Diver convicted in wife's drowning

[openmindOW]

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?)

This raises an interesting issue. A lot of lawyers in the USA are not divers, although I suspect that many lawyers in BVI are divers.

When I hear of SCUBA cases in which the Counsel is not a diver, I get concerned.

How would you feel about a lawyer handling an automobile case who didn't have driver's license?

 

[mikemill]

This raises an interesting issue. A lot of lawyers in the USA are not divers, although I suspect that many lawyers in BVI are divers.

When I hear of SCUBA cases in which the Counsel is not a diver, I get concerned.

How would you feel about a lawyer handling an automobile case who didn't have driver's license?

What about a medical case in which the lawyer isn't a doctor? Those happen all the time. The lawyer either needs to train themselves on the relevant material or get an expert to assist them.

 

[openmindOW]

What about a medical case in which the lawyer isn't a doctor? Those happen all the time. The lawyer either needs to train themselves on the relevant material or get an expert to assist them.

That's true, Mikemill. Lawyers sometimes hire M.D.s to help them on cases. Indeed, there are some M.D.s who became medical malpractice lawyers. Some cases are so extreme that lawyers don't need much medical knowledge. For example, I know a lawyer who sued an orthopedic surgeon who replaced the wrong knee.

I just think it makes sense for a lawyer to have some knowledge of diving before taking on a SCUBA case. If the lawyer says, "What's a first stage?," then there's a problem.

 

[ItsBruce]

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.

An error by the court in admitting or excluding evidence is generally grounds for reversal only if there is prejudice. Therefore, the defense must show what Professor Egstrom's testimony would have been and why it would have mattered.

This does not mean, however, that if the case is remanded for retrial, the defense must then use Professor Egstrom's calculations. Perhaps, something will cause its whole theory to change. Perhaps, Professor Egstrom may decline to testify. Etc.

In terms of the admissibility of scientific opinion, the standard varies from jurisdiction to jurisdiction. The basic premise is that it has got to be based on scientific principles that are generally accepted in the scientific community. For example, Boyle's law is a generally accepted principle. So, too, is how one calculates air consumption. But, as to what numbers one uses as an average, that is subject to attack by way of cross-examination or other testimony unless it is so off-base that no scientist would use it.

I do not know anything about objections or offers of proof. If someone sent me a copy of the transcript, if and when it is prepared, I'd read it.

 

[ItsBruce]

First, there is no indication defense counsel did not do as good a job as could possibly have been done given the existing evidence. Do not speculate about that. Even though it is not me on the hot seat, I find it offensive when it is only speculation.

Second, you'd be amazed at how well a lawyer will understand an area of law, medicine, science, etc. by the time of a trial. I know lawyers who, by the time of trial, could talk about rocket motors better than most rocket motor engineers. I would guess a lawyer in this case, even if not a diver, could easily pass the written portion of the DM exam!

Third, ineffective assistance of counsel is rarely a grounds for a reversal. If I haven't mentioned it before, the movie "My Cousin Vinny" was based on a real case. One difference was that the defendant was convicted of murder and if recollection serves me executed. Another was that his lawyers were not even as good as Vinny. I heard this from one of the lawyers who was doing the appeal to the US Supreme Court. I don't recall the details exactly, but the State appointed two attorneys for the defendant. One was something like a probate attorney with virtually no criminal trial experience. The other was something like a new law school graduate. I believe that their budget for investigation was something like a few thousand dollars. My details may be off, but they are in the ball park ... if recollection serves me. In any event, the Court affirmed.

 

[ItsBruce]

One more thing: It may be that the prosecutor's timeline is not even relevant. I could see the jury (and appellate court) saying: "Two divers went in together; one came out ... that's opportunity."

It is possible, though I'd argue against it, that Professor Egstrom's calculations might not assist David unless they show his wife was still breathing when he returned to the boat. If he was in the water and could not prove where he was, beyond his oral testimony, it might arguably not matter. Of course, I would submit that the timeline might corroborate David's oral testimony and that as a result, its exclusion was prejudicial.

Also:

Someone mentioned that David might have lost or disposed of material that might have helped in his defense and would have kept it had there been any reason to suspect that someone might accuse him of murder. I do not know whether this would serve as any sort of a defense or basis for an appeal. Since there is no statute of limitation applicable to murder, it would seem that delay and loss of evidence is not of concern to the Legislature and therefore to the courts. On the other hand, in most murder cases, the State probably hasn't told the suspect that it has concluded the death was an accident. So, that may change things. I do not know.

Unfortunately, there is a statute of limitations on wrongful death civvil cases. Thus, it would have been brought relatively quickly. At that point, David would arguably been on notice that he was being accused and should preserve whatever evidence he might have.

 

[Rhone Man]

When I hear of SCUBA cases in which the Counsel is not a diver, I get concerned.

I kind of take the reverse view. Whenever a lawyer is doing a case involving specialist knowledge, they need to make sure the case is presented in a way that the specialist knowledge is presented in a way for lay people to understand. I think that is easier to do if they have the same starting point as the jury.

Whenever the lawyer has the same specialist knowledge as the witnesses, you often see the the lawyer simply nodding, fully understanding, when the witness testifies about complex concepts, whilst the jury are just bemused and bewildered.

I have two friends who are dual qualified as medical doctors and as lawyers, and I swear that they both lose cases because they assume the jury understands complex medical concepts simply because they find those concepts very easy.

For the record, I don't think either Hayden or Terrence (the two principal lawyers in the trial) dive.

 

[K_girl]

An error by the court in admitting or excluding evidence is generally grounds for reversal only if there is prejudice. Therefore, the defense must show what Professor Egstrom's testimony would have been and why it would have mattered.

This does not mean, however, that if the case is remanded for retrial, the defense must then use Professor Egstrom's calculations. Perhaps, something will cause its whole theory to change. Perhaps, Professor Egstrom may decline to testify. Etc.

This answers my question - thank you.

In terms of the admissibility of scientific opinion, the standard varies from jurisdiction to jurisdiction. The basic premise is that it has got to be based on scientific principles that are generally accepted in the scientific community. For example, Boyle's law is a generally accepted principle. So, too, is how one calculates air consumption. But, as to what numbers one uses as an average, that is subject to attack by way of cross-examination or other testimony unless it is so off-base that no scientist would use it.

However, Boyle's law is based on known constants, there does not appear to be any assumptions in the calculation. I would say that 700 pounds one way or the other in terms of starting air is significant. I would also say that blowing out the "average" not only for the "average" woman or man is highly possible, but even blowing out your own "average" air consumption during any dive is easy. Chasing a fish, currents, up and down profiles, a lot of finning looking for a buddy - the list goes on. Any of it can cause additional air usage. However, I have seen arguments that Shelley was proned to panic - I don't think that helps the air usage argument as panic uses up air and the Defense would want to extend her air usage to show that David was not with her, not shorten it. So some of those arguments, in my mind, are not helpful to the defense.

Boyle's law - Wikipedia, the free encyclopedia

Rhone Man - I totally agree.

 

[K_girl]

First, there is no indication defense counsel did not do as good a job as could possibly have been done given the existing evidence. Do not speculate about that. Even though it is not me on the hot seat, I find it offensive when it is only speculation.

I don't know if Swain's attorneys objected to the air usage calculation or not. If they did, it is possible to use the "overruled" objection in the appeal. If they didn't object, I would say go for ineffective assistance of counsel. If they didn't object, but cross-examined to try and create doubt about the science, I don't know if that would rule-out ineffective assistance of counsel (on the lack of objection) in that case. I am speculating as to what could be the basis for appeal, not trying to offend anyone. However, we are doing a great deal of speculating here because we don't have the trial transcript. I don't think the possibility of ineffectiveness of counsel should be overlooked and I'm sure that's not what you mean.

It does look like ineffectiveness of counsel is much harder than the exclusion of evidence.

 

[ItsBruce]

So some of those arguments, in my mind, are not helpful to the defense.

That may be the case. That may not be the case. If it is not the case, then there would have been no error in excluding testimony relative to the deceased's SAC or the time after entering the water when she died. Likewise, if the evidence is that David and the deceased were in the water at the same time, that may be enough to convict. It is a very sad truth, but there you have it.

This whole thing gives me reason to note an odd twist: If David had been a "good" buddy and had been with the deceased at all times, there would have been several benefits. First, if she really had a panic attack or other medical issue that led to her death, David might have been able to help and thus avoid everything that followed. Second, he could have testified that he was with the deceased and thereby avoided having anyone question his credibility over his whereabouts. Third, he could have provided information that would have supported some other finding of death than that he did it. (At a minimum, he could have given a good explanation for the fin being where it was found.)

Yet another very profound thought: When things go wrong, some people run out and seek the advice of a lawyer. When they do, other people, usually lots of other people, point to the fact he or she has "lawyered-up" and either make fun or say it is evidence of guilt. (I often think to myself: "Why in the world would x go out and hire a lawyer?") The reality is that had David promptly gone out and gotten a lawyer, the lawyer would probably have had the good sense to ensure that relevant information was preserved, e.g. log books, cameras and pictures, dive computers, etc.