Diver convicted in wife's drowning

[idocsteve]

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.

Careful there dude, you're walking a fine line when you are basically saying that you think some other person who has not been accused actually committed the crime.

And I'll ask

Why not post some hypothetical scenarios that don't involve Swain?

It can't possibly hurt anything and could open up some good additional discussion.

 

[ItsBruce]

Why not post some hypothetical scenarios that don't involve Swain?

It can't possibly hurt anything and could open up some good additional discussion.

There is no benefit to speculating about such scenarios. There is no benefit to opening up additional discussions about hypothetical scenarios. There is virtually no chance, at this late date, of showing someone else did it. And, even if there were evidence that someone else might have done it, that is unlikely to get David a new trial.

And, even if a new hypothetical scenario got David a new trial, keep in mind that having an alternate explanation, even if there is evidence in support of it, does not equate with reasonable doubt. It may cause jurors to have a reasonable doubt, but they are free to reject the evidence and explanation.

Now, here is a depressing thought that came about as the result of actual experience: if David got a new trial, what makes anyone think that a different jury would come to a different conclusion? From what I understand there was a unanimous verdict in a short period of time. Why expect different jurors would see it differently.

 

[K_girl]

Now, here is a depressing thought that came about as the result of actual experience: if David got a new trial, what makes anyone think that a different jury would come to a different conclusion? From what I understand there was a unanimous verdict in a short period of time. Why expect different jurors would see it differently.

You're reading my mind. You have to have a game-changer and that means a hard look at the first trial and what went wrong with the defense. You can't just say the jurors were all a bunch of idiots and didn't understand. If Swain were to get another trial and the defense was the same, you can't expect a different result. I understand and empathize with those who say - they knew people who were in the courtroom and they thought the defense won the case and the jury got it wrong. Problem is, those were people who wanted the defense to win, so they saw the case through that prism. Difficult for people to let go and take a critical look at their own case and recognize the weaknesses and mistakes, admit it and come up with a strategy to deal with it. That's why I don't think that Swain's trial lawyers should handle his appeal. I think it would be another mistake in a long line of mistakes on behalf of Swain. The case needs fresh eyes if he is to have any chance. But -- that's just my opinion.

 

[K_girl]

bsee65 - I also see the condition of the equipment as the biggest sticking point. Most especially, a mask where the strap is broken and the mouthpiece on the snorkle is missing. I can only come up with one conclusion as to how that could have happened and that was a struggle for possession of the mask. If my mask were suddenly being violently removed from my face, I would be grabbing for it instantly, trying to remember to breathe through my mouth and not my nose. I can see how easy it would be for someone to accidentally take-in water into their nose under such stressful circumstances and accidentally drown. She was in open water away from the wreck, so she could not have accidentally bumped-up against the wreck in panic to cause that much damage. Especially when you consider the mouthpiece, that takes one hand against another hand to pull that off - there is just no other way to explain it. You don't even need the fin - that is just icing on the cake for the prosecution.

The only way to explain the equipment problem away would be to find evidence that Shelley wanted to kill herself and make it look like Swain did it, but you need proof of some kind that was something she wanted to do. Was she a vengeful person? Had she ever threatened harm to herself? Did she ever try to get back at Swain? Was she aware of his desire for another woman? You can't just ask the jury to believe it as a hypothesis unless you have some of this kind of information that you can present at trial.

As for the only other person in the water at or near the time of Shelley's death (Thwaites) being responsible. Two reasons why that won't work: 1) she only used one-third of her tank which means she probably drowned long before Swain exited the water after completing his full dive and Thwaites entered the water; and 2) Thwaites does not have motive. No evidence of an affair with Shelley or some unknown hatred of Swain and thirst for some kind of revenge. Thwaites is eliminated for every one of the basic elements for becoming a suspect: 1) means; 2) opportunity; and 3) motive.

 

[ItsBruce]

You're reading my mind. You have to have a game-changer and that means a hard look at the first trial and what went wrong with the defense. You can't just say the jurors were all a bunch of idiots and didn't understand. If Swain were to get another trial and the defense was the same, you can't expect a different result. I understand and empathize with those who say - they knew people who were in the courtroom and they thought the defense won the case and the jury got it wrong. Problem is, those were people who wanted the defense to win, so they saw the case through that prism. Difficult for people to let go and take a critical look at their own case and recognize the weaknesses and mistakes, admit it and come up with a strategy to deal with it. That's why I don't think that Swain's trial lawyers should handle his appeal. I think it would be another mistake in a long line of mistakes on behalf of Swain. The case needs fresh eyes if he is to have any chance. But -- that's just my opinion.

1. Without having seen a transcript, I would not say "something went wrong with the defense." It may be that the jury simply did not believe the defense evidence. Nor is it fair to say the jurors were a bunch of idiots and didn't understand. They may have understood perfectly, but simply disbelieved.

2. From personal experience in litigating cases where witnesses told nearly conflicting versions of the same event and there was no physical or scientific evidence to corroborate or contradict either version, I can say how amazing the difference between observers' views of credibility is. I will depose a witness, ask all the right questions and observe the witness's demeanor and conclude the witness is a liar who no one will believe. I will then examine the same witness at trial and no one on the jury will have anything but high regards for the witness's testimony. After a trial, I've asked jurors: "Did you really think X was believable?" and they will say "yes."

And, heaven knows I've tried cases, and believed with all my heart that I would win, only to have the jury find against me. (In one of these, the jury found my client was at fault, but then found it had not caused any damage ... so I ultimately won.)

3. The only reason for trial counsel not to handle an appeal is if trial counsel is not a skilled appellate attorney. Trial counsel is most familiar with what went on at trial and with possible errors that might support a reversal. Subject to that, not every trial attorney knows the things that would support a reversal and for that reason, an appellate specialist may be necessary. (I've had instances in which even during the trial, I have been consulting with appellate counsel so that in the event we lost, we could ensure that errors by the trial court were properly documented. Some people might say that we were trying to ensure that the trial court made errors that we could use on appeal, but that is not true. Unfortunately, this is very expensive for the client.)

4. I decline to comment on trial strategy should David get a retrial. I do not have a sufficient handle on the evidence to do so.

 

[AfterDark]

There is no benefit to speculating about such scenarios. There is no benefit to opening up additional discussions about hypothetical scenarios. There is virtually no chance, at this late date, of showing someone else did it. And, even if there were evidence that someone else might have done it, that is unlikely to get David a new trial..

Thanks ItsBruce my thinking also, and I've been advised by an eye doctor that I shouldn't have an opinion about someone else having committed a murder either unless they are accused by somebody else first.

 

[K_girl]

ItsBruce - thank you for sharing your trial experience. Very eye-opening indeed. Did you ever do mock trials and come up with a different result than the actual trial? I've sat-in on several of these and I find the process very interesting. Most certainly, people are individuals and have their own opinions, and they can be difficult to predict, but they have to come together with a consensus when it comes to a trial. I've read some stories where juries are convicting less because they expect that the same level of science can be provided like they see on episodes of CSI, which is mostly just science fiction and takes only 30 seconds to do.

 

[ItsBruce]

ItsBruce - thank you for sharing your trial experience. Very eye-opening indeed. Did you ever do mock trials and come up with a different result than the actual trial? I've sat-in on several of these and I find the process very interesting. Most certainly, people are individuals and have their own opinions, and they can be difficult to predict, but they have to come together with a consensus when it comes to a trial. I've read some stories where juries are convicting less because they expect that the same level of science can be provided like they see on episodes of CSI, which is mostly just science fiction and takes only 30 seconds to do.

I've never done a mock trial from beginning to end ... unless you count a case that we tried to verdict three separate times in three separate years. (The first hung; the second we won, but the court granted a JNOV and new trial; the third we lost, after which we finally appealed and then settled pending appeal.)

I have been involved in a number of focus groups that have considered different aspects of the case. We presented different theories to different groups to see which theories worked and which didn't. We also used focus groups to see how our witnesses would be received. And, we did some other things.

As far as juries wanting the same level of science as is seen on CSI, etc., I've heard the same thing, and it makes sense.

One thing that I typically include in my case is a disclaimer, in which I point out that I'm not going to be as smooth as lawyers the jury sees in television shows. I explain that I don't have a script and have only one "take." I explain that if I was on TV, with professional make-up and lighting and the film was professionally edited before the jury saw it, I'd be much better. Sometimes, I do this in voir dire and other times in opening statement.

One thing that I think has changed due to TV is that cross-examination has become more aggressive. The old rule was that you should never beat up a witness because the jury would be upset with you. Now, however, the jury expects a bit of a show and feels deprived if you don't do something glitzy. Just my 2 cents.

 

[Dadvocate]

It’s Bruce

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

Perhaps I used language that was too strong here. Being a layman when it comes to court proceedings, I admit I find the process itself to be corrupt in some ways. That the defendant needs to provide evidence that can’t be given because the authorities screwed up is in my mind a corrupt system, i.e. not appropriately fair. I don’t mean to suggest that payoffs and such are the issue. Sorry for the ambiguity.

On your second point, actually I think a compromise is in order. I think a jury of one’s “peers” ought to actually be at least marginally representative of a given subculture whenever possible. For instance, if a trial involves a good understanding of mountain climbing, then there ought to be at least some mountain climbers on the jury to help others in understanding expert testimony and honestly to point out when one side or the other is unfairly twisting things. If it involves regional understanding or specific languages, then that ought to also be reflected in the pool of people making the decision. That a jury can choose to “ignore what they want” is actually part of the problem in my opinion, but I am also aware of the fact that I am not exactly sure what the alternative ought to be.

Ask James Bain about what his thoughts are on the process. He just got out of prison after 35 years because of a system that made it unnecessarily difficult for him to prove his now undeniable innocence. If Swain is likewise innocent, I hope it won’t take him that long. If he is guilty, then I guess we can chalk this up to justice in some form or another. It is a weak form in this case, given that a lot of things could have and should have been done differently.

K-Girl

The only way to explain the equipment problem away would be to find evidence that Shelley wanted to kill herself and make it look like Swain did it, but you need proof of some kind that was something she wanted to do. Was she a vengeful person? Had she ever threatened harm to herself? Did she ever try to get back at Swain? Was she aware of his desire for another woman? You can't just ask the jury to believe it as a hypothesis unless you have some of this kind of information that you can present at trial.

You and I will have to agree to disagree on this one, K-Girl.

That a mouthpiece could come off of a snorkel is pretty commonplace depending on the context of the situation and the experience of the witness-diver. Using me as one example, I had my first snorkel kicked off of my mask accidently when I got too close to my buddy (I have a clip that attaches to the rubber strap for easy removal in between dives) and when I recovered it later, I found the mouth piece had come off in the collision.

My sister, for whatever reason, had to get three different mouthpieces for her reg in one year because they kept getting detached or twisted to the point of being unreliable. She stopped having this problem after her last service. A friend of mine had his whole snorkel ripped off his mask when he failed to follow proper protocol in inflating his SBG on one dive. He got a scare on that one, I can assure you. He also had one of those clips, and luckily this meant he didn’t lose his whole mask when the line ripped off his snorkel. I imagine that it is possible that the force might also have snapped other pieces off as well.

My point is that it is hard to speculate about how something has happened underwater when one doesn’t have all the information, which is clearly the case in this trial. If the broken mask showed some other indications of a struggle (certain twisted parts, stress fractures indicative of this and that, etc) then I’d grant you that alternate explanations would be harder to accept relative to others. And given what we don’t k know about this case, this is a distinct possibility.

That said, the simple fact that a feasible alternative is unclear or not easy to imagine does not mean that the outcome has to be perceived in an either-or dichotomy. For me, this begins to strain the concept of “proof” in terms of reasonable doubt that ought to be the burden of the prosecution. Maybe it could be seen this way in a civil trial, but when someone’s life is on the line, the evidence needs to follow suit, I’d say.

Again looking at the requirements all of us bring to the table, I’m the kind of person that would require that the dots be connected more specifically than a mere implication and argument from ignorance, which is essentially what you are suggesting be the litmus test for Swain with this piece of evidence. I am very uncomfortable with that for a host of reasons. To be fair, perhaps you are seeing this in terms of other things mentioned, and I can understand someone coming to that conclusion over time. At the same time, when I see this piece juxtaposed to evidence not allowed (i.e. Swain’s distress after the fact, Shelley’s logbook and the prosecution’s timeline), then it could also be argued that this broken mask is simply unexplainable and nothing more.

In such cases, I believe that as a society we ought to err on the side of the accused. I may be alone in that conclusion, I understand.

Cheers!

 

[SadiesMom]

I thank you for posting your experience with losing snorkel mouthpieces, Dadvocate. That's something that so many people have said "never" happens without substantial force, and yet, you've seen it happen quite a few times and in the courtroom, David's attorney flipped a snorkel mouthpiece off with one finger - and no, the snorkel wasn't pre-rigged. It seems that to say that something "never" happens depends on our own experience and whether or not we ourselves have seen it happen.

Have I seen it happen? No. But then again, I haven't worn a traditional snorkel since the first year I started diving, except when I work with a dive class (as dictated by PADI). I typically don't wear one at all - I simply carry a one-piece roll-up snorkel for use as necessary in my BC pocket. The reason I quit using one regularly? I grabbed my snorkel when I was reaching for something else one too many times. It continually ticked me off by being in the way. I just found traditional snorkels to be far more trouble when I'm diving than I found them to be worth on the surface.

IMO, the missing snorkel mouthpiece could mean any number of other things - from grabbing the snorkel by mistake and breaking it by accident to a grabbing it by accident in a panic situation. Obviously, given Dadvocate's experience, they're not as indestructible as people seem to think....

So K-girl, my knowing David aside, I'm sorry, but you'll have to add me to those who disagree with you on the "only explanation of the gear evidence being murder". I can think of 5 ways Shelley could've died without a second diver involved - all of which explain the gear evidence. If you can't, then you're not allowing yourself to think about *all* the possibilities without an pre-conceived assumption of guilt.

I'll be most interested to see what the Dateline piece looks like tonight.