Diver convicted in wife's drowning

[SadiesMom]

Quite true about the fin and strap. It is a pain to take my fins off when I'm on the surface getting ready to climb the boarding ladder to a boat or when I'm on a beach. There is a bunch of pulling and tugging ... and I just got new looser fins.

I'm speculating that the fin was intentionally taken off and placed in the sand as a marker of some sort, perhaps in connection with a fish count.

That was *exactly* the same thought that I had.

 

[K_girl]

You guys are all great and this is a really good discussion.

As for the fin - I also dive with the bootie and the fin strap. However, I have had many a dive where the fin nearly came off because my strap was too low on the heal. My fin clasp rotates, so the strap will easily slip past the bottom of the boot once the strap is removed. When I'm getting ready for a dive, I often wonder how it happens that the strap winds up so far under the foot without me purposefully moving it.

I think the distance of 30 feet of the diver to the fin is easily explainable by drift. The ocean is rarely ever stagnant. I still think it is kind of crazy that anyone would purposefully take off a fin and swim around with one fin. If that was the defense's position, they should have found a witness to say that this was something Shelley did before as a method for counting fish? When you add-up the mask and snorkle that was removed and damaged and come up with some explanation for that like - she jerked her own mask off her face in panic or some big creature came by and jerked it off, and then try to theorize that she was diving around with one fin - it all starts to look like the less reasonable explanation in order to raise doubt. I hate to say it if it weren't so tragic - trying to envision that scenario seems almost comical to me.

 

[K_girl]

All of your points are valid. The part that is sticky for me in this case, I suppose, is that Thwaites decided after the fact to call this behavior odd, but when he was in the moment he complied with Swain’s verbal request to stop CPR. If he is a rescue diver, he is also trained to make assessments on his own, both regarding the continuation of CPR and in stressing the need to make a faster call for help to the best available EMT. He was the one who found her as well making him the “primary” rescuer in this scenario. She was also his friend as well as Swain’s wife, so why does he get the pass in this case and Swain gets to be the bad guy? I still think this is unfair and prejudicial. Given that he could have continued to do CPR, why didn’t he? Because Swain said so? This is a little bit too convenient for my taste. Could the strangeness about the incident be a reflection of his own guilt at having been so easily convinced?

I see your point, but it is predicated on Thwaites being a Rescue diver and/or being certified in CPR and asserting himself to be more knowledgeable than his close friend who is a former EMT.

In looking at Swain in the photos I’ve seen, he doesn’t strike me as a strong man physically. No insult intended here. Given his background of abuse which has led to his stoicism when it comes to showing emotional weakness, could it be that he was tired and emotionally spent and thus exhausted quickly doing CPR? If so, is it possible that he on some psychological level “had to” believe she was dead instead of owning up to his weakness in the moment? If so, then his words could be the sign of a man who was not “man enough” on the day. Again, not allowing his psychologist to testify to his condition after the incident could be relevant in this, not only for the defense, but also the prosecution. Going back to an excellent point made earlier, the prosecution getting what they wanted could have actually hurt them as well.

Yes, I noticed that Swain is a very slightly built man, but two people testified that he was in charge enough of the situation to stop CPR and insist that his wife was already dead. That tells me that he some measure of authority and control. Thwaites and the person on board the first boat that arrived at the scene both testified to this. Emotion on this scene should have been desperation to save, not desperation to stop.

Why even ask Swain if he wants the call made when you arrive at the scene? Just make the bloody call!

Same reason as above, Swain asserted his higher level of expertise as a former EMT and his authority and control over the situation. Just because he is a small guy doesn't mean that he can't assert himself. I'm sure his small stature and a weak-looking demeanor should have been a help on this issue during the trial, but apparently it wasn't.

 

[Ayisha]

One more thing: If Swain stopped doing CPR while his wife was still alive … wait, that is impossible. You don’t do CPR on someone who is alive. You may do mouth-to-mouth, but not CPR. CPR is for someone whose heart has stopped, i.e. someone who is dead, but whom you hope to keep alive long enough for someone with a defibulator to arrive.

That's actually not true, Bruce. Death is defined as being brain dead, NOT that your heart has stopped beating. The stopped heart has not been used as an indicator of death in decades, at least in North America.

It is true that someone who does not have a pulse at all, rather than a very faint, slow one, is probably dead, but it is not our call to make unless we are a medical doctor. It is true that CPR is to be performed on someone who does not have a pulse, and it is more often unsuccessful rather than successful. However, all of us who are trained in EFR and CPR are taught to perform rescue attempts until exhaustion or a more qualified person takes over.

BTW, K_girl, Thwaites would have been certified in EFR and CPR and as a Rescue Diver since he is/was a SCUBA instructor. Whether he was a current instructor at the time of Shelley's death and if his certification was kept current is unknown, but he certainly would have been certified at least once.

 

[Dadvocate]

Hi, everyone! Thanks for the interesting distractions from my comment writing

I see your point, but it is predicated on Thwaites being a Rescue diver and/or being certified in CPR and asserting himself to be more knowledgeable than his close friend who is a former EMT.

These are valid points. I agree that someone with more experience ought to take the lead. Still, that person making a decision contrary to what you know to be true or correct ought to mean that that you are within the scope of your training to overrule them.

Take Royle, for example. This from K-girl’s post and link a few pages back:

Keith Royle, owner/manager of Blue Water Divers, knows the waters surrounding Tortola, and what British Virgin Islands Google Maplies below them, like the back of his hand. This year, he and his brother celebrated 30 years of maintaining their dive operations in the British Virgin Islands.

So this guy had 20 years experience at the time of Shelly Tyre’s death when he came up on the scene. He inquired about doing CPR and also found it “strange” when it was refused, again focusing his attention on Swain for not wanting it to be done. If he knew how to do CPR and he himself had twenty plus years experience, and he felt it was called for (he testified to not knowing how long CPR had been done), couldn’t he have simply chosen to do CPR at this point given his experience? This impeaches his credibility with me a little bit.

Somewhat tangential to this:

Royle apparently testified to the aftermath of the cell phone call as well:

He had picked up divers from a sailboat at Cooper Island earlier that day and had completed a 2-tank dive at nearby Salt Island on the wreck of the RMS Rhone before returning them to their boat. “I was about 15 minutes out of Cooper Island, headed back to our base at Nanny Cay, when I heard the VISAR (Virgin Islands Search & Air Rescue) call, stating there was an emergency diving accident, asking any nearby boats to respond to it.”

Okay, so the cell phone call was effective enough for the local authorities to make a distress call to all boats in the vicinity, one that led to her being picked up by a faster boat.

Did anyone catch the boat make for the Caribbean Soul? I do think it is very interesting that the boat was still moored as they waited for the Virgin Island authorities to get there. Were they under instructions to do so?

BVI folks. Is it conceivable that calling locally instead of radioing could have led to a faster rescue or that a radio call would have ended up going through “VISAR” anyway thus creating the need for a middle man so to speak?

I also feel these conclusions uttered by Royle to a jury of non-divers is prejudicial:

In my experience, when people panic they bolt to the surface. She would have been found on the surface rather than the bottom in that case. For her to stay on the bottom, her BC (buoyancy compensator) must have been totally deflated and she must have been slight overweighted.”

Firstly, panicked divers do bolt for the surface, OR they freeze up AND/OR make very bad decisions. I would be interested to know if more experienced divers are just as likely to bolt to the surface as newbies or if they more likely to make mistakes that fall into the latter category. I don’t know, but I suspect that a diver with 300 dives is less likely to bolt. Just a gut feeling, I admit. I remember hearing and reading about the many forms of panic from day one in my diving forays. Royle may have experienced divers bolting for the surface, but then he may well have only been around people more apt to do this than others. Who knows?

Also, Shelly would have gone to the surface with her weight belt on? Again, there are many, many cases where divers have died with their weight belts on, a sign of panic keeping them from making the correct decisions. He assumes a lot here. She was at 23 meters… Could narcosis have played a role (if say a fin had come off in some way making her exert herself more than usual)?

I also dive with my BCD completely deflated. I only put air in on an as needed basis once I descend. On the “calm” conditions of the day that Royle testified to, this would have negated many of the reasons for that.

When you add-up the mask and snorkle that was removed and damaged and come up with some explanation for that like - she jerked her own mask off her face in panic or some big creature came by and jerked it off, and then try to theorize that she was diving around with one fin - it all starts to look like the less reasonable explanation in order to raise doubt. I hate to say it if it weren't so tragic - trying to envision that scenario seems almost comical to me.

I have to agree with K-Girl and a few others on this one. Taking a fin off as a marker seems very odd behavior for any diver. The “comical” aspect of this plus other things transpiring as stated does stretch credibility quite a bit. K-Girl is right. If there is some record of her having done this in the past, well, that would be very vital info to say the least.

I think the distance of 30 feet of the diver to the fin is easily explainable by drift. The ocean is rarely ever stagnant.

Wait a second! If the fin drifted 30 feet, then it couldn’t have settled in the sand in that way, right? Am I missing something here?

Does anyone have access to the make and model of that fin? I’ve not seen any reference thus far.

Yes, I noticed that Swain is a very slightly built man, but two people testified that he was in charge enough of the situation to stop CPR and insist that his wife was already dead. That tells me that he some measure of authority and control. Thwaites and the person on board the first boat that arrived at the scene both testified to this. Emotion on this scene should have been desperation to save, not desperation to stop.

K-Girl, I agree that the most appropriate reaction a person can have when someone dies is to provide help or plead for it to be given until all possible hope is gone. I am just not willing to assume that this is always the way it plays out in reality. As divers, we all know that shock and panic can lead to people freezing up or to freaking out while grasping at any and everything franticly. I really don’t know for sure what I would do in all scenarios, though I believe that my experience has led to a calmer, more focused me.

If I were to find myself in a situation with someone I loved not breathing, I hope that I would be on the ball enough to perform CPR, to ask for help, to follow the appropriate protocol, etc. but I can’t say for sure that I would. That someone would fail to do so and then fail to say the right thing at the right time is not enough of an indictment for me. It would mean a lot more if they could tie him to the scene.

One final thought on my earlier point. I’ve been trying to envision how this could work given what we know:

If Swain was meant to have attacked her from behind in order to control her and turn off her air, and then her body subsequently settled face up on the seabed, Swain would have had to have been underneath her when she died, right?

Secondly, this attack scenario would mean that her feet and thus her fins would have been at the farthest point from his hands given her tank valve would have been near her head. It seems very implausible to me that the fin could have been removed by hand in this case. It would have to have been taken off after the fact, unless it is possible during the attack that she kicked it off in her death throes. It seems possible to me, but I think it would be a really good idea to see how it could have been done given the specifics.

Okay, back to work!

 

[SadiesMom]

Again - as Dadvocate has pointed out here - we have to remember that it's extremely easy to armchair quarterback as to "what *I* would've done" when you're not in the situation.

I have been in a panic situation. I will tell you about it but will ask that you not comment on what I should or shouldn't have done - it was years ago and I learned my lessons quite well from it. I'm now a DM with a lot more training and experience. So with that in mind....

It happened literally the week after finishing my Rescue course. I was diving for the first time in fresh water and I entered the water about 8 pounds overweighted (my own miscalcuation). I knew it immediately upon descent, but instead of returning to the surface to remove the weight, I figured that I could just add more air to my BC to compensate. I dove for a while to about 65 feet and then got cold and split off with my buddy from the other two divers.

I swam a bit and then heard that crackling in my ears that means you're ascending...I had no idea. Apparently the excess air in my BC had caused a runaway ascent and without any reference points, I had no idea until I looked up and realized I was about 6 feet below the surface. I grabbed my inflator hose and dumped air - too much. I plummeted downwards and my ears were screaming. I instinctively sucked in a breath of air and accidentally breathed air in my nose as well - but there was water in my mask and I started to choke on it. Suddenly all I could think of was getting to the surface because I couldn't take a clear breath. I could only cough and every single breath shot more water to my lungs. I was completely desperate and I remember thinking I was going to die. And then the Rescue mantra of "Stop, think...then act" came out of nowhere into my brain and I knew that I could NOT surface directly after such a long dive so deep without getting bent or risking an air embolus. I looked around to see my buddy reaching his hand out to me to pull me to a nearby line. I grabbed his hand and he held me on that line, staring me directly in the eyes, as I coughed the water out of my lungs and did a slow ascent and safety stop. It was truly, truly terrifying. But I even though my instinct was to bolt for the surface, the threat of DCS was enough to keep me from doing it. And, for the record...I never dropped my weights, even though I was clearly in serious trouble underwater.

My point is a couple of things - nothing horrible happened to cause me to panic. Continuing my dive with too much weight was a really small stupid error on my part - and yet it caused a chain reaction of little things that went bad very quickly for me - and could've ended up with me either seriously injured or dead. I was lucky. Secondly, it's easy to say what you'll do in a circumstance...but when panic and terror overtake you, reason is a long damned way away. I was very very lucky that I'd taken my Rescue course only a week earlier. If I hadn't taken it at all or even if the interval had been longer since I took it, I don't know what I would've done. Again - the result could've been tragic - for my family and friends, anyway.

All of this intellectual analysis is very interesting...it completely takes shock, confusion, and grief out of the situation and assumes that we will all react the same way under the same circumstances. David should've done what *you* (think) you would've done. The reality is you have no earthly CLUE what you would've done. You (thank God) have never been in the situation. And you are not David. I'm not trying to shut down the conversation....but bring the realization that not a single one of us really knows WHAT we would do if we were in this situation. I hope to God none of us ever are...

 

[Dadvocate]

You are right, Sadiesmom!

And what bothers me more than the fact that we are doing this here in this thread (my prognostications included) is that this self-aggrandizing righteousness by some witnesses was allowed in the prosecution’s case. But then legitimate rebuttal testimony was hampered by the judge based on the fact that the sources weren’t doctors or what have you.

What degree does Thwaites have?

What about Royle?

And since psychology apparently isn’t allowed in this case, why is it that Royle is allowed to air his concerns and Swain’s psychologist is not allowed to testify to the real misery he apparently felt, the misery that does tend to come when the shock is over? It’s remarkable, actually, that people would indict him on peculiarities in his demeanor in the crisis, but looking at how he reacted afterwards was not.

I still have no idea whether or not Swain is innocent, but I can’t see how this outcome under these circumstances is any good for anyone. The Tyre’s get to be the rich and manipulative vendetta seekers who circumvented justice for the sake of revenge in some people’s eyes. Swain becomes the patsy for a judicial system that has made mistakes in the past that they want to make up for after being shown up in Rhode Island and in the earlier murder parole in the US. Swain’s family and friends remain bitter about what appears to be a kangaroo court decision in their eyes.

All the while the “innocent” Swain languishes in prison for something he did not do, whereas the “guilty” Swain gets to play martyr leaving the truth forever lost in this terrible passion play.

This is all very sad indeed. I keep thinking back to the letter from Swain’s daughter. I can’t imagine her suffering right now. Perhaps it is as profound in some ways as the grief the Tyre’s felt at losing their daughter. No matter what it is, it has to be gut wrenching to say the least.

The BVI authorities are simply idiots in my opinion. And on so many levels and in so many departments. They remain the most culpable in all of the characters and they seem prepared to wash their hands of the whole affair. I wouldn’t trust them to tie their shoes at this point.

Cheers!

 

[nick smith]

anyone ever find her mask ?

 

[SadiesMom]

Yes, Nick. I honestly don't remember when it was recovered or who brought it up right this second.....

 

[K_girl]

Dadvocate - I think Swain could have wound-up on either side of
Shelley by pushing or pulling on her.

Sadiesmom - I'm not saying what I would have done because I have
never been in that situation. I'm going off of hundreds of stories
I've heard throughout my lifetime of people who have been in that
Situation. However, I think it might be relevant to know more about
Swain's EMT record and experiences. For instance, if he had never
been involved in or witnessed an incident where CPR was successful,
his defense might be believable. However, if the prosecution could
find even just one incident he had been involved in or witnessed
where CPR was successful - that could sink the defense. Do you know
if this was explored at trial?

As for Thwaites believing Shelley might
have still been alive I agree with Alisha. Thwaites
Might have still had some color?