Diver convicted in wife's drowning

[ItsBruce]

I'm afraid to point out that at this point in time, all the prosecution must do is refute any showing that the trial court did not make a prejudicial error in the admission or exclusion of evidence, that there was prosecutorial misconduct in withholding evidence from the defense or in making argument to the jury, or that no jury could possibly have found guilt beyond a reasonable doubt.

The most fertile ground for a reversal on appeal is in connection with the admission or exclusion of evidence. And, if what I'm seeing on the board is any indication, that is going to be a tough row to hoe.

 

[Dadvocate]

Its Bruce:

So limiting the evidence on Shelley's dive log and also limiting an expert's testimony on the grounds that he was not a medical doctor isn't worrisome from the point of view of the prosecution in your opinion?

If it is an Achilles heel, then that opens up all aspects of the case if this leads to a second trial, does it not?

What is your take?

Cheers!

 

[K_girl]

ItsBruce - let's say the defense could win the point in the appeal that the portion of the witness testimony regarding air consumption that was excluded should not have been excluded. Even if the appeal panel concedes that point, isn't possible they could conclude that it would not have changed the outcome of the verdict?

As I see it, the prosecution's theory about air consumption or trying to argue that Swain should have seen her is completely valueless. What if the prosecution in their appeal answer were to hypothetically concede this and say that the real sticking points in this case that led to conviction are these: 1) the condition of Shelley's equipment with damage to the mask, missing snorkle mouthpiece, loose fin stuck in the sand; 2) Swain's behavior including: insistance to stop CPR after a short period of 5 minutes by saying "he's seen dead bodies before", stopping radio calls and trying to get rid of Shelley's equipment; and 3) Swain's motives for money, spending Shelley's $670K inheretence quickly with lavish vacations and his love interest, specifically saying that he wanted to find a way for them to be together.

I know the prosecution would never concede any point, but could they do it as a hypothetical in their appeal answer?

 

[ItsBruce]

Keeping in mind that I was not at the trial and have not seen a transcript, my sense is that the most fertile ground for a reversal and new trial is the exclusion of David's expert's testimony. However, that does not mean that the specific jury instructions the judge gave or refused to give might not also be a basis for a new trial.

It is entirely possible that an appellate court might find errors, but also find that they were harmless and did not affect the outcome. In that event, it would affirm the conviction.

Air consumption and time of death would be most significant if those could establish David was out of the water at the time of death as that would be an alibi corroborated by third parties. It would also be significant if time stamps on photos showed David was elsewhere on the wreck at the time of death, but from what I'm speculating based on posts on SB, it is unlikely he has these as digital cameras were not in common use back then. In either case, I would expect a reversal.

The problem is if David can't provide a corroborated alibi at the time of death. In that event, it may not matter when that death occurred as the jury would be free to disbelieve his testimony about where he was at the time of death.

In view of the foregoing, here is the argument I would make: There was evidence apart from David's trial testimony as to when the two split up on the dive. If I recall correctly, David had stated when. And, I would expect that perhaps the dive computers and their depth recordings might corroborate this.

If the prosecution's air consumption figure placed the time of death as before the split point, that could have led the jury to disbelieve David about being elsewhere and thus about not having killed the deceased. In that case, I could see an appellate court finding prejudicial error and reversing.

 

[Ayisha]

Air consumption and time of death would be most significant if those could establish David was out of the water at the time of death as that would be an alibi corroborated by third parties.

Right after David got out, Christian went in and found Shelley shortly thereafter. David was u/w almost as long as Shelley. The prosecution put the time of Shelley's death at 8 minutes into the dive, while David surfaced at about 35 minutes.

In view of the foregoing, here is the argument I would make: There was evidence apart from David's trial testimony as to when the two split up on the dive. If I recall correctly, David had stated when. And, I would expect that perhaps the dive computers and their depth recordings might corroborate this.

David said that they split up at 5 minutes into the dive and the prosecution used David's figure in their calculations. The prosecution did not dispute his five minute split point.

If the prosecution's air consumption figure placed the time of death as before the split point, that could have led the jury to disbelieve David about being elsewhere and thus about not having killed the deceased. In that case, I could see an appellate court finding prejudicial error and reversing.

The prosecution's air consumption did not place the time of death before the split point. They placed it 3 minutes AFTER the split point - at 8 minutes. They theorized that after the split, David went around the wreck once and then had a struggle with Shelley ending in her death - all in those 3 minutes after they split.

Recalculating the time of death to be later in the dive is more favourable for the prosecution to allow more time for the struggle and impending death. Unless the recalculated time is very late in David's dive or after he exited the water, it will be very hard to place him away from the scene at the time of death. If that were to happen, it would further call into question the aborted rescue attempt and radio call for someone who JUST stopped breathing. We can't have it both ways.

So now what does it all mean, Bruce?

 

[ItsBruce]

I do not have a satisfactory response at this time.

 

[K_girl]

Ayisha is right - you can't place David out of the water at the time of Shelley's death, giving him an alibi. She only used one-third of her tank while David was down 35 minutes at 90 feet.

ItsBruce - you brought-up an interesting point about dive computers and depth readings, but I doubt if the evidence is available anymore. If you had your hands on both computers shortly after the incident and calculated any difference in time between the two. Then watched the depth readings on the dive profiles and syncrhonized what was going on between the two dive computers, might yield some interesting results, who knows, could favor either side. But that is the kind of evidence you have to gather shortly after the incident, otherwise, it really does not do much good. My understanding is that Brown held onto Shelley's equpiment for almost ten years and I don't think they confiscated Swain's equipment.

 

[EGad]

The Dateline NBC special on the case this Friday at 9:00 EST. I have it programmed in my DVR, but judging by the ad they ran for the show, it doesn't look like it is going to paint Dave in a very favorable light. All I saw from the ad was footage of a reenactment of the prosecution's argument and photos of Dave in the courtroom.

I'm keeping my fingers crossed.

Eric

 

[AfterDark]

Ayisha is right - you can't place David out of the water at the time of Shelley's death, giving him an alibi. She only used one-third of her tank while David was down 35 minutes at 90 feet.

ItsBruce - you brought-up an interesting point about dive computers and depth readings, but I doubt if the evidence is available anymore. If you had your hands on both computers shortly after the incident and calculated any difference in time between the two. Then watched the depth readings on the dive profiles and syncrhonized what was going on between the two dive computers, might yield some interesting results, who knows, could favor either side. But that is the kind of evidence you have to gather shortly after the incident, otherwise, it really does not do much good. My understanding is that Brown held onto Shelley's equpiment for almost ten years and I don't think they confiscated Swain's equipment.

Hi K_girl, I'm able to use both hands at the keyboard now so I'm back:shocked2:
The part I highlighted goes to my earlier point about the original finding as an accident, especially in this particular case. These are the kinds of things that should have been done to lead to a finding of accidental death. As well as a complete and conclusive autopsy, and any necessary follow up on the findings, to the best of my knowledge none of this was done and / or done thoroughly. I'd be interested to know just how the original finding was arrived at, what FACTS were used to make the finding? Inquiring minds or in my case a simple mind wants to know. I don't know if it would have made a difference in the outcome but an adequate investigation may have recovered FACTS that are now lost.

 

[SadiesMom]

The Dateline NBC special on the case this Friday at 9:00 EST. I have it programmed in my DVR, but judging by the ad they ran for the show, it doesn't look like it is going to paint Dave in a very favorable light. All I saw from the ad was footage of a reenactment of the prosecution's argument and photos of Dave in the courtroom.

I'm keeping my fingers crossed.

Eric

Actually, I was just coming here to post the same information. I haven't seen it myself, but friends who did said that they felt it was going to be fair...so I'm going to try to watch for the promo and although I'll be at a Christmas party Friday night, I'll be sure to DVR it to see how they treat it. I'll be keeping my fingers crossed as well.