Diver convicted in wife's drowning

[AfterDark]

A "default finding?" What is that? Are you trying to say - the judge should have granted a continuance of the trial because neither Swain nor his attorney showed-up? Swain, nor his attorney never 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.

Back-room deal with money was not needed - this is a matter of procedure. If you don't ask to continue to trial, why should the judge make it on your behalf? Swain's attorney told him what would happen - that he would lose the case. Swain made the decision to do what he did and told the press 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. I have no doubt that Swain did what he did based on his attorney's advice. Swain even said so. So why are you making-up all the back-room deal stuff?

You never answered ItsBruce's question regarding some kind of procedural error.

No, I do not mean continuance. My understanding is that in a civil proceeding if one of the parties don't show up the other party wins by default. There is no need to proceed with a trial. Judgment is rendered by "default". I think I've got that right.

If I'm correct then the "closed door deal" would have been to proceed with a trial rather than declare Tyre the winner and Swain the loser. Procedural error? I don't see that in ItsBruce posts. The error I suppose would have been to proceed with an unnecessary trial since Swain's no show is a defacto admission of responsibility.
The equivalent of a no contest plea in a criminal proceeding. No trial just a judgment of guilty. Had a default judgment happened the expert witness's speculation would not have been presented as evidence. I think that was Swain lawyers tactic in advising Swain not to appear. I don't understand how you got continuance from my last post but right or wrong I trust you now understand what I mean.

 

[bsee65]

If I were looking for corruption in this case, I would start with the relationships between the participants. I got the impression that the Tyre's attorney was well known and respected within the system. If this were the case, there might have been some ability for him to exert influence over Swain's attorney, or gain some favorable judicial treatment. Looking at what happened with the case, it didn't really seem like anyone was set against him, and it seems to me that the one who screwed him the most was his own attorney.

Certainly the Tyre's would have been willing to spend money to get justice, but I don't know what their state of mind was. If they were looking for actual justice, they would not have wanted to see the system abused. If they were just looking to see Swain punished with their minds already made up, they might have tried to work the system to generate that result by any means necessary. Other than the reports of their petitioning BVI to reopen criminal investigations, I am not sure what direct part they took in anything.

In spite of the above two thoughts, I'm not sure where I see any evidence of corruption. People screw up all the time. If the standard in RI is to issue a judgement of default if a party fails to show for a civil trial, then maybe the judge just screwed up. It is also possible that the default ruling is typical in such a case, but not automatic, and that the plaintiff has the option to present the case. This could matter where the jury has to decide the amount of judgment and needs some context from which to make their determination.

One could argue that Swain and his attorney knew he was going to lose from the beginning, and the delay was intentional to allow him time to spend or hide all the money. From that perspective, the attorney served him pretty well. One could argue that the criminal trial would never have happened if the civil case wasn't presented. One could argue that, once the leg work was done to generate the opinions and evidence as a pacjkage, that the Tyre's and their lawyers could have petitioned BVI to reopen the case even without the civil verdict. All possible, and all disputable. None of it matters.

There was clearly enough evidence available for BVI to carefully investigate. Did they present the mask and other evidence to some local expert who didn't see any issues, or did they just not see anything unusual enough to even do that? In any case, they dropped the ball ten years ago when they shouldn't have done it. If it was a matter of luck or influence that caused them to open their eyes, it was for the public good that the case was fully investigated. Don't take that to mean that I have been swayed to believe they proved the criminal case beyond reasonable doubt in a fair court of law. I'm still not convinced that is true.

 

[K_girl]

I think the civil judge knew that if she granted a default judgment, most especially in a wrongful death case, that there would be grounds to appeal and vacate the judgment. Serious injury and wrongful death are treated differently than other law suits. For example:

"..On Jan. 7, a three-judge panel that included retired U.S. Supreme Court Justice David Souter heard oral argument in Ungar v. The Palestine Liberation Organization, on appeal from the District of Rhode Island. Yaron Ungar and his pregnant Israeli wife were killed in Israel by a Hamas attack in 1996..

In this round, the 1st Circuit will consider whether the district court abused its discretion by denying the defendants' motion to vacate the default judgment on the sole ground that the defendants willfully defaulted on the case..

Souter said Strachman was asking the panel to conclude that there was no way the district court could have weighed all the factors and vacated the judgment..

In the unlikely event that if the PLO or PA were to lose, I think it's highly unlikely the damage would be $116 million for the death of one individual," Ferguson said."

Source: 1st Circuit Weighs Whether to Vacate Default Judgment Against Palestinian Authority, PLO

It would appear that the defendants in this case (the PLO) are going to win the appeal. So you see why a judge in Rhode Island would be hesitant to grant a default judgment in a wrongful death case.

 

[bsee65]

I don't know that case involving an astronomical damage award and a foreign government is directly on point, but I see what you're getting at.

Another thing I found while poking through the RI laws the other day was that Swain's children don't appear to have any part in a wrongful death suit. I don't think they would have had standing to bring suit against their father, and wrongful death awards go to the suit-bringer, not the estate of the victim.

 

[tc]

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[bsee65]

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A ScubaBoard Staff Message...

Some off topic posts, personal attacks and posts quoting tose have been deleted.
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I see the "Thanks" button, but is there a button for "where the hell have you been for the past few weeks?"

 

[tc]

I see the "Thanks" button, but is there a button for "where the hell have you been for the past few weeks?"

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A ScubaBoard Staff Message...

Yes, there is- it's the one on the left side named "Report".

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[ItsBruce]

As far as entering a defendant's default when he or she does not show up for trial, I do not know the specifics of RI law, but the general rule is that a default is not proper. If a defendant has filed an answer to the complaint and the answer has not been stricken, there is no lawful basis for a default. An answer may be stricken for a variety of abuses, but that generally requires the plaintiff to move to strike it and requires that there be law supporting doing so. Nothing requires a defendant to be present during the plaintiff's case-in-chief. Nothing requires a defendant to cross-examine witnesses called by the plaintiff. While it is not common, a defendant may wait for the plaintiff to conclude its case, i.e. to rest, and then to put on his or her case. To deprive the defendant of that opportunity by entering a default would be an error.

Even when there is a default, procedural rules require the plaintiff to present a prima facia case. That means the plaintiff must present evidence that would support every element of its case. Because it is a default, the defendant cannot challenge the evidence, but the court has the power to say that the plaintiff's evidence is still not enough.

I've sat through hearings in which a criminal defendant either pleads nolo contendre or guilty and in which the Court has then spent upwards of an hour ensuring that there was a factual basis for the plea.

It is not as simple as one sees on television.

BTW: Had I been the trial judge, I would not have granted a continuance and would have required the plaintiff to put on its case, i.e. I would not have defaulted a defendant who failed to show up so long as it had answered the complaint.

 

[K_girl]

ItsBruce - thanks for the info. Maybe the "default" that AfterDark was thinking about is do-able in small claims or administrative hearings. There could be a determination that the plaintiff had not established a prima facie case without the defense doing a thing, but you can't have that determination unless the plaintiff puts on their case. No matter what, the plaintiff's evidence would have been heard in a court of law. There was nothing the defense could do to stop it.

I don't think that Swain ever thought there would be a default as he stood outside the courtroom talking to the press and the civil trial proceeded as the judge told him it would. If he wanted a continuance to get another lawyer, he should have walked into the courtroom and asked for it - he didn't. You don't have to be a fancy shmancy lawyer to do that much. He got himself in much deeper by trying to put on his own defense and obviously, someone coached him as the judge commented posivitely on his ability to function in the courtroom. He was following a strategy that someone gave him from start-to-finish.

 

[ItsBruce]

Has anyone heard anything new on the appeal?