Diver convicted in wife's drowning

[K_girl]

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.

The prosecution should look for the truth when they are preparing the case. I believe they presented their case in good faith as what they believed to be the truth. If you want to believe they were just a bunch of liars - then that is your choice. I disagree with you about the mask - the photograph clearly shows the strap is no longer threaded through the same side that the pin is missing, along with the missing mouthpiece on the snorkel - which would have taken substantial force with two hands to remove - Which you never seem to want to talk about, but I will continue to talk about it. The missing mouthpiece on the snorkel - along with the damage to the mask is powerful phsycial evidence against Swain. Very powerful.

And where is your authority to say the expert had no right to say it? The prosecution's expert said it had never happened before. If you think the expert had no right to say it, then let's hear your example of a DAN incident where it did happen before - then I will believe you. Otherwise, the expert had every right to say it never happened before if that was their research and knowledge. I keep telling you how to prove the defense's case, but you don't do it. You just keep making statements as to what you believe is a fact with nothing to back it up. Show us - don't just tell us.

This image shows that the mouthpiece was missing from the snorkel, attached with numerous threads.

Mask strap is missing from this side of the mask.

Mask pins are missing. Appears to be no pre-cracking or aging to the mask to explain the missing pins.

Detached mask strap, missing pins and detached snorkel and detached snorkel mouthpiece, all on same side of the mask.

 

[bsee65]

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.

First of all, I didn't "try to assert" anything, I just asked a question. I raised a possibility. Since the pin is missing, we don't know what state it is in. The only possibility left for a spontaneous failure would be that the ends of the pin were rounded too much such that it wasn't as tight a fit as it should have been. That's incredibly unlikely. The mask doesn't look like the material is particularly fatigued or out of alignment in a way that would make it easier for the pin to come out.

I could much more easily see that Shelley could have done that damage to her mask without leaving a mark on her head than that David could have. That's because I know that I could put a lot of pressure on the strap pin mechanism on a mask I was wearing, or on a mask I had momentarily pulled off to adust, without bruising my face. I do not see howanyone could do that to me against my will without leaving one, though.

Looking at the mask, I don't see a picture of the strap. Was it really broken? It would seem odd to me if the pin gave way that the strap would break as well.

Ayisha's claim was:
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.

My recollection was that there was a claim about the strap being broken, about the snorkel being disconnected from the strap, and about the mouthpiece being disconnected and lost.

I neither recall nor see any damage to the snorkel tube. I don't specifically recall any mention in the various reference materials that the snorkel holder, whatever that mechanism was, had broken. Many attachment methods would readily fall off a brokem or disconnnected strap without being damaged. That said, I don't see any holder mechanism in the picture, so I would need more evidence to form a belief.

Based upon the above, I believe it is possible that there are only two points of damage here. First, the missing pin, and second, the missing mouthpiece.

If one looks carefully at the mask, you can see that there are channels to assist in getting the missing pin installed. You can see that, as part of installing or removing the pin, the upper and lower parts of the mask in that area would have to be slightly flexed away from each other in order for the rigid pin to be seated.

At that point, the pin could be removed in one of two ways. First, and I think the way one would do it for maintenance, would be to press apart those extensions of the mask to allow it to fall out. Second would be to apply enough horizontal pressure to the pin for it to force the holding plastic out of the way and pop free. The channels provide a weak point for such force, but they go out to the sides. In use, the strap applies pressure approximately straight back from the face, and I believe the pressure required to break the pin free in this direction would exceed the pressure that a rubber strap could tolerate and the strap would break first leaving the pin in place.

Based upon the above, I believe that the strap would either have to be pulled straight to the left side roughly in line with the channel in order to have a chance to pull the pin out before snapping. Either that, or pressure had to be applied directly to the side of the mask body to separate the wings allowing the pin to fall out. The latter is obvious, as it is the way the mask was designed. The former is probably testable, and I think the responsibility of both sides for their own reasons.

Based upon the above, there are a few scenarios that work. If Swain was part of it, there are a few scenarios. He could have grabbed at the side of Shelley's head during a struggle and the mask pieces could have been spread. He could have grabbed for her mask and started to pull it free. If Shelley responded quickly enough to this, there could have been a tug-of-war for the mask that resulted in one pulling sideways on the mask body while the other yanked on the strap or snorkel. Going with the driven-into-the-bottom theory, the left side of her head could have been pressed down into the bottom in such a way as the mask wings spread enough to free the pin. The latter two explanations also extend to account for the missing snorkel mouthpiece. If Swain didn't have a part in it, the scenarios I see are that Shelley stuck her head into a wreck and caught her snorkel on the hole, more likely while pulling out. This might have pulled the mask off her head and a clumsy attempt to pull it free from the wreck could have led to the loss of the mouthpiece inside the wreck where it might not have been found. Pulling the mask sideways, which I think we would be likely to do in this circumstance, could explain the pin popping free. Other than a very odd panic episode or someone deciding that 90fsw was a good location to practice tearing down their equipment, I can't think of any other scenarios that explains that part of the evidence.

Evaluating those possibilities on their own and without further evidence or testing of the scenarios, I could not say that it was Swain beyond a reasonable doubt. K_girl, you have said the mask damage is pivotal for you. For me, it is the fin. I can't come up with any reasonable scenario that fits a fin in the sand with the most plausible mask scenario not involving Swain. The best I can do, and it's pretty far fetched, is that somehow Shelley ended up with her foot in the sand and her fin came off. She thought this was really cool and went to look for her husband to show him, not realizing that he had already finished looking at the wrecks and headed off to the reef. She left the fin there and went to find him, sticking her head into one of the wrecks as she looked around. Her snorkel caught as she pulled back out and her mask started to come off. This panicked her slightly and she tried to tug the mask out, breaking the snorkel mouthpiece free and releasing the strap pin. This escalated her panic and she was lost. That's the best I can do. I'm not sure if the evidence could prove it to be impossible, and either way, it would be a stretch to get a jury to accept it as reasonable.

Now, don't attack me for trying to assert this is what happened. I'm not. I'm just putting forth a possible scenario.

 

[bsee65]

The prosecution should look for the truth when they are preparing the case. I believe they presented their case in good faith as what they believed to be the truth. If you want to believe they were just a bunch of liars - then that is your choice. I disagree with you about the mask - the photograph clearly shows the strap is no longer threaded through the same side that the pin is missing, along with the missing mouthpiece on the snorkel - which would have taken substantial force with two hands to remove - Which you never seem to want to talk about, but I will continue to talk about it. The missing mouthpiece on the snorkel - along with the damage to the mask is powerful phsycial evidence against Swain. Very powerful.

I would want to put my hands on a set of this gear in working order to make that determination. I am unfamiliar with it, and I have a hard time accepting the word of an expert without some backing data.

And where is your authority to say the expert had no right to say it? The prosecution's expert said it had never happened before. If you think the expert had no right to say it, then let's hear your example of a DAN incident where it did happen before - then I will believe you. Otherwise, the expert had every right to say it never happened before if that was their research and knowledge.

You are arguing a different statement than I am. I have no problem with the expert saying that there is no record of a previous accident with damage like this, or more accurately that he found no such record in his research. If that's what he found when he searched, that's perfectly fine. I read somewhere in the statement that an expert said that it must have been done by Swain and it was murder. That's what I found unacceptable. Do you think that is a fair statement from an expert with regard to the mask damage? I could see that an expert looking at the totality of the evidence might come to the conclusion that murder is the only reasonable scenario, but, even then, I don't think it could be accurately described as the only possibility.

Maybe I will dig through things later and try to find that reference. I could be slightly mistaken in my recollection of what was said. I think it was the Florida expert.

 

[K_girl]

OK bsee65 - I see you've given this a great deal of thought, trying to come up with some other plausible explanation regarding the mask and snorkel mouthpiece. It would help to have more information as to the experts' testimony regarding their research where they came to the conclusion that it had never happened before. At this point, we can only assume that the expert(s) did a thorough research job before they made that statement. It would be up to the defense to prove them either wrong or untruthful.

You mentioned that you would personally have to put your hands on the equipment to know for sure. Would you feel that way if you were a juror? Let's say, for a moment that the experts' testimony included a lot information about their research than we are aware of. Let's say the expert had manufacturer testing data of the pins, mask strap, and snorkel mouthpiece attachment, along with the age and condition of Shelley's mask - and they could give you an idea of the amount of pounds of force it would take to break the pins out, either pulling the mask strap out or breaking it - and the amount of pounds of force it would take to break-off the snorkel mouthpiece. And that the experts had examined dive accident records to conclude that such damage had never occurred before in open water in a panic situation. By the way - I don't see where the mask or the snorkel is scratched-up enough to explain that she had caught it inside the wreck to do that much damage. Which makes me believe that the damage was caused by human hands.

If you had such expert testimony - how much personal hands-on examination of the equipment would you require if you were a juror? And, if you received an instruction by the judge that you are not to substitute your own expertise for the expertise as testified to in the courtroom - would you be able to follow that instruction? Let's say the defense never brought-up the theory of Shelley getting caught in the wreck - would you still bring that up in a jury room as another explanation - because of your experience as a diver? I'm not saying you don't have a right to speculate here, I'm just kind of curious what kind of a juror you would make in light of your statement that you would have to examine the equipment yourself in order to come to a conclusion. It also makes me realize why they don't allow jurors who have experience with the issue at-hand to serve on the jury.

I believe it was the Florida medical examiner who said it was homicidal drowning. The courtroom audio played by Dateline, the prosecutor said the diving experts said that it had never happened before - the type of damage to the mask and snorkel mouthpiece in a diving accident. The press reports simply summarize all the testimony into about 2 sentences. There is a lot more testimony than is ever reported. Witnesses can testify for a couple of days, but never more than a few sentences in the press. I'm working on trying to get the audio of the trial - but no luck so far.

 

[bsee65]

OK bsee65 - I see you've given this a great deal of thought, trying to come up with some other plausible explanation regarding the mask and snorkel mouthpiece. It would help to have more information as to the experts' testimony regarding their research where they came to the conclusion that it had never happened before. At this point, we can only assume that the expert(s) did a thorough research job before they made that statement. It would be up to the defense to prove them either wrong or untruthful.

You mentioned that you would personally have to put your hands on the equipment to know for sure. Would you feel that way if you were a juror? Let's say, for a moment that the experts' testimony included a lot information about their research than we are aware of. Let's say the expert had manufacturer testing data of the pins, mask strap, and snorkel mouthpiece attachment, along with the age and condition of Shelley's mask - and they could give you an idea of the amount of pounds of force it would take to break the pins out, either pulling the mask strap out or breaking it - and the amount of pounds of force it would take to break-off the snorkel mouthpiece. And that the experts had examined dive accident records to conclude that such damage had never occurred before in open water in a panic situation. By the way - I don't see where the mask or the snorkel is scratched-up enough to explain that she had caught it inside the wreck to do that much damage. Which makes me believe that the damage was caused by human hands.

If you had such expert testimony - how much personal hands-on examination of the equipment would you require if you were a juror? And, if you received an instruction by the judge that you are not to substitute your own expertise for the expertise as testified to in the courtroom - would you be able to follow that instruction? Let's say the defense never brought-up the theory of Shelley getting caught in the wreck - would you still bring that up in a jury room as another explanation - because of your experience as a diver? I'm not saying you don't have a right to speculate here, I'm just kind of curious what kind of a juror you would make in light of your statement that you would have to examine the equipment yourself in order to come to a conclusion. It also makes me realize why they don't allow jurors who have experience with the issue at-hand to serve on the jury.

I appreciate your very fair response. I think I can answer a couple of your questions.

With regard to hands on vs. expert testimony, that's based upon my background. I've worked in management in the computer industry as an innovator. I have a history of taking things and using them in ways that are outside the vision of the inventors and manufacturers. I found ways to combine technologies to solve problems for fractions of the cost of the "correct" solution. I accept the expert's definition of the features of a product, but I often see beyond their intended applications. Back to the specific question, I have already documented my analysis as to how a pin could be made to pop out. If the expert did a bunch of testing with regard to force and technique required to separate the wings, and a bunch of testing with regard to pulling the pin free with force in the direction that the strap normally pulls, but neglected to test force applied to the side, then I would still want to have that tested or try it myself. Even with all the testing, it would be hard for an expert to quantify the amount of force required to separate the pin from the mask in any direction without a demonstration. If these things weren't covered, then I would have some doubts and it would come up in jury room discussions. I'm not sure if it is possible for the jury to express such a concern to get it addressed through the judge.

If I were instructed by the judge not to substitute my expertise, that would be a hard sell. I'm not sure where the semantics and gray areas fall in such a question. It is the juror's responsibility to evaluate the evidence and determine the credibility of a witness. Is it "substituting my expertise" to analyze the expert testimony, find it incomplete or lacking, and opt not to believe the so-called expert? If not, then it would seem that the judge is telling me that I have to believe the witness and accept his every word as fact. That doesn't sound right to me. It's not like I am an expert in the design and function of dive masks. I am just looking at it as an analytical person trying to understand how it works and how it could end up as it was found. This has nothing to do with diving expertise.

In short, the expert would have to outline the testing methodology and the reasons behind any assertions.

Yes, I would raise the question of the wreck in the jury room if the evidence showed that it was a possibility that wasn't addressed. Is it required that the jury only analyze the possibilities presented by both sides, or is it permissible to consider the validity of the prosecution's assertions even if the defense fails to raise a question? If a person is found shot dead in a locked room, must one believe that the killer had a key to lock the door on the way out, or is it permissible to believe the shot could have come through the open window even if neither side argued that possibility?

Finally, I wouldn't necessarily expect any scratching of the snorkel if it got caught as I posited. It would be roughly the same as if you pushed the snorkel between a couple posts on your stair railing, turned it sideways, and then pulled on the mask. A couple points on the snorkel would be pressed into a piece of wood and nothing else would touch. Depending upon how much the mouthpiece stuck out and in what direction, pressure could have been put on it, possibly enough to snap it free, I don't know, and wouldn't without the results of somebody doing the testing.

 

[K_girl]

I noticed that www.davidswaindefense.com is no longer up and running. Afterdark said there will be a new website soon.

 

[AfterDark]

I noticed that www.davidswaindefense.com is no longer up and running. Afterdark said there will be a new website soon.

According to Swain's daughter the site went down for unknown reason(s) just before the trial in the BVI. Since everyone that would work on the site was in the BVI at the time of the crash it wasn't repaired. I don't know why it was decided to construct a new site but that is in the works. I made some suggestions such as the transcripts of both trials be posted or linked to the site. She told me she wanted to incorporate all the suggestions but it might take some time. The new site was where I read about the disturbing conditions Swain was questioned under.

I'll post the link to the new site here and in the new thread K-Girl started when I'm given the go head.

K_Girl I posted the QueenVSDaivdSwain document on the reference site. Have you tried to open it yet? Let me know if it works, if it doesn't I'll copy and paste it in another post, which is what I would have done in the first place had I remembered it needed to be opened.

 

[K_girl]

bsee65 - thank you for responding so honestly to my questions regarding how you would see yourself as a juror. It helped me to understand you a little better, and I mean that in a good way.

As I stated above, witnesses testify for days and only get a few sentences in the press, so our knowledge is really very limited. Like you, I would expect a certain amount of "proof" with regard to any assertion made by the prosecution. If their expert said it never happened like that before, I would want to hear more about the research done to support that assertion. If the research was not done and presented to the jury, like you, I would be suspicious and I would have no problem saying in a jury room that the prosecution did not prove that point. So I think you and I are not as far off as we may think. I am assuming that research was indeed done to support the expert's testimony. Looking at some of the examples of evidence presented in the courtroom from the Dateline NBC show, it looks like they went through a great deal to prove their points. For example, they had a scaled model of the dive site, they had animated representations as well (those are not cheap to produce). If I manage to get my hands on the audio recordings, I will transcribe them. If there is no research or data to back-up the prosecution assertions, I will be shocked.

In terms of putting forth an alternate theory (as a juror) that was not presented by the defense or the prosecution, in some cases, it is OK, in other cases, it is not. The criteria would be, whether or not you would have to test the evidence yourself that would cause you to assume facts not in evidence. Some theories are put forth in motions before the trial and they may be excluded for reasons unknown to the jury. If your alternative theory can be supported by the evidence presented at the trial, then it would be acceptable. Otherwise, you would be violating jury instructions.

In this case, there was no evidence (that we know of) presented at trial that would support a theory that Shelley's mask and snorkel mouthpiece was damaged by being caught in the wreck. If the mouthpiece or the slate was found inside the wreck, that would support it. These were both pieces that went missing. BVI law allows jurors to ask questions of the witnesses, which I find very interesting. The defense thought it was unfair, but I think it might actually provide an advantage to the defense as it gives the defense an opportunity to put something forth they may have not otherwise been able to put into the jury's mind. The jury could have asked Brown if he looked for any of the missing pieces inside the wreck. If the answer was - yes he did, and he did not find them, then that begins to degrade the theory that the wreck had anything to do with Shelley's situation. The jury could have also asked to look at the mask and snorkel to see any scratches on them anywhere to give any indication of a struggle against the wreck. If there wasn't any, again that would begin to negate any theory of the wreck being involved.

Then, the jury could look at the pictures of the wreck, and try to imagine anyone getting into very much trouble around them. The openings on the wrecks are huge, easy to manuever around, nothing to get entangled on. She wasn't found inside the wreck, so you can't say she got lost in one. They are too small for that anyway. This was an experienced diver with more than 350 dives - as Swain said - a woman comfortable in her element. It's hard to imagine her sticking her head inside one of those openings and getting into that kind of trouble without some kind of serious entanglement. Honestly, with as many dives as Shelley had, freaking out on a dive site like this is like freaking out in your bathtub, which is pretty close to what the Dateline report said that experts said about this dive site. That also degrades any theory of the wreck having anything to do with Shelley's situation.

Since experts described this as a bathtub dive, I doubt that there is any kind of entanglement anywhere on these wrecks, much less just by sticking a head through one of the openings. If there was entanglement, she probably would have remained entangled. A fourth reason that degrades the wrecks having anything to do with Shelley's situation. If she bumped her mask up against something by sticking her head in an opening in the wreck, that would not do very much to the mask to cause the freak-out, not for an experienced diver like Shelley. She would have to be barreling head-first into the wreck. You know, back-up about 30 feet and kick full speed-ahead into the opening. A fifth reason that makes the wrecks the cause of the mask damage most unlikely.

 

[idocsteve]

According to Swain's daughter the site went down for unknown reason(s) just before the trial in the BVI. Since everyone that would work on the site was in the BVI at the time of the crash it wasn't repaired.

That's weird!

I did a search on "BVI Internet Access" and I got a whole bunch of places!

Such as This one

AfterDark, an internet website is not a "real place". As long as you can get online you can "work on the site". Yup, it's really that easy.

 

[K_girl]

K_Girl I posted the QueenVSDaivdSwain document on the reference site. Have you tried to open it yet? Let me know if it works, if it doesn't I'll copy and paste it in another post, which is what I would have done in the first place had I remembered it needed to be opened.

I had already posted that document and it works. But that is OK.