Diver convicted in wife's drowning

[Dadvocate]

K-Girl

Dadvocate - I think Swain could have wound-up on either side of

Shelley by pushing or pulling on her.

Pulling and pushing from behind, right? Then he would just kick away at that point when she died?

This would explain her position when Thwaites found her. If the prosecution’s slant is correct, then the fin would have to have come off during the struggle, with him behind, holding her as they moved along the seabed. The struggle part I get. This is definitely conceivable. The fin falling off at just the right angle to stick in three inches is a bit harder. But I’m not sure I understand “how” other explanations work either, including my own to be perfectly honest.

Ayisha

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.

In my EFR and Rescue training our instructor said that it was becoming a more common practice to forego the search for a pulse at an emergency scene. He cited a few reasons for this, most of which relating to heightened stress of the rescuer and the many, many ways to get a pulse search wrong. Instead, he said while doing the initial investigation for breathing, recognizing none was happening was a telltale sign of no pulse, i.e. if you are not breathing, you are not circulating blood, thus you have no pulse.

This, he said, was the sign to begin breaths and CPR assuming both can be done at the scene.
All your other points are valid. We are meant to continue until someone else comes to relieve us, not to mention knowing things like how long the victim was under water, how long CPR has been done, etc. All of us could learn a lot from this case given how many people ultimately gave up on this axiom with little to no fight.

Swain claims that from his experience he knew Shelly was dead. This is a terrible assertion on his part, perhaps due to his sadness, perhaps due to his desire to make sure she was dead. I don’t know. He claims to have seen many cases where people had died. K-Girl is right that relating even a single case where someone was saved might impeach this a bit, but even with that it is hard to say emphatically that his demeanor would be different. People are too quick to assume here, particularly when the prosecution case is as weak as this one. I agree his actions on the day and afterwards should be used as evidence, but in isolation they are highly subjective and in my opinion not circumspect enough to warrant a conviction if that is indeed all there was.

Thwaites said that he wrote a detailed account of the events of the day, and still he made mistakes such as saying that they had only done CPR for 10 seconds and that it was a VISAR boat that had picked them up and not Royle’s boat. Royle claims he specifically suggested taking her in his faster boat instead of waiting, after which they loaded Shelly unto his boat:

Royle:

I then suggested if you don’t want to do CPR, rather than waiting for the VISAR boat, that we get her to the hospital. We put her on my dive boat and went full steam towards Road Harbor, with Shelley lying on the engine cover and Mr. Swain at her feet.

.

Assuming this is correct based on the articles printed, Thwaites missed a lot of important facts in his recollection of the day, this despite having taken copious notes. Now we could chalk this up to the stress of the day. I’d certainly be one to grant him that benefit of the doubt given the circumstances. But then why is it so hard to grant this to Swain, who was married to Shelly?

I suppose there could be another victim in this case as well as others. If the authorities in BVI and elsewhere can achieve convictions even after shoddy work like this, where is the catalyst to improve the investigative protocol when incidents like this happen? I’m not saying a guilty person should walk free. At the same time, the precedence set creates a scary status quo that favors theatrics of a kind over hard, cold evidence.

Cheers!

 

[SadiesMom]

Sadiesmom - 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?

Not that I know of.

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

I remember reading an article that quotes David as recalling Shelley's face as being blue, with her eyes open and vacant with the pupils fixed and reddish foam coming from her mouth (I can't remember where the article was - sorry. I'll post it if I find it.). I never heard any kind of contradiction to that description from Christian Thwaites.

 

[SadiesMom]

K-Girl
I agree his actions on the day and afterwards should be used as evidence, but in isolation they are highly subjective and in my opinion not circumspect enough to warrant a conviction if that is indeed all there was.

And my point is that even if you read every single news article that came out about the trial (and I did - I had a Google alert set for David's name that let me know any time a news report was put online) - you still wouldn't know all the details as to why David did some of the things he did.

I can't explain everything, as I haven't talked to David about the specifics. However, I've mentioned once before Brown's suspicion that David "wanted him to get rid of the dive gear." From what you read in the news article that sound extremely suspicious, right? Except that apparently Brown had mentioned a charitable group that was teaching island kids to dive that needed gear and that's why David told Brown to take the gear - for them. He didn't want it and when he'd talked to Shelley's sister and asked her if she wanted it, she said no, go ahead and give it away. So he tried to. But it was never reported that David had talked to Shelley's sister about giving away the gear (I believe he'd offered it to her). That's not something you'd know if you just read the news articles.

Royle apparently testified that David's demeanor while they were bringing Shelley's body in was quiet and solemn and said that no rescue efforts were made because it was obvious that Shelley was gone. Christian also testified that both he and David were crying. But that's not anything you read - because it was never reported. The only way you'd know that was if you were in the courtroom or knew someone who was.

Were the issues with the autopsy mentioned in any news article? Nope.

My point? As you said - David's responses are highly subjective - and there are many things that you don't even know that came out in the trial - because they were never reported by the newspapers. A man murdering his wife while diving makes a much juicier story than a tragic dive accident does.

 

[ItsBruce]

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.

I realize that it is said that as a strict technical matter, only a medical doctor can make the call that someone is dead. Is there some law that says that?

I can see that if someone by me falls over, I probably should not conclude he is dead. I can also see that if I come upon someone who looks dead, I might consider checking his condition. But, does that mean that if there is no medical doctor, I should set a place for the guy whose been lying there for awhile, with no apparent pulse or respiration, at dinner?

Is there any statistic for laymen calling someone "dead" who isn't?

I'm reminded of the apocryphal story about the lawyer cross-examining a witness who testified that someone was dead. The lawyer got the witness to admit he had not checked for respiration or a pulse. The lawyer then challenged the witness by asking: "So how do you know he was dead?" The witness responded that even though the severed head was in a jar on his desk, he supposed the victim might still be alive.

Until someone proves otherwise, I think that laymen can probably tell when someone is dead..

 

[Dadvocate]

A severed head would certainly qualify as an answer to your own question, I would think .

Laymen can certainly make a reasonable assessment of death I'd say given these conditions. In fact a layman like a battle hardened soldier could probably tell a peacetime doctor a thing or two about the way death occurs if push comes to shove.

I think the technicality relates more to the cause of death than the pronouncement in and of itself. Where the layman might say "a removed head therefore he is dead", a medical doctor might be better skilled in determining if in fact that really was the cause actual cause.

Regardless. in this particular case, the layman and the doc could probably come to the same conclusion. For people not breathing, well that is another issue, both practically and ultimately legally as well I would think.

Cheers!

 

[Ayisha]

I realize that it is said that as a strict technical matter, only a medical doctor can make the call that someone is dead. Is there some law that says that?

It isn't just about the ability to pronounce death; it is about following training. In the training, instructors make it clear that most CPR attempts do not work. Yet we must try. If it was so clear that Shelley was unrevivable, why even begin the attempt 10 seconds or perhaps even 5 minutes earlier? Was it not obvious 10 seconds to 5 minutes earlier or did something change?

Anyone who is trained as an EFR is told that if you begin a rescue attempt, you must continue until exhaustion or a more qualified person takes over OR you could be charged with abandonment just as if you had left the scene. If you did not begin a rescue attempt, you were not liable to be charged. In this case, it is not clear cut, since they could simply say that they focused instead on getting her to the hospital as fast as possible, which is basically what they said. However, if any one of the three (Swain, Thwaites and Royle) were following their EFR training that they ALL had, the prescribed course of action is to continue treatment they began until relieved of their duty.

 

[Ayisha]

Assuming this is correct based on the articles printed, Thwaites missed a lot of important facts in his recollection of the day, this despite having taken copious notes.

There is no mention of Thwaites taking copious notes --> You may be thinking of Brown's 8-page report. It says that Thwaites wrote a "descriptive" dive log, noting gauge readings. I believe elsewhere it also said that he checked that the equipment was in working order. We do not know any other contents of his log or whether he wrote things down such as how long CPR was performed or the name of a boat or anything else to that effect. In addition, he was asked to hand over his notes to Brown. We do not know if Thwaites retained any copy of those notes.

It also says below that Thwaites wrote this log BEFORE leaving their boat, which would be before they got onto any rescue boat. Also, as you can see below, the type of rescue boat was not a direct quote by Thwaites - we do not know how he described or whether he actually named the rescue boat.

From Prosecution presents case in Swain murder trial | www.jamestownpress.com | Jamestown Press

Eventually, a Virgin Islands Search and Rescue boat arrived, Thwaites recalled.

When prompted during crossexamination, Thwaites said that it was possible that Swain could have used the radio to call a “pan-panpan” distress call.

Before leaving their boat, Thwaites said he wrote a descriptive dive log of the day’s events, and noted that Tyre’s tank gauge showed a two-thirds air level, and her dive computer listed her maximum depth at 85 feet, with a dive time of about 45 minutes.

 

[Hintermann]

It seems that even this circumstential evidence agianst Swain seems rather flimsy. Is there more to the incident than the press releases? Any injuries or similar on the body that led the police to suspect criminal activity? In the picture Swain seems like a little guy and if his late wife was also an experienced diver, it would not have been easy for him to overpower her underwater. If Swain really had planned murder, he would have been aware of the strong probability that his wife could have wrenched herself free and gotten away from him, eventually alerting the other two on the boat.

 

[ItsBruce]

Is anyone aware of anyone actually being charged with "abandonment" or of anyone having been sued for having stopped CPR?

I'm pretty certain that if someone came to me wanting to sue someone for having stopped giving CPR after 10 seconds, I'd throw the person out of my office. I can't imagine how I could prove actual that stopping CPR after only 10 seconds was the proximate cause of the alleged damage. The test is whether, "but for" having stopped, there would have been a different outcome. Therefore, I would not take the case on a contingency. Moreover, if I charged an hourly fee, I'd be concerned that after we lost, the client would sue me for having taken the fee.

As I see it, where stopping would matter would be if a prosecutor wanted to use it to draw an inference that the person who stopped CPR wanted the victim dead.

However, if anyone can point me to (1) someone being charged with a crime for stopping CPR or (2) someone being sued (not even held liable), I'm open to reconsider.

 

[Dadvocate]

Okay, Ayisha. I see your point. I must have confused the two. The point on the direct quote is also conceded. Reading too quickly in between other things.

ItsBruce

I don't know of any cases. The only way I could see it being applicable would be for a medical professional who didn’t do the basics, and even that seems a stretch criminally speaking.

Are there any States in the US that have some kind of Good Samaritan laws under which this might apply?

Cheers!