Diver convicted in wife's drowning

[SadiesMom]

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?

David testified on his own behalf.

Then they denied Dr. Block's testimony because he was "not a medical doctor"

Then Dr. Jack Daniel (yes, that's his name) - a forensic pathologist who has done over 2000 autopsies, testified to the inadequacies of the autopsy done by the ME in Tortola - that the blockage in the one artery (the "widow maker") should have led to more dissections, that no toxology report was done, no xray was taken for the presence of trapped air, etc. He gave 6 possibilities of how Shelley might have died.

Then Dr. Glen Egstrom, although the scope of his testimony was severely limited because he was "not a medical doctor."

I have an e-mail that refers to yet another witness, Dan Glynn, who knew and dove with Shelley (and David) on many occasions who had come to Tortola on his own dime, taking time off from work in order to testify as to Shelley's air consumption and dive habits. From what the e-mail says, because of stalling tactics used by the prosecution, Mr. Glynn had to go home prior to testifying when he ran out of time off and money. I don't know if they ever worked anything out as far as testifying via videolink. I don't recall hearing anything in the newspapers about him testifying...but then again, the media didn't cover the defense's case well. So that's a *possible* 3rd defense witness who wasn't able to testify.


One other interesting thing happened during the trial. I'm not generally a conspiracy theorist, but the timing of this is truly bizarre if it's not related. David's daughter Jen created a website called www.davidswaindefense.com. It was up for at least 2 years and had information on it concerning David, his family, letters from his family and friends and even an interesting thread from SD.com on the subject. After 2 years, the website suddenly went down without any explanation on the first day of the criminal trial. Jen has no knowledge of why it went down - and she was the one in charge of it. To this day, she has no idea why it went down - particularly on that day. Again - I've never been a conspiracy theorist, but that's just plain too damn coincidental for me...

 

[Ayisha]

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.

Have we actually read about any testimony by Thwaites to the effect that he asked about a secluded dive spot rather than Swain? I know we have read it on this thread from David's friends a couple of times, but I don't believe we have seen any rebuttal of Brown's testimony in any of the links.

Brown said that he saw Swain first in "early March", who asked about rentals and a secluded dive site; then he saw Thwaites for the first time after Shelley's death; then Swain again within a couple of days after that. Both men (Swain and Thwaites) were in the courtroom that day, so there should be no mistaking them, one would think. There is no indication that those statements were challenged by anyone in any article we have been privileged to see so far. Does anyone have a link showing that Thwaites refuted this timeline?

There was also a question from David's friends early on in this thread regarding the possibility that Thwaites may have been the one that said to stop the CPR and that she was already dead, rather than Swain making those statements. Again, the articles of the relevant testimony show that Swain stopped the CPR; told Thwaites and the next rescuer not to do CPR; came to an unqualified medical conclusion that she was already dead; stopped the radio call and had Thwaites switch to a cell phone call. There is nothing showing any rebuttal of this information attributing all of the above to Swain, not Thwaites.

I believe this is all a good example of unreliable percipient testimony, Bruce, and it makes it very difficult to keep the facts straight...

 

[SadiesMom]

Hold on, Ayisha - I'll find it. I should have a link somewhere....

Here you go: http://jamestownpress.our-hometown....ury_convicts_Swain_of_murdering_his_wife.html

And the relevant text:
The defense also claimed that several prosecution witnesses were distorting the facts. He accused former dive shop owner Phillip Brown, who rented Swain’s group’s air tanks at the start of its charter, of painting the accused man with “sinister intentions.”

Brown had testified Swain entered his dive shop and inquired about a dive site with few people. He also said that after Tyre’s death, Swain asked that he give her equipment to a deserving local.

But during the trial, Swain’s friend and dive companion, Christian Thwaites, told the Court that he rented the tanks while Swain stayed onboard the boats. Swain also alleged that Brown had approached him, asking if he was willing to donate Tyre’s scuba gear.

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Just for the record - everything I pass along to you is something I have verified with either the family or someone close to the family. I don't make things up to post. If I don't have some way of verifying what I'm writing, I don't post it.

 

[ItsBruce]

Everyone should remember that what the media says and what the jury heard are two different things. Unfortunately, our information comes from the media. Whether it is accurate or not, it is just about all we have to go on. Fortunately, the jury heard the witnesses and evaluated what they had to say and decided what the "truth" was.

As far as what the witnesses say and what the jury concludes, that is the tough part. As a general matter, the jury is at liberty to believe or disbelieve anyone and anything. The jury can reject everything a witness has to say. It can accept everything a witness has to say. It can accept part and reject part. If Brown testified that Swain asked him about a secluded dive spot and Thwaites testified that he asked Brown about it and Swain denies asking Brown, the jury is free to believe Brown on that point. If the jury does so, it is not grounds for an appeal.

A defendant is guilty only if the jury finds guilt beyond a reasonable doubt. There is reasonable doubt if the jury cannot decide who is telling the truth as to a material fact or if, despite agreeing on the fact, it cannot decide if that establishes guilt.

Use my cat and mouse example. I testify that I put a cat and a mouse into a solid closed box and that when I returned and opened the box, I found only the cat. If the jury disbelieves me about putting the mouse into the box, it could find reasonable doubt as to whether the cat ate the mouse. (If there was no mouse, the cat could not have eaten it.) Even if the jury believed me, it could still find reasonable doubt on the premise that no one established that the mouse did not escape.

The jury is generally not required to explain its reasoning.

When the jury's decision rests on its evaluation of who is telling the truth, there is no basis for an appeal. The appellate court will not substitute its evaluation of a witness's credibility for that of the jury. Thus, when there is an appeal based on whether the evidence supports the verdict, the appellate court looks at whether there was admissible evidence, which if believed, would support the verdict. If there is, the verdict is affirmed. It is affirmed even if there is other admissible evidence, which if believed, would support another verdict. That is because to reach the verdict it did, the jury had to believe one set of evidence and, as I noted above, the appellate court will not substitute its evaluation of the evidence for that of the jury.


That leaves things like jury misconduct and errors in the admission or exclusion of evidence as grounds for appeal. Jury misconduct is rarely ever found and really requires one juror to come forward and accuse the others of misconduct. So, as I see it, David's only has two real chances for a reversal. One is that the trial court prejudiced him by excluding testimony by one of his witnesses or by allowing testimony by a prosecution witness. The other is that no sane jury could have found him guilty on the evidence presented.

 

[K_girl]

The other is that no sane jury could have found him guilty on the evidence presented.

In this case, the judge can reverse the conviction immediately upon the verdict being rendered. At least in the U.S. Isn't it more likely that a judge would reverse a decision on this basis than an appeal having such success?

 

[SadiesMom]

Everyone should remember that what the media says and what the jury heard are two different things. Unfortunately, our information comes from the media. Whether it is accurate or not, it is just about all we have to go on.

With all due respect, Bruce....you also have what Afterdark and I've been passing along to you from David's family, who was in the courtroom every day. And for the record, I believe that every piece of information that we've passed along that we got from David's family and/or close friends has been verified somewhere in writing. It's not like we're making this stuff up.

The problem with depending strictly on the media stories that have come out to date is that they are almost without exception extremely biased against David - assuming his guilt long before he was convicted. When you *can* find information on the defense arguments, it's typically glossed over. Can you make the point that the information that Afterdark and I get from the family is biased in favor of David? Absolutely. But then again, the assumption prior to the trial was *supposed* to be of innocence. That was simply not the case.

 

[Rhone Man]

The other is that no sane jury could have found him guilty on the evidence presented.

In this case, the judge can reverse the conviction immediately upon the verdict being rendered. At least in the U.S. Isn't it more likely that a judge would reverse a decision on this basis than an appeal having such success?

In BVI, if after the close of prosecution's case, the defence is of the view that a jury could not safely convict on the evidence presented, then they can make a submission of "no case to answer" and if the judge agrees, he will direct the jury to return a 'not guilty' verdict.

In exceptional cases, the judge can stop the trial even in the absence of a request from defence counsel and direct the jury to enter a 'not guilty' verdict, although that usually only happens in striking incidents, like where a prosecution witness admits that they have been lying or something similar which irretrievably destroys the prosecution's case.

 

[Ayisha]

Thank you SadiesMom for finding a link. From your link above, the article states:

The defense also referred to expert testimony given last week by Dr. Glenn Egstrom, a UCLA professor of kinesiology, who told the court that Tyre had a history of panicking under water.
“I believe that the material raises as many doubts as it answers questions,” said Dr. Egstrom, who testified he had been an accident investigator for 57 years.

After the verdict, Swain’s children complained that the judge had not allowed them to present a full defense. Late last week, the testimony of Dr. Paul Block, Swain’s psychologist, was ruled inadmissible. Dr. Egstrom, who testified about Tyre’s air consumption rates, was also limited in the scope of his testimony.

bold added

So Dr Egstrom DID testify about Shelley's air consumption rates and her apparent history of panicking under water. Do you know how or in what way Dr Egstrom's testimony was limited?

 

[ItsBruce]

1. SadiesMom and AfterDark: My apologies for overlooking the information you provided. My point was that the jury was presumably deliberating based on the actual testimony, not on what others said about the testimony and further that we do not have a transcript of the proceedings.

2. I understand Professor Egstrom offered to testify about air consumption rates and how those would establish an approximate time of death, but was not allowed to do so. Correct me if I am wrong.

 

[SadiesMom]

That is my understanding, itsBruce.

Ayisha, here's an article from the BVI paper (The BVI Beacon) that reflects that Dr. Egstrom's testimony was limited... http://bvibeacon.com/main/index.php?option=com_content&task=view&id=2285&Itemid=26

relevant text:
Mr. Swain’s family called the verdict a “horrible mistake.”

His son, Jeremy Swain, alleged that the prosecution made witnesses “violate their oath to tell the whole truth,” and that his father was not able to present his whole defence.

Earlier in the trial, Justice Indra Hariprashad-Charles ruled against allowing Mr. Swain’s psychologist, Dr. Paul Block, to testify in Court. Another defence witness, Dr. Glenn Egstrom, was instructed to limit the scope of his expert testimony.

Mr. Swain’s US-based lawyers said they believed there were grounds for an appeal. “We’ve already identified a number of preliminary legal issues that the judge didn’t make the right call on,” said Tim Bradl, of the Boston-based firm Denner Pellegrino.
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Other than that, I have a personal e-mail, but I would never post that publicly without permission. I can ask.