2008-06-05 / News

Swain waits for Magistrate's Court to reconvene

By Sam Bari

David Swain, 52, the former Jamestown town councilman accused of killing his wife while scuba diving in 1999, is waiting for the British Virgin Islands Magistrate's Court to reconvene later this month.

In the BVI justice system, the Crown must first present its evidence at a magistrate's inquiry. After the inquiry, the magistrate will rule whether there is enough evidence to try the defendant at the High Court.

The preliminary inquiry began on April 17 and 18 and was continued until May 15. The final hearing is continued to July 15 and 16, when additional testimony will be heard before a decision is made.

If the magistrate finds suffi- cient evidence to go to trial, the case could be tried as early as this fall. Meanwhile, Swain is being held without bail in Her Majesty's Prison at Balsam Ghut, in a remote area northeast of Tortola.

Federal agents took Swain into custody at his Jamestown dive shop in November after the United Kingdom made a diplomatic request for extradition.

Swain waved extradition to the BVI in February and was held without bail.

Prosecutors in Rhode Island wrote in a complaint that "overwhelming circumstantial evidence" proved Swain's involvement in his wife's death.

Shelley Tyre, 46, died underwater while diving with Swain at the Twin Wrecks off Cooper Island on March 12, 1999. Swain has always maintained his innocence, saying his wife's drowning was an accident.

In 2006, a wrongful death suit initiated by Tyre's parents, resulted in a jury in Rhode Island Superior Court finding Swain responsible for Tyre's death. The court awarded Tyre's family more than $5 million in compensation.

Swain appealed the case and lost his bid to overturn the 2006 wrongful death verdict on May 13 of this year. In a 21-page decision, the Rhode Island Supreme Court rejected Swain's arguments for a new trial.

The Virgin Island Daily News reported that the Supreme Court's decision had no immediate effect on Swain personally. If Swain is found guilty under BVI law, he could be sentenced to life in prison without the possibility of parole.

However, the court decision did affect Tyre's parents. According to J. Renn Olenn, the lawyer representing Richard and Lisa Tyre in their wrongful death case, Swain was found guilty as a "slayer," and the court awarded the estate to the heirs, which are the parents.

The estate, however, is still not without challenges. Immediately after the Supreme Court decision to deny Swain a new trial, Paul Anderson, the original attorney defending Swain, filed a suit with the probate court demanding fees that he was never paid.

Since the entire estate was awarded to the heirs, Swain was left with little more than a bankrupt company and a few personal belongings. Anderson took ill at the beginning of the 2006 wrongful death trial and could no longer defend Swain. According to Olenn, Anderson is charging that the estate was not awarded to Swain's heirs at the time his fees were incurred and he is entitled to compensation.

Neil Tassel, one of Swain's new attorneys, said that should the case go to trial, they will work together with the best representation available in the BVI to get a decision favorable to Swain.

Tassel said that Swain's legal fees are being funded by family and friends, and other interested parties.

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