Diver convicted in wife's drowning

[ItsBruce]

1. I do not know the rules in the BVI, but my best guess is that confidential communications between a physician or therapist and a patient are privileged and the prosecutor cannot call either until the defendant has "opened the door" by doing so. Of course, by then, the defense attorney has called the witness and elicited favorable testimony. The jury hears that before hearing any challenge by the prosecution. As a result, the prosecution is generally better off trying to keep the evidence out (unless doing so risks a reversal and new trial).

2. When an attorney hires an expert to testify in trial, he or she will only call an expert who has rendered an opinion that is favorable to that attorney's position. The expert will recognize this and arguably will endure his or her opinion is what the attorney wants to hear ... otherwise, the attorney will find a different expert. When an attorney hires an expert, until the attorney discloses the expert's opinions, they are generally absolutely privileged under what is called "the work product doctrine." The basic premise is that the Law wants attorneys to work up their cases fully and to investigate both the favorable and unfavorable aspects of it. If an opponent can take advantage of one's work-up, one will not work their case up. Therefore, to encourage proper preparation and investigation, an attorney's work is protected until it is disclosed.

3. In David's case, if I had been representing him and if I had the resources to have an appropriate expert perform tests on him and to interview and analyze him, (subject to the fact that all I know is what I've read on SB) I would certainly want to present that expert's opinions to explain David's conduct on the boat ride in from the dive site and in dealing with Shelly's parents, etc. Appropriate opinions might have tended to mitigate what looks like reactions of a guilty mind.

 

[bsee65]

Would an analyst hired for the purpose of expert testimony be likely to meet with the client over the course of two years? That sounds a lot more like treatment than just investigation. I am thinking it much more likely that an expert witness might have a few meetings over the course of a month or two to form a picture, and then be ready to testify.

 

[SadiesMom]

Would an analyst hired for the purpose of expert testimony be likely to meet with the client over the course of two years? That sounds a lot more like treatment than just investigation. I am thinking it much more likely that an expert witness might have a few meetings over the course of a month or two to form a picture, and then be ready to testify.

Thank you, Bsee - that was a question that I was going to bring up. I would also put forth the point that the reason Mary Basler says that she ended the "fling" (as she calls it) with David was that he was "going through a difficult emotional time." So I would say that, while the timing for David's seeking help with emotional/psychological assistance may *look* suspicious on the surface, the fact that he saw Dr. Block for an extended (i.e., two year) treatment period, rather than just a few sessions, indicates that he felt the need for ongoing treatment. In addition, the fact that he recognized that he was having emotional difficulties that were enough to end his relationship with Dr. Basler two years earlier indicates that this was not simply a defense strategy, but, from my POV, the actions of a person who had finally accepted that his own attempts to deal with emotional issues were not working and it was time to seek professional assistance.

 

[ItsBruce]

It is most likely an expert who was hired to render an opinion for use in litigation would only have been able to meet with the client for a limited period of time. That is just the nature of litigation. And, the reality is that an opinion is always subject to attack on that basis. In a perfect world, an expert would be hired very early and would have plenty of time to meet with the client and thus to test whether the client was being candid.

An expert hired to testify in trial could get information from a treating therapist and use that in forming his or her ultimate opinion.

Also, an expert hired to testify in trial might be able to render an opinion as to why a client went to a therapist for treatment, i.e. to fabricate a defense or for a legitimate reason.

FWIW: Not every murderer is a sociopath and not every sociopath is a murdered. I'm not even sure whether being a sociopath makes one more likely to commit a murder. The one would probably help explain the other, but I'm not so sure there is a correlation.

I've never met David and as I've noted many times, all I have to go on is what I've seen on SB and the Dateline program. However, pretty much everything I've heard about David's conduct after his wife's death is something that can have both an innocent explanation or an incriminating one. ... I'm reminded of the fellow who walked on water ... and how the media reported that he could not swim.

 

[K_girl]

Would an analyst hired for the purpose of expert testimony be likely to meet with the client over the course of two years? That sounds a lot more like treatment than just investigation. I am thinking it much more likely that an expert witness might have a few meetings over the course of a month or two to form a picture, and then be ready to testify.

Bee65 - we have done it in our office. We very recently had a psychiatrist who testified for more than one week, 8 hours a day based on his evaluation of our client over a period of years. Actually, we had two psychiatrists on the case. I filmed the testimony.

ItBruce has a point - I think it is much easier to attack an evaluation of a client when there is minimal contact with the client. If I were an attorney involved in litigation that could lead to wrongful death and a possible criminal case, I would have advised my client that he needs to seek "treatment." And, I would advise him to start immediately if not sooner in order to get in enough sessions before trial in order for it to be seen as treatment. I still think the timing of Swain's seeking treatment, four years after Shelley's death and near the filing of the civil suit does hurt Swain. It certainly doesn't help him.

Sadiesmom makes an interesting point about Basler saying Swain was having emotional difficulty and she cut-off the relationship in 2000, calling it a "fling." This is something I would like to know more about. It's very sketchy. Did she think that he had not allowed himself to grieve and wasn't displaying any emotion? What was the reason she was never serious about Swain? Did he communicate anger about Shelley's parents relentless about her death - was that behind the emotional difficulties? There is not enough value in the information to give it a lot of weight.

 

[AfterDark]

I learned recently that the officials at Her Majesty's Prison Balsam Ghut, Tortola had Dave's passport and papers ready for his release on the last day of the trial. RhoneMan do you know if this is a common practice in the BVI or did the officials expect him to be acquitted?

 

[K_girl]

AfterDark - noting that the judge would certainly be involved in such a matter, the judge could have overturned the conviction and set Swain free, but instead the the judge sentenced Swain to the maximum, I think it was probably routine that they prepared for jury aquittal. It's somewhat comforting to know that they did not assume conviction.

 

[AfterDark]

AfterDark - noting that the judge would certainly be involved in such a matter, the judge could have overturned the conviction and set Swain free, but instead the the judge sentenced Swain to the maximum, I think it was probably routine that they prepared for jury aquittal.

The judge had no choice life is mandatory there for murder. The only thing that was in question after the verdict was how long before Swain would be eligible for parole. What would the judge have to do with what goes on at the prison other than sending them clients?

 

[Rhone Man]

I learned recently that the officials at Her Majesty's Prison Balsam Ghut, Tortola had Dave's passport and papers ready for his release on the last day of the trial. RhoneMan do you know if this is a common practice in the BVI or did the officials expect him to be acquitted?

I don't know, but given their propensity to lose documents, it sounds like a wise precaution.

I very much doubt prison officials would start to engage about speculation on prospects of conviction or acquittal, so I have to assume it is SOP. It may well have been a term of the extradition arrangements between BVI and the US.

 

[idocsteve]

The judge had no choice life is mandatory there for murder. The only thing that was in question after the verdict was how long before Swain would be eligible for parole. What would the judge have to do with what goes on at the prison other than sending them clients?

Is this a trick question?

The answer is that a judge has nothing to do with the "clients" after they have been sent to a facility for incarceration.

Although it would be rather ironic if he ended up driving a car with a license plate on it that was hand crafted by one of his "referrals".