Diver convicted in wife's drowning

[bsee65]

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

....

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.

....

I agree that it is perfectly reasonable for the judge to refer to Swain as a murderer in this context. What I don't understand is how he knows if the jury considered it to be a carefully planned murder for money or a spur of the moment crime of opportunity. The jury didn't pass judgment on that since, either way, the verdict is murder. When the judge has such power over the sentence, I would like to think that the jury should be able to describe what they believe happened and that the judge should pass sentence based upon that set of facts. Apparently, that isn't what happens, though.

 

[AfterDark]

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?

The fact you don't understand comes as no surprise to me and in fact kinda pleases me.

 

[idocsteve]

The fact you don't understand comes as no surprise to me and in fact kinda pleases me.

Glad to be of help. I know you're having a tough time with your buddy's murder conviction.

 

[AfterDark]

Glad to be of help. I know you're having a tough time with your buddy's murder conviction.

Thanks hope karma comes round your way soon. Your a real humanitarian.

 

[idocsteve]

Thanks hope karma comes round your way soon. Your a real humanitarian.

Thanks for the well wishes, but I've got more than enough Karma, both the good and the bad..I guess we all do.

Heck look at your buddy for a good example of "what goes around comes around".

P.S. I'm no humanitarian.

As far as I'm concerned, your buddy was found guilty in a court of law, he's a murderous sociopath, and if they gave him the chair I'd feel nothing but appreciation that there's that much more clean air for the rest of us.

 

[AfterDark]

Thanks idocsteve I know I can count on you to help me keep this thread on and near the top of page one.

 

[idocsteve]

Thanks idocsteve I know I can count on you to help me keep this thread on and near the top of page one.

Yes, the constant bumping of this thread is going to do David a whole bunch of good.

I can almost sense the masses of people reading this thread and getting so fed up with the injustice done that they are going to storm the prison and free the "innocent man".

 

[K_girl]

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.

Judges make these kinds of comments all the time, even in the U.S. The jury is the trier of fact and once the jury delivers the verdict, it is established that the prosecution proved its case in-whole. If the jury feels that the prosecution did not prove its case in-whole, they have other means to show that, coming up with a verdict to a lesser charge, such as second-degree murder or manslaughter, etc. At that point, the jury will explain the reasons they came up with the lesser charge. The fact that the jury found first-degree murder in this case means that they found it was pre-meditated. That means they believed that Swain planned the murder for money and/or love.

You said what the judge said in sentencing was "prejudicial" - this alludes to an idea that the case was not resolved and still pending - that is not the case. The jury is never required to divulge the process of their deliberations. You may feel that all of this is improper, but what you think is ultimately fair would be to require the judge to re-try the case in his own mind and come up with different findings than the jury on an issue-by-issue basis. That would convolute, complicate and really violate the entire process. The only way that should happen is if the judge feels the jury got the verdict wrong entirely. Then he/she can set aside the verdict.

 

[K_girl]

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.

Brown testified as follows:

"..He told me I could get rid of the equipment," said Brown, and suggested the divemaster give it to a local diver or use it in the rental business. "I said I did not want to do anything with it until the authorities give me the okay to do so.."

I think that the fact that Swain went back to Brown a second time to talk to him about the gear in light of what Brown told him the first time is significant.

You are arguing symantecs.

Source: CDNN :: Ocean State Scuba owner David Swain on trial for allegedly killing wife

 

[AfterDark]

I think that the fact that Swain went back to Brown a second time to talk to him about the gear gave the impression that Swain had an agenda to make sure that the capability or value of any gear inspection would be lost. Brown testified as follows:

"..He told me I could get rid of the equipment," said Brown, and suggested the divemaster give it to a local diver or use it in the rental business. "I said I did not want to do anything with it until the authorities give me the okay to do so.."

You are arguing symantecs.

Source: CDNN :: Ocean State Scuba owner David Swain on trial for allegedly killing wife

I could be way off here but if the authorities wanted the gear I would guess they would have taken it. So I'll continue under the assumption that they didn't want the gear. . If Dave wanted to dispose of the gear for the purpose of cover up, as next of kin (husband) the gear becomes his property after Shelly's death. So the way I see it he would have demand that his property be returned to him and then he would have gave it away.
Don't see how that would have been worst.