Diver convicted in wife's drowning

[K_girl]

Regarding the fairness of trial in BVI.

Source (Lexis/Nexis): http://www.scubaboard.com/forums/4934632-post541.html

Certainly, you would have to say that the process of jury management in BVI is not handled as fairly as it is in the U.S. They've made it much easier to convict as compared to the U.S. Swain's defense will be challenging the process of jury management in this case, which I think they should. They may be unsuccessful at the Carribean Supreme court level, but they say they can appeal to the British Supreme Court. I wonder if the jury management practices in Great Britain are different than the Carribean courts, if they are, they might have a chance here. Trying to compare jury management with U.S. procedure might be perceived as politically inappropriate and could be suicide for this case as you would be trying to invalidate a country's judicial system. Any British lawyers out there to comment on this?

Personally, I would like to see the U.S. step-in for Swain to demand a re-trial in the U.S. under our procedures using the argument that since the victim and the accused were both U.S. Citizens, justice should be administered under the terms of our justice systems so Swain can be afforded his rights as a U.S. Citizen. Rhode Island does not have the death penalty. But, if he were charged on a federal level, they do have the death penalty. The Feds can often find ways to take-over a case, so that might be a scary move for Swain's attorneys.

 

[idocsteve]

But, if he were charged on a federal level, they do have the death penalty. The Feds can often find ways to take-over a case, so that might be a scary move for Swain's attorneys.

Damn. Talk about all or nothing.

Alec, should I take door number one which is life in prison for sure, or go for door number 2 or door number 3 which could be freedom at best or the death penalty at worst?

And here I am thinking that it's a tough decision as to whether or not I should put more French Vanilla creamer in my coffee every morning. Once you get used to that stuff, it's almost addicting...you just can't drink coffee with milk anymore.

 

[AfterDark]

Sadiesmom - I would have to say that David's downfall wasn't that he was so unprepared to defend himself - it was his arrogance and dismissive attitude. I found it interesting to learn that the judge in the civil case made many of the same points I have made. You've got a defendant that you have been telling for three years to get a back-up lawyer who doesn't listen. You've got a defendant who defiantly goes off and sells everything in his store and takes the proceeds during a trial where that business is in dispute. You've got a defendant arrogantly standing outside the courtroom where their case is being tried, completely unchallenged, talking to the press, trying to make his case in the press. I have no doubt that judge made the ramifications of Swain's decisions quite clear to him as one of the appeal judges said that no judge wants to try a case in pro-per (self-representation), but Swain gave the judge no choice in the matter. Swain's arguments of not being able to trust another attorney - just more attempts at delay. This struggle between the judge and Swain was going on for three long years and the years of Swain's delays had to come to an end.


It does not take a diver nor a lawyer to realize that some of the explanations he has attempted to put forth are complete hogwash. It only takes a little common sense to know that if someone got out of their gear at 80 feet - they are going to drown. I agree with you, he would have done much better if he had kept his mouth shut and let his attorneys do the talking. Problem is, he couldn't and the damage is done - he can't undo it. Statements he made in his deposition, to the press and his behavior in the civil trial cannot be wiped away, even if he gets a new trial.

Sadiemom, as far as your explanation regarding the ethics violations, I believe that may be reasonable.

Swain behaved the way he would be expected to behave by people who know him well. He's cold and pre-occupied, articulate but abrupt I've seen it before it's not "normal" as most would define it but for Dave it is. It doesn't make him look good and in fact makes him look bad. That's the way he is.

 

[K_girl]

iDoc - actually you raise another interesting issue. Let's say he gets the best possible outcome with freedom on appeal and BVI decides not to re-try the case. What happens in a foreign country does not bind the U.S. He could potentially be re-tried in the U.S. on the argument that the crime started in the U.S. by his formulating a plan to kill his wife while still in the U.S. Alabama prosecutors are planning for this argument in the Watson case once he is released from Australia.

 

[idocsteve]

. Alabama prosecutors are planning for this argument in the Watson case once he is released from Australia.

I'm glad to hear that.

After reading about the Watson case from the link in your profile, the light sentence handed down was a joke. That dude makes David look like an angel.

 

[K_girl]

Swain behaved the way he would be expected to behave by people who know him well. He's cold and pre-occupied, articulate but abrupt I've seen it before it's not "normal" as most would define it but for Dave it is. It doesn't make him look good and in fact makes him look bad. That's the way he is.

Unfortunately for David, it would not take much for someone on a jury to look at his behavior and make a connection to a sociopath. And if they believe he's a sociopath, they might believe that he would be capable of murder. There are too many examples of Davids words and behavior that fits into the description:

Profile of the Sociopath

 

[ItsBruce]

I'm not sure that that's true, K-girl. Maybe Rhone Man will chime in here, but as I recall, the William Labrador (a US citizen convicted of murdering a woman in Tortola)appeal to the Privy Council in London resulted in an overturned verdict which released him from prison entirely. There was no second trial. Granted, that was after the verdict was apparently upheld by the Eastern Caribbean Appeals Court. But I believe that it's within the Eastern Caribbean Appeals Court's power to overturn a verdict and free a prisoner as well...Rhone Man, please correct me if I'm wrong.

(I know there have been other appeals that have overturned verdicts on appeal and freed prisoners, but frankly right now I haven't had enough coffee to remember them )

I'm back from vacation and am catching up with this thread. I will probably post more later, but this was an easy one to respond to. Sorry if I'm being redundant.

My expectation would be that if there were a reversal, there would be a new trial and that David would remain in jail pending the retrial. William Labrador was released because the Privy Council determined was that there was no credible evidence against him and that he was bound to win in the event of a retrial. I'm afraid that this is not a likely scenario vis-a-vis David.

 

[ItsBruce]

... "Olenn is also heard in the videotaped deposition asking Swain where was the dive computer he wore that day, which would have registered how long he was under the water and what depths he reached.

"I haven't a clue," said Swain.

He said he also could not remember where the photographs were that he took during the dive."


Yes I know it's years later...but how many divers on this board would not be able to remember what became of their equipment used during a dive in which their spouse suffered a fatal accident?

Here is another post about which I feel compelled to comment.

I have no issues with Swain's answers. Swain may have had a perfect recollection of what became of the computer he was using. But, at least as recited in the article, that wasn't the question posed to Swain. For example, I know exactly what became of the suit I wore on the day I was sworn in as a lawyer, in 1982. When it became too worn to wear, I gave it to the Salvation Army. I have no clue what the Salvation Army did with it. As such, if one week after I made that donation someone had asked where it was, I would have had to answer that I had no clue where it was. If Swain had replaced his dive computer with a new one, it would not be surprising if he did not know where the old one was. And, this is all against the background of the fact that the authorities had ruled Shelly's death an accident. That being the case, there was no reason to preserve anything as evidence.

And, as to the photos, some people might have had them processed, printed and framed and might even have hung them on the wall. Others might have just dumped the roll of film because of the memories they represented. Again, this is all against the background of the fact that the authorities had ruled Shelly's death an accident, so there was no reason to preserve anything as evidence.

 

[ItsBruce]

Another observation: When your life, liberty or property is at risk, it is impossible to overemphasize the importance of having a good lawyer. A layperson stands about as much chance against a competent lawyer as a layperson would stand in a dual against a professional gunslinger. Sorry, but that's the reality.

FWIW: I'm an ok lawyer, but I would never even consider servicing my own regulator (at least without proper training). I always let trained professionals do it.

 

[AfterDark]

Unfortunately for David, it would not take much for someone on a jury to look at his behavior and make a connection to a sociopath. And if they believe he's a sociopath, they might believe that he would be capable of murder. There are too many examples of Davids words and behavior that fits into the description:

Profile of the Sociopath

I agree with you in principle K_Girl but Dave's "manner" is a result of what some would call PTS syndrome. He hasn't displayed any other sociopath type behavior at least that I know of, sociopaths usually have quite a track record by the time the law catches up with them. I can see how bad it makes him look, I wish he could see it too.