Diver convicted in wife's drowning

[K_girl]

Here is a tidbit I found in my research regarding the civil trial:

"Hurst said when she denied Swain's petition for a new trial in March that he had had ample time to get another lawyer for the original trial but chose not to do so. The trial record shows that Hurst urged him to identify an assistant or backup lawyer a year or more before the trial began because of the uncertainty of Anderson's being able to carry out his duties.."

Source: CDNN :: Tortola Police Request Evidence from Swain Case

 

[K_girl]

Some interesting information about the equipment:

"..Thwaites came across the first sign of trouble moments later: one of Shelley Tyre's yellow swim fins sticking in the sand, toe-first. He pulled the fin out and began searching for Tyre, expecting, he testified during the trial, that she would be grateful that he had found her fin. Instead, he found her lying on her back on the sandy bottom with her eyes and mouth open.

The following day a man who runs a dive shop on Tortola, James Philip Brown, dove at the common dive site where Swain and Tyre had been, looking for any potential dangers. He testified that he found Tyre's mask, missing an anchoring pin on one side that holds the strap in place, and also her snorkel which was missing its mouthpiece.."

Source: Rhode Island news | projo.com | The Providence Journal

 

[K_girl]

Information from a People Magazine interview with several people, including Swain, dated April 2006:

"..Jurors also learned that after Thwaites had administered CPR for perhaps five minutes, Swain, a trained EMT, told him to stop. In a videotaped deposition played at the trial, Swain explained that he had cleared his wife's airway, tested to see how her pupils responded to light—and then determined that she was dead and further CPR would be futile. About 15 minutes later when dive operator Keith Royle, who had heard a distress call, pulled alongside to help, he was told that none would be necessary. "I was told by a gentleman aboard that he was an EMT, that he had seen dead bodies before, and there was no need to do CPR," Royle said in his deposition.."

Source: Did This Man Kill His Wife? : People.com

*****
From this description, it would appear that the emotions of the moment did not stop Swain from performing these EMT functions. But.. notice that the article says that Thwaites performed CPR - not Swain. Swain was not qualified to pronounce his wife dead and may not have had the equipment to perform all the tests to determine that she had died. A patient cannot be pronounced dead until "brain death" has been established. These are the criteria for brain death:

"..A brain-dead individual has no clinical evidence of brain function upon physical examination. This includes no response to pain and no cranial nerve reflexes. Reflexes include pupillary response (fixed pupils), oculocephalic reflex, corneal reflex, no response to the caloric reflex test and no spontaneous respirations.

It is important to distinguish between brain death and states that may mimic brain death (e.g., barbiturate intoxication, alcohol intoxication, sedative overdose, hypothermia, hypoglycemia, coma or chronic vegetative states).."

Source: http://en.wikipedia.org/wiki/Brain_death

******
I can understand how a laymen like Thwaites and Royale might give up and think someone is dead, but an EMT like Swain should have known better and had this basic knowledge. And that Royale testified that Swain said "..he's seen dead bodies before.." is incredibly creepy and if I was on the jury and heard that Swain had said that about his own wife - I would really start to dislike him. It doesn't sound like a different way to grieve - it sounds horribly callous and indifferent and that he was definitely asserting his control and authority over the situation.

 

[Ayisha]

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.

I am referring to this part of your post, bold and colour added:

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.

 

[Ayisha]

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.

This was the quote you are referring to:

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.

Yes, that was the prosecution's contention. In the articles linked to previously, they had reported that Swain said that he and Shelley split at about 5 minutes into the dive at the wreck and he did not see her after that. The prosecution said that if they did split at 5 minutes at the point where she was found, it would take Swain about 2-3 minutes to go around the wreck and come back to the same spot where they claimed he would have seen her, so they placed him in her vicinity at the time of death. The prosecution contended that at 8 minutes into the dive when Shelley stopped breathing, Swain was near her based on his statement of when they split and where he went.

As Swain's friends have asked rhetorically on this thread, does a photographer take only 2-3 minutes to tour a wreck just as someone without a camera? Probably not. It would probably take significantly longer, depending on the size/interest of the wreck and the number of pictures taken, which we don't know. However, again, a longer period to get back to the place of death only benefits the prosecution. This is because a longer period means he arrived back at point A after 8 minutes when she was already deceased, and they claim that he would have had to have seen her body. He claimed, however, that he never saw her. So again, this delaying of the time of death or the length of his wreck tour does not help the defence since either way, they were in the water together for the same time, other than the last couple of minutes, placing him at the scene and giving him a possible opportunity.

 

[Ayisha]

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.

If her air was already turned off or turned off soon into the struggle, then she would have used little to no extra air in the struggle because none would be available.

I think any experienced diver, whether average, female or otherwise, would recognize that using 1/3 of a tank in 8 minutes is very atypical, rather than average, for any woman in similar circumstances. Yes, using the average to calculate her time of death presupposes that the dive was average without a struggle. However, we don't know if her computer was air-integrated and recorded when her last breath was taken or how they arrived at their conclusions.

 

[K_girl]

This was the quote you are referring to:



Yes, that was the prosecution's contention. In the articles linked to previously, they had reported that Swain said that he and Shelley split at about 5 minutes into the dive at the wreck and he did not see her after that. The prosecution said that if they did split at 5 minutes at the point where she was found, it would take Swain about 2-3 minutes to go around the wreck and come back to the same spot where they claimed he would have seen her, so they placed him in her vicinity at the time of death. The prosecution contended that at 8 minutes into the dive when Shelley stopped breathing, Swain was near her based on his statement of when they split and where he went.

As Swain's friends have asked rhetorically on this thread, does a photographer take only 2-3 minutes to tour a wreck just as someone without a camera? Probably not. It would probably take significantly longer, depending on the size/interest of the wreck and the number of pictures taken, which we don't know. However, again, a longer period to get back to the place of death only benefits the prosecution. This is because a longer period means he arrived back at point A after 8 minutes when she was already deceased, and they claim that he would have had to have seen her body. He claimed, however, that he never saw her. So again, this delaying of the time of death or the length of his wreck tour does not help the defence since either way, they were in the water together for the same time, other than the last couple of minutes, placing him at the scene and giving him a possible opportunity.

Please provide a link to the "5-minute" split when you have time, I don't remember seeing that statement. Are you saying that Swain made a statement that he swam around the entire circumference of the wreck within a certain timeframe? Or, was the prosecution theorizing that he must have swam around the entire wreck? Personally, as a photographer, I may not necessarily manage to get around an entire wreck before I have to surface. Also - I may not be looking out into the sand where Tyre's body was, most especially if I am doing macro photography - I will be focused the entire time on the wreck. I don't think that the prosecution can prove that he saw her body under circumstances that they are not trying to prove anyway (that he had nothing to do with it). That would be an entirely different case of - "you saw your wife had drowned and you did nothing about it."

I think the more provable point here for the prosecution would be if the defense is unable to establish that Swain and his wife split-up to dive and came to the boat separately on a regular basis. If the defense does have witnesses that will say that this was a regular practice - then the prosecution loses that point (or should) because it would mean that Shelley accepted this as normal practice.

 

[bsee65]

Please provide a link to the "5-minute" split when you have time, I don't remember seeing that statement. Are you saying that Swain made a statement that he swam around the entire circumference of the wreck within a certain timeframe? Or, was the prosecution theorizing that he must have swam around the entire wreck? Personally, as a photographer, I may not necessarily manage to get around an entire wreck before I have to surface. Also - I may not be looking out into the sand where Tyre's body was, most especially if I am doing macro photography - I will be focused the entire time on the wreck. I don't think that the prosecution can prove that he saw her body under circumstances that they are not trying to prove anyway (that he had nothing to do with it). That would be an entirely different case of - "you saw your wife had drowned and you did nothing about it."

I think the more provable point here for the prosecution would be if the defense is unable to establish that Swain and his wife split-up to dive and came to the boat separately on a regular basis. If the defense does have witnesses that will say that this was a regular practice - then the prosecution loses that point (or should) because it would mean that Shelley accepted this as normal practice.

I remember reading that many pages ago. Maybe you should review the thread rather than having things reposted.

The context, as I remember what I read here, was that they went down together and separated about five minutes into the dive. At that point, David swam around the wreck leaving his wife behind to do whatever she was going to do. All of the phantom gas usage math gave the prosecution an assumption with regard to how many minutes it was into the dive that death occurred. Another calculation was made about the time it would have taken to circle the wreck. Combining these two assumptions, they proposed that it would have been impossible for him to have completed the circle before she was dead, and that if he had come back around the wreck after she died, it would have been impossible to miss her. Therefore, he must have been lying.

 

[Dadvocate]

Ayisha

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.

K-Girl has already spoken to some of your other points, so I’d like to revisit this one here.
Technically, he is already "at the scene" since they were diving in the same location. That being the case, the prosecution needs something else to impeach Swain’s story to make him look like a liar.

I think Bsee65's summation is pretty accurate based on the discussions from previous pages. By saying Swain must have seen her at some point given the dive profile he argues he had assumes that she was in a place that would have been obvious to any diver underwater.

I already find this line of argumentation iffy because seeing things underwater is not as clear-cut as it might be on land, even on clear days. This is one of those layman observations vs having experienced divers on the jury. Factor in the camera that Swain had and one has a ready excuse for not seeing all kinds of things while diving. As I posted earlier, photographers are notoriously bad buddies because they get preoccupied with their shots. If Swain had a camera with an LCD, this makes matters worse for the prosecution because he could have been looking at this when he swam passed her location, no matter when that time was. Even without the LCD, he could have been setting white balance, playing with color filters, etc., etc., etc. Even my PADI course acknowledges that photographers need to check that they got the shot they wanted before moving on. What they may not acknowledge is that the checking often happens congruently with swimming to the next location for the next shot, leaving spacial awareness issues by the side in some cases.

We can talk about how long it took him to swim the wreck until the cows come home, but the fact remains that the defense will easily be able to reference the annals of scuba and photography to show that many a diver has missed seeing something important because he or she was fiddling in some way with their equipment and were preoccupied. This is also language that a layman can understand if packaged correctly... your typical cell phone in the car accident, looking at a text message when you walk into a manhole, walking headlong into the tree branch because you were looking at the ground kind of thing.

Swain's attorneys could easily establish that this phenomenon happens and then point out that it is also consistent with what happens when people dive in the water with a "solo" mentality, which is clealy applicable when it comes to both Shelley and David. There is no getting around the fact that these two divers took big chances that bucked conventional wisdom. The defense has to hammer this point home.

What is task overloading? Why do most divers adhere to these safety measures? What kind if things can cause a diver to underestimate the dangers down there?

All of this has to be discussed and laid out in a clear fashion, and then the defense has to show that this death fits squarely within these parameters in numerous ways. I don't know if they did this or not. It is possible that jurors chose to convict him despite all of these things being laid out ad nauseum.

I agree with K-Girl that there has to be more than this. If not, I’m curious what was perceived as the smoking gun. It would be very hard for the judge to throw out these contingencies based on a witness’ education.

Cheers!

 

[Ayisha]

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.

Ayisha

K-Girl has already spoken to some of your other points, so I’d like to revisit this one here.
Technically, he is already "at the scene" since they were diving in the same location. That being the case, the prosecution needs something else to impeach Swain’s story to make him look like a liar.

I think you've misunderstood my post. I'm referring to all the talk about Shelley's gas consumption being incorrect and people saying that the defence should show that the gas usage was too high so she must have lived longer. This talk was brought up in regard to appealing based on the defence witness being limited in his testimony, apparently about gas consumption. I don't see the point precisely because they were in the water for almost the same amount of time - it does not place him elsewhere. If it's too high a gas consumption in a short period, it seems to show a struggle. If it is over a longer period, he is still there in that period. I have stated those points several times in this thread.

I agree that the prosecution does need more than air consumption to show that Swain is guilty, but changing the air consumption figures does not exonerate him either. The fact is, we do not know the extent of what the prosecution had or the details or what was most significant. We have seen many bits of circumstantial evidence. We may never know what the smoking gun was or if it was the total picture of circumstantial evidence. Did they meet the burden of proof they were required to meet or can that be a point of appeal?