Diver convicted in wife's drowning

[K_girl]

AfterDark - thanks - good thinking! This is the only information that was new to me that came from the sentencing report. I was unaware that he had gone to see Mr. Brown twice about the gear:

"..[13] Mr. Swain also displayed strange behavior after his wife's death. Two days after her death, Mr. Swain went to Mr. Browne's business place and told Mr. Browne to get rid of the deceased's equipment. After the autopsy was conducted, Mr. Swain went back to Mr. Browne's shop and once again told him to dispose of the dive gear.."

 

[AfterDark]

AfterDark - thanks - good thinking! This is the only information that was new to me that came from the sentencing report. I was unaware that he had gone to see Mr. Brown twice about the gear:

"..[13] Mr. Swain also displayed strange behavior after his wife's death. Two days after her death, Mr. Swain went to Mr. Browne's business place and told Mr. Browne to get rid of the deceased's equipment. After the autopsy was conducted, Mr. Swain went back to Mr. Browne's shop and once again told him to dispose of the dive gear.."

Which Dave stated he did at the request of Shelly's sister. To my knowledge that was never proven untrue.

 

[SadiesMom]

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.

The only thing I see on your link is the sentencing decision by the judge for the criminal trial. I don't see the appeal.... did you mean to post another link?

 

[SadiesMom]

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.

I may be missing something on these files, but all I'm seeing is the sentencing report from the judge - I'm not finding the appeal at all....

 

[AfterDark]

SadiesMom. Check out Plea in mitigation page 4 I think. Line 15

 

[bsee65]

This is really twisted. One way or the other, words are being mis-spoken or mis-represented. My understanding of Swain's position with regard to the gear was that he didn't want it back. He was looking to have it donated for rental use or what have you. The way this all reads, it sounds like he was asking to have it crushed, incinerated, or placed in a trash bag and left in a dumpster.

As far as that document goes, it sure doesn't read like an appeal. That looks like the judge's notes regarding his sentencing decision. The wording of some parts there would be viewed by the defense as prejudicial. It would seem clear that the judge believes completely in Swain's guilt. Technically, all he should know is that the jury found Swain guilty. That doesn't mean that they bought every piece of evidence that was presented. They could have found him guilty based upon the underwater circumstances and with no consideration for the state of the Basler relationship. The judge used the evidence regarding Basler, the claim that Swain was asking for a secluded dive site, and his acceptance of the insurance payout to conclude that this was a premeditated murder committed to further in illicit affair and to profit. He states that he is imposing a harsh sentence based upon those aspects of the crime.

I wonder if there is any communication from the jury that tells the court what evidence they believed and what they didn't? If not, then even though it is up to the jury to decide which facts they believe and which they don't in terms of determining guilt, the judge is then free to impose his own view of which facts are true when it comes to imposing sentence.

One would think that there will, at some point, be an actual appeal written by Swain's attorneys. Something that will specify all the mistakes they believe were made by the court that justify a setting aside of the verdict and need for a repeat trial.

 

[AfterDark]

I tend to agree with you bsee65 the entire situation seems to be a giant cluster ******* from the civil trial through the criminal trial. The appeal for mitigation of sentence reads like an after thought, oh yeah and by the way lots of people say Dave is a nice guy even his kids we can tell because they were at the trial. I hope the appeal process goes better.

 

[Ayisha]

As far as that document goes, it sure doesn't read like an appeal. That looks like the judge's notes regarding his sentencing decision. The wording of some parts there would be viewed by the defense as prejudicial. It would seem clear that the judge believes completely in Swain's guilt.

The document states "Judgement on Sentencing". It lays the foundation for the automatic life sentence; gives reasoning for the possible parole options; discusses possible mitigating factors; takes into consideration the lack of any prior criminal record as well as behavior in prison; and ends with the imposed sentence.

The judgement on sentencing has nothing to do with an appeal. It is, as you say, the judge's sentencing decision. The judge had to lay out the reasoning for the sentence imposed and the eligibility for parole. Swain was already found guilty, so nothing stated after the jury was released was prejudicial. If the judge found issue with the guilty verdict, the judge could have set aside the conviction.

 

[ItsBruce]

I'm not going to address the last few posts on a point-by-point basis. But ...

The attached document is a sentencing memorandum. It is not an appeal. It reflects the judge's reasoning for the sentence imposed. It is not particularly generous toward David, but it is certainly not prejudicial, at least as that term is used in the law. David was already found guilty of murder, which is the intentional killing of another. Just as the jury hears and considers the evidence, the judge does, too. In the U.S., the judge is sometimes considered the "13th juror." In this role, the judge can say "I'm not persuaded of the defendant's guilt beyond a reasonable doubt," and since in the U.S., we require a unanimous verdict, such a conclusion requires that the defendant be acquitted. Since the BVI does not require a unanimous verdict, I'm not sure how the judge fits into the picture.

The judge is the one to set the terms of a defendant's sentence. It is customary for the judge to explain the basis for a sentence. Since the law requires the judge to take into account matters of aggravation and mitigation, the judge must make his or her own findings. The judge is not obligated to believe a defendant's testimony. (After all, to even get to the point of a sentence, the jury must have already found the defendant guilty and presumably, the judge does not strongly disagree.)

Thus, it is not improper for the judge to call a defendant a murderer or to say the murder was premeditated and/or for financial gain, etc. The judge may call a spade a spade after the jury declares the spade is a spade.

As a side note, the bit about David telling Brown to get rid of the equipment: We "know" what David says he said. We do not now what Brown said David told him. Nor do we know what Shelley's family said about what they told David. For all we know, they all contradicted David. And, if so, the judge and jury were at liberty to disbelieve David.

 

[idocsteve]

oh yeah and by the way lots of people say Dave is a nice guy even his kids we can tell because they were at the trial.

HUH?

We can tell his kids that dad was a nice guy, because they were at the trial? Why tell his kids anything..they're entitled to their own opinions and they should know fairly well by now if he is or is not a nice guy.


Or..

Lots of people think he's a nice guy, and so do his kids, because they were at the trial? I would think his kids already believe their dad is a nice guy, they don't need a trial to determine that for themselves. Did you mean to say that lots of people think he's a nice guy because of their experiences during the trial? The jury didn't think he was such a nice guy, they convicted him of murder. Where are all these people who think he's a nice guy?