Diver convicted in wife's drowning

[ScubaInChicago]

For all those who want to see some divers on the jury: Who wants Dadvocate as the representative of the diving community? Who wants Bsee65? Who wants me? Who wants Idocsteve? Who wants SadiesMom?

See the problem? SadiesMom is a diver and with her knowledge, experience and training, she would be favorable to David. OTOH, Idocsteve, with his knowledge, experience and training, would be unfavorable.

Everyone is better off with people who don't know about diving and are willing to listen to the experts and decide the case based on their testimony.

Until it comes time to deliberate, who calls BS???

Even if the person with diving experience were swayed one way or the other, morally they are still available to give honest answers related to the basic scuba practices. It would be the equivalent of asking someone with now knowledge and personal experience to read through our boards and choose the winning and loosing arguments?

This is someones LIFE we are talking about, I just think it's fair to have someone with valid scuba experience to help the other juries bounce ideas off of. Reasonable doubt is a very tough burden to prove...my guess even easier without the availability of answers to basic questions.....

 

[ItsBruce]

From what I can tell, even around here, there is a split on some very basic principles. And, if you don't believe me, take a look at some of the threads on other incidents. Look at the divergence of opinions on the threats and sub-threads about the diver death in Catalina and the discussions about an instructor's responsibility. Some very respected people opine that if anything happens to a student under instruction, short of being hit by a meteorite, it is the instructor's fault. Others disagree.

Who within the diving community could possibly be acceptable to both the prosecution and defense?

 

[Tortuga68]

This is someones LIFE we are talking about

I think you mean two people

 

[SadiesMom]

Tortuga68 - please understand that no one here in RI, including David, his family and his friends, have forgotten the tragic loss of Shelley's life in this horrendous accident. And neither have I ever come across anyone who feels anything but compassion for the Tyres in their pain for the loss of their daughter and their confusion over trying to find out exactly what happened to cause her death. The difference lies in that those of us who believe that David did not kill Shelley realize that the ocean is quite capable of taking divers without giving cut and dried answers on how and why. I've seen it happen and I've heard of far too many cases of divers (friends of friends) who have died or disappeared without anyone ever finding out why. "Why" just isn't always answerable. That's a very difficult thing for anyone to accept - much less elderly parents who never understood their daughter's passion for diving to begin with.

But Shelley, for whatever reason, has been gone for almost 11 years now. While I am certainly not in favor of not punishing criminals against whom a case can be proven for commission of a crime, I find that blaming a man for what may well have been a tragic accidental death on very shaky and weak circumstantial evidence simply because he's not a warm and fuzzy kind of personality is a travesty of justice. And not allowing evidence into court which could prove the defendant to have been several hundred feet away from the decedent when she passed away simply because of the degree the witness holds (despite 40 years of scholarship, research, and peer reviewed journal articles) is highly prejudicial against the defendant.

 

[SadiesMom]

For those of you who think David was not upset by Shelley's passing, I'll share his a letter from David's first wife, Sandy Wheeler that was posted on the DavidSwainDefense.com website. This website was mysteriously removed from the web at the beginning of the trial and Jennifer Swain, who ran the site, still has no idea what happened to it.

From Sandy Wheeler's letter (bolded areas mine):

My name is Sandy Wheeler, and I have known David Swain 38 years. We were childhood sweethearts, and married at an early age. We had two beautiful children together, Jennifer and Jeremy. We were married 12 years before getting divorced in 1987. I know a lot about David, and feel it is my responsibility and priveledge to speak about the kind of man I believe that David is.
We met when David was just 15 years old. At that time, he already displayed a sense of maturity and inner strength. I was going through a difficult tranisitional adolescent phase and he was always there to encourage me and support me as I battled anxiety and depression. He gave me love and a sense of hope, and I believe it is because of him that I was able to eventually gain my own strength and confidence to be who I am today. I became pregnant with his child at the age of 17 and he not only stepped up to the plate to marry me and be a great father, but also provided us with a home and security. While I was married to him, he treated me with love and respect. I can honestly say that he never laid a hand on myself or our children, in fact, I rarely saw him upset, and definitely always in control of his emotions. I never saw him commit one act of violence ever, for any reason. He was a deeply caring man, and even though he had difficulty expressing himself with words, his actions always spoke volumes about the man that he was inside. He would always be there to help anyone who needed a hand. He was a volunteer on the ambulance corp. He never sought praise or had an agenda, he just did for others because he knew it was the right thing to do. I could site a million examples but here is one that comes to mind. We were driving to our daughters camp in an out of the way place in northern RI. There was an elderly man walking erratically out in the street. This is before the days of cell phones. He stopped the car, got out and noticed that the man seemed to be having mental difficulties. He flagged a passing motorist to get help, then we stayed with this man until the ambulance came. This was one of many times when David displayed a sense of responsibility to others, and he would never, ever leave the site if he knew someone needed him.
I will say this. When we were married, I learned to scuba dive because I thought it would be something we could do together. I did not have the same confidence in the ocean as he did. He would always stay with me, and when we divorced, I never dove again because there was no one on this earth that I trusted more than him to be in the water with.
When Shelley died, he called me and we spent a lot of time together. As a nurse, I let him grieve her passing with tears, stories, and many happy memories. David is an extremely complicated man who tends to distance himself in order to protect himself from pain and suffering. I believe with my whole being that this is not a man who would be capable of commiting any type of crime, no less murder. He is a good man, and needs to be back out in the world where he is needed.

Sandy Wheeler

 

[K_girl]

I watched the Dateline NBC story and I did get quite a bit of new information from that story. Below are some points that I think led to the conviction. I'm not trying to say the jury is right or wrong, just trying to understand what led to the conviction. Swain had defense attorneys from Boston who helped with his defense and a BVI defense attorney who presented the case. This makes me believe there is some similarity between U.S. and BVI law.

MAKE-UP OF THE JURY: As ItsBruce pointed out, you will have non-divers on the jury, seven of whom were women. Neither prosecutors nor defense attorneys nor the judge want anyone on the jury to be experienced with the issue at-hand because that one juror can persuade the rest of the jury to overlook the expert testimony and go with that one person's experience. This is something that will never change and should not change. I think we can safely assume there were no divers on the jury.

THE MASK: It would appear that the dive community is split on their opinion as to whether or not Shelley's mask could have been damaged by Shelley herself during a panic episode. So, if you had a diver on that jury, that diver could have easily swayed that jury one way or the other, depending on their own personal experience. According to the Dateline story, prosecution experts stated that what happened with Shelley's mask NEVER happened before. They emphasized NEVER several times. So exactly what never happened before? That there was never an incident that led to injury or death where the diver ripped off their mask, causing that level of damage to the mask? Or, is it possible that there are statistics that it had never been reported that any diver had ever removed their mask out of panic at all while underwater during any incident of any kind? Dateline did not go further into the trial to say where the experts got that information, but if an expert were to get on the witness stand and make such a statement, they would need to provide their source of information. The only source of that information I can think of would be DAN. Having read the DAN reports every year with the narratives, I believe that they would have this information on the incidents and accidents reported to them over all the years of their existence. Surely, the defense would have challenged for the source of that expert's information if the prosecution did not provide it.

So what could the defense have done to refute such expert testimony? Perhaps they could have put on a few divers who would try to explain what it is like to panic underwater and get the jury to try and envision what that would be like. Perhaps a few jury members have snorkled, but as we all know, anxiety or panic deep underwater as a diver is an experience like no other. Certainly, it would be difficult to get a non-diving jury to understand how panic underwater could lead to the violent removal of one's own mask. This would be testimony of a "personal experience" of a few people put on by the defense versus statistical expert testimony by the prosecution. And wouldn't the defense need those divers to be of similar experience level of Shelley with more than 350 dives and have that experience much later in their dive career (to compare with Shelly)? I would say, much more difficult for the defense to overcome. Even if you had a jury of all divers, it would appear that there would be a split on this issue. It would be difficult to convince them all one direction or the other. But, if there was a jury of all divers and an expert testified that DAN had no recorded cases of severe mask damage due to violent self-removal that led to injury or death - would that be influential enough to persuade diving jurors who otherwise might have believed it could have happened?

The defense made the argument that divers panic all the time and remove their masks. This is true, but it that happens on the surface, not at depth.

So - does anyone know if the prosecution's expert used DAN statistics to support their assertion? And, what those statistics were?

 

[K_girl]

Dateline NBC Story & PANIC:

I saw something in this story that I thought did not go so well for Swain. One minute the prosecution asks Swain "how did Shelley appear to you the last time you saw her?" Swain replied something like - like a woman in her element enjoying where she was. Clearly, Swain is saying she was not panicking at this point. Then, the defense shows log books that Shelley talked about "panicking". This would make a juror wonder that if Shelley did have some kind of regular panic problem, why wasn't Swain sticking with her? So it would seem that there is a contradiction. The defense was that Shelley was a perfectly comfortable diver, comfortable in her element at the time she and Swain split, but had a history of panic, but not enough where Swain needed to worry about it and stick with her. This is a contradiction that I think would be difficult for a jury to overcome.

I would say the entries in Shelley's log book were really more on the level of anxiety and not panic. She also describes in her logbook how she would see some really neat creature and forgot all about it. To me, anxiety is something you can dive through or get over just as Shelley described. Panic is where you start making mistakes and the dive goes really wrong, where you may narrowly avoid serious injury or death. I did not hear any description of such an event in Shelley's logbook.

Then, there was defense testimony about TMJ that could have caused Shelley to panic. I did some research on this. Here is a quote from an expert on the subject:

"Because Dr. Richard has specialty training in aerospace medicine, she understand that changes in barometric pressure, as associated with flying or scuba diving, can exacerbate TMJ pain.."

Source: TMJ Temporomandibular Joint disorders Dr Patricia Richard MD DMD Facial Pain and Pain Management Connecticut

So, barometric pressure can bring-on the TMJ, but Shelley is completely comfortable and in her element for the first ten minutes of her dive, according to Swain. If barometric pressure is the catlyst that exacerbates TMJ during diving, certainly the problem would have started on the descent and not suddenly after ten minutes on the bottom. According to the same source, TMJ is often mistaken for an ear-ache, so the symptoms would be very similar to ear squeeze.

If these were the arguments at trial, I can understand how the jury would have dismissed TMJ as a viable cause of Shelley's panic. Otherwise, she was in good health, the conditions were not stressful and the rest of her equipment was in good working order. It is difficult to come up with another explanation for Shelley to have panicked. I believe it is safe to say that the vast majority of panic occurs with overexertion and overbreathing the regulator, causing hypoventilation and feeling of not being able to get enough air. This has led to reports of divers removing the reg from their mouths. However, conditions were calm that day, no testimony of fighting currents or other adverse conditions.

 

[Ayisha]

Regarding the questions about bruises on Shelley, Dateline did address this. On Dateline they stated that she did have some bruising on her leg. I was distracted as I was watching and did not catch all of it, so I am not sure how much bruising or exactly where.

Regarding the mask, it seemed to me that when it was stated on Dateline that it had never happened before, it was in regard to the severe damages to the mask and snorkel, not that a mask had never been removed before in a panic situation.

 

[ScubaInChicago]

Regarding the questions about bruises on Shelley, Dateline did address this. On Dateline they stated that she did have some bruising on her leg. I was distracted as I was watching and did not catch all of it, so I am not sure how much bruising or exactly where.

Regarding the mask, it seemed to me that when it was stated on Dateline that it had never happened before, it was in regard to the severe damages to the mask and snorkel, not that a mask had never been removed before in a panic situation.

Rewind your tivo and get your facts straight before posting what you think you saw....

 

[C2001]

dateline had a one hour program of this las friday