence secure (maybe both answers are no?), could they have developed a time line based on those pics?

It is remotely possible that a digital camera may have been used at the time, but while locals would have no idea what info could be obtained from it - the technology and people who understood it were available at Nikon at other companies. Anyone know what camera was being used and what happened to the possible evidence there?

 

[AfterDark]

Many questions Don many questions. It's unclear to me if Shelly was taking pictures. I do believe Dave was but I don't know what kind of camera he used. It was long ago and ruled an accident, much it lost. One would hope that an accident ruling would come from a careful investigation and examination of the facts. That records are kept and evidence is recovered and preserved. But such is not always the case especially in smaller places that don't always have the resources to do everything they way it should be done and then you throw into the mix your suggestion of hurting tourism. In this case there is also the proud tradition of Rhode Island corruption and a court system that leaves much to be desired, it leaves a lot of cracks to fall though.

 

[K_girl]

In the U.S., there is no statute of limitations on murder. There is not anything that limits a law enforcement agency that originally ruled a death an accident to re-classify it as a homicide. We see this kind of thing happen when you have a person whose had more than one spouse die (especially if the deaths are similar). What appeared to be on the surface an accident the first time, is re-examined for evidence that was apparently missed.

Although I am sure this is an important point on a personal level for some, it is meaningless in terms of having any value for an appeal or as an argument in a second trial. You will never hear anything like "but your honor, law enforcement officials investigated it and found it to be an accident - you have to hold them to that finding." Great argument to convince your friends - useless in a court of law.

 

[K_girl]

I think the point about photos is not a time-stamp, but whether or not Swain took any pictures at all and how many he took. He did say he was taking pictures - and he completed an entire dive of taking pictures before having any knowledge that his wife had drowned.

Let's say he is lucky enough to get another bite at the apple. Swain's photography and Shelley's fish-counting is (and will continue to be) the reason that the defense will give that Swain and Shelley were not diving together. If I were the prosecution, I would save my argument for closing and hammer the defense over the head with it. The closing argument would be something like this: you've heard the defense tell you that Swain was taking pictures and yet, where are the pictures? We have no pictures. The defense now would be in closing argument where they can present no more witnesses. The defense cannot argue at this point why there are no pictures because defense counsel cannot testify during closing. The prosecution can lead the jury to believe that Swain threw them out on purpose. The defense would not be able to call Thwaites during closing to testify that Swain was taking pictures. I can't remember if defense can call rebuttal witnesses, this might be something only the prosecution can do because they have the burden of proof.

So, if I were the defense, I would make sure that Thwaites (or his wife or son) testifies that Swain took his camera with him. Here is the first reason I was talking earlier about in terms of being careful which witnesses you want to turn into "liars." Defense could ask Thwaites what happened to the camera. Maybe Thwaites doesn't know. Maybe his family doesn't know. You lead the jury to believe that maybe the camera was lost or forgotten because of the extreme situation. Now, in closing you have established an argument against what the prosecution might do.

This may have already played out in the original trial - don't know.

You can't really prove the timeline either with digital or film because the time in the camera can be adjusted on either one, so I personally don't think it is very helpful.

 

[DandyDon]

You can't really prove the timeline either with digital or film because the time in the camera can be adjusted on either one, so I personally don't think it is very helpful.

Just to clarify what I must not have been clear on...

If you shoot pics on a digital camera that has the time and date wrong, and I have immediate access to that camera and card - I can read the time and date currently in the camera, compare it to the correct time & date to obtain the adjustment needed, then apply that to the EXIF data in the downloaded pics to obtain the correct times & date. I could even change the time and date in EXIF data at that point.

This may well not be possible with film pics and/or the pics shot that day in 1999...?

 

[ItsBruce]

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?

I'm working on a more detailed discussion and hope to post it tonight. However, a deposition in a civil trial, particularly one of the defendant himself, will generally be admissible in any other proceeding.

I am a bit surprised that Swain's attorney did not tell him not to testify in the deposition unless he was given immunity against prosecution. Swain could simply have relied on the 5th Amendment and pointed out that Tyre's family was trying to get someone to bring criminal charges.

Of course, a US court cannot grant immunity vis-a-vis a prosecution in a foreign jurisdiction, so the whole thing could have become very confused.