Diver convicted in wife's drowning

[K_girl]

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.

Uh - that was brain - not head. When asked - "how do you know he was dead?" The doctor replied, "because I have his brain in a jar on my desk."

 

[K_girl]

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.

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.

Do you know if Brown or Shelley's sister actually testified to what you said above? I understand that this may be David's story, and hopefully if it were true, Brown and Shelley's sister should have testified to it. If that was the case, then the jury may have egreciously ignored this. If not, and it was only David who offered up this information and Brown and Shelley's sister did not corroborate, then it would actually be a worse problem for David because two witnesses would not have corroborated David's story. It would make him look like a liar. Would be very interested to know what Brown and Shelley's sister's testimony was about this.

The other thing that makes me think that this may be singularly David's story is the part about Brown telling David that he could use the gear for a charitable group. Brown seemed to steadfastly believe that something criminal had happened when he picked-up the equipment as he took it upon himself to begin documenting the incident immediately and keeping the equipment for ten years. This action seems to impeach any statement by David that Brown had told him he had a charitable organization the equipment could go to.

 

[K_girl]

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.

This characterization of Royale's testimony is different from the interview he gave in which he was quoted directly saying:

“I headed straight toward the Caribbean Soul, which was moored right off the Mary L, and pulled up alongside. That is when I met Mr. Swain and saw Shelley. She was lying motionless in the cockpit with a wetsuit on that was still damp; her hair was still wet, and she was blue in color. There were two gentlemen in the cockpit; one was David Swain, the other was a guy named Christian, Swain’s friend, who was chartering the boat with the Swains, along with his wife and son.”

“I asked permission to come aboard, they gave it, and then I offered to do CPR, which was refused. He told me he was a paramedic, said he had done CPR, but didn’t say how long and that was it. He basically said not to do CPR, that she was dead, and there was no need to do any CPR. 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.”

*******

The description of the incident would be key to the jury if indeed Royale testified that he offered to do CPR and it was refused without himself agreeing that it was obvious that Sheree was dead. In order for David's belief that Shelley was indeed gone to have weight, both Royale, Thwaites or any other persons who may have seen Shelley would need to give testimony that they also thought she was "gone." If David was the only one who testified to this - it makes his case much harder to make. If he got a second bite at the apple - do you think there would be any witnesses who would actually say that when they looked at her, they thought she was gone and there was no hope?

I understand Dadvocate's position that if both Royale and Thwaites thought there was hope, they should have jumped in and done CPR because they were both trained - and this is a good point. Did the defense raise the fact that because both Royale and Thwaites were qualified to do CPR and they did not overrule Swain and start CPR - that the jury should believe that both Royale and Thwaites must have thought she was gone as well, even if they did not testify to it?

 

[K_girl]

From Prosecution presents case in Swain murder trial | www.jamestownpress.com | Jamestown Press
Originally Posted by article
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.

Ayisha - this is a very good find. It means that Brown (who reviewed Thwaites' dive notes and ultimately..) the police probably did have a starting number for the amount of air in the tanks. Since the tanks were rented from Brown, he would have known the amount of starting air in the tanks, and apparently, Thwaites knew as well if he had written down that 2/3rds of the tank had been used. But.. dying 8 minutes into a dive on one-third of a tank (as the prosecution calculated)? I would say not under normal circumstances, which the prosecution was calculating on the "average" use of a woman diver. I still say you cannot calculate her time of death because dying 8 minutes into a dive at 85 feet and using one-third of the tank would mean that some kind of panic speeding up air usage would have had to ensue. That is something that just can't be calculated and I can't see how the prosecution managed to get that in.

 

[Ayisha]

I agree that using 1/3 of a (presumably AL 80) tank in 8 minutes at a max depth of 85 feet in warm water sounds extremely high; certainly not any average for "women". It seems that either she was alive longer at depth or that she put up a massive struggle to have that high an SAC rate.

BTW, K_girl, when the article above says that "Tyre’s tank gauge showed a two-thirds air level", I would read that as 2/3 full. I think you probably just made a typo, since you first said that Thwaites wrote down that she used 2/3's of the tank, then later in the same paragraph you stated that she used 1/3 of the tank. I just wanted to clarify that she used 1/3 of the tank.

Bruce, I don't know of any cases either where someone has been charged or sued for stopping a rescue attempt prematurely. It is probably instilled in us just to scare us that there is a potential to be charged or sued. Most of us are not privy to looking at precedence and most people probably wouldn't bother to check. There is always a first case that sets a precedence, however...

 

[Dadvocate]

When we look at these discrepancies related to remaining air, calculated time and such, combined with the approach the prosecution was allowed in painting their time line for murder, this makes the judge’s partial decision to limit the testimony from a kinesthetic expert appalling.

It isn’t merely a consideration of physiological aspects on the human body but also physical implications on the equipment left behind after the fact. If some record was kept on the remaining air and this is not indicative of the consumption rate typically expected by “average” divers (let alone Shelley herself based on her logbook entries), then there has to be some grounds for appeal here. And as K-Girl suggests, given a second crack at this, defense mistakes in cross examination might not be as prevalent (again assuming there were any).

If Swain was convicted on the evidence presented concerning other equipment, the mask, fin, snorkel, then it was wrong to limit expert testimony that could have impeached this scenario using expert testimony.

Very interesting indeed!

 

[Ayisha]

If some record was kept on the remaining air and this is not indicative of the consumption rate typically expected by “average” divers (let alone Shelley herself based on her logbook entries), then there has to be some grounds for appeal here.

Wouldn't that recalculated info help the prosecution rather than the defence? If breathing let's say 26 cf of air in 8 minutes is too high an air consumption compared to Shelley's usual consumption, that would indicate a longer period of breathing or an intense struggle. If a longer period of breathing, it would still be under the 35 minutes that Swain was also in the water, so it still puts him at the scene of the incident. Swain was only in the water what appears to be just a couple less minutes than Shelley was. If Shelley was breathing until close to the end of the dive, there is a significant chance she was still alive when rescued, so that doesn't help. If the unusually high SAC indicates a struggle, that works for the prosecution also.

Whether the timing brings Swain to Shelley after his tour around the wreck at 8 minutes as the prosecution contends or significantly later, it appears to be immaterial, since any time could conceivably work for the prosecution in placing him at the scene. I'm not convinced that a recalculation of the SAC rate would necessarily be beneficial for the defense; perhaps I'm missing something...

 

[AfterDark]

I'm still lurking here. I had my surgery and only have one usable arm/hand for the next few weeks.
It's too bad the jury didn't ask some these questions that are asked here. Thanks all!

 

[K_girl]

BTW, K_girl, when the article above says that "Tyre’s tank gauge showed a two-thirds air level", I would read that as 2/3 full. I think you probably just made a typo, since you first said that Thwaites wrote down that she used 2/3's of the tank, then later in the same paragraph you stated that she used 1/3 of the tank. I just wanted to clarify that she used 1/3 of the tank.

I re-read at what I wrote and I believe what I wrote was that she used 1/3rd of the tank based on the Thwaites' log that she had 2/3rds of her air left in her tank. I don't see the typo.

AfterDark - feel better soon!

 

[K_girl]

Wouldn't that recalculated info help the prosecution rather than the defence? If breathing let's say 26 cf of air in 8 minutes is too high an air consumption compared to Shelley's usual consumption, that would indicate a longer period of breathing or an intense struggle. If a longer period of breathing, it would still be under the 35 minutes that Swain was also in the water, so it still puts him at the scene of the incident. Swain was only in the water what appears to be just a couple less minutes than Shelley was. If Shelley was breathing until close to the end of the dive, there is a significant chance she was still alive when rescued, so that doesn't help. If the unusually high SAC indicates a struggle, that works for the prosecution also.

Whether the timing brings Swain to Shelley after his tour around the wreck at 8 minutes as the prosecution contends or significantly later, it appears to be immaterial, since any time could conceivably work for the prosecution in placing him at the scene. I'm not convinced that a recalculation of the SAC rate would necessarily be beneficial for the defense; perhaps I'm missing something...

I don't believe that trying to calculate the time that Shelley stopped breathing is do-able or useful for either side. The only reason the prosecution did it was to prove that Swain was a liar (via his deposition testimony) about the time that he and Shelley split. The fact that the prosecution calculated that she stopped breathing at 8 minutes using an average woman's air consumption, they would assume that indeed there was no struggle - because a struggle would cause her to use more air. But how could they possibly have calcuated that using 1/3rd of her tank using an average woman's air consumption that she stopped breathing within 8 minutes? That is just way too fast of an air consumption based on an "average woman" and it makes no sense to me. Yet, they were able to convince a jury - this tells me that the defense got wrapped up in technicality trying to re-calculate something that should have never been calculated in the first place - and did not understand this crucial piece of information in Thwaites' notes.

However, disproving the prosecution's assertion that Swain lied about when he split from Shelley, only helps the defense in one way - making the prosecution look stupid. It does not mean that Swain was not with Shelley when she died.

You mention something about Swain touring around the boat in 8 minutes? I believe the prosecution said she stopped breathing within 8 minutes. I don't think it would be possible to get to the bottom, tour the boat and struggle with Shelley, all within 8 minutes. I would have a hard time believing that was the prosecution's case.

Does anyone know if there was testimony other than from Swain that he and Shelley regularly dove separately? I know that Thwaites appeared to have accepted it as not unusual for that day because he took a camera with him when he found Shelley, but I am interested to know whether or not the defense was able to establish this as a pattern.