2006-03-02 / News

Jury holds Swain responsible in wife’s 1999 drowning death

Shelley Tyre’s parents awarded $3.5 million
By Dotti Farrington

Jury holds Swain responsible in wife’s 1999 drowning death
Shelley Tyre’s parents awarded $3.5 million

Shelley Arden Tyre, from a section of a painting by Alexandra Foley Kent of Jamestown. The artwork was commissioned as part of the Kent mural and furnishings for the children’s room of the Jamestown library as a memorial to the educator. Shelley Arden Tyre, from a section of a painting by Alexandra Foley Kent of Jamestown. The artwork was commissioned as part of the Kent mural and furnishings for the children’s room of the Jamestown library as a memorial to the educator. David Swain, a former Jamestown town councilman, has until March 16 to file an appeal in his loss of a civil lawsuit in Superior Court in Providence.

Six jurors from northern Rhode Island on Friday, Feb. 24, found that Swain “by a preponderance of evidence committed battery . . . (and) killed with malice aforethought” his wife Shelley Arden Tyre while they were scuba diving in the British Virgin Islands on March 12, 1999. The woman would have marked her 53rd birthday on the day the verdict was handed down.

The decision came in a lawsuit filed by Richard and Lisa Tyre of Jamestown, parents of the victim, accusing Swain of the “wrongful death and crime of intentional killing” their daughter. The jurors also awarded the Tyres $1.5 million in compensatory damages and $2 million in punitive damages.

Superior Court Associate Justice Patricia Hurst told the jurors in her charge to them that punitive damages are awarded, if they found for the plaintiffs, to not only punish the defendant but also to deter others in society who might be inclined to do likewise. The Tyres’ lawyer asked the jury to give a judgment “that will resonate around the globe.”

Married for 56 years, the Tyres usually sat huddled, hunched shoulder to shoulder, holding hands, sometimes becoming redfaced or red-eyed while hearing testimony during the trial. When they heard the verdict, they embraced tearfully, then exchanged hugs with about half a dozen relatives and friends. On the last day of the trial, their supporters spoke of the verdict as justifying the years of unrest and suspicions for the Tyres.

The principals in the case do not expect much of the money to be collected. The 50-year-old Swain filed for bankruptcy five months ago. Accountants testifying for the plaintiffs said Swain spent close to $1 million in funds he derived from his wife’s estate before Probate Court put a hold on the estate. Those witnesses also said that Swain charged on at least 16 accounts several hundreds of thousands of dollars, in addition to what he spent as part of the cash flow he spent for his business, Ocean State Scuba at 79 North Main Road in Jamestown. Some or all of that spending is itemized as debts in his bankruptcy file and no assets are listed. The financial witnesses said that after his wife’s death Swain spent much of the money on “expensive cruises and trips.”

“It was never about money,” J. Renn Olenn of Warwick, lawyer for the Tyres, said both during the trial and after hearing the verdict. Olenn had gathered a team of more than 20 witnesses, some considered international experts in the field of forensic science dealing with marine deaths, including drownings, to produce 96 exhibits of evidence.

Both semi-retired university professors, the Tyres talked about the bittersweet victory in the case about their daughter’s death. “It won’t bring her back,” they each said. They added that they felt her presence strongly on the day of the verdict. They said they would resume their activities. “There’s nothing better than to have to do jobs. It works for grief,” Richard Tyre said. Work relieves or distracts from grief, but cannot end it, they pointed out.

The Tyres are especially looking forward to leading their annual seminars for Elderhostel, set in May in New Hampshire. Richard Tyre has also been a volunteer master gardener more than 15 years, and Lisa Tyre has led the Circle of Scholars discussions at Salve Regina for 13 years, and she is a reader for recordings for the blind. She is also a Jamestown library trustee, and former library board president.

Shelley Tyre had been a middle school teacher and principal at Beaver Country School, from 1977 to 1987, and at Thayer Academy, from 1987 to 1999. Both schools are in Massachusetts and have dedicated campus memorials for her. She was to have started a similar position with Rocky Hill School in East Greenwich upon return from what turned out to be a fatal diving vacation.

Shelley Tyre was an officer of professional organizations and of the Bernese Mountain Dog Association. She and Swain were married, the second time for each, on Oct. 9, 1993. She had no children in either marriage. Swain had two children with his first wife.

Swain said Friday that he was not sure how he would proceed with further court action, but he continued to maintain his innocence. He said “mistakes were made” during the trial in reference to comments by the judge in denying Olenn’s motion for a directed judgment, while the jury was not present. Judge Hurst said some of Olenn’s presentation was circumstantial and speculative and that it was for the jury, not her, to decide if it were enough for a verdict for the plaintiffs.

Swain was elected to the Jamestown Town Council two months after the death of his wife and again in 2001 for a second two-year term for which his colleagues elected him vice president of the council.

Swain has not been criminally charged in the case. The only authorities that could bring charges are those in the Virgin Islands, where the medical examiner listed the death as “accidental drowning unless proved otherwise.” Witnesses from the Virgin Islands had suggested in their testimony that Virgin Island authorities are reluctant to pursue any criminal activity because of their concern about its negative impact on the tourist industry, a major source of income. The witnesses also said that Virgin Island law enforcement personnel do not have the training needed to make findings in marine incidents.

The Tyres’ witnesses said that “drowning is not a cause of death,” but the result of other circumstances. Olenn summarized their testimony, saying that in the case of Shelley Tyre, the cause was the defendant’s “shutting off her air valve, ripping her (gear) off and holding her down until she drowned” in water 85 feet deep. The lawyer claimed Tyre struggled fiercely.

Olenn undertook the case for the Tyres after a chance meeting with them about a year after their daughter’s death. The meeting occurred when Olenn’s wife Mary, who attended an art lecture by Tyre, was delivering an art catalog to him. The Tyres said their grief was magnified by their inability to get details of their daughter’s death from their son-in-law. Swain and Tyre had engaged in an incident of tossing the drowning victim’s dive log at each other on the day Swain returned to Jamestown with his wife’s body, according to witnesses at the trial.

Ascuba diver himself and a specialist in marine accidents, Olenn volunteered to help the Tyres learn the circumstances of their daughter’s death. Each time he reported a new finding, Olenn would say, “It still does not make sense,” according to the Tyres. However, over about 18 months, Olenn found enough details pertaining to the drowning that the Tyres decided to hire him to bring the lawsuit, filed in 2002, against Swain.

The Tyres said Olenn’s investigation showed that Swain was pursuing another woman. That woman testified in a court deposition about her initial rejection of Swain because he was a married man, and then the evolution of a relationship with him two or three months after his wife’s death.

Olenn told the jury Swain would lose all claim to material goods if he divorced, according to a prenuptial agreement, but that he stood to gain his wife’s entire estate if she died. The estate was put on hold after the Tyres filed court papers, which included a “slayer statute” that says a person cannot benefit from a death he or she caused.

Swain did not present a defense, and he was not represented by lawyers during the trial. He was absent for the first seven days of the trial. He responded to a subpoena on the eighth day after Judge Hurst denied his motion that the subpoena be quashed. Swain gave opening and closing statements. The judge advised the jury that opening and closing statements of both parties did not represent evidence. Swain had called his daughter Jennifer, age 30, as a character witness. She said she never witnessed her father say or do anything violent and said he was “the most peaceful man I’ve ever known.” She referred lovingly to her stepmother. Her younger brother Jeremy also attended the trial that day but did not testify or speak to reporters. After the verdict, Swain’s daughter said, “I find it sad and shameful that we’ve been such a paranoid, fearful, and contentious society.”

Swain told the jury that his failure to mount a defense was a conscious “strategy” on his part. He did not define the strategy. He was represented by lawyers before the trial began, but they withdrew in January after pre-trial arguments about delays were blamed on Swain in starting the trial. Some delays were caused by the longterm illness of one of his lawyers. One pre-trial action was an appeal to the Supreme Court in which the attorneys were ordered to complete depositions before being allowed to withdraw.

In a civil trial, jurors do not have to find evidence “beyond a reasonable doubt” as required in criminal cases, Judge Hurst had advised jurors. She explained that “preponderance of the evidence means more likely than not to have done what is claimed.”

After the trial, Swain said, “I’m not sure if this is going to bring any closure to anybody.” After the verdict, Richard Tyre walked toward Swain, but did not actually approach him. “I wanted to see what he felt. I wanted him to feel the impact. He was too busy saying it wasn’t true,” Tyre said.

Swain said he would welcome a criminal trial because he believed all the evidence would be evaluated, not just what the plaintiffs’ “highly paid expert witnesses speculated.”

In final remarks to the jury, Olenn characterized as heroes the non-experts — Swain’s diver friend on the trip and other Virgin Island divers — for preserving the victim’s gear and developing other evidence because they were interested in finding the cause, and determining if any danger at the dive site needed to be corrected. Olenn said that without their involvement, there would have been nothing with which the experts could have used to evaluated the drowning.

The Tyres credited Olenn’s “skill and tenacity for getting the facts of our daughter’s death.”

Court observers drew comparisons between Tyre’s death to other recent widely publicized cases such as a bridegroom’s disappearance from a cruise ship and a teenager’s disappearance from the Aruba resort area.

Immediately after the trial, Olenn asked the Tyres to take him to Cedar Cemetery in Jamestown so that he could tell their daughter what had taken place. The Tyres said Olenn knelt at Shelley’s grave and reported on his findings, the trial and its outcome. Then he placed flowers on the grave.

Swain appeared on a TV 10 newscast Monday night, saying he did not try to get a new lawyer after his attorneys withdrew because he knew he did not have time to put together as good a case as the plaintiffs had prepared. He again denied that he killed his wife, saying how she died is a mystery.

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