Diver convicted in wife's drowning
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EGad
Contributor
Here's a start while I do my homework. They have 2 files for cross, one for direct, and the verdict here at one of my local TV news stations.
Jury finds Swain guilty of killing wife | turnto10.com
Also, trying not to sound bad, but I have flashbacks of "The Deep" and red stripe commercials when I listen to the BVI prosecutor.
Just trying to bring a little levity to a terrible situation. "Hooray beer!"
EDIT: (Update)
Just emailed the local newsman who did most of the local reports on Dave's case since about the civil trial. I asked for audio, transcripts or contacts. It was through his work account at the station, so I hope he sees it through all the people emailing him and kissing @ss trying to get a job. I will let everyone know how it goes if I hear back. Also, I hope I get a job, I kissed his @ss pretty goo.
Jury finds Swain guilty of killing wife | turnto10.com
Also, trying not to sound bad, but I have flashbacks of "The Deep" and red stripe commercials when I listen to the BVI prosecutor.
Just trying to bring a little levity to a terrible situation. "Hooray beer!"
EDIT: (Update)
Just emailed the local newsman who did most of the local reports on Dave's case since about the civil trial. I asked for audio, transcripts or contacts. It was through his work account at the station, so I hope he sees it through all the people emailing him and kissing @ss trying to get a job. I will let everyone know how it goes if I hear back. Also, I hope I get a job, I kissed his @ss pretty goo.
Last edited:
Ken Kurtis
Contributor
Let's assume for a moment that David DID do it.
Bruce, you seem to be assuming that the fin came off in the struggle, the mask broke in the struggle, and the snorkel came off in the struggle. And you wonder, rightly so if that were all true, why David simply didn't "fix" all of that?
Well, let's also assume for a moment that NONE of that happened. The mask was on, the snorkel was intact, the fin was on her foot.
Now, David's going to try to make it look like something terrible happened to Shelley to divert attention from him. He's already a little panicky in that he just killed someone and he doesn't want it to look like murder. So he "stages" the scene. He simply doesn't realize that he's not doing a very good job of staging and will actually cause more questions to be asked that don't have logical/good alternate explanations.
David removes the fin and sticks it in the sand. He rips the mask off her face and the pin comes out. He pulls off the snorkel and yanks off the mouthpiece. The reg's already out of her mouth so he leaves it out. And maybe he even moves the body closer to the wreck so it looks like she could have bumped the wreck and panicked. (Remember, we only know for certain where Thwaites says he found Shelley. That's not necessarily where she passed out, regardless of the reason.)
Then David swims off to the other side of the reef to eat up some time, gives himself an alibi, and make sure Shelley's dead. Then he surfaces. (I have some other questions about the way he describes his dive but I'll deal with those in a separate post.) David's fairly confident that Thwaites will not have gone down until David gets back so he casually asks if anyone's seen Shelley yet, and waits while Thwaites begins his dive, only to find Shelley on the bottom.
You're right in that David should have said he saw Shelley having a panic attack, tried to help but couldn't. But - again assuming he killed her - maybe he's not as clever as he thinks he is.
I'm not saying that this is the way it happened. But I am saying that this is one of the possible scenarios you have to consider when you look at the totality of the evidence.
- Ken
I didn't get a chance to see the Dateline piece - I was at a Christmas party and unfortunately my DVR didn't record it for some reason. If anyone can get me a copy of it somehow (e-mail? let me download it from an ftp site?), I'd love to be able to see it.
And one thing I would caution you on if you're reading the local news coverage that Egad is apparently going to post. Every single one of the news stories I read makes the foregone conclusion that David is guilty from Day 1. I never read a single article that - other than using the word "alleged" - wasn't blatantly biased against David. Remember that as you read them and see if I'm not right....
And one thing I would caution you on if you're reading the local news coverage that Egad is apparently going to post. Every single one of the news stories I read makes the foregone conclusion that David is guilty from Day 1. I never read a single article that - other than using the word "alleged" - wasn't blatantly biased against David. Remember that as you read them and see if I'm not right....
Here's something else I wonder.
If David *were* going to kill Shelley....why wouldn't he do it up here where visibility is typically crappy? We top out at 10-15 feet on a fantastic day in the early spring. Summer vis is usually much lower than that. If he wanted to kill her, he could easily do it not 3 miles from their shop at a dive site that even if it had 20 people at it, he would still never EVER be seen. Why would he wait until he was in practically gin-clear Caribbean water where Christian or Bernice Thwaites or their son (who was apparently in the water on the surface doing something - swimming? snorkeling?) could easily just look over the side of the boat and see something happening on the bottom? It would make so much more sense to kill her up here on a dive up here in our very low visibility water where he would be assured of no one ever being able to see it happen...heck, they dove up here all the time - it's not like they were vacation divers.
If David *were* going to kill Shelley....why wouldn't he do it up here where visibility is typically crappy? We top out at 10-15 feet on a fantastic day in the early spring. Summer vis is usually much lower than that. If he wanted to kill her, he could easily do it not 3 miles from their shop at a dive site that even if it had 20 people at it, he would still never EVER be seen. Why would he wait until he was in practically gin-clear Caribbean water where Christian or Bernice Thwaites or their son (who was apparently in the water on the surface doing something - swimming? snorkeling?) could easily just look over the side of the boat and see something happening on the bottom? It would make so much more sense to kill her up here on a dive up here in our very low visibility water where he would be assured of no one ever being able to see it happen...heck, they dove up here all the time - it's not like they were vacation divers.
ItsBruce
Contributor
Ken, I'm so glad you've finally checked in here. I look forward to your thoughts (if you can or will give them). Have YOU ever heard of a pin in the mask breaking before this? Or the mouthpiece of a snorkel coming off?
As far as whether David did it or not, you are right, in your comments about my prior post. However, from the point of view of a trial, if the prosecutor's "story" is disrupted, it is very hurtful to the prosecution. To win a questionable case, a prosecutor or attorney for a plaintiff must put on an interesting case with an explanation. A theory of "two divers went in, one diver came out" won't get a conviction. The prosecutor must fill in the blanks. So, the prosecutor must provide an explanation of what happened after the two divers went in. If that is disrupted, e.g. by the defendant admitting to a crime somewhere else at the time, the prosecutor's case is harmed.
... I've got to go now and won't be back for 9 days (leaving to go diving in Acapulco and Ixtapa).
As far as whether David did it or not, you are right, in your comments about my prior post. However, from the point of view of a trial, if the prosecutor's "story" is disrupted, it is very hurtful to the prosecution. To win a questionable case, a prosecutor or attorney for a plaintiff must put on an interesting case with an explanation. A theory of "two divers went in, one diver came out" won't get a conviction. The prosecutor must fill in the blanks. So, the prosecutor must provide an explanation of what happened after the two divers went in. If that is disrupted, e.g. by the defendant admitting to a crime somewhere else at the time, the prosecutor's case is harmed.
... I've got to go now and won't be back for 9 days (leaving to go diving in Acapulco and Ixtapa).
K_girl
Contributor
Ken - very interesting hypothesis. I thought much more about the fin situation last night and came up with something somewhat similar as you, but with a little different twist. ItsBruce - I would say yes, the fin is a mystery, but not a fatal blow to the basic prosecution theory as the mask and snorkle mouthpiece are far more significant.
In Thwaites' testimony, he said he found the fin sticking straight-up, dug into the sand with the strap below the foot plate. He saw the fin immediately upon descent and then saw Shelley over by the wrecks, indicating that there was some distance between the fin and Shelley. On the Dateline show, Royale conducts a test using the same fin and cannot dig the fin into the sand no matter how hard he tries. The only way he can get the fin to stick in the sand 3 inches sticking straight-up is to put it there by hand. However, we don't know if he tested it with the the strap low on the back of his heel (as the Defense theorized that a bruise on her foot that was bothering her) or if he was in the right area with the right sand texture. If there is a second trial, the prosecution could potentially stick to their previous assertion that the fin came off during the struggle, but they could also put forth another theory similar to Ken's or like this one:
The fin is bothering Shelley and she places the strap low on the back of her heel for better comfort. The fin comes off during the struggle with David and begins floating freely. David quickly leaves the scene, himself excited and somewhat traumatized with what he had just done. He needs time away from the scene to gain his own composure before he returns to the surface. He then sees a fin freely floating around. He realizes this is something that would need to be explained. He has a choice, go back and put the fin back on Shelley, or do something else with it. He doesn't want to go back to Shelley, perhaps he just can't face yet what he had done, maybe he doesn't have enough air left. He needs something to make it look like Shelley removed her own fin. He comes up with the idea that if she had intentionally placed her own fin in the sand to place a "marker" to count fish, then this could have also been an explanation as to why she would escalate into panic. Indeed, this theory has been presented by friends of David.
Thwaites goes down and finds the fin sticking straight-up in the sand. He grabs the fin and thinks that Shelley will be grateful that he found her fin. So obviously, this is not something that Shelley has done on any of the previous dives for the week before this dive. So because this is not something that Shelley was known for doing, the defense decides that the theory of Shelley using her fin as a marker for fish counting is not a good idea. They go with the bruised foot theory because there is at least some kind of physical evidence to support it.
Here is another thing that started gnawing at me last night. Swain testified in his desposition about when he surfaced, that he probably asked if Shelley had surfaced yet and the answer was probably no. This would indicate to me that there was no plan for Swain and Shelley to hook-up at the end of the dive for an ascent. Even though they may have split-up for this dive, I find it very strange that there was no plan to find each other again and do the 80-foot ascent together. I can see that perhaps they would hook-up and Shelley might indicate that she would stay down a little longer and then Swain would have come to the surface. At that point, his answer should have been Shelley is still down counting fish and not - has anyone seen Shelley yet? Thwaites did not think anything about the fact that Swain did not surface with Shelley, so did Thwaites testify that Swain asked about Shelley when she came to the surface? I'm guessing that Thwaites did not hear anything from Swain because there was an assumption that Swain had seen Shelley and communicated with her just before he surfaced. It would be interesting to learn what Thwaites has to say about this.
Also, this appeared to be a very small, focused dive site with two very small wrecks and a reef nearby, great visibility and no current. Why would David never attempt to find her anytime after 8-10 minutes into the dive, or at least at the end of the dive for an ascent? He could have easily found her by going back to the last spot where he saw her. But he never saw her? I find that to be very, very strange indeed. Here is an experienced dive instructor basically admitting he is the worst dive buddy in the world.
In Thwaites' testimony, he said he found the fin sticking straight-up, dug into the sand with the strap below the foot plate. He saw the fin immediately upon descent and then saw Shelley over by the wrecks, indicating that there was some distance between the fin and Shelley. On the Dateline show, Royale conducts a test using the same fin and cannot dig the fin into the sand no matter how hard he tries. The only way he can get the fin to stick in the sand 3 inches sticking straight-up is to put it there by hand. However, we don't know if he tested it with the the strap low on the back of his heel (as the Defense theorized that a bruise on her foot that was bothering her) or if he was in the right area with the right sand texture. If there is a second trial, the prosecution could potentially stick to their previous assertion that the fin came off during the struggle, but they could also put forth another theory similar to Ken's or like this one:
The fin is bothering Shelley and she places the strap low on the back of her heel for better comfort. The fin comes off during the struggle with David and begins floating freely. David quickly leaves the scene, himself excited and somewhat traumatized with what he had just done. He needs time away from the scene to gain his own composure before he returns to the surface. He then sees a fin freely floating around. He realizes this is something that would need to be explained. He has a choice, go back and put the fin back on Shelley, or do something else with it. He doesn't want to go back to Shelley, perhaps he just can't face yet what he had done, maybe he doesn't have enough air left. He needs something to make it look like Shelley removed her own fin. He comes up with the idea that if she had intentionally placed her own fin in the sand to place a "marker" to count fish, then this could have also been an explanation as to why she would escalate into panic. Indeed, this theory has been presented by friends of David.
Thwaites goes down and finds the fin sticking straight-up in the sand. He grabs the fin and thinks that Shelley will be grateful that he found her fin. So obviously, this is not something that Shelley has done on any of the previous dives for the week before this dive. So because this is not something that Shelley was known for doing, the defense decides that the theory of Shelley using her fin as a marker for fish counting is not a good idea. They go with the bruised foot theory because there is at least some kind of physical evidence to support it.
Here is another thing that started gnawing at me last night. Swain testified in his desposition about when he surfaced, that he probably asked if Shelley had surfaced yet and the answer was probably no. This would indicate to me that there was no plan for Swain and Shelley to hook-up at the end of the dive for an ascent. Even though they may have split-up for this dive, I find it very strange that there was no plan to find each other again and do the 80-foot ascent together. I can see that perhaps they would hook-up and Shelley might indicate that she would stay down a little longer and then Swain would have come to the surface. At that point, his answer should have been Shelley is still down counting fish and not - has anyone seen Shelley yet? Thwaites did not think anything about the fact that Swain did not surface with Shelley, so did Thwaites testify that Swain asked about Shelley when she came to the surface? I'm guessing that Thwaites did not hear anything from Swain because there was an assumption that Swain had seen Shelley and communicated with her just before he surfaced. It would be interesting to learn what Thwaites has to say about this.
Also, this appeared to be a very small, focused dive site with two very small wrecks and a reef nearby, great visibility and no current. Why would David never attempt to find her anytime after 8-10 minutes into the dive, or at least at the end of the dive for an ascent? He could have easily found her by going back to the last spot where he saw her. But he never saw her? I find that to be very, very strange indeed. Here is an experienced dive instructor basically admitting he is the worst dive buddy in the world.
K_girl
Contributor
Foreign country means harder to prosecute. Shelley died between the two wrecks, mooring was not directly below the boat. They used a dinghy to get to the mooring line. The mooring line is at an angle, so it is not a straight-shot down view even from the dinghy.
Ken Kurtis
Contributor
I found this - and a couple of other things - strange (and a bit unsettling) too.
Last night, I wrote a VERY long analysis based on the Dateline program and some other info, looking at the case from the perspective as I would if this was a fatality that I was presented with here in LA. I've got some spell-checking and editing to do on it, but hope to post that later on this afternoon.
- Ken
K_girl
Contributor
Here is the link to the transcript of the Dateline NBC story. I thought that they did a good job in trying to present both sides:
The Trouble At Twin Wrecks - Crime reports- msnbc.com
In previous discussions we talked about how small Swain looked and questioned if he could perpetrate such an attack. The report talks about how much weight he has lost since he was imprisoned: "With everyone in place, David Swain himself was brought in, showing every bit how two years in a hot Tortola prison can age a man. You had to squint to see the onetime affable scuba instructor who'd pleaded Not Guilty.."
I would say yes, that the video of of Swain in his deposition four years after Shelley's death shows a much healthier-looking Swain.
Ken - looking very forward to your analysis, I have seen many of your posts here and have great respect for your opinion.
The Trouble At Twin Wrecks - Crime reports- msnbc.com
In previous discussions we talked about how small Swain looked and questioned if he could perpetrate such an attack. The report talks about how much weight he has lost since he was imprisoned: "With everyone in place, David Swain himself was brought in, showing every bit how two years in a hot Tortola prison can age a man. You had to squint to see the onetime affable scuba instructor who'd pleaded Not Guilty.."
I would say yes, that the video of of Swain in his deposition four years after Shelley's death shows a much healthier-looking Swain.
Ken - looking very forward to your analysis, I have seen many of your posts here and have great respect for your opinion.
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