2009-10-15 / Front Page

Prosecution presents case in Swain murder trial

Special to the Jamestown Press
By Dan O’Connor

David Swain leaves court in handcuffs on Tuesday. Swain is on trial for the murder of his wife, Shelley Arden Tyre. Photo by Dan O’Connor for the Jamestown Press David Swain leaves court in handcuffs on Tuesday. Swain is on trial for the murder of his wife, Shelley Arden Tyre. Photo by Dan O’Connor for the Jamestown Press TORTOLA, BVI — It has been almost two years since David Swain was extradited to the British Virgin Islands from his dive shop in Jamestown, R.I., accused of murdering his wife, Shelley Arden Tyre.

Originally ruled an accident by BVI authorities, the mysterious events surrounding Tyre’s death have since rekindled interest within the British jurisdiction’s judicial system, and Swain’s fate now rests in the hands of a nine-person jury in Tortola’s high court.

If convicted, Swain would face a mandatory life sentence in prison, under BVI law.

While the case has become amplifi ed by international media outlets,

the mood in the quiet territory of less than 30,000 residents has remained constant, with locals concerned more about gearing up for cruise ship season than a stranger’s fate.

But to family members currently on Tortola to support opposing sides of the argument, the case means either vindication or justice for Swain or Tyre.

Since Oct. 7, jurors have been introduced to a man described by the prosecution as a murderous husband, fueled by two motives: “money and the chance to explore a new love life with a new lady.”

In his opening statement, Direc- tor of Public Prosecution Terrence Williams painted the picture of a man who was similarly portrayed to a U.S. civil court judge three years ago, resulting in Swain’s wrongful death conviction.

“This is a case which starts in a marriage and – we say – ends in murder,” the DPP said in his opening statement last week.

The prosecution’s case, he further alleged, would tell the story of a scuba dive that would place Swain at the scene of a crime, causing his wife’s death.

Williams continued, informing jurors that over the course of the next few weeks, they’d be introduced to several scuba industry professionals who would testify that the state of Tyre’s equipment and the arrangement of her snorkel, mask and fin would point to a struggle – and Swain’s behavior, he alleged, would point to his guilt.

Acknowledging that some in the jury box would have no experience with scuba equipment and the recreation of diving, Williams assured jurors they would receive ample schooling throughout the course of the trial.

“This is a case where we will present to you certain facts and opinions of experts in the field,” he said. “I would like you to have regard particularly to the quality of these experts.”

Williams also told jurors they would hear from Mary Basler, who he said would testify about her relationship with Swain before and after his wife’s death.

Two letters would be presented as evidence, Williams added, which would depict Swain’s desire to end his marriage and pursue another relationship.

Since Swain signed a pre-nuptial agreement barring him from collecting money in a divorce, Williams alleged that for Swain to pursue a life and lucrative future with Basler, he decided to kill his wife.

“That dive was for this new woman – the fare of the change of lifestyle – the knowledge that if he divorced he’d get nothing, and the anxious expectation of the great wealth that would come of her death,” Williams said in his opening statements.

As of Tuesday, the prosecution had brought forward eight witnesses, with six deemed by the court to be experts.

Mark Pringle, a cartographic and hydrographical surveyor, was the first to be acknowledged as an expert by the court.

Pringle presented two model casts of the crime scene, one small and one large-scale to jurors, and placed them in the center of the courtroom, where they now sit during the trial.

The models, which depict the ocean floor off Cooper Island and around the twin wrecks, would be used as a reference and as evidence pieces throughout the trial.

The next witness to take the stand would also be regarded as an expert, and attest to Swain’s behavior on the scene.

Christian Thwaites, a 16-year diver and accredited as an openwater scuba instructor, traveled to the BVI with Swain and Tyre, accompanied by his wife, Bernice, and son, Matthew.

Thwaites was on the boat, Caribbean Soul, the day that Tyre lost her life.

Swain and Tyre dove together, at the same time, around noon, Thwaites told the court. Everything seemed normal, Thwaites continued, adding that the scuba equipment seemed to be in working condition.

After disappearing from Thwaite’s view for about “35 or 40 minutes,” Swain reappeared, alone.

Swain then asked if his wife was back, Thwaites recalled, after which Swain replied, “no.”

Thwaites said he then dove upon the wrecks, when he noticed a diver’s fin lodged in the sand.

Swimming toward the stern of one of the boats, Thwaites said he saw Tyre, “on the ocean floor, facing upwards, with no regulator or mask on,” adding that he then performed a “rescue procedure,” and brought Tyre to the surface.

Swain soon came to retrieve them in a dinghy and they headed back to their boat, Thwaites recalled.

Thwaites said Swain then performed “some CPR” in the boat – an estimate he first made at 10 seconds, and then recanted, acknowledging that it would have been a considerably longer period during cross examination.

“Mr. Swain said words to the effect ‘she’s gone,’ and so I took my direction from and I didn’t do any CPR,” Thwaites said after prompted by prosecution. “He was in control of her and he was attending to her and doing the CPR, so when he said ‘she’s gone,’ and stopped doing the CPR, I didn’t do anything,” Thwaites said.

Thwaites said Swain told him not to use the radio for help, allegedly stating: “Don’t do that. I don’t want everyone coming around.”

“I was in a state of shock, and I had started to make the radio call, but he wanted to use the cell phone to call the emergency services,” Thwaites told the courtroom about his reaction.

Eventually, a Virgin Islands Search and Rescue boat arrived, Thwaites recalled.

When prompted during crossexamination, Thwaites said that it was possible that Swain could have used the radio to call a “pan-panpan” distress call.

Before leaving their boat, Thwaites said he wrote a descriptive dive log of the day’s events, and noted that Tyre’s tank gauge showed a two-thirds air level, and her dive computer listed her maximum depth at 85 feet, with a dive time of about 45 minutes.

James Phillip Brown was the next witness to take the stand for the prosecution. Also deemed a scuba diving expert, Brown owned Aqua Venture Scuba Services Limited in Tortola at the time of Tyre’s death.

Brown said Swain visited his shop in early March 1999, inquiring about dive equipment rentals and dive spot recommendations.

“He specifically asked me if I could identify a dive site where there was not a lot of divers around,” Brown alleged, adding that he suggested the wrecks off Cooper Island, because the single mooring ball off shore ensured a quiet dive site.

Brown told the prosecution that he met Thwaites first after the accident, before he saw Swain again. After introducing himself as the vice president of the BVI Divers’ Association, Brown said he advised Thwaites to hand over his log notes and Tyre’s equipment.

An examination of the equipment allegedly showed “that everything was in very good, working order,” Brown said.

Brown recalled seeing Swain again a few days after the accident. Brown said Swain asked him supposedly “highly irregular” questions at this time.

Brown said that Swain told him to give away Tyre’s dive equipment, and then inquired if he knew the coroner – a notion Brown dismissed as what he described as “inappropriate.”

Prompted by Swain’s alleged “strange” behavior, Brown typed a seven-part report, in which he concluded that Tyre’s death was not an accident, and then handed it over to police.

During cross-examination, the defense suggested that Brown may have an “agenda” to serve the prosecution’s case.

“I don’t have an agenda,” Brown replied.

Asked if accidents “do happen, besides our best efforts,” Brown said, “Yes sir, but there are always reasons.”

Craig Jenni, a forensic dive accident investigator, was the longest witness to testify so far for the prosecution. Jenni was originally hired by the Tyre family lawyer, J. Renn Olenn, to be the lead investigator in the 2006 civil court case.

Prompted by prosecution, Jenni presented his findings to the court and described an extensive investigation that examined Tyre’s equipment.

Testing the air in the tank twice, the laboratory findings certified that it was “pure,” he reported.

Furthermore, a “field function analysis” showed the scuba expert that the equipment was all “working properly,” Jenni reported to the court.

Finally, Jenni determined that at some point, Tyre’s valve was shut off when she was allegedly “robbed of air.”

Jenni said his findings mirrored those of other experts, who concluded that it would be unlikely for the scuba mask and snorkel to detach without being “forcefully removed.”

Jenni presented a chart to the court, which displayed a drawing done by Swain, depicting the area of the crime scene, and an “artist’s rendition” – a transparent flap that lay over the drawing – that suggests Tyre’s air consumption at certain parts of her dive.

In comparison to Swain’s drawing, Jenni alleged that Swain would have been in the vicinity of Tyre at about eight minutes into their dive – a time he suspects a struggle occurred.

“Certainly he would have seen her lying on the sand on the bottom [of the seafloor],” Jenni told the prosecutor.

Jenni further alleged that since Tyre was a “very experienced diver,” it would have been unlikely that she panicked, by definition, without being provoked.

In an aggressive cross examination, St. Claire-Douglas refuted Jenni’s defense attorney findings, suggesting that accidental causes, out of one’s explanation, should always be taken into a scientific investigation.

Jenni’s cross-examination by the defense began early Friday afternoon, and, after a three-day recess, consumed much of Tuesday.

St. Claire-Douglas suggested to Jenni that he was motivated by the fees he incurred from the Tyres over the course of his investigation for Swain’s civil trial.

In response, Jenni said the $125 to $150 per hour he received from the family, amounting to about $27,000, had nothing to do with his ethical conduct of the investigation.

Further prodding the witness, St. Claire-Douglas tested Jenni’s theory that Tyre most likely wouldn’t have panicked underwater.

The defense attorney pointed to several instances in Tyre’s dive log that suggested worrisome dive conditions.

In one instance, Tyre writes about losing a fin while walking up a ladder. Another time, she realized her tank reading was at zero and she “panicked a little or more.” On a subsequent dive, she had a leaking mask, St. Claire-Douglas said.

However, Jenni alleged, these instances refer to a “mild distress,” not panic.

So far, the prosecution has been building a case based largely on circumstantial evidence to convince jurors of Swain’s involvement in Tyre’s murder.

Meanwhile, defense attorneys have had little choice but to defend their client’s reputation through cross-examination, in attempts to discredit the prosecution’s witnesses.

While the case wages on, it’s unclear exactly how many more witnesses are lined up for the prosecution.

The defense, also tight-lipped about upcoming witnesses, will have a chance to present its case after the prosecution rests.

Editor’s note: Dan O’Connor is a reporter for the BVI Beacon, a weekly newspaper in Tortola.

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