Diver convicted in wife's drowning

[AfterDark]

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".

K_Girl did you read that? The judge has nothing to do with the prison after sending them clients. You don't need to answer now, The Knower of all Knowledge has answered.
Thanks

 

[mikemill]

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?

Could the judge have overturned the conviction? In the US I believe it is possible for the jury to return a conviction but the judge to overturn it. Not sure under what conditions that applies to though.

 

[AfterDark]

Could the judge have overturned the conviction? In the US I believe it is possible for the jury to return a conviction but the judge to overturn it. Not sure under what conditions that applies to though.

I don't think this is correct unless maybe something illegal went on concerning the jury.
Jury nullification is possible in the US but juries are rarely informed of such power.

Jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding.

It of course doesn't apply to this case as the charge was murder.

ItsBruce, K_Girl chime in?

 

[K_girl]

AfterDark - Jury nullification is different than the trial judge overturning what he/she deems to be a wrongful conviction. This is referred to as a "set aside" of the conviction. I believe that the BVI trial judge had the capability to set aside the conviction if he felt the prosecution did not prove the case and the jury got it wrong. Usually, the defense will ask the judge to set aside the verdict immediately upon the pronouncement of "guilty." U.S. and British laws seem to be similar in this area. However, RhoneMan would be the proper person to answer this question.

Have you seen this post? May be an avenue to get the audio that the press was allowed to make of the trial:

http://www.scubaboard.com/forums/3695339-post80.html

 

[AfterDark]

AfterDark - RhoneMan would be the person to answer your question.

Have you seen this post? May be an avenue to get the audio that the press was allowed to make of the trial:

http://www.scubaboard.com/forums/3695339-post80.html

I thought you or ItsBruce would know whether can a judge overturn a jury verdict and also about jury nullification here in the US. I had seen that post a while ago but forgot about it.

Do you think the office would release that audio to a person unknown to them?

 

[mikemill]

AfterDark - Jury nullification is different than the trial judge overturning what he/she deems to be a wrongful conviction. This is referred to as a "set aside" of the conviction. I believe that the BVI trial judge had the capability to set aside the conviction if he felt the prosecution did not prove the case and the jury got it wrong. Usually, the defense will ask the judge to set aside the verdict immediately upon the pronouncement of "guilty." U.S. and British laws seem to be similar in this area. However, RhoneMan would be the proper person to answer this question.

Have you seen this post? May be an avenue to get the audio that the press was allowed to make of the trial:

http://www.scubaboard.com/forums/3695339-post80.html

Thank you, I did mean setting aside the conviction.

 

[K_girl]

Most definitely in BVI law, the defense can make a motion that the prosecution did not make their case at the close of the prosecution's case (same as in U.S.). We call it "prima facie" (making the case). It is standard practice for the defense to make a motion that the prosecution did not establish a prima facie case and this motion would have been presented in the Swain case. When the defense wins this motion, they do not have to put on the defense because the prosecution did not prove their case. Here is an example in a 2000 murder case where three of six defendants were aquitted by the trial judge at the close of the prosecution's case. The appeal was for a defendant who was not aquitted by the trial judge:

FROM
THE EASTERN CARIBBEAN COURT OF APPEAL
(BRITISH VIRGIN ISLANDS)
---------------
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 7th April 2003

(page 9) 19.
At the close of the prosecution case each of the defendants submitted that there was no case for him to answer. On 3 May 2001, after having heard six days of legal argument, Benjamin J upheld the submissions for Benedetto, Spicer and George and acquitted them on the charge of murder. He held that they ought not to be required to face the alternative charge that they were accessories after the fact, as that count had not been advanced as part of the prosecutor’s case. They were granted bail on the charge of conspiracy to pervert the course of justice.

Source: http://www.eccourts.org/judgments/privy_councel/2003/AlexanderBenedetto_v_Queen.pdf

***
This would be the first bite at the apple for Swain to get an aquittal. The second bite would be a motion to the judge to set aside the jury verdict.

 

[K_girl]

Here is the appeal to the Eastern Carribean Supreme Court and judgment regarding sentencing in the Swain case. It is too large to attach, but I will keep a copy of it for future reference.

Here is the link: http://www.eccourts.org/judgments/decisions/2009/QueenvDavidSwain.pdf

In short, the judge reduced Swain's sentence to 25 years minus the time he already spent in prision. So he is now looking at about 23 years. He should be eligible for parole at age 77.

 

[idocsteve]

He should be eligible for parole at age 77.

If he beats the national average in terms of live expectancy for adult males, he will actually see the light of day for a few good years.

Although he might be too past his prime to enjoy a refreshing dive...and even if he was up to it he just might have a problem finding dive buddies.

Wait never mind he dives alone

 

[AfterDark]

K_Girl, Here is the appeal to the Eastern Carribean Supreme Court and judgment regarding sentencing in the Swain case. The format is different but all the text is there.