Diver convicted in wife's drowning

[SadiesMom]

Swain also displayed a complete ineptness to run a business, which fits in perfectly with the description of a sociopath to hold a job. Also, there are many functioning sociopaths among us, they represent 1% of the population. They are not a rarerity. Most of them do not commit murder, but they do leave a wake of financial destruction without remorse which fits Swain to a "T." Where a murder of a spouse has been proved to have occurred, the spouse responsible exhibits patterns of behavior that is very similar to David's. It is certainly not proof that he killed her. The only value it has is that it makes it possible for the jury to believe that he would be capable of the murder and to disregard the testimony of his supporters who say otherwise.

Dave maybe be a lousy business man although around here dive shops do not do well. The winters are cold and long and not many people dive year round, not enough to keep a dive shop running at a profit. Most dive shops here are ski, snowboarding, etc.. shops. The air compressor is down from Oct. to May in these places. OSS was open for diving services year round. I believe Shelly and Dave were partners in trying to keep the shop going. I don't believe Dave was manipulating Shelly at least in this aspect.

Afterdark has an excellent point. Running a dive shop in New England is not an easy task - especially during the winter. Three dive shops have closed in the state in the last 2 years and 6 have closed in the Providence/southern MA area. One was open for 25 years before closing - David's was open for many, many years before David even met Shelley and for 8 years after her death - until after he was arrested. So apparently he wasn't as bad a businessman as you seem to think. in fact, when he was arrested, he was working behind the counter at OSS.

When Shelley married David and started investing in their business, they added to the shop in a major way - they added an in-ground pool so that they could train divers and kayakers on site. Shelley loved being a part of owning the shop and helped with the plans for the addition. She was very active with David in the plans for the expansion of the business and was by no means "exploited" as a source of funding - it was absolutely voluntary and something that she not only wanted, but was excited about doing.

As as to where some of Shelley's money went after her death, much as it's very fun to think that he squandered all of it on vacations with Mary Basler, that's simply not the case. That in-ground pool was later enclosed (as David and Shelley had wanted to do in the first place, but couldn't afford to at the time) to become an indoor heated pool with a retractable roof so that it could be used for training year-round as well as adding some apartments that were rented to vacationers in the summer. The pool was not only used by the shop for training purposes, but by the community for swimming laps and David allowed it to be used - gratis - for training handicapped divers.

 

[idocsteve]

For the record, in two years of regular treatment, Dr. Block never diagnosed David as a sociopath.

For the record, there are a lot of incompetent health care professionals out there.

 

[AfterDark]

For the record, there are a lot of incompetent health care professionals out there.

And cops, prosecutors, expert witnesses, jurors........

 

[ItsBruce]

FWIW, some of my biggest defeats have come as a result of glorious victories. I recall several instances in which I persuaded the trial courts to either dismiss someone's case against my client or to exclude evidence they have offered, only to have the appellate courts reverse and remand.

I've also had many instances in which I've won even after the trial court refused to grant my motions to dismiss, my motions to limit claims being made against my client or my motions to exclude evidence proffered by my opponents. In one particular instance, there were 4 distinct technical grounds on which the trial court could have "killed off" my opponent's case, yet it refused to do so. Instead, after a two week trial, the judge concluded that he did not believe the plaintiff about what happened and he ruled in my favor. Upon reflection, I realized that had I won on any of the technical defenses, an appellate court might have determined the trial court had erred and reversed, but that by ruling that the plaintiff was not credible, the judge made the outcome "bullet proof."

The net result is that by precluding David from putting on certain evidence, the prosecution may have given David a second bite at the proverbial apple.

 

[K_girl]

That's correct. Paul Block, Ph.D., a clinical psychologist from Middletown, RI, treated David for two years and made a diagnosis of something akin to post-traumatic stress disorder - I'm not sure if he used the actual term or not. In any case, it was his opinion that the trauma from David's childhood has caused him to deal with painful memories - not just Shelley's death, but all painful memories throughout his life - by repressing them. He was in Tortola for the criminal trial and ready to testify to that. It is very possible that knowing this information would allow the jury to understand why David did not have good recall of what happened on that dive.

The prosecution raised an objection that Dr. Block's testimony was inadmissible because he did not have an M.D. The objection was sustained and Dr. Block went back to RI without being allowed to testify.

For the record, in two years of regular treatment, Dr. Block never diagnosed David as a sociopath.

There would be knowledge as to what Dr. Block would have testified to, which was PTSD, but the "record" would be (or should be) incomplete as to any other diagnosis he may or may not have made. Ayisha may be able to speak to this, but seems to me, a psychiatrist would treat on the basis of the patient's complaints, similar to a medical doctor would and not treat on the basis of complaints of others. As the description indicates, sociopaths do not seek treatment because they do not believe they have a problem. The description also says that the only way they get treatment is when they are forced to. Ayisha?

However, if I were a prosecutor, I would be very interested in getting Dr. Block on the stand. If I truly believed that Swain had killed Shelley, and believed he was a sociopathic liar, I would believe that he would have lied to Dr. Block. Especially considering what he told Shelley's parents - that he was only 16 and present at the time his mother was killed by his brother. This was not true. It would be interesting to see the prosecution take the risk to prove that Dr. Block had been lied to and manipulated by Swain. I would also take a look at the timing of his visits to Dr. Block and when he started treatment. The treatment started several years after Shelley's death, about the same time that civil law suit started. Indeed, Dr. Block treated Swain between 2003-2004. The civil suit was filed in 2003. So Swain didn't have any reason to seek help between from the time Shelley died to the time the civil suit was filed. I think Swain's attorney advised him that he needed to explain his cold and distant behavior and this was the best way to do it. I think it was a civil suit strategy and not any evidence that Swain really needed help to deal with Shelley's passing. He needed help with his civil suit. All the prosecution would need to do is ask Dr. Block when treatment was started, who contacted him about Swain's treatment and if requests were made to focus the treatment in any specific way (to look only at PTSD). It starts to sound highly questionable. Certainly, the jury would not conlcude that Swain sought treatment on his own because he personally needed it.

 

[bsee65]

That timing is certainly questionable, K_girl. Innocent explanations would be either that he was trying on his own and it took some time to realize he wasn't getting better, or he was coping well until the filing of the suit sent him all the way back to square one. I would favor the latter. He could very easily have been counseled to seek help by his attorney, but that doesn't say anything about his willingness to do so, or his state of mind once treatment started. I'm sure many of us have all been told to do something by an authority figure that we didn't believe was necessary at the time only to find out it was a wise course of action in the end. While you state that a sociopath wouldn't seek out help, would that person benefit from it and come to appreciate it over time?

Even if the attorney was the stimulus for his initial treatment, I don't believe a jury could conclude that Swain believed either that it would not hep or that he had no problems from that simple fact. Even if Swain went in thinking it was a waste of time, what would it say about him if he came to appreciate the value of the treatment over the course of the two years? Would the psychologist be able to tell us that Swain was becoming more mentally healthy over time as a result of the sessions? I don't know if privilege applies to communication with a psychologist, but I suspect it does. I'm also not sure, when calling your psychologist to testify on your behalf, where the lines of privilege might be drawn.

I would think that any such restrictions on treatment as you propose, K_girl, would be counter-productive to either the treatment or the case. Treatment has to be alive and go where it will go to really get to understanding why things are as they are. You've already pointed out why it wouldn't be good for his case to lock things down.

All this said, I have no idea whether Swain was open or guarded during his treatment. I'm not sure if any here can say with authority whether he was an active participant, or just there for the possible legal benefit. Can anyone say if anything about his mental position improved over the course of those two years? Also, if he stopped in 2004, why was that? If it was about his legal case, then wouldn't it have been beneficial for him to continue through the conclusion of the proceedings?

Like everything else we discuss with regard to accidents, we are limited by the completeness of our fact set. With as little as we know about his psychological treatment, all we can do is speculate. That seems to be the story of this case end to end.

 

[AfterDark]

K_Girl if a prosecutor knew that calling a witness to testify wouldn't help the case why would he/she? Seems that much was done to get Swain to testify but after all was said and done and the judge ruled that Swain could be called to testify, he didn't call Swain. Seems odd unless he found out something that changed his mind.

 

[K_girl]

The criminal defendant attorneys I work for hire psychiatrists all the time, and they do have a goal in mind and they do ask the psychiatrist to focus on a particular part of the psyche. The goal of the psychiatrists our office hires is not to heal, but to provide testimony as an expert to specifically say what it is the attorney wants them to say. And I can tell you, we hire multiple psychiatrists to be experts, not treaters. I think the prosecution should have put Dr. Block on the stand and establish just exactly what the purpose of his involvement was. And that the purpose of his testimony was to explain Swain's behavior to a jury by connecting it to PTSD. I think from reading the newspaper account of Swain's daughter's plea about this makes this clear - he was hired to be an expert at trial - the civil trial. He is even referred to as a defense "expert." The timing is just too coincidental to believe that it was anything else.

It sounds as though BVI does not allow psychiatrists to testify because they are not medical doctors. The prosecution did not make any attempt to put-on psychiatric testimony either. I do think psychiatrists should be allowed to testify. However, if the defense is allowed to put on a psychiatrist, that should open him up to examination by a prosecution expert psychiatrist. In the end, I don't think it would have helped Swain very much once the jury found out the timing of the defense's "expert" in relation to the civil trial.

 

[Ayisha]

There would be knowledge as to what Dr. Block would have testified to, which was PTSD, but the "record" would be (or should be) incomplete as to any other diagnosis he may or may not have made. Ayisha may be able to speak to this, but seems to me, a psychiatrist would treat on the basis of the patient's complaints, similar to a medical doctor would and not treat on the basis of complaints of others. As the description indicates, sociopaths do not seek treatment because they do not believe they have a problem. The description also says that the only way they get treatment is when they are forced to.

I agree that the only information we have access to is what has been published, so we do not know the extent of the sessions with Swain's psychologist or any diagnosis he made with regard to Swain. In other words, while Swain may have been diagnosed with PTSD, we do not have access to any other diagnosis Dr Block made, if any.

Remember, a psychiatrist IS a medical doctor. A psychiatrist becomes a medical doctor first, THEN specializes in psychiatry. This allows a psychiatrist to prescribe medications, perform electroconvulsion therapy and other treatments that psychologists are not allowed to do except in some states. Dr Block had a Ph.D, which is a Doctorate of Philosophy, rather than medicine, so Dr Block was a psychologist. One is theoretical, one is medical.

The most prevalant concept of someone with true Antisocial Personality Disorder is that they do not have a conscience. Not only do they not care about the effects of their actions on others, they certainly do not pursue treatment until they are caught and forced to receive treatment. Any sociopath is extremely cunning and tries to be a step ahead of anyone who might catch them, and can easily use their maniplulative abilities to attempt to manipulate a psychologist or psychiatrist into buying that they do not have a disorder or are improving. Any professional therapist is aware of that manipulative and convincing ability and has strategic tactics to weed out the truth, but it can be extremely difficult.

It does seem that there could have been interesting information from Dr Block for both sides as k_girl points out, and it is a shame to have not heard it. However, since we know very little about any diagnosis made about Swain, I'm not sure that there is enough info to discuss potential diagnoses that could be made about Swain. Also, none of us on this thread are qualified to do that, even if we were to examine him.

 

[K_girl]

Thanks Ayisha for clearing that up. Much appreciated. Here is a link to help the attorney find psychologists as expert witnesses and they emphasis PTSD as a defense:

Forensic Psychiatrist and Psychologist Expert Witness and Consultant Directory