Swain Case Reference Materials - No Comments

[K_girl]

The Providence Journal (Rhode Island)
February 22, 2006 Wednesday
SECTION: NEWS; Pg. A-01
LENGTH: 866 words

HEADLINE: Swain could take witness stand today

BYLINE: TOM MOONEY, Journal Staff Writer

The Jamestown man who faces a wrongful-death lawsuit over the drowning of his wife has mounted no defense.

PROVIDENCE - David Swain is scheduled to take the witness stand this morning in front of a jury which, for seven days, has heard mounting testimony alleging that he killed his wife, Shelley Tyre, seven years ago during a scuba-diving vacation.

Swain, 50, of Jamestown, appeared in the courtroom -- but outside the view of the jury -- for the first time yesterday since his wrongful-death civil trial began. Dressed in a blue blazer and a tie-less dress shirt, he sat alone at the defense table, hands clasped, as Superior Court Judge Patricia A. Hurst ruled against his motions to dismiss the case and to quash his subpoena to testify.

Swain had argued in court papers that the suit -- brought by Shelley Tyre's parents, Richard and Lisa Tyre of Jamestown -- should be dismissed because his wife's death in 1999 had happened outside Rhode Island jurisdiction, in Tortola in the British Virgin Islands.

But Hurst said the court "absolutely" has jurisdiction in such civil cases where monetary damages are possible, regardless of where "the alleged criminal conduct" occurred.

Swain has never been charged criminally with the death of his wife. Tortola police ruled her death an accident "unless proven otherwise." Swain has countersued Richard Tyre for defamation.

Swain had chosen to offer no defense in the case -- at least not one before the eight-member jury. And it was his absence during the last seven days to which Hurst alluded in denying his motion to quash his subpoena.

Swain argued that since the Tyre's lawyer, J. Renn Olenn, has presented the jury with some three hours of videotape of him answering questions at depositions, his presence on the witness stand wasn't necessary.

Hurst said she had weighed Swain's motion carefully, but finally concluded that Swain had waived his objection by not raising issue with the videotapes when they were shown and that there was still relevent information Olenn could inquire about with Swain on the stand.

Hurst warned Olenn, however, that although she was allowing him to call Swain to the stand, she wouldn't allow him to turn the occasion into a "dog-and-pony show" where Swain is forced to respond to a litany of accusatory questions by repeatedly invoking the Fifth Amendment privilege against self-incrimination.

Swain is expected to be the last witness Olenn calls in the case. Hurst told the jury she will likely give them her deliberation instructions this afternoon.

Swain's late-afternoon court appearance ended a day in which the jury heard Olenn in a videotaped deposition try to show discrepancies in statements Swain had given about the diving incident.

In the 2003 deposition played to the jury Monday, Swain said he and Shelley Tyre dove together to a pair of wrecked tugboats and that the two then separated -- as they often did -- with Swain eventually swimming off into shallower water to investigate a nearby reef.

At some point while swimming toward the reef, Swain said he looked back and saw his wife by one of the wrecks. He said it was the last time he saw her alive.

In the deposition the jury watched yesterday, Olenn is heard asking Swain several times to explain the statements he gave to the Tortola police three hours after a diving friend of Swain's had pulled Tyre's body up from 80 feet of water.

In that written statement, Olenn said, Swain indicated it was Tyre who swam off and left him by the wrecks and that Swain, when he could not find her, went looking for her.

Reading from the statement -- which Swain initialed by page and signed at the bottom as accurate -- Olenn said: " 'After I looked around for a few minutes I decided to go to shallow water to try to locate her.' "

Which was the right version of events? Olenn asked Swain. The one he gave that day or the one he was giving now, four years later.

Replied Swain: "I don't know why I told the police I was going off to locate her."

Olenn had to understand his mental condition at the time, said Swain: "I was stressed. I was at my wits' end. I don't know what I did."

Olenn then read another part of Swain's police statement, in which Swain told the investigating officer that normally he and Tyre signaled to each other if they were going off alone or surfacing.

"Why didn't you do it this time?" Olenn asked.

"I have no answer for that," said Swain.

Another witness yesterday was Allan M. Feldman, a Brown University professor of economics, who testified that the net economic loss of Shelley Tyre's death, when factoring in her future earnings, amounted to $854,364. The jury might consider that figure if the trial reaches a point where it is deliberating damage awards. Swain, however, filed for bankruptcy last fall.

 

[K_girl]

Some of this article is repeat of other posts, only new information is included below.

The Providence Journal (Rhode Island)

February 21, 2006 Tuesday
SECTION: NEWS; Pg. A-01
LENGTH: 1331 words

HEADLINE: On tape, Swain says CPR wouldn't have saved wife

BYLINE: TOM MOONEY, Journal Staff Writer

In a videotaped deposition, jurors hear from the man facing a wrongful-death lawsuit in the drowning of his wife, who was diving in the Caribbean..

Swain said he did clear Tyre's airway and watched to see if her pupils responded to light -- a common test EMTs use to determine if someone's breathing. All indications were, Swain said, that CPR would be futile.

"I did what I could," Swain said, "and came to a conclusion she was gone from us."

Also testifying yesterday were several friends and coworkers of Tyre who said Shelley Tyre confided in them about her troubled marriage, her suspicion that Swain was seeing another woman, and her belief that his Jamestown dive shop, Ocean State Scuba, was a financial sinkhole that she alone was keeping afloat.

And Tyre's parents, Richard and Lisa Trye of Jamestown, reconstructed from the stand the "volatile" and frustrating day they attempted to get answers from Swain about what happened to their daughter..


Under repeated questioning from Olenn about his underwater movements during his wife's fatal dive, Swain, now 50, said he could not recall many specifics.

He responded to numerous questions with: "I haven't a clue.."

Swain said "there wasn't much to do" when Thwaites brought his wife up because it was clear to him she hadn't been breathing for a while.

Olenn asked how Swain how he knew that.

Because her pupils didn't respond to light, Swain said, indicating it had "been a while" since she had breathed.

How long was "a while?" Olenn asked.

Swain said he didn't know for sure: "I'm telling you it had been a while. It could be 10 minutes, it could be a half hour, I don't know."

Swain, who was an EMT for several years, said it was clear "there was nothing left to work with."

Last week, another witness testified by video deposition that when he responded to the sailboat's mayday call, he was told by someone aboard the Caribbean Soul not to bother with CPR. The man who told him said he had been an EMT and had seen dead bodies before and knew CPR would be futile.

Olenn is also heard in the videotaped deposition asking Swain where was the dive computer he wore that day, which would have registered how long he was under the water and what depths he reached.

"I haven't a clue," said Swain.

He said he also could not remember where the photographs were that he took during the dive.

Had he drawn any conclusions, asked Olenn, about how his wife died?

"Nope," said Swain.

In a seemingly unrelated series of questions, Olenn also asked Swain about his brother, Richard.

He's in prison in Minnesota, Swain said, "for killing my mom."

Swain said he was 21 when his brother "assaulted" her.

LISA TYRE recalled the day soon after Swain returned to Jamestown with the body of her daughter. The Tyres had invited him to breakfast in hopes of getting a better explanation of what happened.

Their only version of events had come from Christian Thwaites, who had returned earlier to Rhode Island to get his son back in school.

Thwaites told the Tyres that Swain and Shelley Tyre split up underwater and that Swain had surfaced after feeling a chill. The Tyres did not know much about diving but they did understand the basic principle of the buddy system. They wanted to know why Swain had left their daughter alone.

From the stand, Lisa Tyre said when she answered the door that morning she expected to see just Swain. But instead, he arrived with four or five other people.

"I asked him, 'Why all these people,' " said Lisa Tyre. She said Swain replied: "This is my family. You've got your family."

Sitting all in a circle, the Tyres listened to Swain's explanation but grew frustrated. "None of it made sense," she said. Why did he leave her alone, they wanted to know?

That's when Swain tossed Shelley Tyre's dive log at her father's feet.

" 'Look at the dive log, yourself,' " he told them. " 'You'll find she often went on dives alone.' "

From the conclusion of that meeting until now, said Lisa Tyre, "I tried to avoid him. I didn't want to have anything to do with him."

 

[K_girl]

Again, repeated portions removed..

The Providence Journal (Rhode Island)
February 17, 2006 Friday

HEADLINE: Swain: Death a 'tragic accident'

BYLINE: TOM MOONEY, Journal Staff Writer

PROVIDENCE - David Swain, accused of killing his wife almost seven years ago during a scuba-diving vacation, appeared briefly in the Superior Courthouse yesterday to meet privately with the judge presiding over his civil trial. Then, as an accountant in the adjacent courtroom prepared to tell a jury how Swain collected more than $570,000 after Shelley Tyre's death, Swain turned his back on the proceedings and walked outside.

There on the sidewalk, the former Jamestown Town Council member explained why he had chosen not to defend himself against the allegation.

"This is a tragic accident that is a personal matter between me and the Tyres" -- his former in-laws. "I didn't do it. To this day it's painful. . . . I feel for the Tyres. I'm sorry. They have the pain to deal with. I have pain to deal with, too. But the thought that we are going to work out this pain by going through this is absurd."

"This issue of money -- and that's what this [trial] is -- is not something I want to be a part of," said Swain.

But the wrongful-death suit that Richard Tyre, and his wife, Lisa, have brought against their former son-in-law isn't about money at all, says their lawyer, J. Renn Olenn. It's about justice..

THE JURY yesterday also heard the videotaped deposition of Sue Summer, a dive master on Tortola who testified she saw David Swain walking past her boat at a marina a day after Tyre died.

"He had two drinks in hand and he appeared to be quite jovial," said Summer, like "someone would appear who is about to go on vacation."

In fact, said Summer, "he was laughing."

It was "strange behavior," she said, "for someone who had just had a fatality on their boat."

In a chamber conference yesterday morning with Superior Court Judge Patricia A. Hurst, Swain filed a motion for dismissal of the case. Hurst said she would consider the motion later.

In the meantime, the trial resumes this morning, again without Swain or a lawyer representing him.

Outside the courthouse yesterday, Swain said it was too late to worry about what people may think. He did have two lawyers working on his case, he said, but one was a friend who had no trial experience and the other developed cancer.

"People are going to form their own opinions," he said. The results of this case, "I don't think are going to sway a lot of people one way or another."

David Swain, outside Superior Court yesterday, is not taking part in the wrongful-death civil trial being held inside.

 

[K_girl]

Again repeated portions omitted:

The Providence Journal (Rhode Island)
February 17, 2006 Friday
SECTION: NEWS; Pg. A-01
LENGTH: 1210 words

HEADLINE: Swain: Death a 'tragic accident'

BYLINE: TOM MOONEY, Journal Staff Writer

PROVIDENCE - David Swain, accused of killing his wife almost seven years ago during a scuba-diving vacation, appeared briefly in the Superior Courthouse yesterday to meet privately with the judge presiding over his civil trial. Then, as an accountant in the adjacent courtroom prepared to tell a jury how Swain collected more than $570,000 after Shelley Tyre's death, Swain turned his back on the proceedings and walked outside.

There on the sidewalk, the former Jamestown Town Council member explained why he had chosen not to defend himself against the allegation.

"This is a tragic accident that is a personal matter between me and the Tyres" -- his former in-laws. "I didn't do it. To this day it's painful. . . . I feel for the Tyres. I'm sorry. They have the pain to deal with. I have pain to deal with, too. But the thought that we are going to work out this pain by going through this is absurd."

"This issue of money -- and that's what this [trial] is -- is not something I want to be a part of," said Swain.

But the wrongful-death suit that Richard Tyre, and his wife, Lisa, have brought against their former son-in-law isn't about money at all, says their lawyer, J. Renn Olenn. It's about justice..

Olenn yesterday called to the stand Anthony D. Lee, a forensic accountant from Wayland, Mass., who said he had examined financial statements of Shelley Tyre, Swain and his Jamestown dive business, Ocean State Scuba.

At the time of their 1993 marriage (the second for both), Lee said Tyre's assets totaled about $238,800 while Swain's may have reached $70,000 but were probably far less. Lee noted that during a deposition a few years ago, Swain said "he had nothing but a pickup and the clothes on his back" at the time he married Tyre.

Lee said the couple depended entirely on Tyre's $70,000 salary as a principal at Thayer Academy in Braintree, Mass. Swain's dive shop was "basically a break-even operation," said Lee, and Tyre "was continually pumping money into Ocean State Scuba to keep it going."

By the end of 1998, Lee said Swain and Tyre were "living on the edge financially." Still she decided to take a job at Rocky Hill School, in Warwick, that paid much less -- $44,000 a year. Olenn said in his opening statement to the jury that Tyre took the job because she believed her marriage was in trouble and thought that working closer to home might help salvage it.

The new job "absolutely created a financial crisis" for the couple, said Lee.

In his opening remarks to the jury on Tuesday, Olenn alleged that Swain had pursued an extramarital affair. A prenuptial agreement prevented Swain from receiving anything from Tyre if they divorced. After her death, Lee said, Swain collected $390,000 from two life-insurance policies. He also sold a Jamestown house Tyre owned for a $46,000 profit and became the recipient of $134,000 held in Tyre's bank and investment accounts. By the end of 2001, said Lee, Swain had amassed $570,000 in cash "on account of her death."

But by February 2003, Lee testified, "it was all gone."

"There was not $500 left in the investment accounts or bank accounts" and Swain's credit-card debt was skyrocketing.

"He was taking extensive trips to the Caribbean and other cities in the United States -- just rolling up the debt," said Lee.

Swain charged expenses to some two dozen credit cards, Lee said, and currently faces debts of about $189,000..


THE JURY yesterday also heard the videotaped deposition of Sue Summer, a dive master on Tortola who testified she saw David Swain walking past her boat at a marina a day after Tyre died.

"He had two drinks in hand and he appeared to be quite jovial," said Summer, like "someone would appear who is about to go on vacation."

In fact, said Summer, "he was laughing."

It was "strange behavior," she said, "for someone who had just had a fatality on their boat."

In a chamber conference yesterday morning with Superior Court Judge Patricia A. Hurst, Swain filed a motion for dismissal of the case. Hurst said she would consider the motion later.

In the meantime, the trial resumes this morning, again without Swain or a lawyer representing him.

Outside the courthouse yesterday, Swain said it was too late to worry about what people may think. He did have two lawyers working on his case, he said, but one was a friend who had no trial experience and the other developed cancer.

"People are going to form their own opinions," he said. The results of this case, "I don't think are going to sway a lot of people one way or another."

David Swain, outside Superior Court yesterday, is not taking part in the wrongful-death civil trial being held inside.

 

[K_girl]

The Providence Journal (Rhode Island)
November 26, 2005 Saturday
SECTION: NEWS; Pg. A-03
LENGTH: 822 words

HEADLINE: Ethics case leaves hard feelings in Jamestown

BYLINE: BRUCE LANDIS, Journal Staff Writer

Some residents want to know why it took so long to find that former council member David Swain broke the law, but the Ethics Commission isn't saying.

Jamestown residents are wondering why it took the state Ethics Commission almost five years to decide that a former Town Council member repeatedly broke the law by voting on matters affecting his business partner.

They're not likely to find out, since the officials who know won't say. Whatever the reason, the residents who filed the complaint against David Swain think that ethics law enforcement is pretty well discredited in Jamestown.

After so long, the decision "loses any impact that it should have," said Dorsey M. Beard, one of the complainants. The commission, she said, agreed with her and the other complainants that Swain had committed multiple ethics violations, but failed to follow through on the case.

As the case against Swain dragged on, he was able to run for reelection, serve a two-year term and retire from the council without the commission deciding the case.

Ethics Commission officials say the case was unusual, even unique, in the amount of time it took to resolve. They insist that there is, as one of them put it, nothing "sinister" about the delay.

But, "I can't discuss it," said Kent A. Willever, the commission's executive director, who joined the commission in August 2001.

Ten Jamestown residents, including a few town officials, filed the complaint against Swain on Nov. 1, 2000. They said that Swain, who operated a scuba diving and kayak-rental business, was using his government position to vote in favor of the interests of his business partner William Munger, the owner of Conanicut Marine Services, which does business on the Jamestown waterfront.

The commission's staff completed its investigation in August 2001, presenting its case to the commission that same month. The commission voted Aug. 21, 2001, to find probable cause to believe that Swain broke the state ethics laws four times.

The next step was for the commission to hold a trial-like hearing on the charges and then decide the case. The alternative was for Swain to negotiate a settlement, which is how most ethics prosecutions end. And that is how the Swain case was disposed of.

However, it didn't happen until Oct. 11, 2005, when Swain admitted that the commission had enough evidence to show that he had broken the law. Swain agreed to pay a $750 fine.

Ethics officials say that the Swain case stands alone.

"It's unique," said commission prosecutor Jason Gramitt. "It's not characteristic of any other complaints I'm aware of. You can't judge the Ethics Commission based on one complaint." Of the backlog of cases he inherited in 2001, Willever said, the Swain case was the only one to drag on for so long.

The Jamestown residents who filed the complaint, however, say that the Swain case is what forms their town's perception of the Ethics Commission.

"It's worse than ineffectual," said Darcy Magratten, one of the complainants.

At the time the complaint was filed, the commission was at a low point. Long-running internal disputes ended with the commission firing its executive director, Martin F. Healey, in April 2001. Government-reform groups accused the commission of failing at its job of maintaining ethical standards among state and local officials. Getting little help from the governor or the General Assembly, the commission's staff had shrunk to four. It is 12 now. Katherine D'Arezzo, the chief prosecutor, became temporary executive director and was for a time the commission's only lawyer. There are five lawyers on the staff now.

To replace Healey, the commission hired Willever, a former chief Navy appellate judge, who became executive director a week after the commission agreed to prosecute Swain. That left Willever in charge and D'Arezzo handling the Swain case until she went on maternity leave from the commission early this year.

Jamestown residents became upset over Willever's assurances that the case was about to move forward. After repeated complaints about lack of action, Willever wrote to two complainants in November 2002 to reassure them. He wrote, "This complaint is the next matter to be scheduled for adjudication, absent the parties reaching an agreement in the interim." Neither happened.

The Jamestown complainants say the Ethics Commission not only took an absurd amount of time to dispose of the case, it settled for a fine so small that it won't deter other misconduct.

What was needed, Magratten said, was a strong message to public officials in Jamestown and elsewhere that they must play by the rules, "that you can't do these things."

Instead, she said, the fine levied against Swain was like a parking ticket, a modest penalty that a violator can absorb as a cost of doing business.

Gramitt, however, said that the settlement marks Swain as an admitted lawbreaker. "If you settle a case, you're admitting to a violation of the code," he said.

 

[K_girl]

More about Mary Basler (Swain's love interest):

Source: Video | turnto10.com

Transcript:

Reporter 1: Dr. Mary Grace Basler, a board chiropractor testified via video link from Providence regarding her relationship with Swain and before Swain left for Tortola, he met with Basler at his house.

Reporter 2 (attended trial) : She went on to tell the court that he kissed her that night, but that she stopped him from any further advances until he had left his wife.

 

[K_girl]

EXCLUSIVE INTERVIEW WITH SWAIN SCUBA MURDER TRIAL WITNESS KEITH ROYLE GIVES HIS ACCOUNT OF '99 EVENTS

Keith Royle, owner/manager of Blue Water Divers, knows the waters surrounding Tortola, and what lies below them, like the back of his hand. This year, he and his brother celebrated 30 years of maintaining their dive operations in the British Virgin Islands. Ten years ago, he would never have predicted that this year he also would be called as a witness in a murder trial.

Royle’s involvement as first responder to an emergency call on March 12, 1999, led to his being called to testify about the events of that tragic incident on the second day of the trial. The defendant was David Swain, a former dive shop owner in Rhode Island, accused of the drowning death of his wife, Shelly Tyre, while scuba diving on the wreck of the Mary L, part of an area known as Wreck Alley.

The day of the drowning

Recounting that day’s events, Royle recalls, “The weather was sunny, with winds about 10 to 15 mph. The seas were slightly choppy; visibility was about 80 feet on the Rhone and would have been about the same on the Mary L.”

He had picked up divers from a sailboat at Cooper Island earlier that day and had completed a 2-tank dive at nearby Salt Island on the wreck of the RMS Rhone before returning them to their boat. “I was about 15 minutes out of Cooper Island, headed back to our base at Nanny Cay, when I heard the VISAR (Virgin Islands Search & Air Rescue) call, stating there was an emergency diving accident, asking any nearby boats to respond to it.”

“I headed straight toward the Caribbean Soul, which was moored right off the Mary L, and pulled up alongside. That is when I met Mr. Swain and saw Shelley. She was lying motionless in the cockpit with a wetsuit on that was still damp; her hair was still wet, and she was blue in color.
There were two gentlemen in the cockpit; one was David Swain, the other was a guy named Christian, Swain’s friend, who was chartering the boat with the Swains, along with his wife and son.”

“I asked permission to come aboard, they gave it, and then I offered to do CPR, which was refused. He told me he was a paramedic, said he had done CPR, but didn’t say how long and that was it. He basically said not to do CPR, that she was dead, and there was no need to do any CPR. I then suggested if you don’t want to do CPR, rather than waiting for the VISAR boat, that we get her to the hospital. We put her on my dive boat and went full steam towards Road Harbor, with Shelley lying on the engine cover and Mr. Swain at her feet.”

“He sat very solemnly, very quiet, with his head down. He didn’t say anything to me; I didn’t say anything to him. Obviously, people react differently in that situation, and I didn’t think much of it then, but the only thing I did think was very strange was that he wouldn’t allow me to do CPR. My personal opinion is, if it had been my wife, I’d have been happy if anybody offered to try to revive her.”

When they arrived at the ferry dock, Royle reported that an ambulance and police were waiting for them. “As soon as we got there, the ambulance staff jumped on board, transferred her to the ambulance, Swain got in with her, and they took off.”

Source: David Swain sentenced to 25 years in '99 scuba murder of his wife in Tortola

 

[AfterDark]

Queen Vs DavidSwain

 

[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, IM 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