Diver convicted in wife's drowning

[idocsteve]

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. ... 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.

Exactly.

We are supposed to believe that Shelley went from "relaxed and comfortable in her environment" to...within MINUTES...she "took off a fin and stuck it in the sand to count fish... and then inexplicably panicked like never before to the point she ripped off her mask and snorkel so violently that the pin separated from the mask and the mouthpiece was ripped off the snorkel"...all in calm, clear diving conditions similar to what she had been diving in all week.

 

[bsee65]

Regarding the mask damage and bruising:
Wouldn't you expect there to be some bruising around the face, though? Let's take the theory that David ripped the mask off of Shelley's head and that is where the mask damage occurred. If he ripped the mask off so violently that it broke in a way that masks "never" break, there must have been resistance somewhere. If you pull the mask in one direction and it comes right off, nothing breaks. So, shouldn't there be bruising or marking somewhere on Shelley to represent the other half of the force that broke the mask?

With regard to TMJ and barometric pressure:
I think it would take more than a cursory read of a doctor's self-promoting marketing document to come to the conclusion that TMJ would only be exacerbated instantly and at the time of a pressure change. It may be true, but I'm sure there is more to it and that there would be more reputable sources to quote.

With regard to Shelley's dive logs:
It seems like a useless and cherry-picked selection. Out of 350 dives, they point out four times when she said she panicked at a minor level. In terms of finding the truth, I'd rather look at her most recent 50 log entries, or at least the entries for the other dives that week. It would be more illuminating to know the profiles of recent previous dives than that she had a minor panic a couple years earlier. In particular, I would wonder about buddy separation. Also, I dind't see any mention of gas usage on the pages provided. I thought I recalled previous mention among the facts that Shelley's logged gas usage was lower than average, so I would have expected that data to be part of the logs and evidence.

Buddy separation:
Leaving your buddy to count fish on a reef in 20-40 feet of water is one thing, but separating in 90 feet of water is another. There are more things that can go wrong at 90 feet and self-rescue will be more challenging. Personally, I'd prefer to stay together at all times as safety is always a priority for me. As I believe someone mentioned earlier, I wonder if this separation was a regular thing and those recent logs would be likely to tell us.

Odd speculation:
I recently saw a TV show where an octopus latched onto the face mask of a diver when he cornered it. It seemed like he had difficulty in getting free and that there was enough force there to damage gear. Is there any sea life in the diving area that could do something like that, and would it leave other traces that would make it obvious what happened?

 

[K_girl]

Regarding the mask damage and bruising:
Wouldn't you expect there to be some bruising around the face, though? Let's take the theory that David ripped the mask off of Shelley's head and that is where the mask damage occurred. If he ripped the mask off so violently that it broke in a way that masks "never" break, there must have been resistance somewhere. If you pull the mask in one direction and it comes right off, nothing breaks. So, shouldn't there be bruising or marking somewhere on Shelley to represent the other half of the force that broke the mask?

Bruising or lack of bruising doesn't prove who removed the mask hard enough to break it. She would have been bruised if she had done it or an octopus had done it.

With regard to TMJ and barometric pressure:
I think it would take more than a cursory read of a doctor's self-promoting marketing document to come to the conclusion that TMJ would only be exacerbated instantly and at the time of a pressure change. It may be true, but I'm sure there is more to it and that there would be more reputable sources to quote.

I'm just giving a reasonable explanation as to why the jury may have rejected the idea of TMJ as the cause of panic. I could have researched this much deeper I suppose, but I also don't know exactly what was presented at trial either. Only that the defense introduced this as a reason for Shelley to panic. The defense also said that TMJ was very painful. We don't know if Shelley suffered from TMJ very often while diving, but if she did, it sounds as though she could have purchased a molded mouthpiece to alleviate the problem. Indeed since one form of TMJ is constant pressure by gnawing of teeth, the pain could have occurred later in the dive from biting down on the regulator mouthpiece. However, if this was the case, the TMJ would have been building all week and Thwaites would need to have testified that she complained about it. If not, then that might have been a reason the jury rejected the TMJ as a cause of panic as well. Here is a link to some scuba divers who have TMJ and what they say about it and none of them say it was bad enough to cause them to stop diving or to panic:

TMJ & Scuba - Any Solutions? - Scuba Forum - Scuba Diving Forums and Discussion Board

If the defense argued that it was change in barometric pressure that caused Shelley's TMJ, then I would say that would make no sense as she had already been diving for ten minutes.

Odd speculation:
I recently saw a TV show where an octopus latched onto the face mask of a diver when he cornered it. It seemed like he had difficulty in getting free and that there was enough force there to damage gear. Is there any sea life in the diving area that could do something like that, and would it leave other traces that would make it obvious what happened?

I think I found the clip you were talking about.

http://www.scubaboard.com/forums/basic-scuba-discussions/150380-octopus-attack.html

The diver was inside a wreck and had entered the Octopus' den. It was also a Giant Pacific Octopus - you don't find those in the Carribean. It looked like a pretty confined space and the octopus was trapped by the diver. The octopus was defending itself. Otherwise, if not trapped, an octopus will choose to run off. Shelley was not found in a confined space, therefore, it is incredibly difficult to believe that an octopus would simply come up to her in open water and attack her. As a fish counter, I don't see Shelley as the type of person to harass sealife. If you find an example of a case where a diver was attacked by a Carribean octopus in open water without being trapped and that Shelley was a harasser of sea life, maybe you could make a case. I'm sure the defense thought about this kind of possibility and decided that this argument would not help their case, either because they couldn't find what they needed to support it, or just seemed a little too out-there.

 

[SadiesMom]

DAN Divers Alert Network : Psychological Issues in Diving II - Anxiety, Phobias in Diving

"A more intense form of anxiety is panic, a sudden, unexpected but powerful surge of fear. Panic can cause a wholesale flight from the immediate situation, a reaction that is especially dangerous for scuba divers. A diver who experiences panic at depth is subject to near-drowning, lung overexpansion injuries and death."

"Panic attacks are not restricted to beginning divers; experienced scuba divers with hundreds of logged dives sometimes experience panic for no apparent reason. "



"An overreactive anxiety state usually occurs in response to a mishap, such as a dive mask flooding with water. This may cause the diver to panic unnecessarily and behave irrationally. Often, this results in emergency ascents with the attendant dangers, frantic grabs for air supplies and lack of concern for the safety of others. This reaction is seen more often in those divers who have an above-normal tendency toward anxiety."

 

[K_girl]

Swain deposition quotes from civil trial taken from NBC Dateline show.

Plaintiff attorney regarding dive plan: What was that?

Swain: that we'd stick together getting down to where it was we wanted to go and then after that she'd go off and do her reef fish survey count and I'd go off and take pictures.

Plaintiff attorney: On the fatal dive, who entered the water first you or Shelley?

Swain: I don't know.

NBC Reporter: David Swain says he and Shelley made their way together over the reef across the open sand to the Twin Wrecks dive site.

Swain: I have a vague memory of swimming around it slowly and poking into the openings here and there.

Plaintiff Attorney: Did you swim all the way around the wrecks?

Swain: Probably. I don't recall for sure, but probably.

Plaintiff Attorney: How much time did you spend at the wrecks?

Swain: Not long. Certainly less than ten minutes, but probably more than five.

Plaintiff Attorney: And after your five-to-ten minutes at the wrecks, what did you do?

Swain: Meandered over towards the reef area to see if there was something there to see.

NBC Reporter: And Swain says that's when he got separated from Shelley.

Swain: I have a vague recollection of circumnavigating the wrecks, poking around the wrecks, and seeing Shelley still interested in looking at something around there and that's the last time I saw her as I swam off towards the reef.

Plaintiff Attorney: Have you thought about that last view you had of Shelley?

Swain: Considerable.

Plaintiff Attorney: Tell me what you recall seeing.

Swain: A gal in her environment, contented to be there, just normal as ever.

NBC Reporter: But somehow at some point what should have been a placid dive, something went horribly amiss. David Swain says he surfaced from his dive alone.

Plaintiff attorney: Did you ask about Shelley?

Swain: I probably did. Has anyone seen Shelley yet? And they probably said, no, not yet.

NBC Reporter: No one thought much about it at the time. Then Christian Thwaites started his dive.

*****
Plaintiff Attorney: When Christian came to the surface, what did he say?

Swain: I think he used the word "emergency."

Plaintiff Attorney: And you did what?

Swain: Got into the dinghy and motored over to where he was.

Plaintiff Attorney: And then you were able to observe what about Shelley as you got even closer?

Swain: That she was in some kind of trouble.

NBC Reporter: Christian and David said they both attempted CPR, but Shelley's lifeless body gave no response. David said "she's gone." At that point, the two men wept.

Plaintiff Attorney: When you got Shelley's body to boat, you already thought she was dead.

Swain: Yes.

*********

In a local TV interview David made the following statement (shown in the Dateline report):

"There aren't many, but there are some situations where some people in whatever it is they do, they just perish. It's not right, but it happens."

This statement did catch my attention somewhat. I think some people might interpret this to mean that he really did not want to know what had happened to Shelley. That it is dismissive of her death and that he thinks nobody should be asking questions because there are no answers. So I would ask, if you were on a jury, what would you think of this statement?

 

[bsee65]

Bruising or lack of bruising doesn't prove who removed the mask hard enough to break it. She would have been bruised if she had done it or an octopus had done it.

True, but a complete lack of bruising might suggest that the mask pin might not have come out from the mask being ripped off her face. I don't recall any mention of bruising around the face or head at all. That doesn't rule out the possibility that the mask was cleanly removed from her head and that it broke during a tug-of-war as she tried to get it back.

I'm just giving a reasonable explanation as to why the jury may have rejected the idea of TMJ as the cause of panic. I could have researched this much deeper I suppose, but I also don't know exactly what was presented at trial either. Only that the defense introduced this as a reason for Shelley to panic. The defense also said that TMJ was very painful. We don't know if Shelley suffered from TMJ very often while diving, but if she did, it sounds as though she could have purchased a molded mouthpiece to alleviate the problem. Indeed since one form of TMJ is constant pressure by gnawing of teeth, the pain could have occurred later in the dive from biting down on the regulator mouthpiece. However, if this was the case, the TMJ would have been building all week and Thwaites would need to have testified that she complained about it. If not, then that might have been a reason the jury rejected the TMJ as a cause of panic as well. Here is a link to some scuba divers who have TMJ and what they say about it and none of them say it was bad enough to cause them to stop diving or to panic:

TMJ & Scuba - Any Solutions? - Scuba Forum - Scuba Diving Forums and Discussion Board

If the defense argued that it was change in barometric pressure that caused Shelley's TMJ, then I would say that would make no sense as she had already been diving for ten minutes.

I won't argue any of these points, I just didn't think the reference you cited initially was compelling. Here's another point where a more thorough review of her dive logs might be illuminating. If there is no mention of TMJ in 350 dives, then it would be a stretch to blame it here. I would sooner look at accumulated bottom time, extra-curricular vacation activities if there were any, and maybe dehydration combined with a reasonably deep dive as an instigator of some issue.

I think I found the clip you were talking about.

http://www.scubaboard.com/forums/basic-scuba-discussions/150380-octopus-attack.html

The diver was inside a wreck and had entered the Octopus' den. It was also a Giant Pacific Octopus - you don't find those in the Carribean. It looked like a pretty confined space and the octopus was trapped by the diver. The octopus was defending itself. Otherwise, if not trapped, an octopus will choose to run off. Shelley was not found in a confined space, therefore, it is incredibly difficult to believe that an octopus would simply come up to her in open water and attack her. As a fish counter, I don't see Shelley as the type of person to harass sealife. If you find an example of a case where a diver was attacked by a Carribean octopus in open water without being trapped and that Shelley was a harasser of sea life, maybe you could make a case. I'm sure the defense thought about this kind of possibility and decided that this argument would not help their case, either because they couldn't find what they needed to support it, or just seemed a little too out-there.

That may have been the video, but it has been removed so I can't say for sure. In any case, I was asking if there might be something capable of this in the area, I don't know what lives there.

Did I read somewhere in the Dateline documents that she was found between the wrecks? I wonder if she stuck her head in somewhere, either to look for fish or for David. I also wonder how her position when found relates to where her fin was and where she was allegedly last seen.

 

[K_girl]

MASK - Here is the quote from the Dateline report:

NBC Reporter: ..so the key to what did happen to Shelley Tyre, the prosecution said was her diving gear, how it was damaged. Her snorkle, missing its mouthpiece. The strap to her mask, broken. The pin that held the strap in place, gone. That kind of damage rarely happens in the world of scuba experts said and only when great force is applied to the equipment.

Prosecutor: They have never ever seen this strap broken like this before during a dive. Never, ever. What this shows is, a continued struggle with a human being.

Here are images of her mask and snorkle. It looks like to me that the lens on the mask was also severely scratched:

 

[K_girl]

True, but a complete lack of bruising might suggest that the mask pin might not have come out from the mask being ripped off her face. I don't recall any mention of bruising around the face or head at all. That doesn't rule out the possibility that the mask was cleanly removed from her head and that it broke during a tug-of-war as she tried to get it back.

I think I see where you are going with this now. If there were no bruises, that means that the mask broke during a tug-of-war and not from the mask being ripped off of her face. However, as you will see below, there were many bruises that we never heard about.

I won't argue any of these points, I just didn't think the reference you cited initially was compelling. Here's another point where a more thorough review of her dive logs might be illuminating. If there is no mention of TMJ in 350 dives, then it would be a stretch to blame it here.

I would agree with that.

I would sooner look at accumulated bottom time, extra-curricular vacation activities if there were any, and maybe dehydration combined with a reasonably deep dive as an instigator of some issue.

Can't really address vacation activities, but dehydration would normally lead to DCS which does not occur until the diver reaches the surface alive, which did not happen in Shelley's case.

That may have been the video, but it has been removed so I can't say for sure. In any case, I was asking if there might be something capable of this in the area, I don't know what lives there.

I'm sure the defense must have considered this possibility.

Did I read somewhere in the Dateline documents that she was found between the wrecks? I wonder if she stuck her head in somewhere, either to look for fish or for David. I also wonder how her position when found relates to where her fin was and where she was allegedly last seen.

Yes, she was found between what appears to be the two bows of the wreck, her feet a few feet in front of one of the bows:

Thwaites testified that he saw the fin on the way to the wreck and then saw Shelley, we don't know the distance between the fin and her body.

 

[K_girl]

Dateline report regarding bruise on Shelley's foot.

NBC Reporter on Defense hypothesis of what happened: A bruise found later at the autopsy had been bothering Shelley on her left foot, so she peels her fin off and sticks it in the sand to retrieve later. She nears the twin wrecks and after a week of diving in a head-squeezing scuba mask, her TMJ flares-up. She massages the side of her face and her jaw locks without warning. Now things are going wrong fast. Frustration takes hold and mushrooms into full-blown panic. She can't tamp it down like before. Irrationally, she tears off her mask and rejects her regulator.

********

However, I think the prosecution could also argue that if the bruise on her foot was bothering her, it would make more sense that she would push the strap far down on the back of her heel, making it easier for the fin to have been dug into the sand and her foot come out during the struggle.

So it would appear that Shelley has dealt with the TMJ before while diving, but for some reason, she can't deal with it this time. Problem is, believing that she could deal with it before, but not this time. Why? Why would a jury believe that? As a diver, I learn from the things that "bother" me during a dive and I find ways to deal with it and I've gotten better at dealing with them. I don't get worse at dealing with it. And I've got a list of things that can bother me.

 

[K_girl]

So while I'm watching the report of the defense's hypothesis regarding the bruise on Shelley's foot, I notice there are images of the autopsy report which shows some interesting detail. It shows additional injury we did not hear about:

.."As evidence of trauma we observe:

1. Various contusions of the right upper thigh measuring 5/8 of an an inch in greatest dimension.

2. Purple/green contusion of the left mid lateral thigh measuring 4" in greatest dimension.

3. Reddish contusion of the left upper leg measuring 1-1/2" in greatest dimension."

4. Several brownish contusions of the right knee and to the right measuring up to 1cm in greatest dimension.

"..Bluish contusion over the dorsal right foot..

Multiple small abrasions on the dorsal left ha[nd].. measuring ** of an inch in greatest dimension.."