Diver convicted in wife's drowning

[K_girl]

If Shelley was counting fish as Swain stated, she would have had her slate in-hand most of the time, writing on it. From her dive logs, there appears to be no reason to disbelieve that she was indeed a fish-counter since I saw some fish counts in her logs. She would have good reason to have it connected to a lanyard so she wouldn't lose it, then again, a lanyard could be an impediment to constant comfortable writing. I personally would be tempted to remove it from the lanyard if I planned constant use like that and then return it to the lanyard when I'm done. A broken lanyard would have significant meaning, but if the dive slate just went missing - perhaps not so much. It would be helpful to know what Shelley's habits were in this regard from another source other than Swain. If someone were to testify that they dove with Shelley while she was counting fish and she always had the slate attached, you might be able to give the missing slate more meaning without a broken lanyard under the idea that the scene was "staged." Otherwise, without the broken lanyard or such testimony, I have to agree with Bee65 that the dive slate doesn't help or hurt either side, as long as it was argued. If the defense didn't challenge it - it would hurt the defense.

By the way - I've never seen a dive slate that attached to an arm (other than the curved wrist-type that came out long after 1999). Dive lights, reef sticks, cameras - yes. Dive slates - no. The reason being - they would flop around too much by the very nature of their shape. I did a search on e-bay and nextag - nothing like that.

 

[CIMI Diver]

"Thwaites told the Tyres that Swain and Shelley Tyre split up underwater and that Swain had surfaced after feeling a chill. The Tyres did not know much about diving but they did understand the basic principle of the buddy system. They wanted to know why Swain had left their daughter alone."

I think the biggest problem with this is that a lot of "experienced" divers "understand" that concept of the buddy system to mean, "we are diving in the same ocean". I know it's not the best practice but I also know that many members of this board do or have in the past dove with that kind of understanding. Sorry if this has already been addressed.

 

[idocsteve]

By the way - I've never seen a dive slate that attached to an arm (other than the curved wrist-type that came out long after 1999).

I see them frequently here in the NorthEast, the more experienced tech divers tend to use them.

I tried a curved arm slate that is held in place by two elastic straps, but it kept slipping down my arm so I went to a slate with built in compass on a retractor that I keep in my BCD pocket.

 

[SadiesMom]

I keep my slate in my BC pocket. No lanyard. I've dropped it before, but since it's not like it drops like a stone, that's never bothered me - it's easy to retrieve before it goes anywhere. Even if I were to lose it completely, frankly I wouldn't care that much - slates are cheap and easily replacable. The stuff I put on lanyards are things that are expensive/important to my dive and negatively buoyant - my dive lights and my camera being primary examples.

Frankly, I think that worrying about the slate and what it might or might not mean is pointless - it was never found, so there's really no use in speculating about it ten years later.

 

[SadiesMom]

"Thwaites told the Tyres that Swain and Shelley Tyre split up underwater and that Swain had surfaced after feeling a chill. The Tyres did not know much about diving but they did understand the basic principle of the buddy system. They wanted to know why Swain had left their daughter alone."

I think the biggest problem with this is that a lot of "experienced" divers "understand" that concept of the buddy system to mean, "we are diving in the same ocean". I know it's not the best practice but I also know that many members of this board do or have in the past dove with that kind of understanding. Sorry if this has already been addressed.

CIMI - you're right. Particularly diving up here in RI, where visibility rarely gets much more than 10 feet, we have to accept the fact that we're diving "same day, same ocean" most of the time. If you're doing anything other than watching your buddy - in other words, if you stop for even a minute to look at something, you're very likely to loose your buddy. For newbies, that may mean surfacing and finding each other on the surface...but for those of us with a lot of dive experience under these conditions, it's par for the course and we continue our dives, figuring we'll either find our buddies again in a few minutes or we'll find them at the end of the dive. To some that may sound like a dangerous way to dive - but it is what it is. No one forces anyone to dive that way. But I've been diving up here for 7 years and when you get past 200 dives in these waters and you dive with other extremely experienced divers who have a lot of experience in these conditions, most folks just eventually adjust to the reality of diving solo - even when you technically have a "buddy." It comes with experience and gaining competence under these conditions.

 

[Paladin]

I'm no expert, but the simple fact of a diver surfacing without his buddy isn't all that significant. Back during the Cretaceous when I had a buddy to dive with (my old friend Fuzz), we had an understanding that if we got separated and could not locate one another within two minutes, we would surface and reconnect on the surface. I don't know how it's done these days, but I imagine it probably isn't very different.

 

[ItsBruce]

I've seen a lot of posts in which someone says something to the effect of "How about attacking this bit of evidence." I've never really addressed those ideas, so here goes: Part of the Art of being a trial lawyer is judging what to attack and what not to attack. If you do not attack the right things, then you will either not have proved your case or will not have prevented your opponent from proving his. In the context of a criminal defendant, you may fail to raise a reasonable doubt. On the other hand, if you attack too many things beside the Right Things, you run the risk that the jury will forget about the points you scored on relative to the Right Things. Worse yet, the jury may think that you are attacking everything in sight because you can't successfully attack anything that would create a Reasonable Doubt.

Reasonable Doubt is not necessarily cumulative. Just because you raise Some Doubt about 100 or even 1,000 things, that does not necessarily mean you have raised a Reasonable Doubt about the ultimate issue of guilt. A jury is certainly entitled to find you raised a Reasonable Doubt, but it is also entitled to find that you didn't.

Prosecutors have similar issues. If they try to tie down every little detail, they risk losing the jury. IMHO, in the original O.J. Simpson criminal trial, the prosecution lost the case with its presentation of day after day of testimony about DNA, what it is, what it means, how it is tested, etc.

I have seen instances in which a lawyer is so fixated on impeaching a witness about something that does not matter, all in hope of discrediting the witness, that he fails to prove a key point. Worse, after the trial, when the jurors are interviewed, they acknowledge that the witness must have been wrong on that point (some will even say the witness lied about the point), and then they will say that that did not cause them to disbelieve the witness about other points.

The whole thing is a very delicate process. There are few real answers about what to attack or what to let go.

Just my 2 cents for the day.

 

[AfterDark]

I'm no expert, but the simple fact of a diver surfacing without his buddy isn't all that significant. Back during the Cretaceous when I had a buddy to dive with (my old friend Fuzz), we had an understanding that if we got separated and could not locate one another within two minutes, we would surface and reconnect on the surface. I don't know how it's done these days, but I imagine it probably isn't very different.

Depth is a limiting factor with this tactic. Shelly and Dave where at 85fsw. It's not a great idea to be going up and down from that depth. Their separation as far as I know was agreed on planned and done routinely. The fact that one or the other surfaced alone is an indication of nothing but how they conducted their diving. As stated eariler by SadiesMom here in New England buddy separation is part of diving. Dave was a newbie when he and I started diving together. I had a system of audio signals made by rapping on our tanks to enable us to stay in touch and find each other when we came separated. We eventually stopped using it as Dave became more confident. After that it became just an emergency tool we never needed to use. I have no idea if Dave introduced this system to Shelly or not, of course if panic was involved in Shelly's death she may have forgotten about it and never used it.

 

[K_girl]

I see them frequently here in the NorthEast, the more experienced tech divers tend to use them.

I tried a curved arm slate that is held in place by two elastic straps, but it kept slipping down my arm so I went to a slate with built in compass on a retractor that I keep in my BCD pocket.

I'm talking about a flat slate that would be held on by a wrist strap - never seen anything like that. The reason is obvious - the flat shape would cause it to flop around on your wrist. The curved type with two straps that go on your arm that you are talking about did not exist in 1999. I remember when those first came out - (had to be after 2001 because that is when I started diving). I got one, but like you it kept slipping down my arm and I stopped using it.

 

[Paladin]

Depth is a limiting factor with this tactic. Shelly and Dave where at 85fsw. It's not a great idea to be going up and down from that depth.

While most of my dives over the years have been solo, on the occasions when I was diving with a buddy (usually my best friend, Fuzz), the two minute rule was iron clad.
On deeper dives, after two minutes of buddy separation without finding each other, then the dive is over. You meet at the surface and get back to the boat. If one does not reappear at the surface within five minutes, the one at the surface goes into emergency mode because something is wrong.