Diver convicted in wife's drowning

[bsee65]

K_girl, I suspect that, given the same set of evidence, we would agree on a verdict far more often than not. In this case, I think that we both see the same partial set of evidence. It's pretty solid, but we haven't seen all the research and detail that fully supports the conclusions. You take into account the verdicts returned by both juries and lean toward the probablility that they were intelligent and fair in their deliberations, suggesting that there was enough in the additional testimony, evidence and analysis to support the verdicts. I look at it and, not seeing the support, say that I am not sure enough to say that we are beyond a reasonable doubt.

Yes, I'd say that we're pretty close, but you may be a bit more trusting of the system and the juries that heard the cases than I am. The other thing we have in common is the willingness to make an effort to understand what's going on, do a little research, and think critically before just spouting off.

Honestly, I suspect the only escape for Swain is a technicality, if his legal team can make one stick.

 

[K_girl]

bsee65 - mask straps are designed to hold against the head, but when people grab the straps to tighten the mask, the force is applied to the side by naturally pulling outward rather than towards the back of the head. Manufacturers would design their masks with this in mind. Diving masks would need to be manufactured to a pretty high standard considering that it is a life-support device. To have the pins break-out underwater while pulling on the straps would be a potentially life-threatening situation. I've had my straps go loose on me and I've had to pull them tighter while I'm diving. Perhaps one of the things the expert may have brought-up in the research was that the pins on a mask have never been pulled out during a dive accident, keeping in mind the prosecution said experts said nothing like this ever happened before. It would be interesting to find out. Like you, that would be one of the points that I would expect the prosecution to prove. I think the demonstration like you mentioned could be quite powerful for the prosecution and if I were the defense I would do everything I could to stop it.

I would agree with your statement above.

 

[AfterDark]

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.

Thanks for taking the time and putting in the effort to search for internet access in the BVI that was very considerate of you. Since they were emailing the events of the trial daily they knew of BVI's internet access. I suspect they were more concerned with what was going during the trial spending their days in court and visiting Swain when they could, a matter of priorities is my guess.

 

[K_girl]

E-mail I received this morning from reporter at BVI Beacon regarding the audio recordings of the trial:

Although the press were allowed to record audio during the trial, only CBS 48 Hours and Dateline NBC did so, and only during the defense, closing arguments, and judgment. I would recommend contacting NBC's producer:

April Santiago
212-664-2464
(e-mail removed for privacy, PM me if you want it)

You can also purchase a full transcript of the trial from the BVI Court Reporting unit. To reach them, call the government's general extension at 284-494-3434.

Hope that is helpful.
Kind regards,

Mason Marcus
Business Editor/Reporter
BVI Beacon
Tortola, BVI
(o): 494-3434
(f): 494-6267
(c): 540-5102

 

[AfterDark]

I've been informed that 48 hours will be doing a follow up on the Swain case. The filming will start in the spring apparently here in RI, there isn't an airing date that I know of yet.

 

[ItsBruce]

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.

I've been away again and am catching up. I was going to read the new posts before responding to any of them, but this calls for immediate comment.

What could have gone on behind closed doors in the Swain civil case? Do you think there was some secret deal that caused Swain's attorney to abandon him at the last minute? Or was the secret deal one that caused the judge to start the trial when she announced she would? Or were the rules of evidence bent? Or the rules of appellate procedure?

Take a step back from the matter and from the fact you are David's friend and think about where the "fix" might have been.

 

[ItsBruce]

I'm not seeing anything that is really new here. And, even if there were something new, that would not be likely to win David a new trial. The question is whether there is an appealable issue that could result in a new trial. We have discussed that, so I will not do so again.

My thoughts on the civil trial:

Whether the plaintiffs won or not, their evidence apparently was enough to get the BVI authorities to take a fresh look at their case. The fact that David had no attorney does not seem to change the fact that the civil case caught the interest of the BVI.

It is unlikely the criminal jury was told about the outcome of the civil case. Given the differing standards of proof, it was probably irrelevant.

The problem for David was that what he said in the course of the civil case was available to be used against him in the criminal case.

 

[AfterDark]

What could have gone on behind closed doors in the Swain civil case? Do you think there was some secret deal that caused Swain's attorney to abandon him at the last minute? Or was the secret deal one that caused the judge to start the trial when she announced she would? Or were the rules of evidence bent? Or the rules of appellate procedure? .

Yes I do think there was some kind of secret deal in Swain's case involving $$$ made behind closed doors to proceed with the presentation of the plaintiff's case instead of granting a default finding when Swain was a no show. It may sound unlikely to you but if you would do a "man -in- the-street" here in RI and ask that question generically (not mentioning names) I think you'd be shocked how many affirmative answers you would get. RI is a small politically incestuous state. The balance of power has been out of balance here for decades. I wouldn't need to step away from the Swain case as much as would need to step away from 28 years of living in RI to believe no deal was made. If Shelly's family weren't rich and longtime RI residents I believe this would have had a very different outcome.

 

[AfterDark]

I'm not seeing anything that is really new here. And, even if there were something new, that would not be likely to win David a new trial. The question is whether there is an appealable issue that could result in a new trial. We have discussed that, so I will not do so again.

My thoughts on the civil trial:

Whether the plaintiffs won or not, their evidence apparently was enough to get the BVI authorities to take a fresh look at their case. The fact that David had no attorney does not seem to change the fact that the civil case caught the interest of the BVI.

It is unlikely the criminal jury was told about the outcome of the civil case. Given the differing standards of proof, it was probably irrelevant.

The problem for David was that what he said in the course of the civil case was available to be used against him in the criminal case.

ItsBruce, it is probably true the jury was not told of the civil case outcome. However, communication technology being what it is today you don't think the jury knew the outcome long before the BVI trial? That's like believing none of the jurors in the OJ case had heard of the case until after they were called for jury duty. Unlikely.

 

[K_girl]

Yes I do think there was some kind of secret deal in Swain's case involving $$$ made behind closed doors to proceed with the presentation of the plaintiff's case instead of granting a default finding when Swain was a no show. It may sound unlikely to you but if you would do a "man -in- the-street" here in RI and ask that question generically (not mentioning names) I think you'd be shocked how many affirmative answers you would get. RI is a small politically incestuous state. The balance of power has been out of balance here for decades. I wouldn't need to step away from the Swain case as much as would need to step away from 28 years of living in RI to believe no deal was made. If Shelly's family weren't rich and longtime RI residents I believe this would have had a very different outcome.

A "default finding?" What is that? The word "finding" implies a judgment of some kind. You can't mean that the judge should have "found" in favor of Swain for the whole case because he didn't show-up. "Finding" on a motion? A motion for what? Continuance of the trial? No one made the motion. The prosecution is not going to make that motion. The defense is not there to make the motion. And judge's do not make motions.

What exactly are you trying to say? That the judge should have made their own motion to continue the trial and granted it because neither Swain nor his attorney showed-up? Neither Swain, nor his attorney ever made a motion for continuance that was set to start in Feb. 2006. Swain never showed up and asked the court - hey, I have no attorney, I need trial to start a later date so I have time to find one. That's all you have to do to make a motion. And the fact that no such motion was ever made was discussed in the civil trial appeal. I can quote it if you so desire.

Back-room deal with money was not needed - this was a matter of procedure. If you don't ask to continue to trial, why should the judge do it for you on your behalf? So, you think judges should be allowed to say - oh, so-and-so didn't show-up, let's just make it for another day. If you believe that is the case, then you don't understand the tightness and value of a courtroom calendar, the value of the judge's time and all the other parties involved to allow that kind of behavior to go on.

Swain's attorney told him what would happen if he didn't show-up - that he would lose the case. Swain made the decision to not show-up and told the press outside the courtroom while the trial was going on - the reason he did was because it was only about money. Do I feel sorry for Swain? No. The same attorney advised him on how to make sure the Tyre's couldn't get any money by filing bankruptcy, which delayed the civil trial even more. So it's not like he didn't have an attorney capable of strategizing on this case which was a strategy of delay. I have no doubt that Swain did what he did based on his attorney's advice. Money's gone, no need to delay any further. It's been 7 years since the incident, BVI authorities would have come after you by now, so you probably don't have any worry there. Only problem was the BVI assumption was wrong. Swain even said he didn't show-up based on his attorney's advise. So why are you making-up all the back-room deal stuff? The plaintiff would not have to pay the judge a penny as this was all proper, open-court procedure.

You never answered ItsBruce's question regarding some kind of procedural error. That is because there is none to be had. You can believe what you want, but it doesn't make it true. There is simply nothing here that is "actionable."