AfterDark
Contributor
I learned this weekend that there will soon be an informational web site concerning the Swain case. It's a work in progress. I'll post the address when it's ready. Stand by.
Diver convicted in wife's drowning
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I was giving some thought to this thread a day or two ago. What was its purpose? What did we get out of it? Have we reached any conclusions?
From my perspective, it seemed the thread was started with the purpose of simply bringing the case to our attention without bias. The originator posted a news article and dwas not heard dfrom again. A couple people who were familiar with Swain came in early and clearly hoped to gain support for the position that he is innocent, that the trials against him were not entirely fair, or at least that there wasn't enough evidence to convict him.
Once the thread got rolling, we tried to figure out what actually happened under the water that day. I would believe that we looked at the limited evidence available to us in a more critical light than the jury could have done without any diving expertise. What we came up with was that Swain orchestrating this was the simplest and most likely scenario, but not the only one. Situational factors could be viewed in a way to make that seem more likely, but weren't conclusive. The evidence leaves room for doubt, but where is the "reasonable doubt" line? The fact that there is disagreement about the answer to that question suggests that we are pretty close to the line, and that a different jury might have come back with a different answer. Of course, that's all predicated on the evidence that we saw, which can't have been complete. At a minimum, we didn't get to observe the people behind the evidence in action to make our own determinations of whom to trust.
So, did the thread serve its purpose? From my perspective, the initial reports made it seem like Swain got a raw deal. The more we discussed it, though, the closer I am to believing that he was guilty, though I remain unconvinced that it was legally proven beyond a reasonable doubt. If you accept the evidence that suggests he is guilty, I still don't go with the premeditated and planned theory and I might be inclined to make him eligible for parole at 15 years rather than 25. If it was planned, it certainly wasn't planned well anyway.
In my opinion, this discussion has run its course. Other than reporting on appeals and the results, I'm not sure what life it has left. Maybe a concise and unbiased presentation of all the evidence might be enlightening, but we'll have to see how unbiased this new presentation will be.
From my perspective, it seemed the thread was started with the purpose of simply bringing the case to our attention without bias. The originator posted a news article and dwas not heard dfrom again. A couple people who were familiar with Swain came in early and clearly hoped to gain support for the position that he is innocent, that the trials against him were not entirely fair, or at least that there wasn't enough evidence to convict him.
Once the thread got rolling, we tried to figure out what actually happened under the water that day. I would believe that we looked at the limited evidence available to us in a more critical light than the jury could have done without any diving expertise. What we came up with was that Swain orchestrating this was the simplest and most likely scenario, but not the only one. Situational factors could be viewed in a way to make that seem more likely, but weren't conclusive. The evidence leaves room for doubt, but where is the "reasonable doubt" line? The fact that there is disagreement about the answer to that question suggests that we are pretty close to the line, and that a different jury might have come back with a different answer. Of course, that's all predicated on the evidence that we saw, which can't have been complete. At a minimum, we didn't get to observe the people behind the evidence in action to make our own determinations of whom to trust.
So, did the thread serve its purpose? From my perspective, the initial reports made it seem like Swain got a raw deal. The more we discussed it, though, the closer I am to believing that he was guilty, though I remain unconvinced that it was legally proven beyond a reasonable doubt. If you accept the evidence that suggests he is guilty, I still don't go with the premeditated and planned theory and I might be inclined to make him eligible for parole at 15 years rather than 25. If it was planned, it certainly wasn't planned well anyway.
In my opinion, this discussion has run its course. Other than reporting on appeals and the results, I'm not sure what life it has left. Maybe a concise and unbiased presentation of all the evidence might be enlightening, but we'll have to see how unbiased this new presentation will be.
Interesting post - what you ask in terms of a concise unbiased presentation of all the evidence could be very difficult to get, depending on where one gets one's information. The newspaper articles have been inherently biased against David from the start. So whatever evidence they've written about has been written about with a slant that assumes David's guilt from the start. If you can suss that out, you can do it. But the problem I've seen on this thread is that many have not been able to divorce themselves from the slanted reporting.
To my mind, the most fair and balanced coverage to date has been the Dateline piece. 48 Hours is supposed to be airing a piece this month from what I heard from friends who were interviewed for it. Haven't heard anything about exactly when that's going to air, though and of course, there's no guarantee that they'll be balanced - they could take one position or the other. We won't know until we see it.
To my mind, the most fair and balanced coverage to date has been the Dateline piece. 48 Hours is supposed to be airing a piece this month from what I heard from friends who were interviewed for it. Haven't heard anything about exactly when that's going to air, though and of course, there's no guarantee that they'll be balanced - they could take one position or the other. We won't know until we see it.
K_girl
Contributor
bsee65 and Sadiesmom - I think you summed it up pretty well. It was asserted early-on that the jury got it wrong and didn't know what they were doing. If what was published in the press, and quotes from Swain's deposition and other sources were correct and it was all was proven in a court of law, I didn't see anything that conclusively made me believe that the jury got it wrong. Granted there may be some errors in reporting, but I'm not convinced that it was so errant that there would have been a different outcome. I do believe much of it was not in Swain's favor, but when Swain talked to the press, he tended to hurt himself even more. I assume that the jury was witness to and weighed all the evidence - we did not. I wish we could. Without it, I am hesitant to say unequivocally that I think Swain is guilty.
That said, there is always the possibility that an appeal might be successful. I see two possibilities for appeal: 1) the barring of some expert testimony, regarding Shelley's air usage and Swain's psychologist; and 2) impeachment of the BVI jury management system. Whether or not the inclusion of the defense expert testimony would have made a difference in conviction is questionable since neither of these experts addressed the key factors that led to conviction. The key factors being the damage to the mask strap and pins and the missing snorkel mouthpiece, difficult to remove without two hands pulling it apart with force (panic is not believable enough to explain such damage), her location in open water (lack of entanglement), Swain's two attempts to get rid of the equipment immediately after the incident (despite his training as a PADI dive instructor that dive equipment involved in an accident needs to be held for examination and preserved, if not by police, then by local diving authority for the purpose of accident investigation) and the motives of money and promise of new love. These were never really successfully defended and the disallowed defense expert testimony does not address them.
Successful impeachment of a country's jury management practices could lead to new trials or the overturning of convictions throughout BVI, not just Swain's. It makes it even tougher because the jury was unanimous in their decision on the Swain case - and that is not required in BVI. Still- I think an appeal on that basis should still be filed as jury management in BVI is not as fair as it is in the U.S.
Therefore, I am waiting for word of appeal(s) or the release of more portions of the trial transcript. I don't think anyone on this thread has a copy of the trial transcript to say they have all the information to proclaim that Swain is guilty, nor can anyone proclaim that the jury got it wrong by convicting him. It has been a very interesting, speculative discussion, but one that will probably have little or no affect on Swain's future. We are not the "players" here.
That said, there is always the possibility that an appeal might be successful. I see two possibilities for appeal: 1) the barring of some expert testimony, regarding Shelley's air usage and Swain's psychologist; and 2) impeachment of the BVI jury management system. Whether or not the inclusion of the defense expert testimony would have made a difference in conviction is questionable since neither of these experts addressed the key factors that led to conviction. The key factors being the damage to the mask strap and pins and the missing snorkel mouthpiece, difficult to remove without two hands pulling it apart with force (panic is not believable enough to explain such damage), her location in open water (lack of entanglement), Swain's two attempts to get rid of the equipment immediately after the incident (despite his training as a PADI dive instructor that dive equipment involved in an accident needs to be held for examination and preserved, if not by police, then by local diving authority for the purpose of accident investigation) and the motives of money and promise of new love. These were never really successfully defended and the disallowed defense expert testimony does not address them.
Successful impeachment of a country's jury management practices could lead to new trials or the overturning of convictions throughout BVI, not just Swain's. It makes it even tougher because the jury was unanimous in their decision on the Swain case - and that is not required in BVI. Still- I think an appeal on that basis should still be filed as jury management in BVI is not as fair as it is in the U.S.
Therefore, I am waiting for word of appeal(s) or the release of more portions of the trial transcript. I don't think anyone on this thread has a copy of the trial transcript to say they have all the information to proclaim that Swain is guilty, nor can anyone proclaim that the jury got it wrong by convicting him. It has been a very interesting, speculative discussion, but one that will probably have little or no affect on Swain's future. We are not the "players" here.
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Ayisha
Contributor
But remember that it wasn't just the unanimous jury who concluded it was murder or just the chief medical examiner or the various experts who came to the same conclusion. The Superior Court Judge for the civil case, Patricia Hurst, made the statement below as quoted in From Tortola to R.I., one man’s hunt for a suspected killer | Rhode Island news | projo.com | The Providence Journal:
Superior Court Judge:
Also, the Court of Appeals affirmed the judgement in the civil case. BTW, here is a link to the appeal:
http://caselaw.lp.findlaw.com/data2/rhodeislandstatecases/2008/06-183.pdf
There is also the unanimous jury in the criminal trial who concluded murder.
We certainly do not have anywhere near all the facts, but all of the above people were exposed to a lot more information than us and did have the right to draw their conclusions. We shall see the outcome based on the pending appeal and see if injustices or errors were committed in the criminal trial and if they might have affected the judgement...
I'm not sure you can count the civil trial to tell you anything about the criminal trial since the burden of proof is significantly different. An obvious verdict of responsibility at civil trial doesn't mean that there was enough evidence for criminal conviction. The civil jury is supposed to be looking for a 51% likelihood of responsibility where the criminal jury is looking for that "reasonable doubt" milestone. There's plenty of room for opposite findings where both juries are "right" by the legal definition. The rules of evidence are probably a bit different as well. These are two separate cases and I would think the result of the civil trial, would be precluded from introduction at the criminal trial.
Reading the trial summary, it seems presumptious for the expert witnesses to say that things they observed could only have been caused by a violent struggle with a human murderer. I believe it is more accurate to say that they are consistant with such a finding, but I can't see anything there that would scientifically prove that to have been the case.
Reading that appellate decision, it strikes me as largely unfair and technical. The idea that a failure to immediately recognize and object to a judicial error should eternally prevent a correction is unfair. The idea that Swain's actions or failure to act should be allowed to step on the rights of his children is also unfair as they weren't represented to protect their rights. Clearly, you don't want to set up a system where someone can ignore an error in trial to open up grounds for appeal and provide extra chances to win and costs to the courts. That said, an honest mistake should be rectifiable on appeal. I wonder if this is the typical law across a majority of US jurisdictions?
None of this says he didn't do it, only that the argument that findings or rulings in a court represent an objective truth is flawed.
Reading the trial summary, it seems presumptious for the expert witnesses to say that things they observed could only have been caused by a violent struggle with a human murderer. I believe it is more accurate to say that they are consistant with such a finding, but I can't see anything there that would scientifically prove that to have been the case.
Reading that appellate decision, it strikes me as largely unfair and technical. The idea that a failure to immediately recognize and object to a judicial error should eternally prevent a correction is unfair. The idea that Swain's actions or failure to act should be allowed to step on the rights of his children is also unfair as they weren't represented to protect their rights. Clearly, you don't want to set up a system where someone can ignore an error in trial to open up grounds for appeal and provide extra chances to win and costs to the courts. That said, an honest mistake should be rectifiable on appeal. I wonder if this is the typical law across a majority of US jurisdictions?
None of this says he didn't do it, only that the argument that findings or rulings in a court represent an objective truth is flawed.
It should also be noted that there was effectively no legal defense offered in the civil trial. Judge Hurst based her analysis of the evidence offered in the case effectively on one side - the prosecution's. Well, go figure that given ONLY one side of the case to analyze, she found that they had proven that the preponderance of the evidence proved their case.
I've also always found the appellate decision that David didn't object to certain legal decisions during the trial to be a valid reason for not granting an appeal as particularly unfair in that she was the person who ultimately denied him the opportunity for representation by an attorney during the trial. (I certainly won't argue the point that he should have gotten another attorney sooner, but the reality is that he didn't and he was actually forced by Judge Hurst to move forward in the civil trial without legal representation and the knowledge to know to what he should be objecting! Then to penalize him a second time for that by refusing him an appeal seems to me a slap in the face (in essence saying "Well, if you'd had an attorney to object to it during the trial, you could have an appeal, but since you didn't, you're SOL - live with it") - and one which ultimately left him unfortunately vulnerable for the criminal charges being brought by Tortola - at Olenn's urging.)
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I just read through the appeal document. I find it truly interesting to see who wrote this document. Former RI Supreme Court Chief Justice Frank "Chiefy" Williams - who has been drummed out of office recently for having more cases of judicial misconduct filed against him that any RI judge possibly in history. http://www.caught.net/caught/williams.htm Most recently (married) "Chiefy" was caught in the middle of a nasty divorce case wherein he spent lots of off hours in his female personal security guard/driver's home, became the "godfather" to her child, had "his own bedroom" in her home, found a state job for the private security guard's mother as a custodian in the court building where she worked part-time, but at a pay grade 5 steps higher than a typical custodian and got full-time benefits and pay (during a hiring freeze), he "supervised" said female 6 year-old child naked in the bathtub on a number of occasions, paid for the child's private school education, attended a "father/daughter" dance with her (something the child's own father was unaware of until he just showed up to take her), was then given a restraining order from contacting the child and cited by the husband as being the main cause of the divorce.
Good to know that that's who did David's appeal - a judge of high moral content and character. (where's the vomit emoticon?)
I've also always found the appellate decision that David didn't object to certain legal decisions during the trial to be a valid reason for not granting an appeal as particularly unfair in that she was the person who ultimately denied him the opportunity for representation by an attorney during the trial. (I certainly won't argue the point that he should have gotten another attorney sooner, but the reality is that he didn't and he was actually forced by Judge Hurst to move forward in the civil trial without legal representation and the knowledge to know to what he should be objecting! Then to penalize him a second time for that by refusing him an appeal seems to me a slap in the face (in essence saying "Well, if you'd had an attorney to object to it during the trial, you could have an appeal, but since you didn't, you're SOL - live with it") - and one which ultimately left him unfortunately vulnerable for the criminal charges being brought by Tortola - at Olenn's urging.)
Edited:
I just read through the appeal document. I find it truly interesting to see who wrote this document. Former RI Supreme Court Chief Justice Frank "Chiefy" Williams - who has been drummed out of office recently for having more cases of judicial misconduct filed against him that any RI judge possibly in history. http://www.caught.net/caught/williams.htm Most recently (married) "Chiefy" was caught in the middle of a nasty divorce case wherein he spent lots of off hours in his female personal security guard/driver's home, became the "godfather" to her child, had "his own bedroom" in her home, found a state job for the private security guard's mother as a custodian in the court building where she worked part-time, but at a pay grade 5 steps higher than a typical custodian and got full-time benefits and pay (during a hiring freeze), he "supervised" said female 6 year-old child naked in the bathtub on a number of occasions, paid for the child's private school education, attended a "father/daughter" dance with her (something the child's own father was unaware of until he just showed up to take her), was then given a restraining order from contacting the child and cited by the husband as being the main cause of the divorce.
Good to know that that's who did David's appeal - a judge of high moral content and character. (where's the vomit emoticon?)
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AfterDark
Contributor
So I guess now we have a clue as to who got the fat envelope. Swain was told to get another lawyer by the judge but assured by his own lawyer that he didn't need to, that he'd be ready and able. So he ended up being forced to represent himself with no time to prepare and gets no slack for not understanding how the process works. What's unfair about that?
There you go SadiesMom vomit.So I guess now we have a clue as to who got the fat envelope. Swain was told to get another lawyer by the judge but assured by his own lawyer that he didn't need to, that he'd be ready and able. So he ended up being forced to represent himself with no time to prepare and gets no slack for not understanding how the process works. What's unfair about that?
Well, we certainly know that "Chiefy" Williams got the fat envelope a remarkable number of times throughout his career... oh, wait - "allegedly". It would not in the least be out of character for this judge to do it based on his actions throughout his entire career.
K_girl
Contributor
The outcome of the civil trial is moot with regards to the criminal trial. Swain did not have any money left to pay Shelley's parents anyway. He made sure of that. It is clear that Swain ignored the judge about getting counsel FOR YEARS. Not just a month, not just a couple of months - FOR YEARS. His attorney was even sicker than I thought he was, and he was extremely sick in March of 2005, having to return from depositions in Tortola for surgery. Trial did not start until Feb. 2006. Swain had the chance to put forth a motion at that time for stay of trial in Feb. 2006 - and he didn't do it. It doesn't take a rocket scientist to figure out, you need to make some kind of motion if you need a stay for the trial. It is obvious to me from the document that Swain did not delay the trial because he had taken care of all the money and liquidating his assets through the bankruptcy which was completed before the trial was supposed to start. He saw no need to delay the trial because he had already taken care of all the money. So why all this crying about the civil trial? What happened was completely Swain's fault and the judge was obviously very unhappy that Swain did not heed her warnings throughout the three years of delays. You can't cry "fowl" when you are warned repeatedly over a three-year period.
Is Swain suffering because of the civil trial? No. He didn't have to pay any money. Bottom line.
Just how long do you think a civil trial should go on with delays because of one reason - sick counsel? Three years is not reasonable? What's reasonable? Ten years? Get real. A judge should only have to put up with so much and three years is plenty long enough. The appeal judge's personal life has zippidity-doo-dah to do with it. Seems some people are ready to convict Williams based on rumors and the press - seems to me the same people who've complained about how Swain was treated in the press. Humm... Only Swain was convicted and Williams was never charged - with anything. Trying to drag Williams' personal life into the fray only muddies-up the discussion. Williams wrote the appeal judgement - BUT - all the other judges signed-off on it. No one disagreed. Notice - NO DISSENTING OPINION. Can anyone point out anything where Williams, along with the other judges didn't follow the law? Can anyone come up with a reason that Williams would purposefully rule against Swain and risk his own violation of the law? Does anyone think that Shelley's parents bribed Williams for his opinion? I don't think anyone can. And that, my friends, is the ultimate point.
And even if you could magically somehow say that Williams' personal life clouded his judgement in the Swain appeal and convinced the other judges to go along with some errant undefined judgment - it does nothing to affect the criminal case. To pursue it would be a complete waste of time for Swain.
Just as former President Clinton was never removed as president for having an affair. White Water was never proven to bring criminal charges. The situation is the same here with Williams. From what I can gather Williams retired from embarrassment because of his affair. So - let's overturn every judgement he ever made - not going to happen.
Is Swain suffering because of the civil trial? No. He didn't have to pay any money. Bottom line.
Just how long do you think a civil trial should go on with delays because of one reason - sick counsel? Three years is not reasonable? What's reasonable? Ten years? Get real. A judge should only have to put up with so much and three years is plenty long enough. The appeal judge's personal life has zippidity-doo-dah to do with it. Seems some people are ready to convict Williams based on rumors and the press - seems to me the same people who've complained about how Swain was treated in the press. Humm... Only Swain was convicted and Williams was never charged - with anything. Trying to drag Williams' personal life into the fray only muddies-up the discussion. Williams wrote the appeal judgement - BUT - all the other judges signed-off on it. No one disagreed. Notice - NO DISSENTING OPINION. Can anyone point out anything where Williams, along with the other judges didn't follow the law? Can anyone come up with a reason that Williams would purposefully rule against Swain and risk his own violation of the law? Does anyone think that Shelley's parents bribed Williams for his opinion? I don't think anyone can. And that, my friends, is the ultimate point.
And even if you could magically somehow say that Williams' personal life clouded his judgement in the Swain appeal and convinced the other judges to go along with some errant undefined judgment - it does nothing to affect the criminal case. To pursue it would be a complete waste of time for Swain.
Just as former President Clinton was never removed as president for having an affair. White Water was never proven to bring criminal charges. The situation is the same here with Williams. From what I can gather Williams retired from embarrassment because of his affair. So - let's overturn every judgement he ever made - not going to happen.
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