Diver convicted in wife's drowning

[K_girl]

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.

I think the reason that it was initially ruled an accident is because no one had ever been accused of murdering someone by scuba before. So, the methods of investigation simply were not in place and probably "unthinkable." So, years later, BVI law enforcement allows themselves to think the "unthinkable" and they have to work with what they have, based mostly on the efforts of Shelley's parents and their lawyer. There is nothing that requires the prosecution to have every piece of possible evidence in place. For example, some prosecutors have taken cases to trial without a body. If there was such a requirement, no one would ever be convicted of anything. Certainly, the defense will point out in closing arguments what they think the prosecution is missing in order to convict their client. It is the preponderence of the available evidence on which the jury makes their decision and if they don't think the prosecution has enough - they aquit.

 

[AfterDark]

I think the reason that it was initially ruled an accident is because no one had ever been accused of murdering someone by scuba before. So, the methods of investigation simply were not in place and probably "unthinkable." So, years later, BVI law enforcement allows themselves to think the "unthinkable" and they have to work with what they have, based mostly on the efforts of Shelley's parents and their lawyer. There is nothing that requires the prosecution to have every piece of possible evidence in place. For example, some prosecutors have taken cases to trial without a body. If there was such a requirement, no one would ever be convicted of anything. Certainly, the defense will point out in closing arguments what they think the prosecution is missing in order to convict their client. It is the preponderence of the available evidence on which the jury makes their decision and if they don't think the prosecution has enough - they aquit.

Really? I didn't know that Dave's case was a 1st. Still that doesn't go to what facts were used to find it was an accident. That was it? The fact the no one had ever been accused of murdering someone by scuba before? I'm willing to be objective but come on. I didn't mean to require anything but a adequate investigation along with a complete autopsy. That's too much to expect? When I was a LEO that's what was expected of me when I responded to a call, an adequate investigation and finding of the facts to make a determination on a course of action. I was excepted to be able to present facts in court that were arrived at as a result of my investigation. I don't see where asking the same of others is a stretch.

 

[Ayisha]

...the defense will point out in closing arguments what they think the prosecution is missing in order to convict their client. It is the preponderence of the available evidence on which the jury makes their decision and if they don't think the prosecution has enough - they aquit.

I believe "preponderance of evidence" is the burden of proof required in CIVIL cases, which is the lowest level of proof, not for criminal trials. In criminal trials, the standard of proof is "beyond a reasonable doubt".

Several pages back, I asked Bruce or another lawyer perusing this thread if the required burden of proof was met in David's criminal trial and if this was something that could form the basis of an appeal. I can't recall if anyone answered; I'd have to look back. From a layperson's standpoint with access only to publicly available information, it does not seem to meet the highest burden of proof required in a criminal trial. I'm assuming the BVI has the same burden of proof required in a criminal trial, but I am not sure.

 

[bsee65]

When it comes to burden of proof, there's leeway given to the jury to believe or disbelieve the testimony of any witnesses. I'm not sure how one would determine that the burden of proof wasn't met without making a determination as to which witnesses were credible.

That said, if anyone can come up with a reasonable narrative of events that would fit with all of the facts, then David should have been found not guilty. It would have to be considered reasonable that the victim had some sort of issue that incapacitated and killed her, that David didn't see her when he came back around the wreck, and that there is some other explanation for the condition and location of her gear when found. As I go over what was posted here, the condition of the gear is my sticking point. I can easily believe that something else happened to her, especially absent a full post mortem, and that he passed near her without seeing her or that she was elsewhere and alive when he completed his circle.

 

[Dadvocate]

I agree, Bsee65. Going on the info that has been posted here so far, it seems that despite huge mistakes in the investigative side of things, the jury saw fit to reward this incompetence with a conviction. In fact, it seems that the prosecution even shifted the burden of proof here requiring the defendant to come up with reasonable explanations for gaps in their own evidence and their own case.

This burden gets further embedded now that he is convicted because any team that takes on his case needs to fill in info that is not accessible anymore because the authorities dropped the ball in the first place.

I would not be happy at all living in the BVI having this precedence set. It is very unfortunate that things were not handled correctly, and it is even more tragic that the authorities have no reasonable catalyst to change anything they have done so far. The jury will side with them anyway (again assuming what we have seen).

What might end up being an unfortunate irony in this mess is a paranoid need divers have to collect their own evidence on scene on the spot for fear that the morons in the BVI might get a hold of things and get them convicted somewhere down the line. With all this talk about how long one should do CPR, what would we all think if a boat arrived at an accident scene with the surviving divers copiously recording tank presser and photographing the condition of the equipment right there on the boat. Maybe we should start bringing DNA collection kits with our first aid just in case. You never know when some idiot in a corrupt republic is going to retroactively decide that that accident 10 years ago is actually murder.

Cheers!

 

[ItsBruce]

1.. IMHO, shows like Dateline are never fair. They pick a side that they want to win, that will intrigue the most viewers and sell the most advertising and then spin everything in favor of the chosen side.

2. BVI uses the proof beyond a reasonable doubt standard. Based on the information about what happened at trial that I have heard via SB, I do not believe that the prosecution met its burden.

3. As far as the time lag between the incident and the trial, that generally favors a defendant because both sides lose evidence and the requirement that guilt be proved beyond a reasonable doubt is rarely satisfied without every possible shred of evidence of guilt. If the relevant Legislatures felt that delay was prejudicial to the defense or that there should be some cut-off on when someone can be charged, it could easily have a statute of limitations on murder cases.

4. While we would all like to think that the police investigate before deciding that there was no crime to the same extent they investigate before deciding there was one, the reality is that when they don’t investigate and let the case drop, it is the suspect / defendant who usually benefits. What happened here was unusual in that a very cold case became warm.

5. I see no reason to think the BVI legal or judicial system is "corrupt." Critics of the first O.J. case could well say that about the U.S. legal and judicial systems. The jury is free to believe or disbelieve whatever evidence it wants to. Does anyone think we'd be better off without juries

6. The problem with doing your own investigation right after an incident is that everyone will say that doing one's own investigation is so inconsistent with innocence that it proves itself. Simply put, you're damned if you do and damned if you don't.

 

[SadiesMom]

1.. IMHO, shows like Dateline are never fair. They pick a side that they want to win, that will intrigue the most viewers and sell the most advertising and then spin everything in favor of the chosen side.

Granted, Bruce. I guess from my own perspective, given that all of the media coverage to date has been SO biased against David, assuming his guilt before any prosecution or defense cases were even presented, I'd like to see Dateline(and 48 Hours) give some coverage to the kinds of things we've discussed here. The issues and analysis of the events which, seen through our eyes as divers, make us think that it's quite possible that the jury was wrong and that an innocent man is sitting in a prison cell for what may be the rest of his life. To me, just giving David the possibility of the benefit of the doubt would be "fair." (Obviously, others may disagree and you're certainly free to do so.)

 

[AfterDark]

5. I see no reason to think the BVI legal or judicial system is "corrupt." Critics of the first O.J. case could well say that about the U.S. legal and judicial systems. The jury is free to believe or disbelieve whatever evidence it wants to. Does anyone think we'd be better off without juriest.

I would not argue this point with you ItsBruce. I took it generically anyway. But I'll argue all day long that the reason the civil trial continued and not ended in default right away as it should have after 2 days of Swain or his lawyer not showing up was just pure Rhode Island corruption. As is the norm for the smallest state in the union with the most corruption per sq. foot. The one(s) with the thickest envelope wins.

 

[AfterDark]

When it comes to burden of proof, there's leeway given to the jury to believe or disbelieve the testimony of any witnesses. I'm not sure how one would determine that the burden of proof wasn't met without making a determination as to which witnesses were credible.

That said, if anyone can come up with a reasonable narrative of events that would fit with all of the facts, then David should have been found not guilty. It would have to be considered reasonable that the victim had some sort of issue that incapacitated and killed her, that David didn't see her when he came back around the wreck, and that there is some other explanation for the condition and location of her gear when found. As I go over what was posted here, the condition of the gear is my sticking point. I can easily believe that something else happened to her, especially absent a full post mortem, and that he passed near her without seeing her or that she was elsewhere and alive when he completed his circle.

Well I can come up with several none involving Swain, and at least one involving someone else. I refuse to post them so don't ask please.

 

[SadiesMom]

I would not argue this point with you ItsBruce. I took it generically anyway. But I'll argue all day long that the reason the civil trial continued and not ended in default right away as it should have after 2 days of Swain or his lawyer not showing up was just pure Rhode Island corruption. As is the norm for the smallest state in the union with the most corruption per sq. foot. The one(s) with the thickest envelope wins.

Unfortunately, having lived in RI for the last eleven years, I'm sorry to say that AfterDark's statement about corruption in RI is (sadly) very much the truth. It's all about who you know, who owes who a favor and who has the payoff (whether it be in cash or political favors that can be or have been done). I've become cynical enough to know with certainty that the terms "honest politician" or "honest judge" in this state are oxymorons.