Diver convicted in wife's drowning

[K_girl]

ItsBruce - I guess the answer to that one would be - at what point was David made aware of accusations of the questionable condition of his wife's equpiment? Or that anyone was accusing him? Assuming that he didn't do it. I don't see the vast majority of people who are dive buddies of someone who died while diving, going out and getting lawyers. Or do they?

I believe maybe you are assuming that the questioning of David by the police should have clued him in to that possibility and he should have gotten a lawyer at that point? We don't really know if that happened. Haven't really heard that much about the initial investigation and how it was conducted. It's possible they may have had their suspcions, but no proof. Certainly, the dive shop owner who retrieved the equipment would not get rid of it and kept it for ten years. He must have spoken to the police to be that concerned.

 

[AfterDark]

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.

Profound thought indeed Itsbruce, it'a one of the many lessons to take from this situation. Some will believe the worst in others no matter what those will say "he lawyer up" one more indication of guilty. IMO better that then others saying if he'd done this of that he'd be all set or whatever. I know if I find myself involved in anything remotely similar to this sea, air or land I'll be lawyering up and anybody who doesn't, innocent of not is making a big mistake. To me lawyers,doctors,repair people are all people you don't want to need to hire, but know one day you will need their expertise. I'll let consul tell me why I don't need them.

 

[ItsBruce]

I've posted this elsewhere on SB, but thought it might be worth posting here.

Talking to the Police by Professor James Duane

It shows the importance of having a competent lawyer and of not talking to the police after an incident or accident. Getting legal counsel involved is cheep insurance. While it is never a guarantee against something going "south" on you, it can be a big help in preventing it. One thing to remember is that it is important to have a lawyer who knows the area of law, e.g. criminal law, civil defense, etc. (I would not rely on an attorney who specializes in settling slip-and-fall cases to protect my interests after a diving accident.)

 

[AfterDark]

ItsBruce - I guess the answer to that one would be - at what point was David made aware of accusations of the questionable condition of his wife's equpiment? Or that anyone was accusing him? Assuming that he didn't do it. I don't see the vast majority of people who are dive buddies of someone who died while diving, going out and getting lawyers. Or do they?

I believe maybe you are assuming that the questioning of David by the police should have clued him in to that possibility and he should have gotten a lawyer at that point? We don't really know if that happened. Haven't really heard that much about the initial investigation and how it was conducted. It's possible they may have had their suspcions, but no proof. Certainly, the dive shop owner who retrieved the equipment would not get rid of it and kept it for ten years. He must have spoken to the police to be that concerned.

I read at the time people weren't happy with David's reaction to the situation the dive shop owner could have been among them and kept the gear with the thought one day in might be needed. He was correct as far as the equipment goes. I suppose if the chain of custody wasn't an issue it would prove her gear was operating and in good repair. He also got his moment in the sun. The shops name is used a few times for zip,not bad for stowin' some dive gear in a dive shop for 10 years.:sarcasm:

 

[Ayisha]

...at what point was David made aware of accusations of the questionable condition of his wife's equpiment? Or that anyone was accusing him?...

From K_Girl's link to Prosecution presents case in Swain murder trial | www.jamestownpress.com | Jamestown Press in post #183, the article suggests that Brown, the dive shop owner, had suspicions very early on. After a discussion with Swayne a few days after Shelley's death, Brown typed a seven-part report, concluding with his belief that it was not an accident, and gave it to police. It appears that he gave the report to police at that time, but it is not completely clear when he gave it to police.

James Phillip Brown was the next witness to take the stand for the prosecution. Also deemed a scuba diving expert, Brown owned Aqua Venture Scuba Services Limited in Tortola at the time of Tyre’s death.

Brown said Swain visited his shop in early March 1999, inquiring about dive equipment rentals and dive spot recommendations.

“He specifically asked me if I could identify a dive site where there was not a lot of divers around,” Brown alleged, adding that he suggested the wrecks off Cooper Island, because the single mooring ball off shore ensured a quiet dive site.

Brown told the prosecution that he met Thwaites first after the accident, before he saw Swain again. After introducing himself as the vice president of the BVI Divers’ Association, Brown said he advised Thwaites to hand over his log notes and Tyre’s equipment.

An examination of the equipment allegedly showed “that everything was in very good, working order,” Brown said.

Brown recalled seeing Swain again a few days after the accident. Brown said Swain asked him supposedly “highly irregular” questions at this time.

Brown said that Swain told him to give away Tyre’s dive equipment, and then inquired if he knew the coroner – a notion Brown dismissed as what he described as “inappropriate.”

Prompted by Swain’s alleged “strange” behavior, Brown typed a seven-part report, in which he concluded that Tyre’s death was not an accident, and then handed it over to police.
During cross-examination, the defense suggested that Brown may have an “agenda” to serve the prosecution’s case.

“I don’t have an agenda,” Brown replied.

Asked if accidents “do happen, besides our best efforts,” Brown said, “Yes sir, but there are always reasons.”

bold added

From the same article, it appears that in the first couple of days after Shelley's death, Brown asked Thwaites to hand over Shelley's equipment and his notes from that day over to Brown. It may also be notable that Thwaites, the rescuer and David's good friend at the time, became a witness for the prosecution, not the defence. His testimony was not charitable at all to David, originally saying that David performed CPR for about 10 seconds, and then changing it to around 5 minutes after cross-examination by the defence. Also the way in which he recalled that the emergency radio call was stopped and changed to a cell phone call was not charitable to David.

The woman involved, Dr Basler, was also a witness for the prosecution, not the defence. I have wondered why she volunteered (and still had) the letters that David sent her before his wife's death, providing a motive and showing that he was unhappy in his marriage.

I had been wondering why people that you might think would be on David's side seemed to have testimony that hurt him, and I thought perhaps they were hammered on cross-examination and the testimony was made to look bad. It was only recently that I realized that those friends at the time of Shelley's death were actually witnesses for the prosecution, not his defence. It seems that everyone turned against him... He is lucky to have the dedication of his friends here...

 

[SadiesMom]

Ayisha - David has many friends - AfterDark and I aren't the only ones by far.

When Jen (David's daughter) asked for letters of character reference for David's sentencing, she sent around an e-mail request and within the space of 24 hours, she got 45 responses. Forty-five people took the time out to sit down and wrote letters to the judge telling her of their experiences with David's good character - quite honestly, I don't know if *I* could get that many people to write character references for me within 24 hours! ;-)


Brown stated that one of the main reasons he felt that David's actions were suspicious was that David volunteered to donate Shelley's gear to either a needy person on the island or to Brown's own rental stock. He felt that that was suspicious. I was told that when David contacted Shelley's family, he was told by them (I may be wrong on this, but I seem to recall it being Shelley's sister?) not to bring the gear home and to do exactly what David tried to do - donate it to someone on the island who might need it. At that point, the gear had been looked at and found to have been functioning properly (not surprising, in that David and Shelley owned a dive shop), and remember --- the police and medical examiner ruled Shelley's death an accident.

You may also remember that Brown swore in his testimony that David was the one who came into his shop and rented the tanks and weights from him and specifically requested Brown recommend a "secluded" dive site where there wouldn't be any other boats. Sounds very damning doesn't it? Unfortunately, he was either lying or not remembering correctly.

Christian Thwaites testified that *he* was the one who rented the tanks and weights and it was *he* who asked about finding a dive site where there weren't going to be a bunch of other divers. He testified that David never left the boat during that transaction. Each man was responsible for something - Thwaites was in charge of the diving and everything related to it and David was captaining the boat, so he was readying the boat and making sure that everything was OK on that end.

Now...I have to ask myself why Brown would say that David rented the tanks/weights from him and asked about the "secluded" dive site when he didn't. The only thing that makes sense to me is that it fit *his* (i.e., Brown's) scenario of suspicion. Now - whether he intentionally lied about it or he convinced himself that that was the truth over the course of the last 10 years, I don't know. But I do know that he didn't tell the truth about that point.....

 

[ItsBruce]

It is not a matter of testimony being “charitable” or of friends “turning.” Facts are facts. Is there any reason to believe that any of the witnesses completely fabricated their testimony? Did Brown make being told to give away the deceased’s gear? Were Dr. Basler’s letters fabricated? As to Thwaites, did David stop his from sending a radio call? That he initially said David gave CPR for 10 seconds and then changed it to 5 minutes, helps David, except to the extent David stopped at all.

Did the deceased’s sister say she told David to dispose of the deceased’s gear? And, why was David asking her family what to do with the gear? It was his wife and he is the one who ought to be deciding what to do with it.

Incidentally, Brown testify David rented the gear and asked about a secluded dive spot. However Thwaites testified *he* was the one who rented the gear and asked about a secluded dive spot. Remember all the times that I said that percipient testimony was not as reliable as circumstantial evidence. Brown's testimony is a good example.

I would expect that defense counsel suggested to the jury that people, especially Brown, were pointing fingers at David for their own personal gain. For example, Brown may have been suspicious, but suspicious or not, what would give him the expertise to opine that it was not an accident? Of course, once he came to that conclusion, the phenomenon of "confirmation bias" kicked in. It is up to the jury to separate the truth from the fiction and to decide what happened. It just went against David here.

At this point, David's only hope is to get a reversal and remand based on the improper exclusion of evidence. However, that evidence would need to show David was nowhere near his wife when she died. Of course, if he is retried, is there any real reason to think that a different jury will reach a completely different conclusion?

I don't mean to be a pessimist, but that is the reality of how criminal law works in 95% of the world.

 

[SadiesMom]

Hi Ayisha - I'll ask ItsBruce to correct me if I'm wrong, but from what I understand, the witnesses don't "volunteer" to testify for one "side" or the other. They're called to testify by one side or the other and their testimony (which is supposed to be factual or based on their expert knowledge rather than simply subjective) is used by the side that called them to prove their theory of the case. The other side also questions them on cross examination to find other facts which may poke holes in the theory as presented. At least that's my understanding.

Why did Mary Basler keep the letters? Maybe she's sentimental. I have every love letter any ex-boyfriend ever wrote to me. That's just the way I am. If for some reason I were asked to present them by an attorney in a legal case, I would have to - not because I had anything against my ex-boyfriend(s), but simply because they still exist - because of the fact that I am sentimental about past relationships.

I don't think that Christian Thwaites "turned" on David - he simply testified as to what happened. Mind you, if Dr. Block had been allowed to testify to David's character and why he is the way he is, I think it's possible that a different light would've been shed on why David stopped Christian from calling the pan-pan that would have every boat in the area responding when it was his opinion (remember - he'd been an EMT for several years and had seen unresponsive patients before) that Shelley was already well beyond help. Note that he didn't stop Christian from calling anyone at all - he simply stopped Christian from calling the signal that would have made them the center of attention for any boats in the area. IMO, that's typical of David's nature - which is very, very private. Instead, he asked Christian to call VISAR, which would have one specialized response boat dedicated to the task. Knowing David personally, IMO, that fits with his personality. If the jury had been given the chance to understand David's personality by hearing Dr. Block's testimony (which was excluded on the basis that he was a psychologist and not a "medical doctor" - even though he'd had 34 clinical therapy sessions with David over a 2 year period), they might have understood that as well.

Remember that you cannot judge David's behavior under the situation on exactly what you would do. First of all, none of us have been through that kind of situation (and I certainly hope none of us ever are!) and we don't *know* what we would do. Is it possible he made mistakes? Sure. Is it possible that any one of us might make mistakes? I think it is. It's easy to armchair quarterback and say "Well, this is what *I* would've done" 10 years after the fact, when you're not in the horrifying position yourself....

 

[K_girl]

This is all very interesting to read. I guess if Brown had an "agenda," the defense would have to know what that agenda was. It would appear that the jury did not accept that theory.

In terms of giving up CPR on the boat, initially Thwaites said 10 seconds but stretched it up to 5 minutes afer cross, still seems extremely short for CPR. Stopping the radio call in favor of a cell phone call to VISAR resulted in the same SoS being sent out to all boats in the area by VISAR because it was the nearest boat that responded first. To me, it is the same as insisting on calling an ambulance for someone who has collapsed in a crowded theatre and saying - don't call out for a doctor in the house, I want to keep this private. In addition, they are in a "remote" dive spot, a cell phone very easily could not have been operational, further delaying any help if it didn't work. I can't imagine how Thwaites must have felt to be told to put down the radio in favor of the cell phone because Swain wants privacy more than he wants help. I believe he said he was "shocked."

Swain should know as a former EMT, he is not the one who declares someone dead - it is a doctor. The jury may not have understood why Swain was paying attention to Thwaites calling on a radio for help and telling him to stop, instead of being totally focused on his wife and still working to try and save her. We are talking only 5 minutes here - 5 minutes at the most.

Sadiesmom - that is the second defense witness I've heard that was not allowed to testify. Do you know who was allowed to testify for the the defense?

 

[AfterDark]

Dave's actions that day were pretty typical of Dave. Those actions did not help him. In the context of a cover up it accomplished nothing, help was called using a different media, but those things are looked at in a dim light by a jury. He didn't act like a stereo typical greiving husband, I'm not surprised, I can however understand why others react negitively.