Diver convicted in wife's drowning

[K_girl]

Don - I think the point is the fact that it can be changed. If the camera time can be changed before taking pictures, it can be changed after taking pictures, therefore thwarting any attempt to establish a true timeline in the method you describe. So if a timeline was esculpatory for the defendant, the prosecution would argue premeditation and the camera time could have been changed before and afterwards. If the timeline was not good for the defendant, the prosecution would argue - told you so.

 

[ItsBruce]

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'm still working on my discussion points, but wanted to address this post.

Yes, time stamps can be fabricated, as can most anything else. But, that alone does not make the evidence inadmissible. It is admissible and then the opposing party can attack it with evidence showing it was susceptible to being altered or fabricated.

 

[mikemill]

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...?

Adjust time, commit murder, adjust back, surface. Since you are shifting the time no more then 15 minutes it'll be impossible to tell that the time was wrong by the time anyone thinks to look at the camera.

 

[K_girl]

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.

I'm absolutely stupefied. I've never attended law school a day in my life and I would know better than that. So, as a comparison, former President Clinton was forced to give a deposition, his attorneys couldn't do anything about it. Is it because there could not be any criminal charges brought regarding the issues being deposed? Afterall, the criminal charges he faced was for lying, not for workplace sexual harrassment, which was the issue in the civil suit.

 

[ItsBruce]

I understand where some contributors are coming from in saying that basing a time line on SAC and on air use during the fatal dive is weak. I understand where they are coming from in saying that an attack must be directed to the prosecution’s time line.

The problem, as I see it, is that we are dealing with an appeal. An appeal is not a “do-over.” It is not a place to say “we don’t like the outcome so we want another trial.” There are limited and very specific grounds for reversing a guilty verdict and not liking a particular outcome is not one of them.

For purposes of an appeal, attacking the prosecutor’s timeline does not impress me as being the right place to attack. To win a reversal because of the prosecutor’s use of a particular timeline would require the appellate court to conclude that there was no way in the world that any sort of reasonably accurate timeline could possibly have been formed. I do not see that as happening. I would expect an appellate court to say something to the effect that the prosecutor’s timeline was something that the defense could attack as being unreliable but that it was for the jury to weigh the evidence supporting and the evidence challenging it and to decide if it believed the prosecutor’s timeline or not.

Letting the jury consider evidence rarely supports a reversal.

Not letting the jury consider evidence supports a reversal far more often. That is why I think that the trial court’s exclusion of Professor Egstrom’s testimony regarding SAC and time of death would be where the prosecution is vulnerable.

 

[ItsBruce]

I'm absolutely stupefied. I've never attended law school a day in my life and I would know better than that. So, as a comparison, former President Clinton was forced to give a deposition, his attorneys couldn't do anything about it. Is it because there could not be any criminal charges brought regarding the issues being deposed? Afterall, the criminal charges he faced was for lying, not for workplace sexual harrassment, which was the issue in the civil suit.

Precisely. And, if in the course of that deposition in the sexual harassment case, he had been questioned about campaign financing and truthful answers could have led to him being charged with improprieties there, he could have invoked the 5th Amendment privilege against self-incrimination and refused to answer.

 

[AfterDark]

K_Gril, my only point in mentioning it was originally ruled an accident is that over the years things like pictures and logs might be lost in moves or just thrown out as bad memories. Memories fade people die perceptions change. Under those circumstances that would not be considered trying to hide evidence, if years later new evidence changes the ruling to murder. People move on. Also if equipment had been seized at the time of the incident for examination after a accident ruling I would think it would be returned to the next of kin in this case Swain who was told by the family to dispose of it. By ruling it an accident originally it allowed the waters to become muddy if you will. Changing the ruling to murder years later with scant new evidence brings those issues to the surface. I understand what it takes to get an appeal under our system. I haven't a clue about the English system though I'm thinking it's similar. Happy :turkeyay everyone!

 

[K_girl]

AfterDark - I see your point.

ItsBruce - I understand what you are saying - that the defense expert was not allowed to testify and what he was going to testify to was a recalculation of Shelley's air consumption before death. But question here - it sounds as though you are also planning to do a recalculation of her air consumption in the appeal. Do you have to stick along those lines as to what the expert was going to testify to in order to file the appeal? Are you saying that the opportunity to attack the prosecution's calculation as bad science is completely lost? Are you aware of any objection by the defense on the record as to the prosecutor's expert witness testimony? And couldn't the point of bad science in the appeal be made through that objection?

OK, so you are saying that the jury makes the decision of whether or not it is bad science, but if the defense is not allowed an expert to testify to that, all they get is a one-sided picture.

Afterdark or Sadiesmom - what about the defense cross-examination of the prosecution witness? Did the defense attorney attack it as bad science on cross?

 

[K_girl]

For purposes of an appeal, attacking the prosecutor’s timeline does not impress me as being the right place to attack. To win a reversal because of the prosecutor’s use of a particular timeline would require the appellate court to conclude that there was no way in the world that any sort of reasonably accurate timeline could possibly have been formed. I do not see that as happening.

I truly don't see how the prosecution could have formed a reasonable timeline. There are so many assumptions in that timeline - its just insane. If they were to do a blind survey of divers and say - what range have you seen air fills in? - the range would be huge. Average this, assume that - that's not science.

You may win an appeal for the testimony of the defense expert - but all that gets you is: my calculation versus your calculation. What can that possibly buy him in the end? Do you really think the appeals board is going to look at all the "assumptions" that are being made in the appeal and say - sounds like good science to me, let's give him a new trial?

If it wasn't attacked as bad science in the original trial, then I think the appeal should go after the defense attorneys for ineffective assistance of counsel.

I've seen lectures by some of the best lifer habeas appeal attorneys in the country - "bad science" was a huge focus - huge. I'm not an attorney, but I've been to some of these lectures for other reasons.

 

[AfterDark]

If it wasn't attacked as bad science in the original trial, then I think the appeal should go after the defense attorneys for ineffective assistance of counsel.

I think that might be a fact K_Girl. Seems to me Dave got screwed by his consul in two different countries. I'll try to contact SadiesMom and / or Daves daughter. to answer your question: (Afterdark or Sadiesmom - what about the defense cross-examination of the prosecution witness? Did the defense attorney attack it as bad science on cross?) Trying to finds details about the trial is very frustrating which only makes me wonder more about the fairness of the whole proceeding, considering these things are suppose to be matter of public record.