Diver convicted in wife's drowning

[AfterDark]

The outcome of the civil trial is moot with regards to the criminal trial.

Seems you've changed your mind since November post 236 page 24

The problem was that if Swain told a reporter outside the courtroom that he thought the trial was only about money, then he did not take it seriously enough to understand that he could be exposing himself to criminal action and it sounds as though his attorney grossly misled him in that regard and led him to believe it was really only about money. His consideration to allow the case to go into "default" because it is more difficult to collect money - does make it about money in Swain's mind and his attorney did him a great dis-service by leading him to that point.

Which is moot? Or exposing himself to criminal action? Or maybe both?

 

[bsee65]

What I found to be missing in everything I read from the original civil court judge was a clear "last chance" message. Now, I'm not saying that the law requires such a warning, more that it is almost an American tradition. After so many mild threats on her part with no follow-through, I think he maybe didn't take her seriously and she never really laid it out as clearly as I would have in her position. In answer to another question, I would be hard pressed to give someone a full year let alone three unless both parties approved the delay. I might even suggest that she enabled him with the delays and created an expectation on his part that her hard line in the end was a surprise to him. At a minimum, though, one would think that a newly-hired attorney could have come in, asked for one last delay of up to 90 days, and had it granted. It would have been a show of good faith on the part of Swain that he had new counsel justifying that last extension. Maybe it was that Swain just didn't get what the judge was saying enough to do so that she acted as she did in the end. To me, her action seemed biased by personal feelings she developed, but well within the law. It certainly seemed like she had a personal distaste for Swain by the time she finally got the trial started.

In Swain's shoes, I'd be pretty pissed about being expected to pay a second attorney to re-do the work of the first one. As long as I was trusting the first, I would hold on. I also wonder if Swain had the funding to pay an attorney by the time he was pressed to do so. That was after the bankruptcy, right? It's hard to see clearly the full time line of the whole attorney thing. It seems like there should have been enough time to act, but it remains a bit mysterious.

In terms of the appellate decision, I couldn't say that any part of it fails to follow the letter of the law, but I hope it doesn't represent the spirit. On one hand, the law has to be technical, but it always leaves a bad taste in the mouth when a technicality puts you in the position to wonder if justice was done. Ideally, I'd like to see the right outcome achieved fairly and for the right reasons. Whether or not you believe the outcome was right, I think they should have acknowledged the errors that were presented and acted to recitfy them. In particular, I think the issues related to the jury award and disposition should have been resolved rather than brushed aside with technicalities. I would hope they could have done so without re-litigating the entire case.

In any case, I'm not sure that anyone could have foreseen that BVI would re-open the case based upon the result of a civil trial in RI. It was always worth a close look on the part of the BVI authorities, though. There's certainly enough evidence to support that. I think they did everyone a disservice by not looking more closely when the evidence and recollections of all involved were more fresh. This entire thing should have been completely resolved 6-8 years ago.

Again, I don't think any of us can say that the decision was objectively right or wrong. Even if you believe there is enough evidence for a criminal conviction, there are explanations that don't involve miracles or little green men.

 

[AfterDark]

bsee65, Your close enough to this state of corruption called Rhode Island to know what can and does go on here behind the closed doors of government. They have made defacto law here to keep a stone cold murder in jail. Now I don't think confessed stone cold murders should be walking the streets but making a law after the fact and using to keep someone in jail IMO is not much better. Whatever government does to one it can do to all.
This is just an example of what passes for justice here. Do I think something sinister went on behind closed doors in the Swain civil case? You bet I do and anyone who doesn't is either uninformed about RI or very naive about what does go on here. Thoughtful post bsee65.

 

[K_girl]

Seems you've changed your mind since November post 236 page 24

The problem was that if Swain told a reporter outside the courtroom that he thought the trial was only about money, then he did not take it seriously enough to understand that he could be exposing himself to criminal action and it sounds as though his attorney grossly misled him in that regard and led him to believe it was really only about money. His consideration to allow the case to go into "default" because it is more difficult to collect money - does make it about money in Swain's mind and his attorney did him a great dis-service by leading him to that point.

Which is moot? Or exposing himself to criminal action? Or maybe both?

Nothing has changed in terms of my thinking about what Swain should have done or what his attorney should have done in the civil action. The moot point is - even if you could change the results of the civil action with some kind of appeal, it would do nothing to change the result in the criminal action.

 

[AfterDark]

Nothing has changed in terms of my thinking about what Swain should have done or what his attorney should have done in the civil action. The moot point is - even if you could change the results of the civil action with some kind of appeal, it would do nothing to change the result in the criminal action.

I agree but if Swain had not taken his lawyers advice and got another lawyer he may have beaten the civil trial and not be in jail today. So just how do people without legal training know when not to take their lawyers advice?

You make it sound like the trial was on hold for 3 years because Swain was holding it up. That may have been part of the reason but, the main reason is that the court system in this state of corruption is so overloaded that any trial takes forever to happen. I've waited over a year for a speeding ticket. Others have the same experience. I've often called RI a small banana republic inside the USA. Few disagree.

 

[K_girl]

bsee65 - you think that the judge was personally exasperated by Swain and yet she gave him no stern warning? That seems to be a bit of a contradiction. We don't know how stern her warnings were, but from her interview, it sounded like the delays were frustrating her. I've never seen a judge frustrated by any party standing in front of them be meek about what they expected from them.

As far as sticking with the sick attorney - two years after learning he was sick and was going to try to keep going, his condition worsened to a very extreme state in March 2005 by having to leave Tortola and return to the states for surgery. Trial started in Feb. 2006 - Swain and his attorney should have gotten a back-up attorney, knowing that his condition could worsen again at any time. I think the judge was right to believe it was used as delay tactics. Once the bankruptcy was completed, there was no further reason to delay because there was no more money. Therefore, Swain made no attempt to delay the Feb. 2006 trial date even though his attorney was sick. He could have appeared on the first day of trial and said - I need a delay - he didn't. You don't need to be a rocket scientist to do it. So what happened was Swain's fault - period. No one else's. Not a single, solitary soul. Swain made the errors - not the trial judge, not the appeal judges.

So what would a reversal of the civil trial do anyway? Uh.. Swain doesn't owe Shelley's parents any money anymore. Does it get him out of jail in Tortola? No.

What seems to be missing here is an understanding about the use of evidence. Swain needs to make evidence go away in his criminal case. Some evidence came from the civil trial. The only arguments from barring evidence from a criminal trial is illegal search and seizure or its relevance to the case - not its use in another case. If Shelley's parents had gotten the BVI authorities to pay attention to the evidence they had, there would have been no need for a civil case. They only went through with the civil case to get the BVI authorities' attention. The Swain's criminal defense never made any argument about the unfairness of evidence that came from the civil case based on the fact that Swain did not have an attorney in that case. So why do we go on and on about it here? There is no legal standing for the argument. It may make some people feel better to talk about it, but it doesn't have any affect whatsoever.

What Swain supporters should be focusing on is the evidence presented at the criminal trial itself and the BVI jury management system. Realizing that the same exact evidence could have been presented in the criminal trial without ever having had a civil trial at all. Otherwise, if you want to keep talking about the unfairness of the civil trial - all you are talking about is whether or not Swain owes Shelley's parents any money.

 

[K_girl]

I agree but if Swain had not taken his lawyers advice and got another lawyer he may have beaten the civil trial and not be in jail today. So just how do people without legal training know when not to take their lawyers advice?

Hindsight is 20/20, but if someone accused me of homicide in a civil action, I would be concerned that it could turn into a criminal action. I would have at least asked my lawyer about that possibility. I would have asked a bunch of people about that possibility. I would have gotten on the Internet and researched it. How could you not? And I have no legal training. Why isn't Swain demanding some kind of legal action against his civil lawyer? If it is so important to have justice and "the truth." Maybe his children could benefit from a civil suit for the ineptness of his lawyer.

Here is my guess, just a hunch. Swain did ask his attorney. The attorney told him that if the civil action was not fought and the Tyre's won, BVI could start action against him, but seeing it has been 7 years since the incident and they were too lazy to conduct an investigation of the equipment and charge him then, they probably won't bother now. Swain decided to take his chances that nothing would come of it.

So Swain shows up a few days after the trial starts and what happened to the defense his attorney was preparing? Absolutely, they would have discussed the strategy, but there really appears to be little-to-no preparation of any kind that Swain picked-up on. No defense witnesses. No cross-examination. Did the attorney do any work to prepare for the case? I have my doubts. Maybe the attorney didn't have much to defend with. Certainly, the criminal defense didn't have much to work with, why would the civil attorney have had more? And that is why I think the civil case strategy was really all about delay, delay, delay - then, just get it over with because the money is gone anyway.

 

[AfterDark]

It wasn't a Swain "supporter" that brought up the civil trial today. K_Girl, I'm not referring to an overturning of the civil trial that ship sailed long ago. I was referring to events before the civil trial and just citing what ifs.

So my lawyer is sick but up and around talking to me telling me he's fit to work my case. He goes to court day to day. When do I know to tell him he's not fit to work my case? How do I know?

Swain was told by his lawyer not to show up in court. Should he have sued his lawyer for malpractice?

The same "evidence" no more no less was used in the criminal trial. If Swain's lawyer got him a sub that was prepared the "evidence" may never have made into the proceedings, or may have been so discredited to make it moot. We'll never know.

 

[bsee65]

Hindsight is 20/20, but if someone accused me of homicide in a civil action, I would be concerned that it could turn into a criminal action. I would have at least asked my lawyer about that possibility. I would have asked a bunch of people about that possibility. How could you not? And I have no legal training. Why isn't Swain demanding some kind of legal action against his civil lawyer? If it is so important to have justice and "the truth." Maybe his children could benefit from a civil suit for the ineptness of his lawyer.

But from what we know about Swain, I would suspect that he is neither as intelligent nor as wise as you or me. Just because you believe you know how you would have handled the situation doesn't mean it is fair to apply that same level of intellect to Swain in his position. You talk about things being perfectly legitimate "from a legal standpoint" and I agree, but that doesn't make them equitable or right, only the law. Wouldn't you expect a competent attorney to have been in the better position to understand the ramifications and advise David accordingly? Even though I have a better understanding of law than most typical citizens, I still would be counting on my attorney to be the one to raise the relationship and risks of civil action resulting in criminal prosecution.

I don't know what, if any, compensations were acquired by the Tyre family. The fact that the awards were attacked on appeal suggests that something must have been paid or otherwise claimed. My argument is that it seems like the Swain children might have had a claim on some of that money which was disregarded by the courts. It sounded like the ruling that Shelley's estate should be disbursed as though David had pre-deceased her would still have left the children as partial heirs, and that aspect of the law seems not to have been respected. If he was guilty, it still was neither their fault nor their action. We have heard nothing of the affection between those parties to know for certain if or how she would have changed her arrangements if she had foreseen this end.

 

[bsee65]

It wasn't a Swain "supporter" that brought up the civil trial today. K_Girl, I'm not referring to an overturning of the civil trial that ship sailed long ago. I was referring to events before the civil trial and just citing what ifs.

So my lawyer is sick but up and around talking to me telling me he's fit to work my case. He goes to court day to day. When do I know to tell him he's not fit to work my case? How do I know?

Swain was told by his lawyer not to show up in court. Should he have sued his lawyer for malpractice?

The same "evidence" no more no less was used in the criminal trial. If Swain's lawyer got him a sub that was prepared the "evidence" may never have made into the proceedings, or may have been so discredited to make it moot. We'll never know.

Since the result of the civil trial shouldn't have come into play at the criminal trial, the defense counsel on Tortola should have been able to freshly attack all of that evidence. Whether or not it was introduced, it should have been discredited there if there were grounds to do so.