Diver convicted in wife's drowning

[ItsBruce]

Look, David may be a cold blooded murderous sociopath, but calling him a swine is over the top.

Just say'en.

I'm sure this post contributed to the discussion. I just do not know quite how it did so.

 

[ItsBruce]

Bsee65:

Very few witnesses are truly "neutral." An eyewitness to a murder will surely have a very dim view of the perpetrator.

However, that does not mean the witness is not credible.

One of the things a good attorney will do in any case is explore the witness' biases and let the jury decide if those biases render the witness' testimony unworthy of belief. In fact, this is probably the highest and best use of a jury, i.e. evaluating credibility.

Is there any REAL reason to think that Brown may have altered the equipment?

 

[bsee65]

Bsee65:

Very few witnesses are truly "neutral." An eyewitness to a murder will surely have a very dim view of the perpetrator.

However, that does not mean the witness is not credible.

One of the things a good attorney will do in any case is explore the witness' biases and let the jury decide if those biases render the witness' testimony unworthy of belief. In fact, this is probably the highest and best use of a jury, i.e. evaluating credibility.

Is there any REAL reason to think that Brown may have altered the equipment?

No, absolutely no reason to suspect that Brown manipulated evidence. As far away from the issue as we all are, we can't draw any direct conclusion on mindset or purpose. Brown was a lot closer to the incident than we were, but he wasn't quite an eye witness.

Thwaites was certain he went to pick up the tanks. Brown was certain that Swain came to get the tanks. My assumption is that Thwaites picked up one set of tanks that day, and that his proximity to the incident seared things solidly into his memory. Brown, on the other hand, probably delivered tanks to a number of divers that day. It would have been hours later, maybe the next day, before he heard about the death. He might not have given any thought to piecing together the evidence associated with the incident until he had his hands on the equipment and recovered items from the scene.

As such, I trust Thwaites when he says he picked up the tanks. If Brown had equivocated on his recollection, then I would have more respect for the rest of his testimony. On the other hand, if he was wrong about who picked up the tanks, could the defense have suggested he was also wrong about who asked him about a secluded dive spot? Would that have brought doubt on the idea that this was a planned murder?

There are three possibilities here. Brown was right, Brown was mistaken, or Brown was lying. If one concludes that Brown wasn't testifying in good faith in order to support a case he believed in, then he would be my last choice of parties to be the keeper of evidence. The quality of the evidence would become suspect whether there was a suggestion of tampering or not. I am uncomfortable with it, and I'm sure that direct communication with Brown would resolve that discomfort one way or the other. In any case, it would seem best if "The Authorities" took immediate possession of any evidence of a possible crime.

As a side note, I keep seeing mention of the missing slate as an oddity suggestive of Swain's guilt. What's the theory there? Is it suggested that Swain deliberately carried the slate away from the scene so it would not be found? Why? Because the number of fish recorded or something else Shelley Tyre wrote would incriminate him, or because it broke in a struggle, also potentially incriminating? I just don't see how the absence of the slate fits into the case either way.

Also, is there any scientific validity to the notion of a home field advantage, and what, if anything, does the justice system do to combat it?

 

[AfterDark]

Also, is there any scientific validity to the notion of a home field advantage, and what, if anything, does the justice system do to combat it?

I surly don't know. However, RhoneMan an attorney practicing in the BVI stated that juries there are considered to be conviction prone so, you could be right in this case.

 

[ItsBruce]

There is probably a "home field advantage" in any kind of case. The counter to that is the requirement, in most jurisdictions, of proof beyond a reasonable doubt.

As far as juries in particular places being more conviction prone than others, just look at Texas and the rate of convictions in which the jury sentences the defendant to death. But, more on point, I think that the real answer is that in some places "reasonable doubt" requires more "proof" than in others. Just think how television shows like CSI have "taught" viewers just how tight evidence can sometimes be. And, recall that 50 years ago, the thought of DNA evidence and examination of patterns on bullets was unknown, but prosecutors got convictions nonetheless.

 

[K_girl]

I have to say that a significant part of my doubt about Swain's guilt is based upon a distrust of Brown. Brown and Thwaites had a disagreement in their testimony with regard to who picked up the tanks. I believe Thwaites, but it sounded like Brown remained adamant about his version. That also tied in with Brown's testimony about Swain asking for a secluded dive spot which goes to premeditation. It just seemed like Brown was too invested in seeing Swain convicted, and, as a non-neutral party, I have concerns about him being the one to hold onto the gear.

If Brown isn't trustworthy, then what happens to the case? Is it possible that a local jury would favor the testimony of the local over the foreigners wherever there might be doubt? That gets to the general question of if a foreigner can get a fair jury trial when pitted against a local.

However, I do not find that Brown's insistence to preserve the gear is suspcious. Actually, I would expect him to do exactly what he did. You could also say that Thwaites' testimony was somewhat impeached when he initially said that Swain only did CPR on Shelley for 10 seconds. Swain's attorney got him to stretch it to up to five minutes. The essence of Thwaites' testimony is that it was a very short period of time. We all know that people's memories are not perfect. However, you don't throw out the entire testimony. I don't think you can impeach Brown's testimony regarding Swain's instructions to Brown to get rid of the equipment. That, you would have to say would be an absolute lie and not a matter of forgetfulness. The key issue here is the condition of the equipment which Brown preserved, not who picked-up the tanks. I've personally never given any weight to the remote dive location. Also, they had been diving for a week, there probably was a day where Swain came to pick-up tanks and talked about remote diving locations, so it is possible that no one is forgetting anything. Thwaites may have been the person who picked-up the tanks that particular day. The purpose for the entire trip may have been to dive remote dive locations and it may have been talked about more than once by both Thwaites and Swain with Brown. Since we don't have the trial transcripts, we may not know all the detail for sure.

In order to impeach Brown's testimony on the equipment, the defense should have fought back on one of these fronts: 1) the equipment Brown had in his possession was not Shelley's and he was trying to frame Swain; or 2) Brown deliberately sabatoged Shelley's equipment to frame Swain for murder. The defense did not make any of these arguments. They accepted the equipment as Shelley's and they accepted the condition that the equipment was in. Swain made an argument to the press that the mask had deteriorated and could have fallen apart, but I don't believe that argument was ever made by his defense attorney and the picture of the mask does not show any severe level of degredation. If you were a juror on this case, and you felt like you wanted to impeach Brown's testimony, you would essentially be asserting one of the allegations I mentioned above. However, as a juror, you would not be able to assert these kinds of allegations as a possibility because they were not introduced by the defense into the trial.

 

[K_girl]

As such, I trust Thwaites when he says he picked up the tanks. If Brown had equivocated on his recollection, then I would have more respect for the rest of his testimony. On the other hand, if he was wrong about who picked up the tanks, could the defense have suggested he was also wrong about who asked him about a secluded dive spot? Would that have brought doubt on the idea that this was a planned murder?

I think the motives of financial gain and prospect of new love interest are the main factors in concluding that it was planned.

As a side note, I keep seeing mention of the missing slate as an oddity suggestive of Swain's guilt. What's the theory there? Is it suggested that Swain deliberately carried the slate away from the scene so it would not be found? Why? Because the number of fish recorded or something else Shelley Tyre wrote would incriminate him, or because it broke in a struggle, also potentially incriminating? I just don't see how the absence of the slate fits into the case either way.

The significance is that it is another piece of equipment that was lost due to a struggle of some kind and I'm sure the jury considered it as such. The argument that Shelley planted her own fin, then had a panic attack in open water where she violently removed her own mask, broke the strap and the strap pins and broke her snorkel mouthpiece away from the snorkel (which would take two hands to pull it apart from the threads) and broke-off her slate - starts to become extremely far-fetched. My guess is, that the slate is much lighter than the mask, floated away from the scene before Brown was able to recover it the next day. What you are saying is - don't try to explain the missing slate, just disregard it. If I were on the jury, I would not allow that to happen. It has to be explained that either she removed it or Swain removed it in whatever scenario you want to present.

 

[K_girl]

Dive Slate continued -

It would be interesting to know what kind of dive slate Shelley had and whether or not she attached it via a lanyard. If she did not attach the slate to a lanyard, the slate would have less meaning since it would be possible for her to drop it under either scenario (attack or panic). If the slate was attached to a lanyard, which is the most common practice, then it would be very significant because it would have been broken off which would take substantial force and would lend itself more to an attack scenario rather than a panic scenario. The defense should have made sure that the prosecution proved that a lanyard was broken. If they didn't - they missed an opportunity. However, we don't know what was said about this at trial. It would be interesting to find out. The defense certainly should look into this if they get a new trial.

 

[idocsteve]

Dive Slate continued -
It would be interesting to know what kind of dive slate Shelley had and whether or not she attached it via a lanyard. If she did not attach the slate to a lanyard, the slate would have less meaning since it would be possible for her to drop it under either scenario (attack or panic).

I have never known a diver to carry a slate that isn't attached to themselves or their rig in some manner, be it a retractor, a lanyard, or strapped to their arm.

Therefore in order for David to be "not guilty" Shelley would have had to "shed her slate" along with her snorkel and mask,during her so called "panic."

Yeah that happens

 

[Ayisha]

My slate is in a pocket in my BC and that is where it always is. It has a pencil tied to it, but the slate isn't attached to any part of my equipment. The rare times I use it I just unzip my pocket and use it. I haven't dropped it yet, but I guess I could, so attaching it would be a good idea. Perhaps I am the only one who doesn't attach the slate to equipment, I don't know...

Knowing whether Shelley attached her slate and if so, how, is a very good question and the answer could be significant. If only we could find out all these answers to our questions...