Swain appeals wrongful death ruling to Supreme Court
Former town councilor David Swain's appeal in a civil wrongful death case has reached the State Supreme Court, which is gathering legal briefs to decide if there is any merit to his challenges of a jury finding in Superior Court last February.
Court observers estimate that it will take the five-member panel of Supreme Court judges several months to review Swain's arguments and determine if any have merit in terms of procedural errors during the trial. The judges' decision will be made in conference, behind closed doors, without public access to their deliberations, the observers say.
Last February, six jurors found that Swain was responsible for the drowning death of his wife, educator Shelley Tyre, 46, in 1999 during a dive he started with her in waters off Tortola in the British Virgin Islands.
Tyre's parents, Richard and Lisa Tyre of Jamestown, initiated the wrongful death case after Swain refused to give them details of their daughter's fatal dive, and they had received reports from other divers about irregularities surrounding her death.
Swain, a local scuba shop operator, pursued his appeal this summer and then asked for two 30- day extensions because he said he needed time to get a lawyer.
The Tyres' lawyer, J. Renn Olenn of Warwick, did not argue against the first extension request, but challenged the second extension. The court subsequently allowed the extension and Swain retained Attorney Anthony Leone, of Cranston, to represent him in Supreme Court. Last month, Leone filed a 17-page brief on Swain's claims. Olenn was to file a reply by next Tuesday, Nov. 7.
Leone repeated arguments that Swain had been making in his own behalf for months before last winter's two week trial began. Swain did not follow the advise of Superior Court Judge Patricia Hurst, who presided over the trial. Several times she granted him extensions to find a replacement for lawyer Paul Anderson, who became ill months before the start of the trial, which had been postponed several times. Swain then accused Hurst of refusing him time to get a new lawyer, and Leone is repeating that claim in Supreme Court.
Swain did not attend most of his trial, and then tried to represent himself as the trial was ending. After the jury verdict, Swain asked for a new trial, but Hurst denied his claims in March. She said he had been given full opportunities to obtain a lawyer. She detailed how she saw that the evidence supported the jury finding. "The only reasonable conclusion was that this was a homicide," Hurst said. She also said the jury award, totaling about $6 million in damages, interest and punitive money, was less than she thought justified.
Leone is now claiming that Hurst had no jurisdiction and that a wrongful death case does not have access to punitive damage penalties.
Swain's new attorney said that Swain's adult children - Shelley Tyres' stepchildren - had claim to half of the estate that the elder Tyres are claiming.
Olenn said his reply would include arguments that Swain's failure to make objections during his trial last winter were waivers of all subsequent claims. The Tyres' lawyer also referred to court documents that detailed the time and consideration that Swain was given for finding a lawyer and resolving other concerns over three years before the trial started.
Swain spent at least half of the $1 million of his wife's estate before a hold was placed on it via a lien on the Ocean State Scuba dive shop on North Main Road in Jamestown, which Shelley Tyre owned and Swain managed. The transfer of that property to the Tyres as part of the wrongfuldeath award has been on hold, pending the outcome of Swain's appeal.
Swain may also be subject to criminal charges in Tortola, where officials are holding the case open, pending resolution of the Rhode Island civil case. British Virgin Island officials originally ruled the death accidental "unless proven otherwise."
Last February, Swain denied responsibility for his wife's death, but during the trial he admitted that he did not follow all appropriate protocols during and after her fatal dive.
Swain is named as the chief beneficiary in his wife's will, but cannot collect if the wrongfuldeath finding is upheld.