Diver convicted in wife's drowning

[AfterDark]

I wish everyone would just operate on facts and keep an open mind beyond that. If the facts support a verdict of guilty for Swain, why do those who insist he is guilty feel compelled to exaggerate them? For example:



Reading the autopsy report presented in K_girl's other thread, there seem to be an assortment of bruises spread between the left and right legs, including the right foot, but not the left. The mention of abrasions on the left hand doesn't suggest anything particularly significant, and, if anything, I would expect some damage to one or both palms and the fingers from the alleged struggle. Someone put forth the proposition that a week of small boat diving could easily result in a bunch of bruises of that nature from dealing with heavy gear and boarding/exiting the boat. In any case, I don't see any significant favoring of damage to the left side of the body or head to correspond with the above comment. I would find it surpising that all the force supposedly required to do the damage to the mask that was evidenced would not result in bruising to the head and face. To me, the lack of such bruising suggests that either the mask broke without great direct force, or it was pulled apart after it was removed from Shelley's head. The former would be consistant with Swain's claim of innocence, the latter his guilt.

It was also claimed that a pro like Swain would have been able to grab Shelley's tank between his knees and turn off her air while maintaining complete control. That wouldn't result in any particular signs of trauma.

Here comes another attack post. :sarcasm: Watch it bsee65 you're perilously close to being called a Swain supporter. Next you'll be accused of attacking other posters.
Also as a Swain supporter if you mis-read or misinterpret another post you won't be mistaken you'll be spinning, which in my world is a polite way of being called a liar.
Don't say later you weren't warned. :sarcasm:

 

[K_girl]

Sadiesmom - I was looking for your link to Swain's defense web site for the reference materials thread. Sorry, I couldn't find it. Would you mind posting it there?

Thanks.

 

[bsee65]

Here comes another attack post. :sarcasm: Watch it bsee65 you're perilously close to being called a Swain supporter. Next you'll be accused of attacking other posters.
Also as a Swain supporter if you mis-read or misinterpret another post you won't be mistaken you'll be spinning, which in my world is a polite way of being called a liar.
Don't say later you weren't warned. :sarcasm:

That's okay, I can take care of myself if it comes to that. In fact, I'd say your response plays into the handsof the people who are just here to harass you. It's clear to me that whoever accused Swain's supporters of attacking people didn't read much of the thread. By far, the most personally aggressive posts on this thread have come from idocsteve. I don't recall anyone else instigating or trying to take this thread away from a discussion of the circumstances.

It would also be short-sighted of anyone to label me a Swain supporter. It may seem that I take his side on many issues, but that's because so many of the claims against him are exaggerated, not because I believe him to be innocent. I believe that the facts suggest that he's probably guilty, but that both sides made a mess of the investigation and case. Because the investigation and prosecution were poorly executed, I'm not fully comfortable with the outcome. I like it when the "good guys" play fair, and some of the evidence analysis doesn't seem to me like they did. Were they afraid that admitting the damage to the mask could have been inflicted by Shelley would have created reasonable doubt? It should have been enough to show how remote the likelihood of her doing it would have been to get the jury to believe such a doubt would be unreasonable. Sort of technical, but, I think closer to the truth than to say that Swain was absolutely the only one who could have broken the mask.

 

[K_girl]

I like it when the "good guys" play fair, and some of the evidence analysis doesn't seem to me like they did. Were they afraid that admitting the damage to the mask could have been inflicted by Shelley would have created reasonable doubt? It should have been enough to show how remote the likelihood of her doing it would have been to get the jury to believe such a doubt would be unreasonable. Sort of technical, but, I think closer to the truth than to say that Swain was absolutely the only one who could have broken the mask.

I'm a little confused by your post. You think that by being "the good guys" the prosecution should have argued for the defense by admitting that Shelley could have done the damage to the mask herself? When you say "technical" are you saying you have a perception of a legal technicality that wasn't followed? No. That's just not how the criminal justice system works. I've never seen the prosecution argue the defense case in order to promote a vision of what you seem perceive to be fairness. I don't think that will happen in my lifetime. Here's how it works, the prosecution argues their side of the case and the defense argues their side of the case. No prosecutor is going to respond to a non-lawyer standing on the sidelines saying "why are you so afraid to admit that?" It's childish-level baiting that should not be practiced in a court of law. And if you were in a jury room with me - I would remind you of that fact.

And when it comes to the mask, what you are essentially saying is, what the prosecution should have done was basically give their case away and hand it over to the defense as the damage to the mask was the key factor in conviction. And why should the prosecution admit such a thing if they don't believe it? The damage to the mask strap, pins, along with the mouthpiece being ripped from the snorkel that would have taken two hands to pull apart - I don't believe Shelley could have done it herself, why should the prosecution say they would believe it?

Still, what you are talking about has to be accomplished by the defense by cross-examining prosecution witnesses or presenting their own rebuttal witnesses. If we had the trial transcripts, we might find that the defense counsel did indeed ask one of the prosecution experts - "could this damage have been done by Shelley herself?" But we don't know that because we don't have the transcript. All we know is that the prosecution stated that their experts said it never it had never happened before. We don't know if the defense had rebuttal witnesses on this issue, but if they did, it didn't help. If they didn't, they should have if they could have found one.

 

[Ayisha]

I wish everyone would just operate on facts and keep an open mind beyond that. If the facts support a verdict of guilty for Swain, why do those who insist he is guilty feel compelled to exaggerate them? For example:

And don't forget all the damage to the left side of her equipment and the abrasions on her left hand and bruises on the left side of her body, and the left fin falling off...

I don't believe it is an exaggeration to say that there is significantly more damage to the left side of Shelley's body. The damage on the right side of her body doesn't help either, but it is smaller and less pervasive. Look at the dimensions and prevalance of the damage on the left side of Shelley's body/gear compared to her right side:

.."As evidence of trauma we observe:

1. Various contusions of the right upper thigh measuring 5/8 of an an inch in greatest dimension.

2. Purple/green contusion of the left mid lateral thigh measuring 4" in greatest dimension.

3. Reddish contusion of the left upper leg measuring 1-1/2" in greatest dimension."

4. Several brownish contusions of the right knee and to the right measuring up to 1cm in greatest dimension.

"..Bluish contusion over the dorsal right foot..

Multiple small abrasions on the dorsal left ha[nd].. measuring ** of an inch in greatest dimension.."

Left Side Damage:

2. Purple/green contusion of the left mid lateral thigh measuring 4" in greatest dimension.

3. Reddish contusion of the left upper leg measuring 1-1/2" in greatest dimension."

Multiple small abrasions on the dorsal left ha[nd].. measuring ** of an inch in greatest dimension.."

Mask strap broken on left side.
Mask pin missing on left side.
Snorkel holder (on left side) is broken.
Part of snorkel tube (on left side) is broken off.
Snorkel mouthpiece (on left side) is missing
Left fin is off and stuck upright in sand.

Right Side Damage:

1. Various contusions of the right upper thigh measuring 5/8 of an an inch in greatest dimension.

4. Several brownish contusions of the right knee and to the right measuring up to 1cm in greatest dimension.

"..Bluish contusion over the dorsal right foot..

All of this was documented in the screen shots of the autopsy results that were visible on the Dateline show. Nine areas of trauma to the left side of her body/equipment and only 3 areas of smaller contusions to the right side and no gear damage on the right side. Clearly there is significantly more damage on the left side of her body/equipment.

 

[idocsteve]

I'm still waiting for David to get some time on the prison computer and throw his thoughts into this thread.

At the very least he can answer a few of those questions that are floating around.

Does anyone know if they have the internet in Tortola maximum security prisons?

 

[bsee65]

I don't believe it is an exaggeration to say that there is significantly more damage to the left side of Shelley's body. The damage on the right side of her body doesn't help either, but it is smaller and less pervasive. Look at the dimensions and prevalance of the damage on the left side of Shelley's body/gear compared to her right side:



Left Side Damage:

2. Purple/green contusion of the left mid lateral thigh measuring 4" in greatest dimension.

3. Reddish contusion of the left upper leg measuring 1-1/2" in greatest dimension."

Multiple small abrasions on the dorsal left ha[nd].. measuring ** of an inch in greatest dimension.."

Mask strap broken on left side.
Mask pin missing on left side.
Snorkel holder (on left side) is broken.
Part of snorkel tube (on left side) is broken off.
Snorkel mouthpiece (on left side) is missing
Left fin is off and stuck upright in sand.

Right Side Damage:

1. Various contusions of the right upper thigh measuring 5/8 of an an inch in greatest dimension.

4. Several brownish contusions of the right knee and to the right measuring up to 1cm in greatest dimension.

"..Bluish contusion over the dorsal right foot..

All of this was documented in the screen shots of the autopsy results that were visible on the Dateline show. Nine areas of trauma to the left side of her body/equipment and only 3 areas of smaller contusions to the right side and no gear damage on the right side. Clearly there is significantly more damage on the left side of her body/equipment.

I did not see the Dateline production, so all I have to go on is the text. Do you understand the significance of the various colors of the bruises? I believe they tell of the age of the injury and if there were any degree of healing, so I should think some explanation with the clear observations would give us an idea of which injuries, if any, would have occurred at the time of death.

Even so, I still can't explain how all that damage occurred to the mask with none to the head and face. Can you? Also, the left fin was ripped off, according to the expert, yet the only foot bruise was on the right.

Oh, and I can't go with your nine to three ratio as in any way meaningful. In particular, the way you count equipment issues seems unfairly weighted. Shall we measure the total skin surface area of bruising on each side to see which is more heavily damaged? I really don't think it says anything either way unless one or more of the bruises can be matched to some particular trauma. Is there a hand-shaped bruise, for example? I think not or that would clearly have been presented. Also telling would be if there were any photos from pre-dive that would show which, if any, bruises were already present, or maybe even the recollections of the Thwaites family in that regard.

 

[idocsteve]

In particular, the way you count equipment issues seems unfairly weighted.

That was a clever play on words right there.

 

[bsee65]

I'm a little confused by your post. You think that by being "the good guys" the prosecution should have argued for the defense by admitting that Shelley could have done the damage to the mask herself? When you say "technical" are you saying you have a perception of a legal technicality that wasn't followed? No. That's just not how the criminal justice system works. I've never seen the prosecution argue the defense case in order to promote a vision of what you seem perceive to be fairness. I don't think that will happen in my lifetime. Here's how it works, the prosecution argues their side of the case and the defense argues their side of the case. No prosecutor is going to respond to a non-lawyer standing on the sidelines saying "why are you so afraid to admit that?" It's childish-level baiting that should not be practiced in a court of law. And if you were in a jury room with me - I would remind you of that fact.

And when it comes to the mask, what you are essentially saying is, what the prosecution should have done was basically give their case away and hand it over to the defense as the damage to the mask was the key factor in conviction. And why should the prosecution admit such a thing if they don't believe it? The damage to the mask strap, pins, along with the mouthpiece being ripped from the snorkel that would have taken two hands to pull apart - I don't believe Shelley could have done it herself, why should the prosecution say they would believe it?

Still, what you are talking about has to be accomplished by the defense by cross-examining prosecution witnesses or presenting their own rebuttal witnesses. If we had the trial transcripts, we might find that the defense counsel did indeed ask one of the prosecution experts - "could this damage have been done by Shelley herself?" But we don't know that because we don't have the transcript. All we know is that the prosecution stated that their experts said it never it had never happened before. We don't know if the defense had rebuttal witnesses on this issue, but if they did, it didn't help. If they didn't, they should have if they could have found one.

It seems like a used car negotiation and I don't think it is honorable even if it is the way things are done. The prosecution should be able to make their case without lies or exaggerations. They should be able to say that the evidence supports their position, and that any other alternative would require an unreasonable confluence of circumstances. Instead, it seems they attempt to overstate the case in the hope that there will still be enough strength left once the defense has attempted to chip away at it.

I'd like to see the prosecution looking for the truth rather than just the win. It doesn't work that way, but it should. The prosecution need not make the defense case, but the claim that murder is the only way that the mask could have been damaged is objectively false. The prosecution expert shouldn't have made that claim. My recollections of this come from the expert statements that were documented relative to the civil trial, and I'm assuming were used in the criminal trial as well.

Just a general feeling I have about the way governments should proceed when enforcing laws, and nothing that would alter any opinion on Swain's guilt.

 

[K_girl]

Even so, I still can't explain how all that damage occurred to the mask with none to the head and face. Can you? Also, the left fin was ripped off, according to the expert, yet the only foot bruise was on the right.

We only had a glimpse of the autopsy report, we don't know if any damage occurred to the head or not. But your argument doesn't make sense because of the damage to the mask, there should have been bruising to the head - that would be the case whether or not Shelley ripped her mask off or Swain ripped her mask off. You are really arguing that the mask was not ripped off of anyone or that the mask was never damaged at all. The picture of the mask where the strap threaded through and where the missing pin appears does not show any cracks, so there was no pre-damage like you tried to assert earlier.