2006-05-04 / News

Tortola police request evidence from Swain case

By Dotti Farrington

British Virgin Islands authorities last month requested evidence presented in the February Rhode Island Superior Court civil trial of David Swain, 50, of Jamestown, whom a jury found responsible for the drowning death of his wife Shelley Tyre near Tortola, BVI, in 1999.

The Tortola authorities said they were prepared to "aggressively pursue" their criminal investigation into the death that their coroner originally ruled "accidental unless proven otherwise."

Their request for the Rhode Island court material stemmed from a 2004 discussion they had with lawyers in the case who went to Tortola to take depositions at that time. The lawyers included Renn Olenn, who represents Lisa and Richard Tyre of Jamestown, parents of the late Shelley Tyre, who initiated the civil case against Swain, a former Jamestown town councilman. Swain was being represented at that time by Paul Anderson, who withdrew from the case because of illness before it went to trial.

BVI authorities told the lawyers they would be interested in the Rhode Island trial, whatever its outcome. Olenn said the materials he presented at the trial are being gathered for transfer to Tortola, probably sometime this month.

Swain's side Swain told the Jamestown Press that he was not directly aware of any new activity in Tortola regarding his wife's death. He said he was upset by ongoing coverage by the media that he said seems to create news even when none exists. "The Press has not been fair," he said, adding "the best thing would be to wait to see what happens with my appeal." He said every media mention of his court cases caused great stress for his adult children and family. "If you write anything, you can do it in a sentence or two, and not drag up everything that already has been reported," he suggested.

Swain said he has ordered the pre-requisite trial transcript that must be produced before the appeal can be heard in Rhode Island Supreme Court. He is claiming that Superior Court Associate Justice Patricia Hurst denied him the option of another lawyer to succeed Anderson by not agreeing to extra time for the new lawyer to prepare. Hurst said when she denied Swain's petition for a new trial in March that he had had ample time to get another lawyer for the original trial but chose not to do so. The

trial record shows that Hurst urged him to identify an assistant or backup lawyer a year or more before the trial began because of the uncertainty of Anderson's being able to carry out his duties.

Swain said, "I'm guilty of being . . . a sympathetic guy" while dealing with his lawyer's illness. His having to deal with the illness of both his lawyer and his daughter during 2004-05 complicated his ability to defend himself, Swain said.

Coverage of his trial "has all been one-sided," he noted. He chose not to attend most of his 10-day trial, and he has been quoted by two or more reporters as telling the jury that his absences were "strategic." However, this week he said he never called his comings and goings in court as part of strategy on his part. He complained that he had been subpoenaed to testify but not called as part of a strategy by Olenn, the Tyres' attorney. Swain had argued against the subpoena in a court proceeding out of the jury's presence.

Nonetheless, he said this week, "I'll be happy to answer their questions" if Tortola police request information from him.

Swain said testimony was conflicting about whether he used CPR to try to revive his wife. The court records show that there were variations in testimony about whether he applied CPR, or how long he tried to revive his wife.

His wife's parents brought court cases based on data Olenn found when the lawyer attempted to learn what happened to their daughter, after Swain did not give them requested details of the drowning incident. "I can't give something I don't have," Swain said about his inability to explain what caused her drowning to occur.

He said there were "a lot of lies at the trial. My son and his wife and their relatives live here and it is painful for them, for me, to hear or read them repeatedly."

He also said "it will take a book, not a brief interview" to tell his side. He participated in a People magazine review of his trial, but said this week no one has approached him about a book.

Other court actions

No new actions have been reported in the local Probate Court case of his wife's estate, which has been on hold pending outcome of Swain's other court involvements. Swain reportedly spent most of the estate proceeds, estimated at close to $1 million, before the Tyres had the hold applied and a lien put on the Ocean State Scuba, a dive shop at 79 North Main Rd., that Shelley Tyre owned and that Swain continues to manage.

After the Superior Court verdict in late February, the Professional Association of Diving Instructors, which describes itself as the world's largest scuba diving organization and sets standards for scuba instruction and certification, revoked Swain's membership for reasons it declined to make public. Swain admitted during the trial that he did not follow all association protocols during and after Shelley Tyre's fatal dive. Swain discounted the importance of the association action, saying he had others on his staff certified to provide the training he had been offering through his dive shop.

One other court matter involves Swain's application in late 2005 for bankruptcy status. A hearing is set for today, May 4, in District Bankruptcy Court for what is expected to be a final ruling on exempting from bankruptcy protection or discharge the Superior Court judgment totaling $4.8 million in damages and interest that was awarded to the Tyres for the wrongful death of their daughter.

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