The Providence Journal (Rhode Island)
March 5, 2006 Sunday
SECTION: NEWS; Pg. A-01
LENGTH: 2371 words
HEADLINE: Did he? Didn't he? How could they? A verdict ends the whispering
BYLINE: TOM MOONEY, Journal Staff Writer
For years, Richard Tyre says, people on Jamestown "believed we were just grief-stricken parents and probably irrational. They didn't believe he had done anything."
JAMESTOWN - A biting wind races across the Great Creek salt marsh, pressing down upon this island a sense of winter isolation, as David Swain stands just up the road in the vacant parking lot of his scuba shop, eager to tell his story.
It is four days since a jury in Providence concluded he killed his wife, Shelley Tyre, in 1999 on a scuba-diving vacation -- and four years since her parents, who live a few miles away, filed the wrongful death suit against him.
The verdict has returned this saga to the top of conversation at the Slice of Heaven coffee shop, where regulars gravitate each day. It is whispered conversation; in a town of 5,000 year-round residents, you never know when the person you're talking about will walk in.
Richard and Lisa Tyre will tell you of their "tortuous" island encounters at McQuade's grocery and the post office with David Swain, the man they're convinced drowned their daughter.
Throughout the years, however, David Swain and the Tyres shared one thing.
Each had become subjects of island speculation: Did he do it? Are the Tyres so desperate for answers they would accuse an innocent man?
Now with the civil trial over, Swain speaks of injustice, the Tyres of vindication.
"A GUILTY MAN would have run," says Swain.
Inside his shop, he takes a stool beside a space heater in a room cluttered with scuba tanks, air hoses and tools.
A defense lawyer might have offered up that argument for a jury's consideration, had Swain used a lawyer. Instead he represented himself and called just one witness, his 30-year-old daughter, to support his contention that he is a peaceful man.
Swain says he planned to use a lawyer until the lawyer was diagnosed with cancer in December.
Before that month was over, Swain says, he had "prepared my kids, my family and my friends that the verdict would be against me. It was inconceivable in the short amount of time left I could mount a defense equal to what the plaintiffs brought against me."
"The Tyres have spent, who knows how much money, and their law firm has been at this for six years, and with unlimited amounts of money and resources, they put together their highly speculative story."
The Tyres' lawyer, J. Renn Olenn, told jurors that Swain killed 46-year-old Shelley Tyre off the coast of Tortola for money, at a time when he was pursuing another woman. Olenn called among his two dozen witnesses the chief medical examiner of Florida's Miami-Dade County, an underwater forensic investigator, and a renowned scuba gear engineer. All supported Olenn's contention that Swain attacked Tyre from behind in about 80 feet of water, turned off her air supply, ripped off her facemask and held her down long enough to drown.
An accountant who had reviewed Swain's finances said the former Jamestown Town Council member received more than $570,000 in cash after his wife's death and said Swain spent it all in about 18 months on trips around the world. The accountant said Swain was now in debt for about $189,000.
Other witnesses from Tortola talked about Swain's alleged suspicious behavior after his wife died. A dive shop owner said Swain tried on three occasions to give away Tyre's dive gear, even though dive protocol required it be stored safely until inspected by the police. And a dive boat operator said she saw a "jovial" Swain a day or two after Tyre's death, walking down a dock with two drinks in his hand.
The jury deliberated less than three hours before finding Swain liable Feb. 24 for Tyre's death. They awarded her parents more than $3.5 million in damages.
The jury foreman said no other explanation exists for her death other than "human intervention," and that Swain was the only person near her.
"Is that proof?" asks Swain, 50, who has never been criminally charged with his wife's death. "Why was it obvious that it was human intervention?"
One of the first skills divers learn, says Swain, is how to shed your scuba gear if in trouble.
"Shelley had been trained multiple, multiple times how to get out of her gear. If someone was attacking you from your tank, what is to prevent someone from saying: 'I'm getting out of my gear' and five seconds later you are out of your gear?" with the simple release of snaps.
Olenn presented witnesses who said the tugboat wrecks which Tyre and Swain dove over that day were not overly hazardous. He told the jury that in the seven years since Shelley Tyre's death, Swain, an experienced diver, had been the only person who did not speculate about what happened to his wife.
Not true, says Swain.
"My family and friends have spent years agonizing over this issue. But the reality is we may never know. Did she bump into the wreck looking for fish? Did she have some medical thing that was just un-findable with today's technology? I don't know. Is it unfair and wrong that we don't know? Of course."
Tyre was an expert diver with more than 350 logged dives. Swain, in a videotaped deposition presented to the jury, said his wife was in good health. Still, it's not unheard of for divers to die without known reason, says Swain.
Swain says the Tyres -- "desperate for any answers against the unknown," -- hired a lawyer who promised them answers and delivered them "by the fistful."
"But that's not what happened," says Swain, "and just because you can buy a verdict . . . it doesn't prove innocence or guilt."
OLENN'S WITNESSES, says Swain, were wrong.
Take for example, Christian Thwaites, of North Kingstown and Vermont, who Swain says remains a friend.
Thwaites, along with his wife, Bernice, and their 9-year-old son, had accompanied Swain and Tyre on the trip to Tortola that March, where they chartered a sailboat.
Swain and Tyre had entered the water together. Swain surfaced about 35 minutes later. Thwaites then jumped in for his dive. Minutes later, Thwaites found Tyre lying face up on the white sandy bottom, her mouth and eyes open. He brought her to the surface where, he testified, he performed mouth-to-mouth resuscitation until Swain motored over in an inflatable dinghy.
Thwaites testified he wanted to continue rescue attempts in the dinghy, but Swain told him to stop, saying it was too late. Thwaites said he obeyed Swain because, as her husband, he "had the moral high ground."
But Swain says he did perform CPR on Shelley Tyre. He pulls out a copy of a report Thwaites wrote two months after the incident for a dive organization. In it he states: "I loosened her wet suit while David applied CPR. I believe I heard a rib crack but cannot be sure. We both continued mouth to mouth for approx five minutes. We gave up after it was clear there was no response."
"We," Swain says, pointing at the pronoun on the page.
Swain says Olenn also never introduced as evidence the Tortola medical examiner's report because it included references to bruising on the chest commonly caused by CPR.
Thwaites was out of the country last week and unavailable for comment. Olenn dismissed Thwaites' report, saying as a friend, Thwaites was giving Swain more credit than he deserved.
"Ask me any question," Swain says, "I'll answer it."
What about the report of him on the dock, carrying drinks and looking jovial a day or two after his wife died?
"That was not me," he says. "That's a crock . . ."
What about the accountant's finding that he blew through more than $570,000 in less than 18 months, most of it on trips around the world, and is now broke and in debt for $189,000?
Swain says the "lion's share" of the money went into renovations and expansions of the dive shop.
"I didn't get a loan to build this facility," he says.
When told the accountant said he received at least a $60,000 loan after Tyre died, Swain corrects himself, explaining: "Yeah, but that was just for the wood."
"Did I spend some for my personal enjoyment? Sure. Was I banned by any law not to spend it for my personal enjoyment? No."
And the $189,000 debt? Was most of it charged on some two dozen credit cards?
After a long pause, Swain says he resorted to putting the cost of even more shop renovations on the credit cards after a second mortgage fell through.
The Tortola police ruled Shelley Tyre's death an accident "unless proven otherwise," and talked about an inquest.
The Tyres and Olenn say there never was an inquest.
The Tortola police said last week the case remains open and they will consider the Rhode Island jury's finding.
"The only reason I would be worried is if I did something wrong," says Swain. "I didn't."
"Has my reputation been hurt? There's an understatement. I could have taken a job anywhere in the world. Don't you think I could have taken the money 6 1³2 years ago and gone to Mexico where they can't extradite you for a civil case? I didn't. It sometimes feels like the situation would be easier to run. But I can't do that. I didn't do anything wrong -- other than fall in love with a wonderful woman."
Swain never took the witness stand.
Olenn had subpoenaed him to testify but at the last minute changed his mind; the jury had already seen and heard three hours of videotaped testimony from him.
In his closing argument to the jury, Swain said had Olenn only put him on the stand, he could have answered many of his questions.
What Swain didn't tell the jury was he had unsuccessfully fought Olenn's subpoena.
Swain says he did so to preserve "possible legal options" in any future appeal. (Swain has until March 17 to decide if he will appeal.)
"If I didn't file that piece of paper it might hurt me later," he says. "Believe me, no one is more frustrated with the legal system than I am now."
VINDICATION, says Richard Tyre.
"That's the biggest single satisfaction."
He sits with his wife, Lisa, in a conference room at Olenn's Warwick law office with a wall full of law books behind them. It is a familiar backdrop for anyone who watched the trial.
From this room Olenn had videotaped depositions from Swain and from Mary Basler, the Warwick woman he was pursuing a relationship with before his wife's death.
"For four years," says Richard Tyre, "people came up and hugged us and said they prayed for us. But it was always for the comfort of our souls. We found out that most of them believed we were just grief-stricken parents and probably irrational. They didn't believe he [Swain] had done anything."
The other day, he says, "the head of the library called us up and said: 'All these years we were sympathetic with you, but we didn't believe. Now I believe.' "
Their neighbors in Jamestown and people elsewhere "have found out that it is not we who are wicked people who have such wicked thoughts about an innocent man," says Lisa Tyre. "It has been proven, thanks to Renn. It has been certified. The jury has testified that he really did these unspeakable things to our daughter."
The Tyres learned things during the trial, disturbing details.
"The one thing I wish came out at trial," says Richard Tyre, "was about that day when (Swain) brought back her body, I said to him in my anger, 'How come you're not showing any grief? How come you're not showing anything a husband shows for his wife who has died?' And he turned to me and said: Because I was 16 years old and standing there when my brother beat my mother to death."
"He used the term bludgeoned," adds Lisa Tyre.
Swain's brother, Richard, is serving a prison term in Minnesota for the killing.
"All these years I believed. I sort of gave him slack, because I think if you go through that you deserve slack. And then it comes out in the trial [in Swain's deposition testimony] that he was 20, and it happened far away. And he lied to us that day."
Until the trial, Richard Tyre says, he did not want to believe Swain intentionally killed his daughter.
By the time of Olenn's closing statement, he was convinced.
"I couldn't believe that one person did that to his loving wife. . . . What Renn was saying in court suddenly convinced me that he intended to kill Shelley."
The turning point came, he says, with Christian Thwaites's testimony that Swain blocked any further attempts at CPR once she was on the surface.
"He killed her twice," says Richard Tyre.
As a retired literature professor, Richard Tyre says, "I spent my life teaching that there is no such thing as pure evil. As Saint Augustine said, we always choose the greater good. And this trial has challenged my whole world view."
Shelley Tyre died on March 12, 1999.
Swain returned to Rhode Island with her body on March 19th.
Olenn says the same day Swain returned, he also gave away Shelley's beloved dog, who accompanied her to work every day.
On March 21 he called Thayer Academy in Braintree, Mass., where Shelley Tyre was a head master, and asked if he could keep her computer, to give to one of his children.
On March 26 he called Mary Basler, the woman he had a relationship with, and arranged to meet her at an East Greenwich restaurant.
By then Swain had already called an appraiser and begun the process of selling a house Tyre owned, says Olenn.
"He basically got her out of his life as fast as he could."
Swain filed for bankruptcy last fall.
The jury verdict -- if it is upheld on appeal -- will probably prevent Swain from receiving any further money from Shelley Tyre's estate. The jury also awarded the Tyres more than $3.5 million in damages.
"I'd like an apology," Richard Tyre says.
"He didn't even tell us his version of what happened to Shelley," says Lisa Tyre.
Would an apology make much difference?
"If he had resurrection powers, yeah," Richard Tyre says.
He pauses.
"No."
