Diver convicted in wife's drowning

[Ayisha]

...I question whether or not Shelley was alone and panicked, much less pulled off her mask in a panic.

All of what you said above makes sense, K-girl. Also, an analysis of Egad's link to the "panic" excerpts from her dive log show that she exhibited a "bolt" response as is commonly seen in panic situations. Her episodes of panic were described as mild, even in her own notes, involved going to the surface or holding on to her buddy, and the last panic feeling is about 90 dives and over 2 years before she died.

This was my post in regard to her published dive logs:

It seems from the link to some excerpts from Shelley's dive log that in those cases where Shelley wrote that she was panicked, her personal response in each of the (few) situations was to ascend, which is typical of a panicking diver, as Ken and others described earlier. Even Royle talks about the typical "bolt to the surface" response to panic in the quote above. This shows her personal, consistent, known response to feeling panicked, which was to ascend.
The logs also show that her last recorded feeling of panic (that was made available) was more than 2 years before her death and there were many dives in between.

 

[K_girl]

If I understand the beginning correctly panic in a cave is different from panic in OW is that correct? So how someone panics depends on the situation they are in? Fascinating I thought panic was a sudden fear which dominates or replaces thinking. I didn't know there were different types depended on location. Thanks That must say something about cave divers that they'd want to be found in the dead in the nude.

Actually, you illustrate my point exactly. How many divers in open water that have panicked that have you've heard of found were found in the nude? Yes, its different - its majorly different. You try to minimize it by saying panic replaces thinking. But it is the situation here that dictates the action taken out of panic. Action taken out of panic is the key. The situation is what will dictate the action you take. In the case you illustrated, he took off all of his gear because he was trapped. In the case of a diver in open water, the majority of divers's panic action will be to bolt to the surface, not mangle their masks. And still there was no reason for her to panic in the first place.

There was evidence of a 22% blockage somewhere in her heart. I wonder if that could have been exacerbated by fining around at 85FSW with one fin? Oh shucks, the autopsy didn't explore that possibility and 10 years later it's too late. Convenient.

The defense did not argue heart attack as a cause for panic because they knew that heart attacks incapacitate people. It would have been a very bad argument. Very bad.

 

[AfterDark]

You are twisting known facts again. Actually, Swain placed HIMSELF there after his tour of the wrecks and the prosecution used his testimony to show he couldn't have missed her body. If she was still alive at that location where he left her, he would have seen her alive. Either way he had to have seen her, as the prosecution claimed, and he claimed he did not see her, alive or dead.

In other words, Swain did not claim otherwise, as you say. It is an agreed statement of fact. He only claims he did not see her, not that he wasn't there.

Better check those facts I'm not twisting anything. The prosecution with their assumptions of how much time it took to swim around the wreck and Shelly's air consumption is what was used by the prosecution to place Swain there. I've not read one thing that says Swain placed himself near Shelly at the time of her death. You used the words yourself "The prosecution placed Swain right around her body after the time of her death". I just copied and pasted.

 

[K_girl]

Better check those facts I'm not twisting anything. The prosecution with their assumptions of how much time it took to swim around the wreck and Shelly's air consumption is what was used by the prosecution to place Swain there. I've not read one thing that says Swain placed himself near Shelly at the time of her death. You used the words yourself "The prosecution placed Swain right around her body after the time of her death". I just copied and pasted.

The calculation of air consumption was completely moot. The judge in civil case even said so by saying - how do they know Shelley started with 3,000 pounds? I've said so many times. I posted that sometime earlier. The same judge said she still would have found Swain responsible.

I think the real issue is - how on that concentrated dive site could Swain have missed seeing either Shelley or the fin sticking-up in the sand after close to 30 minutes when he would have gone by that area to get to the anchor line? Thwaites saw it immediately upon descent and found Shelley seconds later. If he had just taken a look around for his dive partner before ascending, he would have found the fin and Shelley. That's the part you really can't make go away.

 

[AfterDark]

The calculation of air consumption was completely moot. The judge in civil case even said so by saying - how do they know Shelley started with 3,000 pounds? I've said so many times. I posted that sometime earlier. The same judge said she still would have found Swain responsible.

I thought the civil case was moot, yet here it comes again, and again not by a Swain supporter. Bring up the civil trial don't bring up the civil trial the civil trial is moot, in the civil trial........ said.......:eyes: I think I'm getting dizzy.

 

[K_girl]

I thought the civil case was moot, yet here it comes again, and again not by a Swain supporter. Bring up the civil trial don't bring up the civil trial the civil trial is moot, in the civil trial........ said.......:eyes: I think I'm getting dizzy.

The fact that Swain did not have counsel in the civil case is moot in trying to appeal the criminal case. You know I said that - you heard it. You just want to find something to argue about because you're having trouble arguing the case itself.

 

[AfterDark]

The fact that Swain did not have counsel in the civil case is moot in trying to appeal the criminal case. You know I said that - you heard it. You just want to find something to argue about because you're having trouble arguing the case itself.

I'm just commenting on the re-re-re-reintroduction of the civil case when just yesterday you said it was moot. I never linked the civil case to appealing the criminal case you did.
I'm not going to be appealing any case here or aboard. I'm just pointing out faults as I see them with this case. Could I be wrong you bet. Will that possibility stop me K_girl I don't want to argue with you or anybody else.Well maybe one person..never mind. My last post was a lame attempt at lightening up the posts some. I guess it backfired.

 

[K_girl]

I'm just commenting on the re-re-re-reintroduction of the civil case when just yesterday you said it was moot. I never linked the civil case to appealing the criminal case you did.
I'm not going to be appealing any case here or aboard. I'm just pointing out faults as I see them with this case. Could I be wrong you bet. Will that possibility stop me K_girl I don't want to argue with you or anybody else.Well maybe one person..never mind. My last post was a lame attempt at lightening up the posts some. I guess it backfired.

What is kind of strange is - what I quoted out of the civil trial was helpful to Swain, not harmful and yet you jumped all over it. So if you don't want me to talk about how the judge in the civil case said that the defendant could have challenged the plaintiff's assertion that Shelley started with 3000 pounds - I guess I won't then. Remember, I made a specific point about mootness - that is Swain's lack of counsel in the civil case, NOT a general point of civil case being moot. You turned it into that and I don't appreciate it.

It would appear that there is a difference between you and I and what we are talking about. I am thinking in terms of what might work or not work in any effort to get Swain freed or a new trial. If there is an argument or a process to be made that could result in that - I'm asking the question - how effective can the argument or that process be within the procedures and rules of the legal system? I'm not sure what you're doing. But if you are trying to find fault with the prosecution's case, then you should look at it as a case. A legal, criminal case.

Maybe there is an argument for excluding all the evidence that resulted from the civil trial - just from the little I know about law, there doesn't appear to be one. But to say, well, if Swain had gotten a better attorney, he maybe could have won the civil case and the criminal case would have never happened. Most people are not going to get up-in-arms on Swain's behalf based on that argument. Why? It is because it is the evidence itself that matters. What you say could be true because the Tortola authorities may not have been interested in the evidence if Swain had won the civil case. But then again, the Tyre's still could have possibly convinced the Tortola authorities that they had good evidence and Swain may have still lost the civil case. The fact that it took so long - you could definitely say it was tragic for Shelley's parents, but maybe it was a good thing for Swain because he could have potentially spent the last 10 years in prison and not had all the fun he got to have with Shelley's money. It's all in how you look at it.

 

[AfterDark]

K_Girl do you know for sure that Swain went up the line or are you assuming he did? I don't know and being more of a rock hop diver than boat diver I don't use a line to ascend. The times I did do boat dives in clear water I'd just look up see the boat and surface. I'm wondering if Swain may have done something similar? Seems likely as our diving experiences were similar for a long time. Seems to me if I was investigating this incident and Dave told me he went up the line and didn't see the fin, then Christian told me he went down the line and found the fin right off, I'd be oiling my cuffs. Seems quite unlikely Dave would have left the BVI under those circumstances.

 

[Ayisha]

Better check those facts I'm not twisting anything. The prosecution with their assumptions of how much time it took to swim around the wreck and Shelly's air consumption is what was used by the prosecution to place Swain there. I've not read one thing that says Swain placed himself near Shelly at the time of her death. You used the words yourself "The prosecution placed Swain right around her body after the time of her death". I just copied and pasted.

Yes, go way back in the links to where this was first discussed before. Swain put himself in that place (where Shelley was later found) at about 5 minutes into the dive, when he left Shelley. He then proceeded to tour the wreck, and we do not have a timeline from him as to how long that took, and he returned to the same spot before heading to the reef. The prosecution says the tour took 3 minutes. You and Sadies Mom say much longer with a camera - which, BTW is in the prosecution's favour. At anytime from 8 minutes when the prosecution determined her time of death up until 35 minutes, Swain would have passed Shelley either alive or dead. Her body was still in the same place where he claimed to have left her alive and well.

He told the BVI police that he passed that spot after his tour on his way to the reef but he did not see Shelley. Sorry, as K-girl said, you can't make that go away.

In regard to all the damage to the equipment, BTW, don't forget that one of Swain's own first theories to the police was that some unknown person went behind Shelley and attacked her and murdered her. That theory was discounted by the police and prosecution because it was a secluded spot and there were no other boats in the area.

I understand Swain grasping at straws, but not you. You have been trying to provide a defence for Swain with arguments that he hasn't even made himself and are sometimes counter to what he has actually said. I applaud your tenacity, but we can't change known facts now... Perhaps if Swain had you both advising him during the time of his trials, he wouldn't have put his foot in his mouth so many times and he would have helped the prosecution a lot less with their theories...