Gabe Watson pleads guilty to diving wife death

[TropicRat]

18 months ? The baz-tard made out!

I sure hope the prisions there are not country clubs like they are here.

Of course any life insurance will be denied and his ex's family will get him
in civil court. Probably won't do much to give his new spouse any warm &
fuzzies either.

[ItsBruce]

...I think a good comparison to Tina's case would be to cases where divers have been trapped, run out of air and found with the reg still in their mouth and those divers who panicked, the reg out of their mouth, indicating they had breathed water directly into their lungs.

That would be very interesting and probably very informative.

[Under-Exposed]

I would be curious to know what the dive bible says about those drowning autopsies that find a lot of water in the lungs and what that means as opposed to those where little water is found in the lungs. I think a good comparison to Tina's case would be to cases where divers have been trapped, run out of air and found with the reg still in their mouth and those divers who panicked, the reg out of their mouth, indicating they had breathed water directly into their lungs.

It would be much appreciated if you could directly quote the information you've sited.

I will see if I can pdf it and send it through to you if you want to pm me your email address. From memory, it will depend to some extent on the type of water (freshwater being more readily absorbed than salt water), the length of time they were deceased underwater before being surfaced, whether there were resuscitation attempts (and if so what), then the length of time until autopsy etc. I think the general conclusion, again from memory, was that you couldn't really rely on the presence or absence of water in the lungs to tell you very much.

[Under-Exposed]

I should add, or course, it is a book about subaquatic medicine, not a book on forensic medicine, so they are looking at it all from a different perspective.

[bowlofpetunias]

That would be interesting reading UE you have my email already. I would suggest that resus attempts may force water into the lungs if the upper airway is not totally clear before resus and it would be virtually impossible to totally clear the airway in most drowning events.

[rockjock3]

Sad day. I think he had a part to play, but that is my thought, not my or anybody's knowing he did it.

He only got 11 months not 18.

As far as the plea bargain for manslaughter. The prosecution probably figured getting some time was better than no time. They had NO evidence or witnesses except for circumstantial evidence and opinions. If they knew they had a winnable case for murder they would have never offered/accepted a deal for manslaughter.

[K_girl]

I should add, or course, it is a book about subaquatic medicine, not a book on forensic medicine, so they are looking at it all from a different perspective.

I was a little bit stumped by what seemed to be conflicting information about dry drowning between our two sources. The forensic website source I found specifically stated that 10-15% of all drownings are "dry drownings." Your post from this book would lead you to believe that there really is no such thing as a "dry downing." I sent you my e-mail address. Can you tell me when the book was published?

Wikipedia states this about dry drowning:

"..In cases of dry drowning in which the victim was immersed, very little fluid is aspirated into the lungs. The laryngospasm reflex essentially causes asphyxiation and neurogenic pulmonary edema (œdema)..

When water or other foreign bodies are inhaled, laryngospasm occurs and the person's larynx spasms shut. As a result, the vacuum created by the diaphragm cannot be filled by the inrush of air into the lungs, and the vacuum persists. In an attempt to force air in through the spasmed larynx, the person may breathe deeper and with more effort, but this only increases the vacuum's force inside the chest. The obstruction to the inflow of oxygen causes hypoxia, and the obstruction to the outflow of carbon dioxide causes acidosis, both resulting in death.."

Souce: http://en.wikipedia.org/wiki/Dry_drowning

What I have been trying to say is, that the fact that Tina still had the regulator in her mouth may have increased the chances of the laryngospasm occurring significantly. It still may have happened if she had panicked and drowned if the regulator had fallen out of her mouth - those chances were 10-15%. What I would like to know is - how many divers who die from panic are found with the regulator still in their mouth? We know that divers who are in a trapped situation are often found with the reg still in their mouths. I was present at a panic drowning and talked to the dive buddy who said he found his buddy clinging to the chain, the reg out of his mouth, turned blue with foam coming out of his mouth.

As Wikipedia states, "very little fluid is 'aspirated' into the lungs." Aspiration is a specific meaning that indicates the presence of foam in the lungs where water entered the lungs while the victim was still breathing. Lack of foam means that the victim stopped breathing before water entered the lungs and any water in the lungs were not "apirated" into the lungs, but rather simply filtered into the lungs after death as Under-Exposed described. You will also see that Wikipedia does a very nice job of describing all the other things that happen to the human body during a "dry drowning," which indicates to me that these things could possibly be found in an autopsy.

This why to me.. the fact that Tina was found with the reg in her mouth has always been significant. I believe she was trying to get air up to the last moments of her life and never gave up trying to breathe.

[Under-Exposed]

I was a little bit stumped by what seemed to be conflicting information about dry drowning between our two sources. The forensic website source I found specifically stated that 10-15% of all drownings are "dry drownings." Your post from this book would lead you to believe that there really is no such thing as a "dry downing." I sent you my e-mail address. Can you tell me when the book was published?

Wikipedia states this about dry drowning:

"..In cases of dry drowning in which the victim was immersed, very little fluid is aspirated into the lungs. The laryngospasm reflex essentially causes asphyxiation and neurogenic pulmonary edema (œdema)..

When water or other foreign bodies are inhaled, laryngospasm occurs and the person's larynx spasms shut. As a result, the vacuum created by the diaphragm cannot be filled by the inrush of air into the lungs, and the vacuum persists. In an attempt to force air in through the spasmed larynx, the person may breathe deeper and with more effort, but this only increases the vacuum's force inside the chest. The obstruction to the inflow of oxygen causes hypoxia, and the obstruction to the outflow of carbon dioxide causes acidosis, both resulting in death.."

Souce: Dry drowning - Wikipedia, the free encyclopedia (http://en.wikipedia.org/wiki/Dry_drowning)

What I have been trying to say is, that the fact that Tina still had the regulator in her mouth may have increased the chances of the laryngospasm occurring significantly. It still may have happened if she had panicked and drowned if the regulator had fallen out of her mouth - those chances were 10-15%. What I would like to know is - how many divers who die from panic are found with the regulator still in their mouth? We know that divers who are in a trapped situation are often found with the reg still in their mouths. I was present at a panic drowning and talked to the dive buddy who said he found his buddy clinging to the chain, the reg out of his mouth, turned blue with foam coming out of his mouth.

As Wikipedia states, "very little fluid is 'aspirated' into the lungs." Aspiration is a specific meaning that indicates the presence of foam in the lungs where water entered the lungs while the victim was still breathing. Lack of foam means that the victim stopped breathing before water entered the lungs and any water in the lungs were not "apirated" into the lungs, but rather simply filtered into the lungs after death as Under-Exposed described. You will also see that Wikipedia does a very nice job of describing all the other things that happen to the human body during a "dry drowning," which indicates to me that these things could possibly be found in an autopsy.

This why to me.. the fact that Tina was found with the reg in her mouth has always been significant. I believe she was trying to get air up to the last moments of her life and never gave up trying to breathe.

Perhaps it is a debate about there being no aspirant and there being a little aspirant. The focus of the article (that I will send you when I am at work next week, if I still have it...its from a recent text) was on the question of whether anything significant could be read into the absence of aspirant, the point being that in a wet droning there were a number of reasons why there may be little or no aspirant in the lungs.

I don't agree that aspiration means the presence of foam, it simply means the inhalation (in the case of drownings) of fluid into the lungs. There are also many reasons why foam might be present that have nothing to do with water (some foreign substances will react with the mucosal lining to create foam).

Also, the wikipedia entry when it talks about the effect of the vacuum may have to be qualified given that we are talking about a person at depth (so an additional atmosphere of pressure for every 10 meters she descended at any time).

I am not meaning to flame when I say this, so please don't take this offensively, but I think that unless and until we actually have the FULL autopsy report it is a little bit of a sterile debate, because we are looking at a select series of factors that may be consistent with various scenarios, but without knowing the other findings that might disqualify them. My experience with autopsy reports in Australia (well, in NSW anyway) is that they are rarely conclusive and are usually couched in very equivocal terms.

[Under-Exposed]

I have the June 5th replay on my TIVO, I will take second look and see if they kept that segment. What was in the Coroner's Report however, was that they ruled out unconsciousness as causing the laryngeal spasm. What I did not know at the time of your postings was that laryngeal spasm blocks water from entering the lungs. I errantly discounted what you said because I could not imagine that Tina would have a such a tight grip with her lips on the reg that no water at all would get in. My medical ignorance, so sorry.

However, since "dry drowning" occurs in 10-15% of the time in all drowning cases, they could not conclude that a small amount of water touching the larynx did not cause the laryngeal spasm. We don't know why the coroner concluded that unconsciousness did not cause the spasm. I'm left to guess that it was ruled out because Tina still had the reg in her mouth. If she had gone unconscious first, she probably would have lost the reg and inhaled large amounts of water.

I'm sorry, but what the Coroner said on this issue was that the forensic examination "accepts unconsciousness was possible following a Laryngospasm, but discounted this as the cause of death." The reasons for discounting this are not referred to. It also rules out laryngospasm causing unconsciousness, not the other way around.

Also, at least one of the reports that I have seen suggests that there was in fact water in the lungs.

So again, at this stage at least I think too many unknowns.

[livinoz]

Excellent points U-E.


I'd just like to ask where the "statistics" stating 10-15 % of drownings are dry drownings come from? The U.S. Center for Disease Control (CDC) notes on its Web site that a number of media accounts of "dry drowning" incorrectly cite CDC statistics, which the agency doesn't in fact keep.

And as is stated in Cases of Bodies Found in Water, (Lunetta, Philippe M.D.; Penttilüa, Antti Ph.D.; Sajantila, Antti Ph.D. The American journal of Forensic Medicine and Pathology, 2002, vol. 23, no4, pp. 371-376):
 
The diagnosis of drowning relies primarily on critical examination of the subject's individual characteristics, circumstances, and postmortem macropathologic changes. In this retrospective study, based on 1590 consecutive cases of bodies found in water and undergoing autopsy at the Department of Forensic Medicine, University of Helsinki, from 1976 to 1998, the frequency of circumstantial data and macropathologic changes crucial for the diagnosis of drowning were determined…External foam, frothy fluid in airways, and overlap of the anterior margins of lungs were found in 275 (17.3%), 739 (46.5%), and 669 (42.1%) of the cases…but no one of these changes, tested against dry-land controls, were specific for drowning.

And also, the term "dry drowning" is no longer condoned by drowning experts. One of those experts, Dr Deborah Mulligan, says the term went out of medical vogue at the 2002 World Congress on Diving. So I'm not sure if it is a term we should be using here. I'm also not sure that Wikipedia is a good reference source, particularly as the article cited only has one reference itself, but that's just my opinion and I am also not trying to "flame" anyone.

[ItsBruce]

They had NO evidence or witnesses except for circumstantial evidence and opinions.

Generally, circumstantial evidence is the best kind of evidence. It is much harder to fabricate than most other kinds of evidence.

If you put a cat in a closed big box and then put mouse in it and later the mouse is gone, the circumstantial evidence is that the cat ate the mouse. However, if the mouse is gone and you find a small hole in the box, you only have speculation.

[K_girl]

Perhaps it is a debate about there being no aspirant and there being a little aspirant. The focus of the article (that I will send you when I am at work next week, if I still have it...its from a recent text) was on the question of whether anything significant could be read into the absence of aspirant, the point being that in a wet droning there were a number of reasons why there may be little or no aspirant in the lungs.

I don't agree that aspiration means the presence of foam, it simply means the inhalation (in the case of drownings) of fluid into the lungs. There are also many reasons why foam might be present that have nothing to do with water (some foreign substances will react with the mucosal lining to create foam).

Also, the wikipedia entry when it talks about the effect of the vacuum may have to be qualified given that we are talking about a person at depth (so an additional atmosphere of pressure for every 10 meters she descended at any time).

I am not meaning to flame when I say this, so please don't take this offensively, but I think that unless and until we actually have the FULL autopsy report it is a little bit of a sterile debate, because we are looking at a select series of factors that may be consistent with various scenarios, but without knowing the other findings that might disqualify them. My experience with autopsy reports in Australia (well, in NSW anyway) is that they are rarely conclusive and are usually couched in very equivocal terms.

No offense taken. Actually, I have found this to be a very interesting exploration of the subject matter and very worthwhile especially when you consider that we will probably never see the full autopsy report. So waiting for it - well, let's just say, I won't hold my breath. It is interesting to note that the Coroner specifically stated he did not find that Tina's drowning was accidental. I was just trying to explore some of the possible reasons why he came to that conclusion and if any findings in the autopsy had anything to do with it. In the process, I am learning a lot, so thanks to you all for engaging the discussion in a very thoughtful way.

[Under-Exposed]

Excellent points U-E.


I'd just like to ask where the "statistics" stating 10-15 % of drownings are dry drownings come from? The U.S. Center for Disease Control (CDC) notes on its Web site that a number of media accounts of "dry drowning" incorrectly cite CDC statistics, which the agency doesn't in fact keep.

And as is stated in Cases of Bodies Found in Water, (Lunetta, Philippe M.D.; Penttilüa, Antti Ph.D.; Sajantila, Antti Ph.D. The American journal of Forensic Medicine and Pathology, 2002, vol. 23, no4, pp. 371-376):
 
The diagnosis of drowning relies primarily on critical examination of the subject's individual characteristics, circumstances, and postmortem macropathologic changes. In this retrospective study, based on 1590 consecutive cases of bodies found in water and undergoing autopsy at the Department of Forensic Medicine, University of Helsinki, from 1976 to 1998, the frequency of circumstantial data and macropathologic changes crucial for the diagnosis of drowning were determined…External foam, frothy fluid in airways, and overlap of the anterior margins of lungs were found in 275 (17.3%), 739 (46.5%), and 669 (42.1%) of the cases…but no one of these changes, tested against dry-land controls, were specific for drowning.

And also, the term "dry drowning" is no longer condoned by drowning experts. One of those experts, Dr Deborah Mulligan, says the term went out of medical vogue at the 2002 World Congress on Diving. So I'm not sure if it is a term we should be using here. I'm also not sure that Wikipedia is a good reference source, particularly as the article cited only has one reference itself, but that's just my opinion and I am also not trying to "flame" anyone.

Livinoz,

That's a very interesting set of statistics and conclusions from the Helsinki study. Of course one of the difficulties with this whole area is that all studies are necessarily retrospective analyses in which in many cases there is no certainty as to the events leading up to death. And as Edmonds et al observe in the "Diving and Subaquatic Medicine" text, where someone is in the water there will frequently be the same changes observed whether or not the initiating event that ultimately leads to death is aspiration of water or not, because ultimately in a large proportion of cases the cause of death will be drowning as a secondary consequence of the initiating event that leads to unconsciousness underwater.

As for dry drowning...I have also heard the term used (by my EFR instructor) to refer to the inability to properly exchange gas across the lungs as a result of the disruption to the surfactant lining the lines by the presence of water, although I think this is now properly referred to as "secondary drowning".

[Under-Exposed]

As the issue of plea bargaining has been discussed on this thread, and as it has in the past few days been the subject of some controversy in NSW, I thought I would simply provide links to some things that people might find interesting (without wishing to enliven the debate on this thread):

Ruth Pollard | Abuse of plea bargaining system (http://www.smh.com.au/national/victims-ignored-in-plea-deals-20090807-ecyw.html)
Forced to take on the system (http://www.smh.com.au/national/forced-to-take-on-the-system-20090807-eczb.html?page=-1)

http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/578C6F10C6D98565CA256ECF00083B4D/$File/10-02.pdf

Lawlink NSW: REVIEW OF THE NEW SOUTH WALES DIRECTOR OF PUBLIC PROSECUTIONS' POLICY AND GUIDELINES FOR CHARGE BARGAINING AND TENDERING OF AGREED FACTS. (http://www.lawlink.nsw.gov.au/report/lpd_reports.nsf/pages/report_gsamuels)

[bowlofpetunias]

Livinoz,

That's a very interesting set of statistics and conclusions from the Helsinki study. Of course one of the difficulties with this whole area is that all studies are necessarily retrospective analyses in which in many cases there is no certainty as to the events leading up to death. And as Edmonds et al observe in the "Diving and Subaquatic Medicine" text, where someone is in the water there will frequently be the same changes observed whether or not the initiating event that ultimately leads to death is aspiration of water or not, because ultimately in a large proportion of cases the cause of death will be drowning as a secondary consequence of the initiating event that leads to unconsciousness underwater.

As for dry drowning...I have also heard the term used (by my EFR instructor) to refer to the inability to properly exchange gas across the lungs as a result of the disruption to the surfactant lining the lines by the presence of water, although I think this is now properly referred to as "secondary drowning".

I thought it was also interesting the Edmonds et al state in Diving Medicine for Scuba Divers in discussion the Physiology of Drowning state:

"If the diver is totally deprived of his air supply for some reason, he initially breath-holds until the "break point" is reached and then takes an involuntary breath. The resulting inhalation of a bolus of water usually provokes coughing and closure of the larynx producing involuntary breath-holding followed by unconsciousness. It is unusual for large amounts of water to enter the lungs after the victim loses consciousness as the tongue and loose tissues in the throat tend to close the airway"

There is no reason that I can see why having a reg in your mouth would stop inhalation of water. I have certainly had the experience of my reg "breathing wet". There is also the chance that water would come in around the mouthpiece if it isn't held in your mouth well enough.

[K_girl]

Brisbane Headlines mentions Gabe Watson as one of the stories that is hurting the dive industry there.

Dive deaths killing off Queensland's diving industry (http://www.brisbanetimes.com.au/travel/travel-news/dive-deaths-killing-off-local-industry-20090811-egik.html)

Interesting that this story is being published in the middle of a worldwide economic disaster and they don't mention it. I've seen a significant increase in dive trip deals in my e-mail lately that tells me the dive industry worldwide is suffering.

I am also curious if the dive operators in the area supported the manslaughter plea, seeing how someone obviously thinks that the disappearance of Lonergans still stigmitizes the industry after 10 years.

[K_girl]

As the issue of plea bargaining has been discussed on this thread, and as it has in the past few days been the subject of some controversy in NSW, I thought I would simply provide links to some things that people might find interesting (without wishing to enliven the debate on this thread):

Ruth Pollard | Abuse of plea bargaining system (http://www.smh.com.au/national/victims-ignored-in-plea-deals-20090807-ecyw.html)
Forced to take on the system (http://www.smh.com.au/national/forced-to-take-on-the-system-20090807-eczb.html?page=-1)

http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/578C6F10C6D98565CA256ECF00083B4D/$File/10-02.pdf

Lawlink NSW: REVIEW OF THE NEW SOUTH WALES DIRECTOR OF PUBLIC PROSECUTIONS' POLICY AND GUIDELINES FOR CHARGE BARGAINING AND TENDERING OF AGREED FACTS. (http://www.lawlink.nsw.gov.au/report/lpd_reports.nsf/pages/report_gsamuels)

Thanks for your objectivity towards both sides of the issue. My heart went out to that poor woman. To have so much evidence of a brutal assault, still bargain it away and actually remove the evidence that he cut her up with a knife from the plea bargain so he could get much less time - it's frightening. That woman deserves a medal for her bravery and persistence, instead she has to fear another attack when he gets released.

[rockjock3]

Generally, circumstantial evidence is the best kind of evidence. It is much harder to fabricate than most other kinds of evidence.

If you put a cat in a closed big box and then put mouse in it and later the mouse is gone, the circumstantial evidence is that the cat ate the mouse. However, if the mouse is gone and you find a small hole in the box, you only have speculation.

So, we find a body in a lake that is tied at the wrists and hands with a white rope, sealed in a trashbag that is taped up with duct tape, and weighted down with bricks.

We send you to court, you lose and get a nice needle in your arm. Why? Well, we found the same type/brand of rope and duct tape at your house but can't match the pieces used as coming from your specific roll of tape or lenght of rope (ends don't match). You also have some bricks laying around your back yard of various types and from various companies. Too bad for you. See you on the other side.

Too bad that the tape and rope of very common brands and the bricks are ones that you picked up from a junk yard to build a project and everybody else has access to it.

You are going to die for circumstantial evidence. Oh, somebody did see you at the lake where the body was found (1 day after). This is circumstantial evidence and this is how people are not supposed to be sent to jail (at least in America). Beyond a shadow of doubt.

Again, I still (in my opinion) think that he had some part to play, but prosecutions don't offer plea bargains if they think they can win the case on the higher charge. They tried to scare him and got him into a plea bargain deal. He took it because he didn't want to take the chance of losing in another country and facing a much harder sentence. This way they got something, which is always better than absolutely nothing. Point is that other than his stories changing (a good indicator, but not proof), they had absolutely NO factual provable evidence that he did anything.

[ItsBruce]

You are confusing circumstantial evidence with inconclusive evidence. So long as the judge or jury is using "beyond a reasonable doubt," circumstantial evidence is as good as, if not better, than percipient evidence. Please recall that just about all forensic evidence is circumstantial.

In your example, if the ends don't fit, you must acquit. But, if the end of the tape on my roll matches the end of the tape on the body, and if the bricks in my yard came from the same lot as the ones with the body and if there is no evidence of anyone having touched my roll of tape or been in my yard, that would tend to support a conviction.

People forget. Peoples' perception is not perfect. People have biases. People fill in blanks in their memory and perception with what they think, not what they perceived. And, those are the ones who intend to be truthful. For those who intend not to be truthful ... forget it. People are unreliable witnesses.

There is a joke among lawyers: How do you tell when a witness is lying? (You can replace "witness" with "your client" if you wish.) The answer, of course: When his/her lips move.

I'll go with circumstantial evidence nearly every time.

[rockjock3]

You are confusing circumstantial evidence with inconclusive evidence. So long as the judge or jury is using "beyond a reasonable doubt," circumstantial evidence is as good as, if not better, than percipient evidence. Please recall that just about all forensic evidence is circumstantial.

In your example, if the ends don't fit, you must acquit. But, if the end of the tape on my roll matches the end of the tape on the body, and if the bricks in my yard came from the same lot as the ones with the body and if there is no evidence of anyone having touched my roll of tape or been in my yard, that would tend to support a conviction.

People forget. Peoples' perception is not perfect. People have biases. People fill in blanks in their memory and perception with what they think, not what they perceived. And, those are the ones who intend to be truthful. For those who intend not to be truthful ... forget it. People are unreliable witnesses.

There is a joke among lawyers: How do you tell when a witness is lying? (You can replace "witness" with "your client" if you wish.) The answer, of course: When his/her lips move.

I'll go with circumstantial evidence nearly every time.

I am trying to see what you are saying, but not having much luck. I don't think it is your fault, I am just not putting the pieces together well.

--From a law encyclopedia--
"Circumstantial evidence is also known as indirect evidence. It is distinguished from direct evidence, which, if believed, proves the existence of a particular fact without any inference or presumption required. Circumstantial evidence relates to a series of facts other than the particular fact sought to be proved."

From that I would gather, I see (taking it a bit further), I have a roll of tape that matches and rope that matches, all stored in an open garage. Still can't place you at the scene at the time of the crime, but you have no provable alibi (at home asleep alone for example). Now, you are getting a needle in your arm becasue I have gotten the jury to agree that it is reasonable that you used your tape and rope to tie the lady up and kill her by throwing her in the lake. Too bad that your neighbor walked into your open garage and used your tape and rope while wearing gloves. Point is that your fingerprints are on the end of the tape (because you have of course used it) and fibers from some of your clothes where found on parts of the rope (because you have used it). This is circumstantial evidence and you are going to jail to die. There is no blood at your house, no motive, no nothing, but using circumstantial evidence (based on the definition) you are still gonna die.

You are using a series of facts to prove another fact. The tape was his, the rope was his therefore he killed her.

[ItsBruce]

The matching tape and rope, is circumstantial evidence. Now, given the open garage and lack of an eye witness, it is unlikely a jury will find guilt beyond a reasonable doubt. But, I acknowledge it is possible.

However, would you rather have a conviction based on an eye witness who says he saw you do it? Witnesses lie. Either they are intentionally lying. Or they are mistaken. Next time you see someone you think you know, but don't, ask yourself how you could have made such a misidentification.

I recently had to identify a suspect from six pictures. The someone is someone I spent a number of hours with over the course of a few weeks. I actually had trouble picking him out because the other pictures were of very similar people. Were I not as observant as I am and if my memory was not as good, I could have identified the wrong person. So much for eye witnesses.

I know a young man who is serving a life sentence without the possibility of parole. He was convicted of 4 counts of first degree murder while lying in wait. Pretty rough stuff. The whole conviction turned on a so-called eye witness who testified against him. There is a good argument that she could not have seen his face if he was where she said he was and she was where she said she was. And, the two were not strangers, they affiliated with rival gangs.

Personally, I have trouble with believing her. She certainly had an incentive to lie. But the young man is in prison for life. The jury must have believed her.

Would you rather be convicted based on what a person who is not necessarily truthful says or what the scientific evidence says. BTW: Scientific evidence is nearly always circumstantial evidence.

[bowlofpetunias]

I would rather not be convicted of anything but there have too many people in prison who have been proven innocent by scientific evidence for me to want to trust either witnesses who may or may not be honest/unbiased/observent or scientific evidence.. we need both.. why try to make it an either or thing?

[livinoz]

The matching tape and rope, is circumstantial evidence. Now, given the open garage and lack of an eye witness, it is unlikely a jury will find guilt beyond a reasonable doubt. But, I acknowledge it is possible.

However, would you rather have a conviction based on an eye witness who says he saw you do it? Witnesses lie. Either they are intentionally lying. Or they are mistaken. Next time you see someone you think you know, but don't, ask yourself how you could have made such a misidentification.

I recently had to identify a suspect from six pictures. The someone is someone I spent a number of hours with over the course of a few weeks. I actually had trouble picking him out because the other pictures were of very similar people. Were I not as observant as I am and if my memory was not as good, I could have identified the wrong person. So much for eye witnesses.

I know a young man who is serving a life sentence without the possibility of parole. He was convicted of 4 counts of first degree murder while lying in wait. Pretty rough stuff. The whole conviction turned on a so-called eye witness who testified against him. There is a good argument that she could not have seen his face if he was where she said he was and she was where she said she was. And, the two were not strangers, they affiliated with rival gangs.

Personally, I have trouble with believing her. She certainly had an incentive to lie. But the young man is in prison for life. The jury must have believed her.

Would you rather be convicted based on what a person who is not necessarily truthful says or what the scientific evidence says. BTW: Scientific evidence is nearly always circumstantial evidence.

I don't quite understand Bruce. Is DNA evidence also circumstantial then? Haven't people been found not guilty via that means? Could you explain more please.

[Under-Exposed]

Liv,
Circumstantial evidence is usually contrasted with “direct evidence” — a term which is employed in two senses. In its first sense “direct evidence” is testimony, as contrasted with hearsay, and may therefore be defined as an assertion made by a witness in court offered as proof of the truth of any fact asserted by the witness, including the witness's own mental or physical state at a given time. In its second sense, “direct evidence” means a witness's statement that the witness perceived a fact in issue with one of the five senses, or was in a particular mental or physical state if that is in issue; and the contrast is with circumstantial evidence. When someone swears to having seen an alleged murderer carrying a blood-stained knife, the evidence is direct in the first sense, but not in the second.

No useful purpose is served by comparing the merits of direct and circumstantial evidence. Although, in legal parlance, circumstantial evidence does not mean a detailed account of what happened (as it formerly did in popular speech), the phrase retains an important element of its original meaning when used by lawyers, because circumstantial evidence derives its main force from the fact that it usually consists of a number of items pointing to the same conclusion. The blood on the accused's knife may not be of much significance, but additional facts, such as the accused's animosity towards the deceased, benefits to be derived by the accused from the death of the deceased, and the accused's efforts to conceal the knife may give it a very damning complexion.
Evidentiary facts may be proved by testimony, admissible hearsay, documents, things and other evidentiary facts. An example of the proof of one such fact by another is afforded by the statement of a witness at a trial for murder that the witness saw blood on the accused's coat pocket, in which the accused's knife was found. The jury is asked, first, to decide that the witness is telling the truth; secondly, to infer that the blood on the pocket came from the knife, and finally to infer that the blood was on the knife because the accused stabbed the deceased with that weapon. This process might be prolonged still further, but as the number of steps which have to be taken from the first evidentiary fact to the ultimate inference of a fact in issue increases, the weaker does that evidentiary fact become as a means of proving the matter, and the greater is the increase in the number of opportunities of adducing evidence in favour of a contrary conclusion.
A witness testifies, often with the aid of photographs, to having taken the fingerprints of the accused and found them to be identical with those on some object with which the case is concerned. This is very strong retrospectant circumstantial evidence, where the courts take judicial notice of the fact that no two people have identical fingerprints, that is, no proof is required of this fact. Convictions have been upheld when there was no other evidence of identity.
Similarly, with DNA evidence, although in some cases evidence will be adduced to challenge the common assumption that no 2 DNA's are alike, or impeach the statistical variance by reference to the extent of the matching of the samples.

[bsee65]

I don't quite understand Bruce. Is DNA evidence also circumstantial then? Haven't people been found not guilty via that means? Could you explain more please.

DNA proves that someone's bodily fluids are somewhere. It doesn't prove how they got there. Depending upon the scenario, one must conclude how it came to be where it did. For example, DNA can't prove rape. Technically, it doesn't even prove direct contact.

[Under-Exposed]

Liv, to more directly answer your question, yes DNA evidence is circumstantial. To take fingerpints as an easy example, a witness will give direct evidence of the fact that that they collected a fingerprint from a crime scene, another witness give direct evidence of their opinion as to the comparison they made between that fingerprint and the fingerprints of the accused. It is circumstantial evidence of the fact in issue that the accused was present at the crime scene. Similarly, with DNA evidence you may have direct factual evidence as to the collection of a sample from the crime scene, direct factual evidence as to the collection of a sample from the accused, then depending upon factors such as the quality of the sample and the ethnicity of the accused you may have a series of opinion evidence as to the similarity between the two DNA profiles, the statistical probability (or improbability) of that similarity arising by chance (usually very small, so the inference to be drawn is that the samples come from the same individual) and again, the evidence is circumstantial because the tribunal of fact (usually a jury) is invited to draw the inference that the accused was present at the crime scene. The significance of that inference will depend upon the case at hand. If the sample is from a rape victim that the accused claims to have never had sex with then the inference is highly significant. But if there is a sensible explanation as to why an accused's DNA might be found in a crime scene (such as the accused lived there) then there may be little significance in the inference at all.

[Under-Exposed]

DNA proves that someone's bodily fluids are somewhere. It doesn't prove how they got there. Depending upon the scenario, one must conclude how it came to be where it did. For example, DNA can't prove rape. Technically, it doesn't even prove direct contact.

That is true and not true. It may prove rape if the defence case is that the accused did not have sex at all with the complainant (there being no issue or contrary evidence on the other elements of rape such as consent). And it may also prove direct contact if there is no sensible alternative explanation for how the DNA could have got there.

But it proves those things by providing indirect evidence from which the inference of proof may be drawn conclusively because of the absence of any other explanation.

[livinoz]

Liv, to more directly answer your question, yes DNA evidence is circumstantial. To take fingerpints as an easy example, a witness will give direct evidence of the fact that that they collected a fingerprint from a crime scene, another witness give direct evidence of their opinion as to the comparison they made between that fingerprint and the fingerprints of the accused. It is circumstantial evidence of the fact in issue that the accused was present at the crime scene. Similarly, with DNA evidence you may have direct factual evidence as to the collection of a sample from the crime scene, direct factual evidence as to the collection of a sample from the accused, then depending upon factors such as the quality of the sample and the ethnicity of the accused you may have a series of opinion evidence as to the similarity between the two DNA profiles, the statistical probability (or improbability) of that similarity arising by chance (usually very small, so the inference to be drawn is that the samples come from the same individual) and again, the evidence is circumstantial because the tribunal of fact (usually a jury) is invited to draw the inference that the accused was present at the crime scene. The significance of that inference will depend upon the case at hand. If the sample is from a rape victim that the accused claims to have never had sex with then the inference is highly significant. But if there is a sensible explanation as to why an accused's DNA might be found in a crime scene (such as the accused lived there) then there may be little significance in the inference at all.

Okay, so basically most evidence is circumstantial? But if an inference cannot be reasonably made then the accused must be found not guilty, ie, given the benefit of the doubt?

[ItsBruce]

I'm not sure I'd say most evidence is circumstantial, but a lot of it is. Consider my example of the cat and mouse in the box. If it is a clear box and you watch the cat eat the mouse, you can testify that you saw the cat eat the mouse. That is direct evidence. It is based on your having actually perceived the event. If the box is opaque, you can testify you saw a cat and mouse go into the box, that you saw the box was sealed and that only the cat came out of the box. That is circumstantial evidence of the cat having eaten the mouse.

In either case, if the jury believes you, that will establish the cat ate the mouse.

Now, if there was evidence of a hole in the box and that you were not watching the hole at all times, that might be evidence, albeit circumstantial, that the cat did not eat the mouse and it might leave doubt as to whether the cat ate the mouse.

Contrast all of this with the witness who testifies that his friend heard someone say that she saw the cat eat the mouse. That is "hearsay." While the jury could decide if they believe the witness about what he heard, the jury can't evaluate the friend's credibility of the person who the friend heard say whatever it was she said. That is why courts generally do not allow the jury to even consider hearsay.

I hope this helps. And, if it is not as well framed as it might be, that's because it is 12:43.

[livinoz]

I'm not sure I'd say most evidence is circumstantial, but a lot of it is. Consider my example of the cat and mouse in the box. If it is a clear box and you watch the cat eat the mouse, you can testify that you saw the cat eat the mouse. That is direct evidence. It is based on your having actually perceived the event. If the box is opaque, you can testify you saw a cat and mouse go into the box, that you saw the box was sealed and that only the cat came out of the box. That is circumstantial evidence of the cat having eaten the mouse.

In either case, if the jury believes you, that will establish the cat ate the mouse.

Now, if there was evidence of a hole in the box and that you were not watching the hole at all times, that might be evidence, albeit circumstantial, that the cat did not eat the mouse and it might leave doubt as to whether the cat ate the mouse.

Contrast all of this with the witness who testifies that his friend heard someone say that she saw the cat eat the mouse. That is "hearsay." While the jury could decide if they believe the witness about what he heard, the jury can't evaluate the friend's credibility of the person who the friend heard say whatever it was she said. That is why courts generally do not allow the jury to even consider hearsay.

I hope this helps. And, if it is not as well framed as it might be, that's because it is 12:43.

Yes that makes sense to me, thanks very much. I just had trouble envisaging the difference between direct and circumstantial evidence and how someone could be convicted on that.

[alohagal]

Any news on the sentence appeal hearing? Did we ever find out what was argued in court?

Any updates?

[K_girl]

It was argued in court a couple of weeks ago. Decision has not yet been rendered.

Article came out this last week from the family still upset about the plea. Only thing new in the article is that Alabama Attorney General Troy King said the following:

"In Alabama this would be a capital case, and if we don't get justice in Australia we're going to pursue the death penalty here," Mr King told US television recently.."

Source: Dive victim Tina Watson&squo;s family warns on plea deals | The Courier-Mail (http://www.news.com.au/couriermail/story/0,20797,25942582-952,00.html?from=public_rss)

First, I am against the death penalty, but second, that was a completely stupid thing to even think about and to say. Australia could offer Gabe Watson asylum rather than return him to the U.S. to face the death penalty. The U.S. needs to get with most of the rest of the civilized world in terms of the death penalty. It's extremely expensive and the only purpose is for retribution and it has never been proven to be a deterrent.

I'm not even sure that the Gabe Watson case would meet the criteria of the death penalty in Alabama.

"Alabama - Intentional murder with 18 aggravating factors (Ala. Stat. Ann. 13A-5-40(a)(1)-(18)).."

Source: Crimes Punishable by the Death Penalty | Death Penalty Information Center (http://www.deathpenaltyinfo.org/crimes-punishable-death-penalty)

I'm not sure what would qualify as "aggravating factors," but 18 of them?

[bowlofpetunias]

I must say I feel bad for the family but I do not believe the Justice system should be run by the Victims but by people who are not so emotionally vested in the case. I have stated before I do not believe the family will see anything as justice that does not involve a guilty verdict for murder.

Like many here, I have my concerns as well but if we allow the victims of crime to control the judiciary we stand a greater risk of sinking into a vengeful society at the mercy of lynch mob mentality. Think of the number of times the "grieving family member" has been proven to be guilty of the crime! Of course I am not implying that Tina's family is guilty of anything other than coming to the conclusion that Gabe is guilty and not being able to see anything past their understandable grief/desire to get what they perceive as "justice for Tina".

We have not had a public trial with all the evidence available and can not declare this man guilty of Murder. It is alarming that people in positions of responsibility are coming across as so bias... "push for the death penalty indeed!". I don't think the man is blameless by any means but calling him "the scuba killer" in print is pushing it awful far in my books.

I find it astounding that people can declare that this single event "sullies Australia's reputation" and puts us "at risk of becoming an international laughing stock." IMHO these kinds of sweeping statements erode my sympathy levels for the people involved and make me question the advisability of taking seriously other things they have to say!

Like you K-girl I do not support the Death Penalty but I do support your country's right to their legal system and the citizen's right to lobby to have your legal system reflect their desires. I wish others would afford Australia that same courtesy! To be honest I am getting a bit fed up with feeling like my country and it's legal system are being judged as lacking based on a crime committed by a US citizen on a US citizen when we allowed them the privilege of entering our country!

Perhaps if the US is going to question the fairness of the judiciary of other countries they should have taken Mr Watson to trial first. As has been pointed out there certainly was time for that to occur since we took so long at our end!

Rant over!

[livinoz]

Well said Bowlofpetunias.

Political motivation quite often plays a part too in the stance taken by people in public office. If they are looking for re-election, public support, etc, it's an easy way to garner sympathy by pushing a "popular" line.

[alohagal]

Quoted from Bowl of Petunias: I find it astounding that people can declare that this single event "sullies Australia's reputation" and puts us "at risk of becoming an international laughing stock." IMHO these kinds of sweeping statements erode my sympathy levels for the people involved and make me question the advisability of taking seriously other things they have to say!

Like you K-girl I do not support the Death Penalty but I do support your country's right to their legal system and the citizen's right to lobby to have your legal system reflect their desires. I wish others would afford Australia that same courtesy! To be honest I am getting a bit fed up with feeling like my country and it's legal system are being judged as lacking based on a crime committed by a US citizen on a US citizen when we allowed them the privilege of entering our country

Yes, very well said! I agree. And if I was fortunate enough to be born Australian I know this case would gaul me to no end based on what you said above. One case of drowning or speculated murder should not sully an entire industry or nation.

Once again...media driven hyperbole rules the day...I think it is becoming a global disease.
We all want our news...but where does one draw the line between news reporting and news making?

Anyway...when you get more news in your part of the world on this case at hand...please report it! :)

[jester1226]

So long as the judge or jury is using "beyond a reasonable doubt," circumstantial evidence is as good as, if not better, than percipient evidence. Please recall that just about all forensic evidence is circumstantial.

I'll go with circumstantial evidence nearly every time.

Circumstantial evidence does not always meet the criteria of "beyond a resonable doubt". Prosecuters do not like to rely on this type of "so called" evidence because juries do not always see it the way they want them to. Ask Marsha Clarke from the OJ case. She had direct and circumstantial, and look what happened! A good defense attorney would attack the evidence to put doubt in the jurers minds. And then the jurers themselves come into play. If they have any predisposed notions, this is going to affect the case.

Personally, I think the prosecution made a good move and the defense a poor one. After reading what evidence they had and how they intended to use it, it is my opinion they would have dropped the ball and he would have been set free. And this with my thinking that he did it!

[K_girl]

I have to agree that the rhetoric of the family and the Alabama Attorney General is in poor judgment. First, if they do want to prosecute Watson in the U.S., they are going to need the cooperation of the investigative agency in Australia and you aren't going to get that by hitting people over the head with a hammer.

Secondly, the assertion that victims and/or their families should have the right to veto pleas goes beyond reasonable and I don't believe that any such rights are given in the U.S., so why should U.S. citizens think that right should be afforded in Australia? However, I do think that the victim and their families should be fully informed and given the reasoning and explanation behind the plea by the prosecution. I also think it is reasonable that the original investigating agency should have the right to appeal a plea agreement to protect the rights of the victim. For instance, I think the removal of elements of a crime from the plea, such as a knife being used to slice the face of the victim is not reasonable. In this case, the Queensland police investigation assisted the coroner to come to the conclusion that Watson should be arrested for murder, but were not included in the decision not to continue prosecution and were left frustrated and prohibited from saying anything to anyone and no right to appeal the decision.

I can understand why the family is upset - but you have to find the right balance for justice that is reasonable for everyone. It doesn't fix things to try and swing things completely the other direction. It just makes it worse in a whole new way.

[SNorman]

The U.S. needs to get with most of the rest of the civilized world in terms of the death penalty. It's extremely expensive and the only purpose is for retribution and it has never been proven to be a deterrent.



The recidivism rate however can't be beat ;)

[boulderjohn]

The recidivism rate however can't be beat ;)

Yes, even with those who were innocent.

Remember that a few years ago the Illinois governor suspended the death penalty after DNA results revealed that 50% of the inmates awaiting execution were totally innocent. Read John Grisham's The Innocent Man, which details the true story of an Oklahoma man who escaped execution by hours when a clerk working on the weekend saw his final appeal (which he would have otherwise not seen until Monday, after the execution) and told a judge that he thought the appeal had merit. DNA proved that the man was totally innocent, and a review of the process that led to his conviction showed that the DA and police had totally railroaded him and should have known he was innocent from the start. It also showed that they had convicted others through the same screwed process. Those convicted that way but without the DNA evidence to prove their innocence are still in prison today.

[boulderjohn]

More food for thought:

Mass. court OKs $102M wrongful-conviction award | General News | Comcast.net (http://www.comcast.net/articles/news-general/20090828/US.Wrongful.Convictions/)

[ItsBruce]

It was argued in court a couple of weeks ago. Decision has not yet been rendered.

Article came out this last week from the family still upset about the plea. Only thing new in the article is that Alabama Attorney General Troy King said the following:

"In Alabama this would be a capital case, and if we don't get justice in Australia we're going to pursue the death penalty here," Mr King told US television recently.."

Source: Dive victim Tina Watson&squo;s family warns on plea deals | The Courier-Mail (http://www.news.com.au/couriermail/story/0,20797,25942582-952,00.html?from=public_rss)

First, I am against the death penalty, but second, that was a completely stupid thing to even think about and to say. Australia could offer Gabe Watson asylum rather than return him to the U.S. to face the death penalty. The U.S. needs to get with most of the rest of the civilized world in terms of the death penalty. It's extremely expensive and the only purpose is for retribution and it has never been proven to be a deterrent.

I'm not even sure that the Gabe Watson case would meet the criteria of the death penalty in Alabama.

"Alabama - Intentional murder with 18 aggravating factors (Ala. Stat. Ann. 13A-5-40(a)(1)-(18)).."

Source: Crimes Punishable by the Death Penalty | Death Penalty Information Center (http://www.deathpenaltyinfo.org/crimes-punishable-death-penalty)

I'm not sure what would qualify as "aggravating factors," but 18 of them?


I've been away and am catching up on the threads I follow. Sorry if I'm late on this or the thread has gone in another direction.

Unless Mr. King has a source of information that the rest of us don't have and if he really made the statement attributed to him, then he is a disgrace to the legal profession. Unless he has information the rest of us don't, then he is just grandstanding; which is unbecoming. It reminds me of former Durham County District Attorney Mike Nifong. Let Mr. King perform a proper investigation before making such a grandiose statement.

Note: unless Mr. King has a source of information that the rest of us don't have and if he really made the statement attributed to him, what he is doing is no better than the defense attorneys who tell the media they know that their client is innocent. How can they possibly know? They may hope. They may think they can prove the client is not guilty. They may even be confident of proving the client is not guilty. But, unless the attorney was the perpetrator, thus making it impossible for the client to have been, the attorney can't know.

[ItsBruce]

Circumstantial evidence does not always meet the criteria of "beyond a resonable doubt". Prosecuters do not like to rely on this type of "so called" evidence because juries do not always see it the way they want them to. Ask Marsha Clarke from the OJ case. She had direct and circumstantial, and look what happened! A good defense attorney would attack the evidence to put doubt in the jurers minds. And then the jurers themselves come into play. If they have any predisposed notions, this is going to affect the case.

Personally, I think the prosecution made a good move and the defense a poor one. After reading what evidence they had and how they intended to use it, it is my opinion they would have dropped the ball and he would have been set free. And this with my thinking that he did it!

Circumstantial evidence does not always meet the criteria of "beyond a resonable doubt." But, then neither does percipient evidence because it is subject to the witness' bias, perception, recollection, etc. The first OJ case was unique for reasons apart from circumstantial versus percipient evidence.

I completely agree that the prosecution made a good move.

[ItsBruce]

More food for thought:

Mass. court OKs $102M wrongful-conviction award | General News | Comcast.net (http://www.comcast.net/articles/news-general/20090828/US.Wrongful.Convictions/)

Thanks for the heads-up.

1. If FBI agents intentionally withheld evidence of the men's innocence, they should be identified and imprisoned. IMHO, given the oaths taken by FBI agents, i.e. "protect and defend the Constitution from all enemies, foreign and domestic," what they did is on par with treason.

2. While the four men who had been convicted may not have been guilty of the particular crime, my guess, based on at least some experience, is that they were not model citizens.

Edit:

A little work with Google has revealed that at least one of the FBI agents was convicted on a racketeering charge and was sentenced to 10 years in prison and was then convicted on a murder charge and sentenced to 30 more. While these were not directly related to the matter referenced above, they were peripherally related.

Also, the 4 men who were convicted were not model citizens even though they did not commit the specific murder.

[livinoz]

Thanks for the heads-up.

1. If FBI agents intentionally withheld evidence of the men's innocence, they should be identified and imprisoned. IMHO, given the oaths taken by FBI agents, i.e. "protect and defend the Constitution from all enemies, foreign and domestic," what they did is on par with treason.

2. While the four men who had been convicted may not have been guilty of the particular crime, my guess, based on at least some experience, is that they were not model citizens.

Edit:

A little work with Google has revealed that at least one of the FBI agents was convicted on a racketeering charge and was sentenced to 10 years in prison and was then convicted on a murder charge and sentenced to 30 more. While these were not directly related to the matter referenced above, they were peripherally related.

Also, the 4 men who were convicted were not model citizens even though they did not commit the specific murder.

While I totally agree with your first point above, can I ask are you suggesting that those four men deserved their decades in gaol for a murder they didn't commit, especially as two of them died in custody? If we used the premise that people who are not "model citizens" deserve to be in gaol, I think our gaols would be overflowing.

I have no idea what their criminal history is or was, but they certainly didn't deserve to do the time for that particular crime.

[ItsBruce]

I hope you did not take my comment as implying that they deserved to be in prison for a crime they did not commit. Clearly, they didn't. However, it was not as if they were prosecuted because they were in the wrong place at the wrong time as in the movies "Con Air" or "An Innocent Man." According to what I found on the internet, they were mafia gangsters who were implicated in a murder and there was evidence that it was actually someone else in their gang who did the killing.

[livinoz]

I hope you did not take my comment as implying that they deserved to be in prison for a crime they did not commit. Clearly, they didn't. However, it was not as if they were prosecuted because they were in the wrong place at the wrong time as in the movies "Con Air" or "An Innocent Man." According to what I found on the internet, they were mafia gangsters who were implicated in a murder and there was evidence that it was actually someone else in their gang who did the killing.

Okay, glad to have that clarified! Thanks Bruce.

[SNorman]

Yes, even with those who were innocent.

Remember that a few years ago the Illinois governor suspended the death penalty after DNA results revealed that 50% of the inmates awaiting execution were totally innocent. Read John Grisham's The Innocent Man, which details the true story of an Oklahoma man who escaped execution by hours when a clerk working on the weekend saw his final appeal (which he would have otherwise not seen until Monday, after the execution) and told a judge that he thought the appeal had merit. DNA proved that the man was totally innocent, and a review of the process that led to his conviction showed that the DA and police had totally railroaded him and should have known he was innocent from the start. It also showed that they had convicted others through the same screwed process. Those convicted that way but without the DNA evidence to prove their innocence are still in prison today.

At first glance, statistics like this would make any person severely doubt the capability of our justice system. The truth is that the majority of cases where convicts are released years later due to "DNA evidence" are technicalities, and the convict was not actually *proven* innocent, it was just proved that it could not be proven that he did it, based on DNA evidence. These stats are routinely used by anti-death penalty groups. There are some false convictions, but nowhere near 50%.

[boulderjohn]

At first glance, statistics like this would make any person severely doubt the capability of our justice system. The truth is that the majority of cases where convicts are released years later due to "DNA evidence" are technicalities, and the convict was not actually *proven* innocent, it was just proved that it could not be proven that he did it, based on DNA evidence. These stats are routinely used by anti-death penalty groups. There are some false convictions, but nowhere near 50%.

That's not the way I understand it. For a conviction to be overturned, the evidence has to be pretty overwhelming. In fact, DAs have argued that a conviction should not be overturned even when the evidence is overwhelming. After all, they won the case fair and square the first time.

It seems to me that if the DNA in a rape/murder case turns out to be someone other than you, your release is not a technicality.

I am not an attorney, so perhaps some of those who have so ably participated in this thread can speak to this better than I.

I was having a discussion with someone recently when someone was released from death row when DNA proved he was not the killer. It was a particularly gruesome crime, and my friend was bothered by the fact that the person convicted of the crime was not going to be put to death. He felt the release was wrong because the victim was not going to get the appropriate vengeance for the crime. I asked him if he wanted to volunteer to be executed so that she could get that vengeance, since it didn't seem to matter to him whether the person executed had anything to do with the crime. He had an amazed look on his face as it finally dawned on him what he had wanted. He thought about it and realized that in his attitude toward these crimes throughout his life, he had had a subconscious belief that it did not matter if someone was guilty, as long as someone was made to pay. Yes, the victim of a gruesome crime deserves justice, but justice entails getting the right criminal.

[K_girl]

IF the Watson case ever goes to trial, the case will have nothing to do with DNA. If he is convicted through a trial, it will be his own statements, which were videotaped, that have the potential to convict him. There is little-to-nothing for prosecutorial misconduct here. There is no DNA. There are no jail-house snitches being coerced into false testimony. There is no opportunity to create phony evidence. The bulk of the investigation was conducted in a more liberal country who will have to turn that information over to the Alabama prosecutor. So, no tainted lab work that has plagued some U.S. cities. Therefore, I don't see the relationship with "The Innocent Man" or the "Innocence Project" with regard to this case - that just keep coming up over and over again.

However, I have to question Troy King's pandering to a conservative pro-death penalty crowd in Alabama and as a result, I think he drastically lowered the prospects of having any trial at all. I discovered through some other forums that the TV show he made the comments about going for the death penalty was made on FOX News. 'Nuff said.

[boulderjohn]

IF the Watson case ever goes to trial, the case will have nothing to do with DNA. If he is convicted through a trial, it will be his own statements, which were videotaped, that have the potential to convict him. There is little-to-nothing for prosecutorial misconduct here. There is no DNA. There are no jail-house snitches being coerced into false testimony. There is no opportunity to create phony evidence. The bulk of the investigation was conducted in a more liberal country who will have to turn that information over to the Alabama prosecutor. So, no tainted lab work that has plagued some U.S. cities. Therefore, I don't see the relationship with "The Innocent Man" or the "Innocence Project" with regard to this case - that just keep coming up over and over again.

However, I have to question Troy King's pandering to a conservative pro-death penalty crowd in Alabama and as a result, I think he drastically lowered the prospects of having any trial at all. I discovered through some other forums that the TV show he made the comments about going for the death penalty was made on FOX News. 'Nuff said.

No one is suggesting that DNA will solve the case. What people are saying is that the justice system is not infallible. People have pleaded guilty to crimes they did not commit. People have been convicted of crimes of which they are innocent because of prosecutorial misconduct. We have a tendency to assume anyone accused of a crime is guilty. All of these are true in any event. The cases above are merely examples to prove those points.

[robint]

the proof that he killed her intentionally - his dive computer, his statements about the dive, and the witnesses before, during, and after the dive.

1. He lied over and over, telling this tall tail about what happened underwater and how he raced to surface to get help. Fact is his computer showed he never was as deep as he said, and he surfaced slowly doing a safety stop. Dive computer doesn't lie. His whole account of the dive didn't jive with the dive computer!

2. He said that he and wife had to go to surface immediately after entering the water because his dive computer was beeping. He said he had to get out of water and turn the battery over as it was installed wrong. That is why they got separated by the rest of group. Well, NO dive computer beeps if battery is upside down, it doesn't work! He used this ploy to separate them from group so he could have her alone. Dive computer doesn't lie.

3. Other divers did see him with his wife, and he was giving her a "bear hug". This is when it is guessed that he turned off her air and held her until he was sure she was dead, then turned her air back on, dropping her to ocean floor. He claimed that she was dropping and he tried to grab her hand but couldn't hold onto her and she slipped away... why not inflate her BC? why not drop her weights? He claimed they were fighting a huge current also... none of the other divers said it was bad. He claimed he went deep fighting to hold her.. dive computer said otherwise. Dive computer doesn't lie.

4. Another diver took a photo and in the background you see her lying on the bottom, not in water as deep as he said she was or where he said they were "fighting with the current". Those other divers said the current wasn't bad, too.

5. After he surfaced, he started telling a story to those on the boat about how she was sinking and he couldn't grab her hand and she slipped away. And he told them where it supposedly happened. He implied that she was carried away into water over 100' deep. In the meantime, another group of divers found her on the bottom, not where he said or that deep, and took her right to surface. They had her on their boat and were performing CPR when his boat was radioed. Upon hearing that they had his wife on the other boat performing CPR, he did not ask to go to that boat. His demeanor was noted by the other divers who were back onboard already and they were stunned. He did not go to the other boat until after they got the call that she was dead.

6. When he gave interviews to police over the next few months, he gave different accounts and changed his story substantially. He was not confronted with the dive computer data as the police weren't familiar with them or how they work.

now add in all the things that happened back home before the trip... like him insisting she increase her insurance policy, how badly he treated her in public, etc.

ALL of this is circumstantial. ALL of this is proof enough he killed her. NO DNA needed.

Just my 2 cents. This is another reason I think all divers should have computers... it can trace exactly what happens to you underwater. If someone gets bent or worse, this is sometimes the only way they can figure out what happened!!!!

robin:D

[Under-Exposed]

Perhaps we can deal with some facts:

1. He lied over and over, telling this tall tail about what happened underwater and how he raced to surface to get help. Fact is his computer showed he never was as deep as he said, and he surfaced slowly doing a safety stop. WRONG!!! His dive computer shows that in the 6th minute he descended though 50ft down to a maximum depth of 54ft then up to 41ft, in the 7th minute he ascended though 31ft and 19ft and in the 8th minute he ascended through 10ft and 3ft

2. He said that he and wife had to go to surface immediately after entering the water because his dive computer was beeping. He said he had to get out of water and turn the battery over as it was installed wrong. That is why they got separated by the rest of group. Well, NO dive computer beeps if battery is upside down, it doesn't work! He used this ploy to separate them from group so he could have her alone. WRONG!!! They were not separated from the group by that conduct. After fixing the problem with the watch (whatever it was) AND fixing a weight problem that Tina was having, they returned to the dive site on a tender with the Trip Director and two other divers.

3. Other divers did see him with his wife, and he was giving her a "bear hug". This is when it is guessed that he turned off her air and held her until he was sure she was dead, then turned her air back on, dropping her to ocean floor. He claimed that she was dropping and he tried to grab her hand but couldn't hold onto her and she slipped away... why not inflate her BC? why not drop her weights? He claimed they were fighting a huge current also... none of the other divers said it was bad. He claimed he went deep fighting to hold her.. dive computer said otherwise. ONE other diver saw them in a "bear hug"

4. Another diver took a photo and in the background you see her lying on the bottom, not in water as deep as he said she was or where he said they were "fighting with the current". Those other divers said the current wasn't bad, too. That photo shows Tina in water deeper than 25m/82ft, according to the Trip Director's evidence that he was AT 25m when he saw Tina BELOW

[robint]

Perhaps we can deal with some facts:

1. He lied over and over, telling this tall tail about what happened underwater and how he raced to surface to get help. Fact is his computer showed he never was as deep as he said, and he surfaced slowly doing a safety stop. WRONG!!! His dive computer shows that in the 6th minute he descended though 50ft down to a maximum depth of 54ft then up to 41ft, in the 7th minute he ascended though 31ft and 19ft and in the 8th minute he ascended through 10ft and 3ft

2. He said that he and wife had to go to surface immediately after entering the water because his dive computer was beeping. He said he had to get out of water and turn the battery over as it was installed wrong. That is why they got separated by the rest of group. Well, NO dive computer beeps if battery is upside down, it doesn't work! He used this ploy to separate them from group so he could have her alone. WRONG!!! They were not separated from the group by that conduct. After fixing the problem with the watch (whatever it was) AND fixing a weight problem that Tina was having, they returned to the dive site on a tender with the Trip Director and two other divers.

3. Other divers did see him with his wife, and he was giving her a "bear hug". This is when it is guessed that he turned off her air and held her until he was sure she was dead, then turned her air back on, dropping her to ocean floor. He claimed that she was dropping and he tried to grab her hand but couldn't hold onto her and she slipped away... why not inflate her BC? why not drop her weights? He claimed they were fighting a huge current also... none of the other divers said it was bad. He claimed he went deep fighting to hold her.. dive computer said otherwise. ONE other diver saw them in a "bear hug"

4. Another diver took a photo and in the background you see her lying on the bottom, not in water as deep as he said she was or where he said they were "fighting with the current". Those other divers said the current wasn't bad, too. That photo shows Tina in water deeper than 25m/82ft, according to the Trip Director's evidence that he was AT 25m when he saw Tina BELOW

1. He did not "race" to the surface, taking over 3 minutes to get there is not a race. He said he went up so fast he thought he might get bent. Right!

2. I had not heard that there were 2 other divers on that tender, regardless, the rest of the group was way ahead and the beeping dive computer story was bogus. I have been diving with a dive computer for almost 10 years, I know that there is no dive computer on the market that every beeps at you when the battery is in backwards.

3. Okay, only one diver saw the bear hug. That is still a diver seeing him doing it.

4. Yes, the photo shows her down at about 82' depth. That is not over 100' as he said and it is not in the location he told the people on the boat when he said he lost her. She was on a sandy bottom where she was easily seen and not "lost", well within his reach if he wanted to get her and bring her up. It was not beyond his ability to get there, not too deep, and regardless, it was his wife! The other divers who did bring her up had no problem with it.

So why didn't he dump her weights? Why didn't he inflate her BC? He was a Rescue diver and those are all skills taught in Rescue that he had to perform on another diver in order to pass the course. His story about what happened is full of poop.

And what is your comment to the fact he didn't go to his wife on the other boat once he heard she was brought up?? If it really had happened the way he said, he should have been thrilled someone else got to her and brought her up.... :shakehead:

[livinoz]

All the points in your post have dealt with and discussed ad nauseam in this thread and two others:

http://www.scubaboard.com/forums/accidents-incidents/234548-diver-indicted-2003-gbr-mishap.html

http://www.scubaboard.com/forums/accidents-incidents/242102-watson-murder-case-issues-statements-sources.html

And please, if you haven't already done so, read the Judge's sentencing remarks. There was insufficient evidence to convict Watson of murder, although obviously others have decided that he is guilty no matter what the Supreme Court here has pronounced.

It's a bit surprising that all this is being bought up yet again. He has been sentenced and gaoled, and except for awaiting the result of the appeal over sentence length there isn't much else to say. What, if anything, happens when Watson is released and goes back to the US is quite another thing.

[K_girl]

Perhaps we can deal with some facts:

1. He lied over and over, telling this tall tail about what happened underwater and how he raced to surface to get help. Fact is his computer showed he never was as deep as he said, and he surfaced slowly doing a safety stop. WRONG!!! His dive computer shows that in the 6th minute he descended though 50ft down to a maximum depth of 54ft then up to 41ft, in the 7th minute he ascended though 31ft and 19ft and in the 8th minute he ascended through 10ft and 3ft

This is what I find interesting about Under-Exposed's post - he has inside information and he is teasing us with it. This information has never been published before and as many of us have been following UE for a while on this thread - I believe his source is correct. The Dateline Story said that the computer revealed that there was no sharp decent to go after Tina as Watson had claimed. So the turn-around minute, in minute number six, he starts from 50 feet and goes to 54 feet is not much of a sharp descent, which kind of tells me one of 2 things - Either Tina was not sinking as fast as he claimed and he was really still close to her when he turned around, or he did not make the effort he claimed at all. From 54 feet to 41 feet in the 6th minute - that was the fastest part of his ascent, the moment he left her, expecially considering part of that minute was spent descending rather than ascending. Then he slowed down dramatically for the the last 2 minutes.

So the entire incident happened in just 8 minutes. Some would argue that is an extremely fast time to execute a killing. However, my sister and I were on a dive to 80 feet, fighting a current and aborted after reaching the bottom. When we arrived to the surface, we thought much more time had passed than 8 minutes, especially after what we had just been through. But it was exactly that - 8 minutes. Probably the longest 8 minutes of our lives.

Extremely revealing - and thanks for the tidbit EU.

[livinoz]

This is what I find interesting about Under-Exposed's post - he has inside information and he is teasing us with it. This information has never been published before and as many of us have been following UE for a while on this thread - I believe his source is correct. The Dateline Story said that the computer revealed that there was no sharp decent to go after Tina as Watson had claimed. So the turn-around minute, in minute number six, he starts from 50 feet and goes to 54 feet is not much of a sharp descent, which kind of tells me one of 2 things - Either Tina was not sinking as fast as he claimed and he was really still close to her when he turned around, or he did not make the effort he claimed at all. From 54 feet to 41 feet in the 6th minute - that was the fastest part of his ascent, the moment he left her, expecially considering part of that minute was spent descending rather than ascending. Then he slowed down dramatically for the the last 2 minutes.

So the entire incident happened in just 8 minutes. Some would argue that is an extremely fast time to execute a killing. However, my sister and I were on a dive to 80 feet, fighting a current and aborted after reaching the bottom. When we arrived to the surface, we thought much more time had passed than 8 minutes, especially after what we had just been through. But it was exactly that - 8 minutes. Probably the longest 8 minutes of our lives.

Extremely revealing - and thanks for the tidbit EU.

Even so, that evidence and any other"tidbits" that we are not privy to, was not enough to convict him of murder, no matter what you or I or anyone else may think.

[bowlofpetunias]

I am more interested in facts than speculation and conjecture. Knowing UnderExposed, he will not post something in the public domain and call it a FACT unless it is exactly that. Facts are what we get from unbiased reputable sources. What we get from the media may have started out with a kernel of truth but IMHO the media are more interested in sensationalizing and ratings than honesty and accuracy.

IMO not enough FACTS have been presented to provide "proof that he killed her intentionally". UE only commented on facts that have a legal bearing in the case. I appreciate that because all the emotional issues have been debated by many of us over the last couple years in another thread. As Livinoz pointed out this thread is about waiting to hear about the appeal process and working out how it will effect the dive industry/legal system.

I do see the value of speculation and conjecture when appropriate to work out possible cause and effect for the purpose of becoming a safer diver. IMHO that is not the case here. WE are all interested and concerned for the people involved and the potential impact this may have on the dive industry. I am no fan of Mr Watson but ad nauseum discussion about his guilt, innocence, stupidity or personality flaws are of no value here. Just my .02 worth.

[alohagal]

I am more interested in facts than speculation and conjecture. Knowing UnderExposed, he will not post something in the public domain and call it a FACT unless it is exactly that. Facts are what we get from unbiased reputable sources. What we get from the media may have started out with a kernel of truth but IMHO the media are more interested in sensationalizing and ratings than honesty and accuracy.

IMO not enough FACTS have been presented to provide "proof that he killed her intentionally". UE only commented on facts that have a legal bearing in the case. I appreciate that because all the emotional issues have been debated by many of us over the last couple years in another thread. As Livinoz pointed out this thread is about waiting to hear about the appeal process and working out how it will effect the dive industry/legal system.

I do see the value of speculation and conjecture when appropriate to work out possible cause and effect for the purpose of becoming a safer diver. IMHO that is not the case here. WE are all interested and concerned for the people involved and the potential impact this may have on the dive industry. I am no fan of Mr Watson but ad nauseum discussion about his guilt, innocence, stupidity or personality flaws are of no value here. Just my .02 worth.And yet, since it was brought up again, it was the impetus to NEW information from UE. I find it fascinating! :D

[livinoz]

And yet, since it was brought up again, it was the impetus to NEW information from UE. I find it fascinating! :D

Which just goes to prove we were judging him here without all the facts! ;)

[Dave Earl]

the beeping dive computer story was bogus. I have been diving with a dive computer for almost 10 years, I know that there is no dive computer on the market that every beeps at you when the battery is in backwards.

In his statement he stated that he had put the battery backwards in his "transmitter," not his computer. I imagine he is talking about a wireless air-integrated computer. If it was set to wet activation and he had not checked his pressure before entering the water, than the computer would start beping as dive mode was activated because it would have been unable to link to the transmitter.

[alohagal]

In his statement he stated that he had put the battery backwards in his "transmitter," not his computer. I imagine he is talking about a wireless air-integrated computer. If it was set to wet activation and he had not checked his pressure before entering the water, than the computer would start beping as dive mode was activated because it would have been unable to link to the transmitter.
And, once again, another interesting tidbit I have never heard before. If true it certainly changes the assumption that Gabe was so guilty and stupid he lied about the battery being in backwards in his computer and it still beeped at him.

May I ask where you found this information? I would like to know if this truly is his statement. Just as conjecture can be made to his guilt...conjecture can also be made to exonerate here on these types of forums.

Thanks in advance,
Mary

[K_girl]

Dave Earl - Yes, I read the transcript and it did sound like Watson was describing a transmitter problem. The only thing to go on is that the Australian investigator told Dateline that after testing the computer with the batteries in backwards as Watson had described, it still would not "beep." In addition, the investigator also said that the dive computer actually did record the first, aborted dive and that the dive computer was in working condition. (These were words spoken directly by the investigator on the Dateline show and not a re-interpetation by the media.) There was no reason for the dive computer to beep on the second dive. If Watson then turned the battery around after the first dive, it would not have worked on the second dive, which it did.

Tina's closest friend also described the night they were packing to go on on their honeymoon - that Watson could not get his computer to work and had gone back to the dive store to get it fixed and found out he had put the battery in backwards. So the computer was working the night they left. Tina's friend said Tina was teasing him about it. So I guess the big question would be - why would he take it out again only to put the battery in backwards a second time, most especially since the dive computer was working on the first dive? It's very strange.

It's all just a little too much to explain, so the short explanation is - the computer will not work with the battery in backwards. But in the end - if you go through all this - it actually looks worse.

[K_girl]

Alohagal - There are two parts to a wireless dive computer. The transmitter, which sits on the first stage and the second part which is on your wrist. Watson's claim would be that the transmitter is the piece that had the battery in backwards and the wrist piece is the device that was beeping at him. However, the investigator stated two things: 1) tests showed that computer would still not beep; and 2) that the first, aborted dive was recorded, so the dive computer was working and should not have been beeping at him at all (for the "gas alarm" that he claimed). And indeed, if he did turn the battery around, it would have stopped working on the second dive, which it didn't.

So Watson doesn't seem as stupid as he originally sounds, if he did plan it, he just did not think it entirely through. Apparently he didn't realize that it would record a five-foot dive. But actually, I think it shows a lot more potential for planning than people realize. It's just that it is a lot more complex than people really want to get into.

[ItsBruce]

2. He said that he and wife had to go to surface immediately after entering the water because his dive computer was beeping. He said he had to get out of water and turn the battery over as it was installed wrong. That is why they got separated by the rest of group. Well, NO dive computer beeps if battery is upside down, it doesn't work! He used this ploy to separate them from group so he could have her alone. Dive computer doesn't lie.

Are you absolutely sure they don't beep if the battery is upside down or backward? How many dive computers have you tested?


3. Other divers did see him with his wife, and he was giving her a "bear hug". This is when it is guessed that he turned off her air and held her until he was sure she was dead, then turned her air back on, dropping her to ocean floor.

The key word is "guessed." That is because there is no actual evidence he turned her air off. Would you convict someone of murder on a guess?

Assuming all else that you have said, would it be murder if he had not turned her air off? Or would it be something lesser?

And, as far as turning her air off and holding her until he was sure she was dead, how long do you believe that would take? (No fair to re-read the thread where we had input from a brain surgeon who dives.)

And, as far as the inconsistencies in his statements, I agree they cause me a great deal of concern and if I were the police, I'd investigate the heck out of the incident as a result of his statements. However, given the different ways people react to stresses, emergencies and questioning by the police and media, the inconsistencies do not impress me very much. Nor does his conduct with her family. In fact, his conduct toward her family is more consistent with an innocent man being railroaded by an improperly vindictive family than of a guilty man.

[ItsBruce]

A further thought on dive computers and backward batteries:

I have never used a wireless system. However, it seems to me that the transmitter transmits only tank pressure. I would expect that things like time, depth, max depth, water temperature, accent rate, etc. are all handled on the wrist mounted console and are independent of the functioning of the transmitter on the first stage. Therefore, I would expect that battery, wireless connection, or whatever, the wrist console would record everything about a dive except tank pressure. If I am right, then it would be no surprise that data was recorded even if the battery in the transmitter was in wrong.

As far as what the investigator found relative to the system beeping if the battery was in wrong, the validity of his findings is dependent on what tests he performed. Did he actually install a battery in the transmitter backward, put the transmitter on a first stage and then submerge both the transmitter and console?

[Under-Exposed]

And, as far as the inconsistencies in his statements, I agree they cause me a great deal of concern and if I were the police, I'd investigate the heck out of the incident as a result of his statements. However, given the different ways people react to stresses, emergencies and questioning by the police and media, the inconsistencies do not impress me very much. Nor does his conduct with her family. In fact, his conduct toward her family is more consistent with an innocent man being railroaded by an improperly vindictive family than of a guilty man.

Bruce, with respect, I wholeheartedly agree!

Just so you all know, I have subscribed to the Qld Court Listing service so will find otu the night before judgment is to be delivered in the appeal, and I will of course let you all know.

[alohagal]

Okay...still waiting....foot tapping, fingers drumming, arms folded. It is awfully quiet here on the GABE WATSON front.

Just wondering? Is Gabe having to eat Kangaroo burgers and Vegie Mite sandwiches in gaol?

[bowlofpetunias]

Okay...still waiting....foot tapping, fingers drumming, arms folded. It is awfully quiet here on the GABE WATSON front.

Just wondering? Is Gabe having to eat Kangaroo burgers and Vegie Mite sandwiches in gaol?

Now that would be cruel and unusual punishment indeed :vomit::duck:

[Under-Exposed]

THE DAY YOU'VE ALL BEEN WAITING FOR HAS ARRIVED!!!!!

Judgment in the appeal in R v David Gabriel Watson will be delivered at 9.30am Friday, 18 September (Brisbane Time, which is GMT +10, so it will be 7.30pm on the US East Coast and 4.30pm on the West Coast on 17 September (I think)).

[K_girl]

A further thought on dive computers and backward batteries:

I have never used a wireless system. However, it seems to me that the transmitter transmits only tank pressure. I would expect that things like time, depth, max depth, water temperature, accent rate, etc. are all handled on the wrist mounted console and are independent of the functioning of the transmitter on the first stage. Therefore, I would expect that battery, wireless connection, or whatever, the wrist console would record everything about a dive except tank pressure. If I am right, then it would be no surprise that data was recorded even if the battery in the transmitter was in wrong.

As far as what the investigator found relative to the system beeping if the battery was in wrong, the validity of his findings is dependent on what tests he performed. Did he actually install a battery in the transmitter backward, put the transmitter on a first stage and then submerge both the transmitter and console?

Excellent point! I would have to say that if there was a transmitter involved, police should have verified with Watson if it was the transmitter or the computer that he was talking about. Here is the relevant portion of Watson's statement:

"WATSON: started to go down just a couple of feet under the water, my computer beeped at me um you know ‘gas alarm’ which is basically it’s not, means it’s not registering with the cylinder, either you know out of air, or it’s not working or whatever so you know motioned to her, we went back up um you know I told her my computer weren’t working, and I said well hang on a second and I went down you know a few more feet or a couple feet again just to see, cause normally with mine if it doesn’t register before you’re in the water, once your under a couple feet the pressure makes it kick in.. and it never did so, you know I went back up told her and we went back over to the boat.."

When he said "..not registering with the cylinder.." that made me think he might be using a wireless, even though he never actually said that. Upon closer examination of this statement, I think he is talking about an air-integrated computer. What makes me think that is this part of his statement: "..cause normally with mine if it doesn't register before you're in the water, once you're under a couple of feet the pressure makes it kick in.." In that case, there would be only one device, which is the computer itself. And no device can beep without power and I know of no dive computers that have two batteries as a source of power.

As I read the interview, I realized that the investigators were actually quite knowledgeable about diving. For instance, as Watson described himself dragging Tina by her BC on her left side, the investigator asked Watson why he did not inflate her BC at that time. In other words, the investigator knew the inflator hose is on the left side and that Watson had immediate access to it. It seemed to throw Watson off-guard and he really stumbled trying to answer that question. If Watson had a wireless dive computer, they would have known it when they questioned him because they examined him 4 days after the incident and they had his equipment in custody. I don't think they would have missed the obvious follow-up question with Watson. Certainly, if I were the defense attorney, I would pursue this as I would want to find any potential holes in the case because you never know what incorrect assumptions could have been made.

[Under-Exposed]

First reports say that he will spend an extra 6 months behind bars. I imagine that means that they have not changed the head sentence but changes to period after which the sentence is suspended. I doubt this will satisfy anyone!

[Under-Exposed]

Here is the judgment. Un fortunately I will not have an opportunity to read it for a few hours.

http://archive.sclqld.org.au/qjudgment/2009/QCA09-279.pdf

[Under-Exposed]

Ok. 3 judges. One would dismiss the appeal (the second judgment). One thought head sentence OK but suspended after 18 months (the third judgment). The other thought the head sentence OK, but would have suspended dafter 2 years, 3 months (ie half the head sentence) but in order to create a majority verdict lived with the 18 months suggested by the third judge.

And interestingly, they took different views of what the facts established in terms of Watson's culpability.

[bowlofpetunias]

Interesting indeed... I haven't read all of it yet. I obviously don't have access to the other cases quoted or the level of understanding those in the legal field have.

It is interesting that the Watsons were offered the Orientation dive and declined it twice! I heard that was what constituted "failing to follow their company operational policy" and resulted in their fine after the investigation. Remember it was noted that Mike Ball's SOP was higher than required by industry standards.

[Ayisha]

A couple of interesting things from the judgement are below. I can't seem to copy and paste the statements:

In section [87], it states that "the cause of death was asphyxiation". It says that "she did not drown". This is consistent with the early news reports that she asphyxiated and there was no water in her lungs.

In section [91], it says that Tina "was too heavily weighted", which was a subject of question in the previous thread on this matter. Many people argued that the amount of weight she was reportedly wearing had to have been way too much for her apparent size and exposure protection, even in salt water. She was apparently wearing 18 - 20 lbs according to Gabe. We don't know what amount of weight was actually found on Tina.

[diving queen]

Where are you alohagal, bsee65 and k_girl?? I thought you three would be chomping at the bit, so to speak, to throw in your three cents about this decision. Strange, don't you think, that three appellate judges can vary THAT MUCH in their decision? I've been away for a while, obviously, but with that said, I am glad to see that you all are lashing out at others the same way you lashed out at me for "rehashing" old information. I don't feel quite as singled out as I did before. It will be interesting to return to this thread three months from now to see if all of you are STILL talking about this.

[Under-Exposed]

A couple of interesting things from the judgement are below. I can't seem to copy and paste the statements:

In section [87], it states that "the cause of death was asphyxiation". It says that "she did not drown". This is consistent with the early news reports that she asphyxiated and there was no water in her lungs.

In section [91], it says that Tina "was too heavily weighted", which was a subject of question in the previous thread on this matter. Many people argued that the amount of weight she was reportedly wearing had to have been way too much for her apparent size and exposure protection, even in salt water. She was apparently wearing 18 - 20 lbs according to Gabe. We don't know what amount of weight was actually found on Tina.

This really is a little unsatisfactory to have these kinds of factual assessments being made in an appeal judgment from a sentencing decision based on agreed facts. The agreed fact (and the actual finding of the post mortem, as recounted in the coronial report) was that she had drowned. And it is simply not the case that because you have a regulator in your mouth you cannot drown. The agreed facts also recount that her equipment was checked and found to be normal, and specifically record that she was found to be not excessively weighted.

Notably, the third judge makes specific reference to the family's impact statements as being "coloured" by the belief that he had deliberately killed her, to the charge of murder as having been "given up as having no substance", to him being "wrongly accused in the public eye of murder" and to the fact that he has "borne the unjust charge ... of murder".

[Under-Exposed]

Where are you alohagal, bsee65 and k_girl?? I thought you three would be chomping at the bit, so to speak, to throw in your three cents about this decision. Strange, don't you think, that three appellate judges can vary THAT MUCH in their decision? I've been away for a while, obviously, but with that said, I am glad to see that you all are lashing out at others the same way you lashed out at me for "rehashing" old information. I don't feel quite as singled out as I did before. It will be interesting to return to this thread three months from now to see if all of you are STILL talking about this.

I think you mean "champing" at the bit.

[ItsBruce]

Fascinating.

The whole thing makes my head hurt.

[My-way]

Under-Exposed, it would not be the first time that loose language caused confusion and a lack of clarity in an appellate (or primary Court) judgment wouldn't you agree?

In essence unless the facts were relevant to mitigation or aggravation in terms of sentence to be imposed they are irrelevant and ought not to have been referred to.

By the way, what is a deregulator?

[K_girl]

As Under-Exposed stated, the outcome is essentially the same. Here are some excerpts in the appeal decision that I found to have new information:

The facts as stated in the appeal also takes some arguments into account that Watson's counsel made.

.."Much of his experience had not been accomplished in open waters with strong currents, though there was no suggestion currents played any particular part here.."

Watson certainly tried to make the case that the currents were significant in getting Tina into trouble. For some reason, they didn't believe him.

As bowlofpetunias stated, Tina was offered twice to join the orientation dive and turned it down because she was comfortable with Gabe's level of experience.

Appeal confirms that Dr. Stutz saw them together, but what does "in that way" mean?

Appeal says it took him between one and three minutes to return to the surface? That is a huge discrepancy of time and I think one of the things Watson's counsel must have argued, probably based on sampling rate.

The appeal made one of the same arguments I made which was nothing in Watson's statements ever sounded like he was in a state of panic.

[K_girl]

Interesting comments by Williams JA in the sentencing portion of the appeal, comparing to other cases like a man killing his pregnant wife by pointing what he thought was an un-loaded gun and pulling the trigger. Or the other case of essentially starving a woman to death to rid herself of evil spirits. This judge says that the Watson case is not as bad as these, but I would disagree. Waton's arrogance in believing in his own rescue skills and making Tina believe in his rescue skills and the arrogance of the man pointing a gun at his wife and pulling the trigger is on the same level as far as I am concerned.

All of the cases the judge sighted would seem to indicate an acceptance that the act was unintentional. I would say that all the evidence regarding intent in this case was ignored which would have been Watson's actions and behavior before and after Tina's death. Those elements were never, ever discussed - and there was certainly plenty of incidents for discussion.

So, what if the guy did intend to shoot his pregnant wife and just said - oops, I thought the gun was not loaded. If they don't examine or consider his behavior and actions before and after the incident to determine intent, doesn't it make it way too easy to get away with murder by simply accepting his explanation? I feel that is exactly what happened in the Watson case.

[bsee65]

This really is a little unsatisfactory to have these kinds of factual assessments being made in an appeal judgment from a sentencing decision based on agreed facts. The agreed fact (and the actual finding of the post mortem, as recounted in the coronial report) was that she had drowned. And it is simply not the case that because you have a regulator in your mouth you cannot drown. The agreed facts also recount that her equipment was checked and found to be normal, and specifically record that she was found to be not excessively weighted.

Notably, the third judge makes specific reference to the family's impact statements as being "coloured" by the belief that he had deliberately killed her, to the charge of murder as having been "given up as having no substance", to him being "wrongly accused in the public eye of murder" and to the fact that he has "borne the unjust charge ... of murder".

I found all of those statements bothersome based upon my belief that some form of foul play was likely. It was disrespectful to the family, at a minimum. It may seem to some as though these guys had their heads in the sand when they were discussing the case, and you have to wonder about their expertise in diving and forensic medicine. I was also troubled that the savings of costs would factor into the leniency of the verdict, though this isn't uncommon.

That said, unless the appellate court was prepared to state that the facts were different from what was established in the original plea, there wasn't much chance of anything more significant coming out of this appeal. They couldn't really consider the possibility that Watson had turned off her air or otherwise acted with the intent to cause her demise as a part of the sentence review. Without setting aside the manslaughter plea and forcing a trial on murder, there could be no justification for a sentence large enough to satisfy the family, or, probably of higher importance to them, a statement that the court believes there was active responsibility in this case.

If the "standard" in Australia is parole eligibility after half the sentence is served, then I believe that would have been the appropriate decision here. According to the findings, the sentence was reduced from the typical 6-7 years to four and a half based upon the plea and voluntary return. That would automatically take a year or so off the time to be served without applying further discounts. I can't see any meaningful difference between 12 months and 18, or really even the 27 months the one justice was recommending, so this wasn't a particularly useful exercise. I find it odd that a date for suspension of the sentence is pre-determined rather than a date for eligibility after review, but if that's the way it works for all, that's the way it works.

I think it has been said before. If Watson was guilty of being stupid under water, then any imprisonment seems too severe. If he acted with the intent that his wife die, no sentence is long enough. Without an actual consensus on the facts, I can't see that anyone will feel satisfied at the outcome, but those of us not directly involved should be at peace. Here's hoping that everyone can live with the decision, and that this is the end of criminal litigation related to this case.

[Under-Exposed]

Under-Exposed, it would not be the first time that loose language caused confusion and a lack of clarity in an appellate (or primary Court) judgment wouldn't you agree?

In essence unless the facts were relevant to mitigation or aggravation in terms of sentence to be imposed they are irrelevant and ought not to have been referred to.

By the way, what is a deregulator?

My-way...I am naturally suspicious of people who disclose nothing about themselves... but what is it that you think is irrelevant?

[Under-Exposed]

I think it has been said before. If Watson was guilty of being stupid under water, then any imprisonment seems too severe. If he acted with the intent that his wife die, no sentence is long enough. Without an actual consensus on the facts, I can't see that anyone will feel satisfied at the outcome, but those of us not directly involved should be at peace. Here's hoping that everyone can live with the decision, and that this is the end of criminal litigation related to this case.

bsee65...I know nothing of you...but I agree absolutely with this comment.

Unfortunately, I suspect there are plenty who will not be able to "live with the decision".

[diving queen]

I think you mean "champing" at the bit.

I meant "chomp" which, if you look is up, is a variation of "champ". And, as someone from the Southeast United States, chomp (as a definition of "chewing noisily") seems more appropriate than "champ", which sounds more like I was just declared the winner of a sporting event.

[ItsBruce]

A couple of thoughts, but no quoted:

1. As far as other cases cited: Context is everything. Aiming a gun and pulling a trigger would, in most circumstances, be intentional in my book even if the defendant thought the gun was not loaded. It usually falls into the category of what I call "inherently harmful and always wrongful." (The concept comes from child molestation cases where the perpetrator asserts he was trying to show love and affection, not to harm.) However, if the defendant and victim customarily played with a gun as part of their relationship and it was an agreed upon part, then maybe it isn't intentional, etc.

2. Whether Watson was just stupid or acted intentionally, the sentence just feels wrong. However, if you force yourself to recognize that it was the product of intelligent negotiations in which both sides gave up their best outcome to preclude their worst outcome, it makes a bit more sense.

3. Judges generally should not have expertise relative to matters they are judging. It tends to cause improper bias and a disregard of the evidence. Our system of justice says judges and jurors must decide the facts from the admissible evidence and then rule based on the facts they find. It is for the lawyers to present the evidence and educate the judges and jurors based on that evidence. That's why it is so important to have a good lawyer.

If the judges did not have an adequate grasp of the diving issues, that is because the lawyers failed to educate them. Moreover, an appeal is rarely a "do-over" of a trial. In an appeal, the Court looks at whether a lower court followed the law. There are many instances in which I have seen appellate courts say something to the effect: "We would not have made that finding, but we cannot say the trial court failed to follow the law when it made that finding; so we affirm."

[bsee65]

Bruce, I agree about the attorneys educating the judges in the context of a trial. During the trial, they would have to ensure that the jurors fully comprehend the scenario, so that should be part of the record for the judges during an appellate review. However, I wonder how much opportunity there is for that information to get into the record when the case goes the way of an early plea? With no requirement to educate a jury, there's no real need for the wordiness of a thorough explanation of the technical facts of the case. At least, not until someone goes over your head on appeal.

As far as the sentence making sense goes, it certainly does under the circumstances. That won't ever make the result objectively fair, though. I agree that an appeal is not a do-over of a trial. As such, and as I tried to say earlier, I can't imagine that it could have resulted in a sentence that would have been satisfactory to those who believe Watson was guilty of murder.

[Ayisha]

if the defendant and victim customarily played with a gun as part of their relationship and it was an agreed upon part, then maybe it isn't intentional, etc.

Even then, you'd need more information to figure out if it was intentional. If pointing a gun at his wife and pulling the trigger was a normal "playful" occurrence in their relationship, how was the gun loaded THIS fateful time? Was it the same gun? If so, who loaded it, why and when? If it was a different gun, why would it not have been checked prior to playing this "game"? If it was a usual "game", then the gun should have remained unloaded.

It does seem like the cases cited in the decision are about ill-advised but unintentional accidents.

[My-way]

Me: litigator practising in civil and quasi criminal jurisdictions.

In so far as what is relevant or irrelevant my comment stands, I indentified no particular fact as relevant or irrelevant.

It was a statement to address comments about "facts", so called, which are constantly referred to in this thread but clearly have not been proven to requisite criminal standard which is required in order to argue them as aggravating circumstances in the plea in mitigation. The Court of Appeal referred to no aggravating facts in the sentence.

The fact that he was charged with Murder is irrelevant to the sentence imposed (a fact that oes not appear to be accepted by some on this forum). He was by implication acquitted of that charge, in Australia, by the acceptance of plea of guilty to manslaughter by Crown, and importantly, the Court (US District Attorneys have the decision in Heath v Alabama (1985) (and subsequent decisions) to rely on, which is properly open to criticism in my view but that is a whole other series of arguments centre on US Constitutional interpretation and consistency). He therefore is entitled to be considered as innocent of that offence, and indeed was treated as innocent of that offence by the primary Court, and the Court of Appeal.

My questions still stands, what is a deregulator? I think this is particularly relevant to the commentary by Chesterman JA at paragraph 99 in respect of there being no relevant comparable sentencing case from which to draw analogy and provide guidance as to relevant sentence. I consider that the distinction between omission and commission in the terms of this case are without difference and the terminology adopted by the primary Court and picked up by the Court of Appeal are reflective of a lack of understanding of the activity being undertaken and argued as the cause of the unintentional death. The danger in the activity of diving and skylarking with a gun (or drug filled syringe) are equally obvious. This is an area of legitimate criticism of the way the case was argued for the Crown.

I do not single out this Court as being ignorant of the nature of scuba diving in general, a Court in Victoria (albeit a Magistrates’ Court) has also stated, in delivering sentence in relation to a fisheries offence, that there is no legitimate use for a rebreather in scuba diving!.

[mike_s]

This is an interesting addition for this conversation, but on the news tonight, it said that Alabama Attorney General Troy King was going to indict Watson for murder here in the US. (remember he's had a couple years to do this ..... but now that the case is back in media attention, he's doing it.)

Alabama AG Troy King says he'll seek murder indictment of Gabe Watson in wife's drowning in Australia - Breaking News from The Birmingham News - al.com (http://blog.al.com/spotnews/2009/09/alabama_attorney_general_says.html)


Now.... I agree that Watson is guilty and Australia gave him a lame sentence, but I don't think our US legal system has any jurisdiction in the case. It was committed in ANOTHER COUNTRY. To me, this seems like an elected official grandstanding.

Ironically, I believe that this is not allowed under our constitution as it falls under "Double Jeopardy". You can't try someone twice for the same crime in the US.

Like I said, seems like grandstanding by the Attorney General. (I'm betting he'll be running for Governor in the next election).

[Under-Exposed]

This is an interesting addition for this conversation, but on the news tonight, it said that Alabama Attorney General Troy King was going to indict Watson for murder here in the US. (remember he's had a couple years to do this ..... but now that the case is back in media attention, he's doing it.)

Alabama AG Troy King says he'll seek murder indictment of Gabe Watson in wife's drowning in Australia - Breaking News from The Birmingham News - al.com (http://blog.al.com/spotnews/2009/09/alabama_attorney_general_says.html)


Now.... I agree that Watson is guilty and Australia gave him a lame sentence, but I don't think our US legal system has any jurisdiction in the case. It was committed in ANOTHER COUNTRY. To me, this seems like an elected official grandstanding.

Ironically, I believe that this is not allowed under our constitution as it falls under "Double Jeopardy". You can't try someone twice for the same crime in the US.

Like I said, seems like grandstanding by the Attorney General. (I'm betting he'll be running for Governor in the next election).

In fact there is jurisdiction because it is a crime committed by a US citizen on a US citizen which is a matter in which Alabama (as in many other US states) asserts extra-territorial jurisdiction. But I agree that there should as a matter of constitutional law be a double jeopardy problem, and there is also a problem as a matter of construction of the Alabama criminal statute (the issue has been covered by me somewhere earlier in this thread).

[Under-Exposed]

He therefore is entitled to be considered as innocent of that offence, and indeed was treated as innocent of that offence by the primary Court, and the Court of Appeal.


Whil I agree that the fact he was charged with murder is irrelevant to sentencing, this is not an accurate statement of the legal position. Even if he had been tried of murder and found not guilty this is not equivalent to him being innocent: R v Darby (1982) 40 ALR 594.

[diving queen]

This is an interesting addition for this conversation, but on the news tonight, it said that Alabama Attorney General Troy King was going to indict Watson for murder here in the US. (remember he's had a couple years to do this ..... but now that the case is back in media attention, he's doing it.)

Alabama AG Troy King says he'll seek murder indictment of Gabe Watson in wife's drowning in Australia - Breaking News from The Birmingham News - al.com (http://blog.al.com/spotnews/2009/09/alabama_attorney_general_says.html)


Now.... I agree that Watson is guilty and Australia gave him a lame sentence, but I don't think our US legal system has any jurisdiction in the case. It was committed in ANOTHER COUNTRY. To me, this seems like an elected official grandstanding.

Ironically, I believe that this is not allowed under our constitution as it falls under "Double Jeopardy". You can't try someone twice for the same crime in the US.

Like I said, seems like grandstanding by the Attorney General. (I'm betting he'll be running for Governor in the next election).

I can give you a couple of reasons why Mr. King is going after this case now when he has never shown any interest before:

1st - Federal investigators brought at least six of King's former employees before a FEDERAL grand jury in March of this year (just two months before Watson returned to Australia) probing into investigations done by King's office and their possible connection to some of King's "allies".

The Raw Story | Federal probe of Alabama attorney general no shock to bloggers (http://rawstory.com/news/2008/Alabama_Attorney_General_under_federal_investigati on_0310.html)

http://www.al.com/news/birminghamnews/statebriefs.ssf?/base/news/123667297584280.xml&coll=2 (this is only a partial article because it has already been archived due to the date)

What's the best way to get attention off of you?...direct that attention towards someone else!

2nd - mike_s - You were close...he's not running for governor but he is running for a second term as Alabama Attorney General. The 2010 general election primaries are in June, with the general election in November. King said that he decided to announce his intentions early to let others know and give them time to consider their options.

King to seek another term as attorney general | GadsdenTimes.com | Gadsden Times | Gadsden, AL (http://www.gadsdentimes.com/article/20090312/NEWS/903121962?Title=King-to-seek-another-term-as-attorney-general)

What better way to get re-elected than to let your constituents see how tough you are on crime? And since this case has been a media free-for-all, I'd say this is as good a case as any to show just how "tough" he really is.

Personally, I don't think, based on everything that I've read in this case, that Watson is guilty of murder (so I don't agree with you there, mike_s) but I do agree with you that Mr. King seems to be grandstanding. I ABSOLUTELY think that Double Jeopardy will apply, but I just don't see it getting that far.

I think that if there was some evidence that he committed a crime in the US, and with all the help they were getting from police in the US, that they would have used that evidence to help convict him in Australia. I mean, if that kind of evidence existed, wouldn't that have just strengthened the Australian's case against Watson and sent this thing to trial to begin with? The DPP's office said that they couldn't prove the murder and that is why they took his plea, right? If they can prove anything in the US, where the actual crime didn't even take place, surely they could have proven it in Australia. I think Troy King is giving this family false hope because he's trying to take some attention away from himself and he's trying to get re-elected. IMHO.

[ACES50]

Good day Diving Queen

I think you are spot on about Troy King. Don Valeska, of the AG's office, was quoted in the Brisbane Times that he can prove he (Gabe Watson) went to her place of employment without her, before the wedding and attempted to change her insurance. Where do you suppose that witness has been? If that witness really exists, don't you think the Australians would be p.....ed to find that out after nearly six years? Why didn't that witness speak out during the inquest? I think Troy King is using the Thomas family for his own selfish needs.

[K_girl]

He was by implication acquitted of that charge, in Australia, by the acceptance of plea of guilty to manslaughter by Crown..

That just seemed bizarre to me, so I looked that up on dictionary.com and here is what it says: "Law. judicial deliverance from a criminal charge on a verdict or finding of not guilty." I don't think that an acceptance of a guilty plea of manslaughter equates to an acquittal.

Good day Diving Queen

I think you are spot on about Troy King. Don Valeska, of the AG's office, was quoted in the Brisbane Times that he can prove he (Gabe Watson) went to her place of employment without her, before the wedding and attempted to change her insurance. Where do you suppose that witness has been? If that witness really exists, don't you think the Australians would be p.....ed to find that out after nearly six years? Why didn't that witness speak out during the inquest? I think Troy King is using the Thomas family for his own selfish needs.

Yes, I saw this story too. The Alabama AG's office plans to say that they have jurisdiction over the case because it shows Watson began planning the murder while they were in the states. They admit that they may have double-jeopardy problems. This detail did not surface until the plea bargain was struck in June. I'm with you, I am very curious about the details of this information and why it took so long to come to light (at least publicly). Maybe this was something that has less meaning in Australian law than American law as it is not direct evidence of guilt, but could be evidence of intent. Maybe this detail was being kept back on purpose for trial and would not have been released to the defense until discovery. It's hard to say that just because we didn't know about it that Australian investigators did not know about it. Certainly, DPP is capable of not mentioning very important details to the judge like a knife being used to disfigure a woman's face by her former boyfriend in order to reduce his sentence to almost nothing in a plea bargain.

Dad unable to win justice for Tina Watson, bride of Gabe Watson (http://www.brisbanetimes.com.au/queensland/no-justice-for-tina-20090918-fupd.html)

Alabama is starting investigation and waiting for documents from Australia. Queensland authorities had previously discussed U.S. takeover of case with Alabama attorney general if they could not bring the case to trial and the plea bargain took Alabama authorities completely by surprise.

Honeymoon killer Gabe Watson 'in US kill plot' (http://www.brisbanetimes.com.au/queensland/honeymoon-killer-gabe-watson-in-us-kill-plot-20090609-c17c.html)

Please note that I cannot control the titles on the links - that is what the newspaper named them. I have no opinion of Troy King one way or the other, I just would like to see a real trial in this case.

[Ayisha]

Does double jeopardy actually apply to Watson? I thought he never actually went to trial on the charge of murder. The plea bargain was made before the trial was to begin. So, he never actually went to trial and was neither acquitted nor convicted on the charge of murder. Therefore, there is no double jeopardy in this case, right? :confused:

[bsee65]

Does double jeopardy actually apply to Watson? I thought he never actually went to trial on the charge of murder. The plea bargain was made before the trial was to begin. So, he never actually went to trial and was neither acquitted nor convicted on the charge of murder. Therefore, there is no double jeopardy in this case, right? :confused:

I was wondering about that myself. He pled to the "crime" of failing to protect/rescue his wife. On the one hand, one could argue that is a different issue than actively causing her death. On the other hand, you could argue that he already pled to a crime relative to his responsibility for her death, and that any further charges would violate the constitution.

Another question is whether or not a foreign country can limit the right of government within the US to seek justice. At the extreme end, I could form a small country and dispense plea bargains with fines (to pad my pocket) for serious crimes. Would the fact that I tried the case and imposed sentence then mean that the appropriate US court would be precluded from a charge that could carry a significant sentence by double jeopardy? Clearly an extreme case, but there's got to be some sanity with respect to the concept of double jeopardy with regard to outside jurisdictions.

[lamont]

Does double jeopardy actually apply to Watson? I thought he never actually went to trial on the charge of murder. The plea bargain was made before the trial was to begin. So, he never actually went to trial and was neither acquitted nor convicted on the charge of murder. Therefore, there is no double jeopardy in this case, right? :confused:

Double jeopardy applies to any case which has reached a final judgment and a plea is a final judgment -- a mistrial, for example, is not considered a final judgment. So, a plea bargain would preclude another prosecution on the same changes. However, a prosecution by a different government does not constitute double jeopardy and the US courts will not recognize the judgment of the Australian courts as triggering double jeopardy.

[Ayisha]

Double jeopardy applies to any case which has reached a final judgment and a plea is a final judgment -- a mistrial, for example, is not considered a final judgment. So, a plea bargain would preclude another prosecution on the same changes. However, a prosecution by a different government does not constitute double jeopardy and the US courts will not recognize the judgment of the Australian courts as triggering double jeopardy. bold added

The plea bargain that Watson accepted is not for the charge of murder, though. If it was the same charge, then he could apply his fifth amendment right to double jeopardy.

I agree with you that the U.S. courts will probably not recognize a judgement made outside of the U.S.

[mike_s]

that's what Attorney General Troy King said. basically Double Jeopardy didn't apply in this case and he's charging him for a capital murder, which is different than what Watson pleaded to.

(of course there are so many different ways you can charger murder/homicide/manslaughter/etc that it is easy to manipulate the legal system).

Though I think this guy is guilty, guilty, guilty, I still think this is sad day for the legal system to try him another country for it. :shakehead:

[ACES50]

Mike

It's late, can't sleep. What makes you think this guy is guilty,guilty,guilty?

[mike_s]

Good day Diving Queen

I think you are spot on about Troy King. Don Valeska, of the AG's office, was quoted in the Brisbane Times that he can prove he (Gabe Watson) went to her place of employment without her, before the wedding and attempted to change her insurance. Where do you suppose that witness has been? If that witness really exists, don't you think the Australians would be p.....ed to find that out after nearly six years? Why didn't that witness speak out during the inquest? I think Troy King is using the Thomas family for his own selfish needs.


Well Don Valeska of the AG's office is a first class dirtbag.

he should be dis-barred from being an attorney and then thrown in jail for his misconduct.

He has with held evidence from other trials, which caused a miss-trial. He doesn't care about getting the facts right as long as he win's.

[ACES50]

Mike

I have, all sixty pages. Just curious on your thoughts.

[mike_s]

It's late, can't sleep. What makes you think this guy is guilty,guilty,guilty?



I don't see anything that points to him not doing this.

his "reaction" to her accident just doesn't add up. Especially when you look at all the people the interviewed afterwards all sounded fishy. (can't remember what show this was on, but it was Nightline, 60 minutes, 48 hours or something like that).

Also I never bought his story about how he returned to the surface to get help. didn't he do a safety stop on the way up also? ( I can't remember as it's been a while since I read that far back. the Australian authorities kept his dive computer as evidence because of that.)

going to her grave to repeatedly destroy her flowers? I mean what is the point of this? (yes I know this doesn't prove guilt).


what I can't get out of this whole thing is that someone was crazy enough to marry him after all of this is up in the air. the creepy thing is that his new wife/finance looks just like his first wife.

[K_girl]

that's what Attorney General Troy King said. basically Double Jeopardy didn't apply in this case and he's charging him for a capital murder, which is different than what Watson pleaded to.

(of course there are so many different ways you can charger murder/homicide/manslaughter/etc that it is easy to manipulate the legal system).

Though I think this guy is guilty, guilty, guilty, I still think this is sad day for the legal system to try him another country for it. :shakehead:

Double jeopardy is a procedural defense that forbids a defendant from being tried twice for the same crime on the same set of facts. The degree of the "crime" (i.e. murder or manslaughter) has nothing to do with it - double jeopardy still applies. King's office said that they might have a problem with double jeopardy, but they have several arguments they can put forth. The other problem will be proving jurisdiction. If they can prove their claim that Watson went to Tina's job and tried to up her insurance and get his name on her insurance without her knowledge before they were married, then they will argue that significantly alters the set of facts, therefore double jeopardy does not apply. They will also argue that proves he planned Tina's death while still in the U.S., giving them jurisdiction. I have no doubt they will arrest Watson as soon as he steps foot on American soil. I also saw Mark Gerregos, defense attorney for Scott Peterson and Michael Jackson talk about this case on CNN. He said the U.S. has the choice not to bind itself to double jeopardy in a case like this that involves Americans in foreign countries - and he has seen people tried in what would otherwise be a double jeopardy situation. But, he said it is going to be up to a judge. The judge could just as easily rule against them.

It is interesting to examine this plea agreement and the "set of facts" - they were never brought to trial and the agreed-upon "facts" are weakly outlined in all the documents relating to the plea agreement, sentencing and appeal. It could be that nearly all of the "set of facts" as established in the investigation would be fair game for the Alabama prosecutors as "new and significant facts."

[Under-Exposed]

Double jeopardy applies to any case which has reached a final judgment and a plea is a final judgment -- a mistrial, for example, is not considered a final judgment. So, a plea bargain would preclude another prosecution on the same changes. However, a prosecution by a different government does not constitute double jeopardy and the US courts will not recognize the judgment of the Australian courts as triggering double jeopardy.

Except that I think that the statute whereby jurisdiction is conferred in respect of crimes against US citizens committed abroad only applies if the accused has not been dealt with for that conduct by the country in which the conduct occurred. I wish I could find it again! As I recall the US constitutional principle, it doesn't even apply if the second prosecuting authority is a different state. Seems odd to me, but anyway!

[My-way]

Whil I agree that the fact he was charged with murder is irrelevant to sentencing, this is not an accurate statement of the legal position. Even if he had been tried of murder and found not guilty this is not equivalent to him being innocent: R v Darby (1982) 40 ALR 594.

On the contrary I don't think that that case stands for the proposition you advance. Darby was a case about co-conspirators and whether or not the old common law rule that either both are guilty (in a 2 person conspiracy) or neither are guilty. With the majority holding that they would now refuse to follow the old common law rule and allow the conviction of on conspirator to stand notwithstanding the aquittal of the other co-conspirator despite the obvious inconsistency. Thomas was acuitted and (other than the conviction of Thomas being the subject of an appeal as for Darby, which it was not), Darby remained convicted. Thomas is and was entitled to full faith and credit being given to his acquittal (the acquittal not having ben overturned).

Murphy J was correct in his assessment (despite being in the minority) that as between Crown and acquitted subject the rebuttable presumption of innocence is confirmed by the acquittal. That was not challenged by the majority, and in fact that was expressly accepted by the majaorty at [17].

Murphy J was also correct at [13] "It is irrelevant that persons may hold private reservations about the acquitted person's innocence. It is irrelevant that remedies may be available in tort or other branches of private law arising out of the conduct of the acquitted person. The relationship between the State and the accused is not to be assimilated to private law relations"

As the Crown (or sovereign for our US colleagues) is the only entity that can level a murder charge he is innoncent of that charge in the Australian jurisdiction. Let us leave out, for the time being, the issue of private informations (the process). This is a dive web board after all.

As previously posted, Heath v Alabama (1985) is a really interesting read as a lawyer the concept of the each sovereign being entitled, seperately and independently, to the vindication of its laws, whilst superficially attractive has some obvious unfairness when a person has been already convicted on the same set of facts and acts and punnished again in a second trial (all the more so when that second trial is in the same country!). It is an interesting read and I would encourage anyone to read it, here's a link: HEATH V. ALABAMA, 474 U. S. 82 (1985) -- US Supreme Court Cases from Justia & Oyez (http://supreme.justia.com/us/474/82/case.html)

Here's a further quote re the fifth amendment: Consequently, when the same act transgresses the laws of two sovereigns,

"it cannot be truly averred that the offender has been twice punished for the same offence, but only that by one act he has committed two offences, for each of which he is justly punishable."

In applying the dual sovereignty doctrine, then, the crucial determination is whether the two entities that seek successively to prosecute a defendant for the same course of conduct can be termed separate sovereigns. This determination turns on whether the two entities draw their authority to punish the offender from distinct sources of power". Not sure how this works in relation to the due process amendments to the US constitution and their interpretation, possibly because there are two separate due process amendments (one for the States and one for the Feds). It will probably be interesting in about 14 months time.

Notwithstanding the above and as interesting as law is, that is the only reason I am in it, I would much prefer to talk about diving.

So on that note I had a lovely dive on the bay today bagging about 100 scallops and having a couple of nice beers and snags on the barbie for lunch. Nice day was had. No wto whip up a delicious scallop dinner.

[Under-Exposed]

On the contrary I don't think that that case stands for the proposition you advance. Darby was a case about co-conspirators and whether or not the old common law rule that either both are guilty (in a 2 person conspiracy) or neither are guilty. With the majority holding that they would now refuse to follow the old common law rule and allow the conviction of on conspirator to stand notwithstanding the aquittal of the other co-conspirator despite the obvious inconsistency.

I was really relying upon the majority's acceptance of the statement from DPP v Shannon to this effect: "An accused is entitled to be acquitted unless the evidence satisfies the jury beyond reasonable doubt that he is guilty. A verdict of not guilty may mean that the jury is certain that the accused is innocent, or it may mean that, although the evidence arouses considerable suspicion, it is insufficient to convince the jury of the accused's guilt beyond reasonable doubt. The verdict of not guilty is consistent with the jury having taken either view." The only effect of the verdict of not guilty is that as between the crown and the accused the accused cannot be tried again for the same offence...or as is put in DPP v Shannon "far as the Crown is concerned, the accused is deemed, in law, to be innocent", but not otherwise.

[Under-Exposed]

And finally, the provisions dealing with extraterritoriality were in the Federal Criminal Code and not the Alabama one, so the legislative restriction I had previously referred to would not apply to an Alabama prosecution, but having said that there is fairly limited extraterritorial criminal jurisdiction in the states in any event. Which is probably why the original suggestion was a conspiracy charge (although who it is he is supposed to have conspired with I have no idea), or perhaps an extended jurisdiction based on preparatory acts done within the jurisdiction.

Anyway, having seen The Staircase I have little faith even from this distance in southern state prosecutorial authorities.

[My-way]

Like him or not Murphy J was a very insightful judge.

[mike_s]

Double jeopardy is a procedural defense that forbids a defendant from being tried twice for the same crime on the same set of facts. The degree of the "crime" (i.e. murder or manslaughter) has nothing to do with it - double jeopardy still applies.




I read in one article where King said in an interview that he could charge the case with Capital Murder because Watson pleaded to a different crime. so in this case, it appears that King is using that charge differently.


I can see if I can find the link if needed where he said that.


King's office said that they might have a problem with double jeopardy, but they have several arguments they can put forth.


Actually King's office said that Double Jeopardy didn't apply here.

he said: (from Alabama to Seek Murder Charge Against Man in Wife's Australian Honeymoon Drowning - International News | News of the World | Middle East News | Europe News - FOXNews.com (http://www.foxnews.com/story/0,2933,552440,00.html))

An attorney for Watson, Bob Austin, said the U.S. Constitution bars trying someone twice for the same crime. States can prosecute people for crimes committed outside the United States only if a foreign country refuses to bring charges, he said.

"That's not what happened here," he said. King, Austin said "can say whatever he wants."

King aide Chris Bence said there was no "international standard" on double jeopardy, or prosecuting someone twice for the same offense, and Watson didn't plead guilty to murder.



The other problem will be proving jurisdiction. If they can prove their claim that Watson went to Tina's job and tried to up her insurance and get his name on her insurance without her knowledge before they were married, then they will argue that significantly alters the set of facts, therefore double jeopardy does not apply. They will also argue that proves he planned Tina's death while still in the U.S., giving them jurisdiction. I have no doubt they will arrest Watson as soon as he steps foot on American soil.

well they feel they have jurisdiction also.

Aid to King said: (in same article

"We feel we will be able to prove he plotted and planned the murder in Alabama, which gives us jurisdiction," said Bence.

[Ayisha]

While looking up the definition of double jeopardy from various sources, I came across this interesting tidbit regarding Australia and double jeopardy from Double jeopardy - Wikipedia, the free encyclopedia (http://en.wikipedia.org/wiki/Double_jeopardy):

In contrast to other common law nations, Australian double jeopardy law has been held to extend to the prevention of prosecution for perjury following a previous acquittal where a finding of perjury would controvert the previous acquittal. This was confirmed in the case of R v Carroll, where the police found new evidence convincingly disproving Caroll's sworn alibi two decades after he had been acquitted of murder charges in the death of Ipswich child Deidre Kennedy, and successfully prosecuted him for perjury. Public outcry following the overturning of his conviction (for perjury) by the High Court has led to widespread calls for reform of the law along the lines of the UK legislation.

In December 2006, New South Wales Premier Morris Iemma scrapped substantial parts of the double jeopardy law in that state. Retrials of serious cases with a minimum sentence of twenty years or more are now possible, even when the original trial preceded the 2006 reform.[2]

South Australia currently is also in the process of reforming its laws which will see the principle of double jeopardy abolished for serious indictable offences.

On 18 October 2007, Queensland modified its double jeopardy laws to allow a retrial where fresh and compelling evidence becomes available after an acquittal for murder or a 'tainted acquittal' for a crime carrying a 25-year or more sentence. A 'tainted acquittal' requires a conviction for an administration of justice offence, such as perjury, that led to the original acquittal. Unlike reforms in the United Kingdom and New South Wales, this law does not have a retrospective effect, making its introduction less than fully appreciated by those who, over the years, have been advocating reform.

If new compelling evidence becomes available, it seems that it may be possible for double jeopardy to be waived in Australia in this case.

[livinoz]

While looking up the definition of double jeopardy from various sources, I came across this interesting tidbit regarding Australia and double jeopardy from Double jeopardy - Wikipedia, the free encyclopedia (http://en.wikipedia.org/wiki/Double_jeopardy):



If new compelling evidence becomes available, it seems that it may be possible for double jeopardy to be waived in Australia in this case.

He wasn't acquitted, nor was he charged with murder, but pleaded guilty to manslaughter and is serving a sentence for that. So can you please explain how this highlighted section you quoted is relevant here:

On 18 October 2007,Queensland modified its double jeopardy laws to allow a retrial where fresh and compelling evidence becomes available after an acquittal for murder or a 'tainted acquittal' for a crime carrying a 25-year or more sentence.

[mike_s]

while they might change this in Australia, I doubt the US cares about other countries Double Jeopardy laws if they really want to prosecute someone.


As for jurisdiction, I think the US also will prosecute people who travel to other countries (like Thailand or Maylasia, etc) for child sex "trips". Of course the crime doesn't happen in the US, but they will prosecute you for it now I believe....

(someone correct me if I got those countries listed above wrong).

[My-way]

"The respondent had been charged that on 22 October 2003 at the Yongala shipwreck near Townsville he murdered Christina Mae Watson. The Crown Prosecutor informed the learned primary Judge that the Crown accepted the plea to manslaughter in full discharge of the indictment"

It is pretty clear that he was charged with murder in Queensland and manslaughter being an alternative verdict in a murder trial (by plea or finding by a jury) he was, by necessary implication, acquitted of murder.

[ItsBruce]

... I could form a small country and dispense plea bargains with fines (to pad my pocket) for serious crimes. ... .

That is easier than you might think. While it is true that the "Colonies" succeeded, the South tried and failed. It is not even easy to form one's own city.

I'm not going to list other examples, but forming one's own small country is probably not in the cards.

[Under-Exposed]

"The respondent had been charged that on 22 October 2003 at the Yongala shipwreck near Townsville he murdered Christina Mae Watson. The Crown Prosecutor informed the learned primary Judge that the Crown accepted the plea to manslaughter in full discharge of the indictment"

It is pretty clear that he was charged with murder in Queensland and manslaughter being an alternative verdict in a murder trial (by plea or finding by a jury) he was, by necessary implication, acquitted of murder.

Sorry to bang on about law (it is interesting though isn't it!) but the Qld double jeopardy provisions (Chapter 68 of Qld's Criminal Code) which allow for the retrial of an acquitted offence in some circumstances do not apply where although a person is acquitted of the offence as charged, the person is convicted instead of a lesser offence, the specific example given in the note to the provision being a charge of murder that results in a conviction for manslaughter.

[Under-Exposed]

Like him or not Murphy J was a very insightful judge.

I am mostly in the "not" category, but in fact nothing he says is inconsistent with the proposition I advanced...it is only so as between the accused and the Crown (well, there might be an interesting question about the divisibility of the Crown...but that's for a journal!)

[fisheater]

I'm not at all sure that the U.S. Constitution's double jeopardy provision would be applied to foreign trials. Most likely, it only prevents the U.S. (and states) from trying someone twice for the same crime.

I haven't had the time to research that question. Anyone have a citation?

[K_girl]

I read in one article where King said in an interview that he could charge the case with Capital Murder because Watson pleaded to a different crime. so in this case, it appears that King is using that charge differently.

I can see if I can find the link if needed where he said that.

Actually King's office said that Double Jeopardy didn't apply here.

he said: (from Alabama to Seek Murder Charge Against Man in Wife's Australian Honeymoon Drowning - International News | News of the World | Middle East News | Europe News - FOXNews.com (http://www.foxnews.com/story/0,2933,552440,00.html))

An attorney for Watson, Bob Austin, said the U.S. Constitution bars trying someone twice for the same crime. States can prosecute people for crimes committed outside the United States only if a foreign country refuses to bring charges, he said.

"That's not what happened here," he said. King, Austin said "can say whatever he wants."

King aide Chris Bence said there was no "international standard" on double jeopardy, or prosecuting someone twice for the same offense, and Watson didn't plead guilty to murder.


In the end - Alabama prosecutors will have to fight a double jeopardy motion and argument which will no doubt be put forth by the defense. In your quote, they are just firmly saying what their argument will be. The double jeopardy argument will have to be adjudicated, it will not disappear as an issue just because the prosecutors have an argument. Mark my words, there will be a hearing on the double jeopardy issue. Here is what Valeska said:

"We would definitely arrest him when he gets back but whether two countries can charge someone over the same murder remains to be seen," Mr Valeska said.

"A judge here may turn around and say that he can't be put in jeopardy for the same crime twice."

Source: Dad unable to win justice for Tina Watson, bride of Gabe Watson (http://www.brisbanetimes.com.au/queensland/no-justice-for-tina-20090918-fupd.html)

[K_girl]

CDNN reporting re: Watson case. Here is an excerpt from their report the day after Tina died:

"Gabe Watson was pulled unconscious from the water late Wednesday morning and survived. Efforts to revive his wife failed.."

CDNN :: Mike Ball Spoil Sport Guest Died On Her Honeymoon (http://www.cdnn.info/safety/s031024/s031024.html) - Source quoted as "Townsville Bulletin."

Other articles show that Watson was talking to the press just days after the incident and Gabe Watson is quoted directly:

http://www.cdnn.info/safety/s031031/s031031.html - Source quoted as "Rueters"

"TOWNSVILLE, Australia (24 Apr 2006) -- According to attorney Bob Austin Gabe Watson nearly drowned himself trying to save his bride of 11-days during their tragic honeymoon in Australia in October 2003..

Austin goes on to says that Gabe Watson was blind and without air forcing him to surface and call for help as Christina Watson was whisked away in a heavy current.."

Source: http://www.cdnn.info/news/safety/s060424.html - Source quoted as "Wait"

Excuse me, but how can this possibly be true when Watson told investigators he got control of his mask and reg and then tried to kick down for Tina but she was sinking too fast? hmmm.. telling his attorney one thing and telling investigators another? Sound familiar? Anyone bother to tell Watson's attorney that if he was blind and without air all the way to the surface - he probably would have drowned coming up from 50 feet?

If Alabama prosecutors do indeed pursue this case, they need to find out who talked to Watson and figure out if Watson was the source for this statement in the report - and they need to subpoena the reporter's notes.

So - on a side point, CDNN is supposed to be the bad tabloid of diving news. Anyone have an example where they quoted another source for their story, but it turned out to be false?

[K_girl]

Just as I said as soon as it was announced - dumb move on the part of Alabama prosecutors to go for the death penalty for Watson - as Australia may grant him asylum.

"A spokesman for the Australian Attorney-General's Department said a possible death sentence could prevent Watson's extradition - if US authorities applied for it."

'The Extradition Act prevents a minister from surrendering a person to be prosecuted for an offence which carries the death penalty unless the requesting country gives Australia an undertaking that the death penalty will not be imposed or if imposed will not be carried out,' the spokesman said. "

Source: http://bigpondnews.com/articles/National/2009/09/20/Honeymoon_killer_may_face_death_in_US_374541.html

So here is another interesting potential outcome. One of the reasons for the reduction of the 4-1/2 year sentence to 18 months was because it would be a hardship for Watson to not have family around. So, if they grant him asylum and he never returns "home" to his family - would that change his sentence to cause him to serve more time since Australia would be his new "home"?

[mike_s]

CDNN reporting re: Watson case. Here is an excerpt from their report the day after Tina died:

"Gabe Watson was pulled unconscious from the water late Wednesday morning and survived. Efforts to revive his wife failed.."

CDNN :: Mike Ball Spoil Sport Guest Died On Her Honeymoon (http://www.cdnn.info/safety/s031024/s031024.html) - Source quoted as "Townsville Bulletin."




I wouldn't trust any article that comes out on CDNN.

Interviews with people on the boat said he was conscious when he returned to the boat. (this from the 48 hours/60 minutes/etc or what ever it was interview a year or so ago. They talked about how he acted when he returned to the boat. )



So - on a side point, CDNN is supposed to be the bad tabloid of diving news. Anyone have an example where they quoted another source for their story, but it turned out to be false?

I don't have a direct reference, but there are several instances where CDNN has printed less than true facts in their stories.

[mike_s]

In the end - Alabama prosecutors will have to fight a double jeopardy motion and argument which will no doubt be put forth by the defense. In your quote, they are just firmly saying what their argument will be. The double jeopardy argument will have to be adjudicated, it will not disappear as an issue just because the prosecutors have an argument. Mark my words, there will be a hearing on the double jeopardy issue. Here is what Valeska said:

"We would definitely arrest him when he gets back but whether two countries can charge someone over the same murder remains to be seen," Mr Valeska said.

"A judge here may turn around and say that he can't be put in jeopardy for the same crime twice."

Source: Dad unable to win justice for Tina Watson, bride of Gabe Watson (http://www.brisbanetimes.com.au/queensland/no-justice-for-tina-20090918-fupd.html)


well if anyone can screw this up, it's Don Valeska.

Valeska has been caught by judges lying in court and withholding evidence. I'm surprised he hasn't been disbarred.

[K_girl]

CDNN reporting re: Watson case. Here is an excerpt from their report the day after Tina died:

"Gabe Watson was pulled unconscious from the water late Wednesday morning and survived. Efforts to revive his wife failed.."

CDNN :: Mike Ball Spoil Sport Guest Died On Her Honeymoon (http://www.cdnn.info/safety/s031024/s031024.html) - Source quoted as "Townsville Bulletin."

Other articles show that Watson was talking to the press just days after the incident and Gabe Watson is quoted directly:

CDNN :: Mike Ball Manager Denies Negligence in Spoil Sport Death (http://www.cdnn.info/safety/s031031/s031031.html) - Source quoted as "Rueters"

"TOWNSVILLE, Australia (24 Apr 2006) -- According to attorney Bob Austin Gabe Watson nearly drowned himself trying to save his bride of 11-days during their tragic honeymoon in Australia in October 2003..

Austin goes on to says that Gabe Watson was blind and without air forcing him to surface and call for help as Christina Watson was whisked away in a heavy current.."

Source: CDNN :: Attorney Blames Mike Ball Dive Expeditions for Honeymooner's Scuba Diving Death (http://www.cdnn.info/news/safety/s060424.html) - Source quoted as "Wait"

Excuse me, but how can this possibly be true when Watson told investigators he got control of his mask and reg and then tried to kick down for Tina but she was sinking too fast? hmmm.. telling his attorney one thing and telling investigators another? Sound familiar? Anyone bother to tell Watson's attorney that if he was blind and without air all the way to the surface - he probably would have drowned coming up from 50 feet?

If Alabama prosecutors do indeed pursue this case, they need to find out who talked to Watson and figure out if Watson was the source for this statement in the report - and they need to subpoena the reporter's notes.

So - on a side point, CDNN is supposed to be the bad tabloid of diving news. Anyone have an example where they quoted another source for their story, but it turned out to be false?

I was able to confirm these stories on Lexis/Nexis. It would appear that Danny Mortison from Townsville Bulletin was the reporter who spoke with Watson. So, even if CDNN is a sleezebag rag, it would appear that they quoted these particular stories word-for-word and are the only public resource who have retained these stories.

[ItsBruce]

I don't have the time to research double jeopardy right now. However, my gut tells me that while he might be tried in the US for a crime for which he was acquitted in another country, it cannot try him for a crime for which he served a sentence. Apart from double jeopardy issues, I see a whole host of cruel-and-unusual-penalty issues. ... Even though he maintains his innocence, he pleads guilty to manslaughter and serves time in prison to avoid the risk of being found guilty of murder, and then as soon as he is released, he is charged with murder and a key piece of evidence is his guilty plea to the manslaughter charge. And, if I were an appellate justice considering the matter, I'd certainly consider the public policy implications as follows

Like it or not, plea bargains are an essential part of the criminal justice system. Given (1) the number of crimes for which people are charged, (2) a jury trial is a matter of right in anything greater than a traffic ticket and (3) the Constitution guarantees a speedy public trial; there are not enough courts, judges, jurors or prosecutors to try them all. Incidentally, case which is not brought to trial within the requisite time MUST be dismissed unless the defendant waives time. Thus, without plea bargains, the whole system would grind to a halt and the courts will have no choice but to simply dismiss cases that can't be brought to trial in the requisite time.

Now, how many people will plead guilty to a lesser crime if, after they serve their sentence, they can be tried for the same crime in another state (that asserts it was somehow impacted by the crime)? How about if their plea can be used as evidence in that subsequent case?

I think that the appellate courts will look at the realities and say no second trial.

And, for anyone who doubts the importance of public policy consider:

1. There is an absolute privilege for confidential communications between a clergyman and a parishioner. Since Confession is a religious ceremony, to permit, let alone require, a clergyman to disclose a confidential communication by a parishioner would interfere with the free exercise of religion. Thus, the law makes such communications absolutely privileged.

2. There is an absolute privilege for confidential communications between a lawyer and a client. Even a confession is privileged. The law basically says that to function, clients must be able to share everything with their lawyers and to receive their lawyers' honest assessments. Thus, even if it means that the truth is hidden, the law makes the communication inviolate.

3. In a civil proceeding, the law says that evidence he defendant took remedial measures after the fact to prevent a similar incident is not admissible to show there was something wrong at the time of the incident. Clearly subsequent remedial measures are relevant to show something needed fixing. However, the law wants to encourage people to fix things that are dangerous, and it figures that if evidence of repairs can come back to haunt the defendant, no one will perform repairs after someone else is injured. Thus, the law it makes such evidence inadmissible.

There are lots of other examples and I suspect that an appellate court will invoke double jeopardy or cruel-and-unusual to protect the plea bargain system.

Just my $0.02.

[My-way]

I am mostly in the "not" category, but in fact nothing he says is inconsistent with the proposition I advanced...it is only so as between the accused and the Crown (well, there might be an interesting question about the divisibility of the Crown...but that's for a journal!)

I have to say I am in the "like" category most, but not all, of the time and the innocence part in terms of a criminal prosecution between Crown and subject innocence as between Crown and subject is all that is relevant. Private reservations are irrelevant, they are for ventilation in wrongful death suits.

[Tom Smedley]

I have heard a rumor that someone read in the Birmingham News that the Alabama Attorney General is looking to press charges in Alabama. We need lots of popcorn to watch this unfurl.

[mike_s]

I have heard a rumor that someone read in the Birmingham News that the Alabama Attorney General is looking to press charges in Alabama. We need lots of popcorn to watch this unfurl.


you're rumor is right. read back and there is a link referencing it to AL.com (which the B'ham news website is on).

Attorney General Troy King intended to press charges against him. Don Valeska that we were talking about is the Assistant state attorney general that is his 'whipping boy'.

[K_girl]

I have heard a rumor that someone read in the Birmingham News that the Alabama Attorney General is looking to press charges in Alabama. We need lots of popcorn to watch this unfurl.

"I have heard a rumor that someone read.."? :rofl3:

[K_girl]

I don't have the time to research double jeopardy right now. However, my gut tells me that while he might be tried in the US for a crime for which he was acquitted in another country..

..it cannot try him for a crime for which he served a sentence..

I think that the appellate courts will look at the realities and say no second trial..



Just to clear-up a few things here. Watson was not acquitted because an acquittal is a finding of not guilty. I would say the second part about trying him for a crime for which he served a sentence would be correct in attempting to apply double jeopardy.

There was no first trial, so there can't be a second trial.

However, I agree in general. There is a chance that double jeopardy would apply for the reasons you argued. There is also a chance that Gabe Watson could become an Australian citizen if Alabama continues to pursue the death penalty.

[veriqster]

as much as i like the legal system in US, UK, Australia, etc, it makes me sick seeing people strike a deal. As bad as the system in other countries is (namely eastern europe) this kind of things does not happen: you are either found guilty of the charge or not guilty, the court can change the crime you are charged with to a lesser one (based on the evidence presented) and still find you guilty but you don't see people rotting in jail because they had a bad feeling about the deck of cards on the table (you see plenty of get away with stuff as well as some doing time for having bad luck).
On the other hand, it has to be noted that in those states a judge is not simply an "impartial referee" in the process and actually has the legal right AND duty to do everything in his power to find the truth, meaning the judge can order new witnesses, experts, lab work, etc.
quite different from what happens in here and in fact quite burdening for the system, but, as an accused, you know that even if you can't afford it, somebody will be digging for the truth.
i'm not saying one or the other is wrong - different approaches dictated by different cultural and economical background.
p.s. i know little to nothing about this particular case but it disturbs me that one can be convicted based on the fact that "he is a certified rescue diver". if that happens in US anytime during my life i will do everything in my powers to get rid of that certification - no desire to rot in jail for somebody else's mistake / misfortune. In my mind it should be a clear case of guilty or innocent, regardless of the crime (and he has not been charged with manslaughter, has he)

[livinoz]

There is also a chance that Gabe Watson could become an Australian citizen if Alabama continues to pursue the death penalty.

I'm sure Watson would not meet the criteria for Australian citizenship as he will have served a sentence for a major crime. He could however appeal for asylum once released, but that too may or may not be granted.

[veriqster]

sorry, could not restrain myself

The following source states:

Therefore, one may be prosecuted for a crime in a state court, and also prosecuted for the same crime in another state, a foreign country, or (most commonly) in a federal court.


or US NAVY may chose to bail out and let loose one of it's soldiers that out of the blue, in public, shoots a (quite famous) civilian in peaceful town of a friendly country that is not at war with anybody

[K_girl]

veriqster - When the sentencing appeal was announced in the newspapers, the Australian Attorney General, Cameron Dick, told newspapers that "deterrence" would be one of the factors to be argued to increase the sentence. Many of us have expressed our horror with this. I sent a letter to Cameron Dick expressing concern ( http://www.scubaboard.com/forums/4593543-post449.html ). The opinion in the sentencing appeal seemed to dismiss the idea of deterrence and the argument did not even seem to be presented by Cameron Dick's associate who argued the appeal. Here are the relevant portions in sentencing appeal opinion that compare "deterrence" in another case involving a woman who was starved to death for religious purging of evil spirits:

"[63] In the reasons of the Court it was said:

"The sentencing judge accepted the applicants were unlikely to reoffend. It is nevertheless important to impose a substantial term of imprisonment in the hope of deterring others from engaging in such objectively dangerous and unacceptable conduct whilst pursuing personal religious or spiritual beliefs. The deceased was in the applicants' care; she was plainly unable to look after herself or to make a free and informed decision whether or not to obtain medical attention and they failed to seek the required medical attention."

[64] As the Court pointed out, the conduct was "objectively dangerous and unacceptable". The applicants made no attempt to obtain assistance, despite the deceased's obviously grave and worsening physical condition, until it must have been apparent that her condition had deteriorated to such an extent that her death was a distinct possibility. Also, it was the view of the Court that it was important to impose a sentence which would satisfy the requirements of general deterrence. General deterrence is not a relevant consideration in this case. It is singularly unlikely that the sentence imposed on the applicant will bear in any way on the conduct of persons with the safety of others entrusted to their care."

"98] ..Punishment is not necessary as a deterrent, either to the respondent or anyone else. The offence is unlikely to be repeated."
---

So what's left unsaid about deterrence in this case? Well - I believe it is accidental neglect of duty versus intentional neglect of duty. I think they are saying they don't intend to prosecute accidental neglect of duty where they are going to punish in this case for intentional neglect of duty. I think they are saying that intentional neglect of duty rarely occurs, therefore establishing deterrence in this case will not be applicable in most situations. This was just a way to plea bargain the situation down to something else and keep rescue divers from freaking out - and yet it remains seemingly contradictory. And, what is to stop anyone from using this case as precedent in the future, especially with unspoken terms of accidental versus intentional. Such is the mystery of law.

[My-way]

Just to clear-up a few things here. Watson was not acquitted because an acquittal is a finding of not guilty.

Your Supreme Court does not agree with you:

Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

At its highest your argument could be that here there has been no acquittal in the US, but not necessarily no acquittal for US legal purposes.

[K_girl]

Your Supreme Court does not agree with you:

Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

At its highest your argument could be that here there has been no acquittal in the US, but not necessarily no acquittal for US legal purposes.

I got the definition of acquittal from plain old dictionary.com:

Acquittal Definition | Definition of Acquittal at Dictionary.com (http://dictionary.reference.com/browse/acquittal)

But it doesn't surprise me that lawyers can completely change it. They can make black - white and white - black when they want to. Just don't put a limit on the number of words they can use.

:bonk:

[livinoz]

I got the definition of acquittal from plain old dictionary.com:

Acquittal Definition | Definition of Acquittal at Dictionary.com (http://dictionary.reference.com/browse/acquittal)

But it doesn't surprise me that lawyers can completely change it. They can make black - white and white - black when they want to. Just don't put a limit on the number of words they can use.

:bonk:


I agree K_girl!

IMHO this thread is devolving into one of legal argument, and as an non-lawyer I find it difficult to follow, and also I must admit, because of my lack of understanding of legalese, a little tedious! ;)

[My-way]

Sadly there's heaps of "Legal" Dictionaries.

[livinoz]

Sadly there's heaps of "Legal" Dictionaries.

And sadly I'd think none of them make riveting reading! ;)

(except to a lawyer)

[My-way]

Oh, you know, it depends.

[Under-Exposed]

Just as I said as soon as it was announced - dumb move on the part of Alabama prosecutors to go for the death penalty for Watson - as Australia may grant him asylum.

"A spokesman for the Australian Attorney-General's Department said a possible death sentence could prevent Watson's extradition - if US authorities applied for it."

'The Extradition Act prevents a minister from surrendering a person to be prosecuted for an offence which carries the death penalty unless the requesting country gives Australia an undertaking that the death penalty will not be imposed or if imposed will not be carried out,' the spokesman said. "

Source: Telstra BigPond News and Weather (http://bigpondnews.com/articles/National/2009/09/20/Honeymoon_killer_may_face_death_in_US_374541.html)

So here is another interesting potential outcome. One of the reasons for the reduction of the 4-1/2 year sentence to 18 months was because it would be a hardship for Watson to not have family around. So, if they grant him asylum and he never returns "home" to his family - would that change his sentence to cause him to serve more time since Australia would be his new "home"?

It is correct that we will not extradite people where they face a death penalty...but he is liable to be deported, which will achieve the same end

[Under-Exposed]

I don't have the time to research double jeopardy right now. However, my gut tells me that while he might be tried in the US for a crime for which he was acquitted in another country, it cannot try him for a crime for which he served a sentence. Apart from double jeopardy issues, I see a whole host of cruel-and-unusual-penalty issues. ... Even though he maintains his innocence, he pleads guilty to manslaughter and serves time in prison to avoid the risk of being found guilty of murder, and then as soon as he is released, he is charged with murder and a key piece of evidence is his guilty plea to the manslaughter charge. And, if I were an appellate justice considering the matter, I'd certainly consider the public policy implications as follows

Like it or not, plea bargains are an essential part of the criminal justice system. Given (1) the number of crimes for which people are charged, (2) a jury trial is a matter of right in anything greater than a traffic ticket and (3) the Constitution guarantees a speedy public trial; there are not enough courts, judges, jurors or prosecutors to try them all. Incidentally, case which is not brought to trial within the requisite time MUST be dismissed unless the defendant waives time. Thus, without plea bargains, the whole system would grind to a halt and the courts will have no choice but to simply dismiss cases that can't be brought to trial in the requisite time.

Now, how many people will plead guilty to a lesser crime if, after they serve their sentence, they can be tried for the same crime in another state (that asserts it was somehow impacted by the crime)? How about if their plea can be used as evidence in that subsequent case?

I think that the appellate courts will look at the realities and say no second trial.

And, for anyone who doubts the importance of public policy consider:

1. There is an absolute privilege for confidential communications between a clergyman and a parishioner. Since Confession is a religious ceremony, to permit, let alone require, a clergyman to disclose a confidential communication by a parishioner would interfere with the free exercise of religion. Thus, the law makes such communications absolutely privileged.

2. There is an absolute privilege for confidential communications between a lawyer and a client. Even a confession is privileged. The law basically says that to function, clients must be able to share everything with their lawyers and to receive their lawyers' honest assessments. Thus, even if it means that the truth is hidden, the law makes the communication inviolate.

3. In a civil proceeding, the law says that evidence he defendant took remedial measures after the fact to prevent a similar incident is not admissible to show there was something wrong at the time of the incident. Clearly subsequent remedial measures are relevant to show something needed fixing. However, the law wants to encourage people to fix things that are dangerous, and it figures that if evidence of repairs can come back to haunt the defendant, no one will perform repairs after someone else is injured. Thus, the law it makes such evidence inadmissible.

There are lots of other examples and I suspect that an appellate court will invoke double jeopardy or cruel-and-unusual to protect the plea bargain system.

Just my $0.02.

No idea how it works in the US, but once you actually disclose the substance of a privileged communication in Australia, you waive the privilege.

[Under-Exposed]

I'm sure Watson would not meet the criteria for Australian citizenship as he will have served a sentence for a major crime. He could however appeal for asylum once released, but that too may or may not be granted.

Probably not fit criteria for citizenship (or permanent residence) and certainly not fit criteria for asylum.

[Under-Exposed]

Just to clear-up a few things here. Watson was not acquitted because an acquittal is a finding of not guilty. I would say the second part about trying him for a crime for which he served a sentence would be correct in attempting to apply double jeopardy.

There was no first trial, so there can't be a second trial.

However, I agree in general. There is a chance that double jeopardy would apply for the reasons you argued. There is also a chance that Gabe Watson could become an Australian citizen if Alabama continues to pursue the death penalty.

Jeopardy does not depend on there being a trial, but on there being "jeopardy" which there most certainly is where there is a verdict of guilt for which you serve a gaol sentence.

[ItsBruce]

No idea how it works in the US, but once you actually disclose the substance of a privileged communication in Australia, you waive the privilege.

Same here.

[K_girl]

No idea how it works in the US, but once you actually disclose the substance of a privileged communication in Australia, you waive the privilege.

ItsBruce said - same here.

So does that mean that the quote Watson's lawyer gave the press about being blind with no reg and heading straight to the surface can be compared to Watson's statement that he got control and tried to swim down after Tina - at trial? Can they question Watson's lawyer just on that issue as to his statement to the press, or do they have to rely strictly on the reporter? His statement might also be on news video somewhere as well. I would have to say - that statement is very specific in detail and would be extremely difficult to attribute it to a reporter's imagination or inaccuracy, most especially since that detail had some element of similarity in Watson's statement to police and those statements were not public at the time Watson's lawyer talked to the press.

[bowlofpetunias]

It is correct that we will not extradite people where they face a death penalty...but he is liable to be deported, which will achieve the same end

There was a similar case in Canada, extradition was fought based on the fact he would face the death penalty in the USA. Long story short, took 5 years but he was sent back to the USA basicly escorted to the border and "released" where he was immediately arrested by the US Authorities. Canada has the same position re Death Penalty as Australia. Sorry I can not quote the case for you. Not being a lawyer or familiar with the research techniques. The most info I can give you was that the event occurred at the border crossing near Vancouver B.C.

[My-way]

Which one, Peace Arch (which would be kind of ironic) or the Pacific Highway?

[Valwood1]

Maybe I've missed a previous post that answers this question, but: Does anyone know why Alabama even dreams that it has any ability or right to try Watson for an event that wasn't committed in its jurisdiction?

[bowlofpetunias]

Which one, Peace Arch (which would be kind of ironic) or the Pacific Highway?

I Think it was the crossing at Blaine (yes with the Peace Arch) but it was a quite a while ago and they may have gone to one of the smaller crossings to avoid the crowds.....

*old lady voice* my memory isn't what it used to be

[bowlofpetunias]

Here is the case I was thinking of

1985: An American, Charles Ng, was arrested in Canada for a "spree of sexual torture and murder." 2 He fought against his extradition to the U.S. until the Canadian Supreme Court ruled in 1991 that he could be extradited to California, even though he would face the death penalty. He is currently on death row in a California prison.

I suspect that since the Canadian and Australian system are from the same origins and hold the same position on the Death Penalty that these cases may be relevant

Extraditing accused murderers to the U.S. (http://www.religioustolerance.org/execut5.htm)

I am impressed... I was pretty sure that was the name of the fellow but I sure didn't want to post a name and be wrong on something that serious!

[Under-Exposed]

Here is the case I was thinking of

1985: An American, Charles Ng, was arrested in Canada for a "spree of sexual torture and murder." 2 He fought against his extradition to the U.S. until the Canadian Supreme Court ruled in 1991 that he could be extradited to California, even though he would face the death penalty. He is currently on death row in a California prison.

I suspect that since the Canadian and Australian system are from the same origins and hold the same position on the Death Penalty that these cases may be relevant

Extraditing accused murderers to the U.S. (http://www.religioustolerance.org/execut5.htm)

I am impressed... I was pretty sure that was the name of the fellow but I sure didn't want to post a name and be wrong on something that serious!



In Australia section 22 of the Extradition Act prevents the Attorney General from surrendering a person for an offence punishable by death unless the other country has undertaken not to try the person for that offence, or to not impose the death penalty, or to not carry out the death penalty if imposed.

[ACES50]

Valwood

I don't think at this time the Alabama AG cares whether he has jurisdiction or not. He probably has been brow-beat by the Thomas's and is scared to honestly appraise this case in public. He is, after all, running for re-election and at the same time dealing with his own legal problems. This is just the best way to get the focus off his problems.

[bsee65]

It is correct that we will not extradite people where they face a death penalty...but he is liable to be deported, which will achieve the same end

Unless some other country will take him. No particular reason why, once kicked out of Australia, he has to return to the USA.

I wonder what happens if your passport expires while you're sitting in a foreign prison. Can't easily just run over to the consulate to renew, can you?

[ItsBruce]

ItsBruce said - same here.

So does that mean that the quote Watson's lawyer gave the press about being blind with no reg and heading straight to the surface can be compared to Watson's statement that he got control and tried to swim down after Tina - at trial? Can they question Watson's lawyer just on that issue as to his statement to the press, or do they have to rely strictly on the reporter? His statement might also be on news video somewhere as well. I would have to say - that statement is very specific in detail and would be extremely difficult to attribute it to a reporter's imagination or inaccuracy, most especially since that detail had some element of similarity in Watson's statement to police and those statements were not public at the time Watson's lawyer talked to the press.

You've gotten in to a very dicy area of the law. As a general rule, a party may not call an opponent's attorney as a witness. It is simply a matter of public policy with the basic premise being that it interferes with the court's ability to conduct a trial. To start, a defendant has the right to select his or her own defense counsel. However, if the prosecution gets to call that counsel as a witness, it effectively deprives the defendant of the right to select counsel. To illustrate, if the prosecution gets to call Watson's lawyer as a witness, who will make the appropriate objections? Who will do the cross-examination? Beyond that, when it comes time for closing argument, who will argue that the lawyer is a credible witness? The lawyer himself?

Beyond, this, imagine the defense calling the prosecutor as a witness. It would be a bloodbath. The defense could point out Mr. King's public statements about wanting to try Watson for murder and would get to insinuate that he made these statements without having done his own investigation and without having any more evidence than that supplied by the media and further that it was all for publicity and to move attention away from his own legal problems. How would Mr. King answer the question: "Isn't it true that when you announced to the media that you were going to try Mr. Watson for murder that the evidence was that when Tina was recovered, her air was on, that the regulator was in her mouth, that you had no one who could say they saw Watson turn her air off or back on, and that all you had was speculation that Watson could have turned the air off and back on.?" "Isn't it true that that the Australian prosecutors decided that they did not have sufficient evidence to go to trial against Watson? So what makes you better than them?" And, even if someone else in King's office was the actual trial counsel, the defense could call the whole office: "Isn't it true you are trying this case because your boss is making you?"

Even if the lawyer's statements to the media would raise this problem because the lawyer would need to take the witness stand to explain the statements, even if it was just to say that he was overstating the matter or had misunderstood what it was that Watson had told him.

It is generally a can of worms that a judge will not let a party open.

OTOH, what Watson himself may have said to the media, or anyone else (other than his lawyer) would be admissible. Which is why (1) no one should ever talk to the police, and (2) anyone who might become the target of an investigation should not talk to anyone other than his or her lawyer.