Diver convicted in wife's drowning

[GrumpyOldGuy]

It may not look good, but you don't send a man to jail for life because of appearances. If he is convicted, the evidence should prove this beyond a reasonable doubt.

In fact, we do send people to jail based on appearances. On TV/CSI there is always some clever piece of physical evidence the clinches the case. In reality, it is not as clear for most cases and the jury must make a judgment on many days of testimony and bits and pieces of evidence that by themselves are insignificant. This does not translate into a media sound-bite or a few post on a BB. So we are all left in the dark to some extent.

I am perhaps a little quick to judge, but IMO if someone is cheating on their spouse, I am not going to assume they are honest in other aspects of their life.

 

[DiveMom1]

"I am perhaps a little quick to judge, but IMO if someone is cheating on their spouse, I am not going to assume they are honest in other aspects of their life"

I agree..deciet puts "ALL" of your actions and motives into question. If someone will lie, sneak, or cheat in one area it's hard to know what other areas might be something that meet their needs.

 

[Scott L]

In fact, we do send people to jail based on appearances. On TV/CSI there is always some clever piece of physical evidence the clinches the case. In reality, it is not as clear for most cases and the jury must make a judgment on many days of testimony and bits and pieces of evidence that by themselves are insignificant. This does not translate into a media sound-bite or a few post on a BB. So we are all left in the dark to some extent.

I am perhaps a little quick to judge, but IMO if someone is cheating on their spouse, I am not going to assume they are honest in other aspects of their life.

His cheating certainly does not help public opionion and it is the sum total of all information that countries decide extredition. Once extredited you can expect a spirited prosecution. I wonder if infidelity was admissible in court? We can always send PM to Rhone Man for clarification.

 

[islandscuba]

Yeah, I had a bad feeling about that prosecution.. I have not read all the facts but the burden of proof should be with prosecution not the defense. 30 years in an un-airconditioned jailhouse on the equator? Unthinkable!

It's Jail...........Why should you have AC in jail...so your saying criminals should be afforded the same modern pleasures as free man. Some free men in the BVI which i happen to b from can't even afford AC...You're really funny! The government has better things to spend money on....Send him a Fan!

 

[letterboy]

While I understand your comments and concerns maybe we need to ask why the family won in the states? That is often how it happens - civil suits are somewhat easier to prove since no one is going to jail (I'm no lawyer but I believe the burden of proof is simpler in a civil suit - what would a reasonable person have done vs. prove beyond a shadow of a doubt what they did, i.e., J.O. Simpson). A jury of peers decides a civil case based on the facts presented so please don't dismiss it as nothing.

OK, so why was he convicted here in the states, is it as afterdark says and the other side had more lawyers and witnesses and all he had was his word?

In civil cases the winner is the one that has the most evidence. In this case the parents had expert witnesses, Dave had... what? His word? How do you prove that you didn't commit a crime? He can't prove he was somewhere else, because he was there, there are no witnesses to what Dave was or wasn't doing. So in this civil case the parents had the only "evidence" that was available, Dave had squat. They won he lost. There was no more evidence in the criminal case. How would any of us prove we didn't do it? How would any of you like to go to jail for life on the testimony of expert witness?
This case probably wouldn't even go to a criminal trial in he US.

and this is what is great about the US, we would rather set a guilty man free then send an innocent man to jail.

The guy was cheating on his wife. She was wealthy with a pre-nup agreement that protected her assets if they divorced. She died under questionable circumstances while diving with him. He took up with the G/F just 2 weeks after his wifes death. He was convicted in US civil court and BVI criminal courts.

It is true there is no smoking gun, but it sure smells bad.

smells bad but its a good thing smells don't run our court system.

His cheating certainly does not help public opionion and it is the sum total of all information that countries decide extredition. Once extredited you can expect a spirited prosecution. I wonder if infidelity was admissible in court? We can always send PM to Rhone Man for clarification.

I am sure it was used to call his character into question. . .

 

[letterboy]

Speaking as a BVI attorney, just wanted to clear a few things up here:-

• There is in fact a presumption of innocence under BVI law (and a right to remain silent, and a right to trial by jury).
  
• In BVI you are entitled to have a lawyer appointed by the Government and paid for by the legal aid scheme if you cannot afford one for yourself. As far as I know Swain did not avail himself of this but paid for an attorney of his own choosing.
  
• BVI is not in Europe. It is in the Caribbean.
  
• I am not sure what the percentage of convictions overturned on appeal, but I suspect it is a good deal less than 90%. However, there are a lot of successful appeals for two reasons. Firstly, BVI juries by and large have a very pro-conviction mentality, whereas the appeal judges tend to take a softer line. Secondly, the final level of appeal is the Privy Council in London, and generally speaking British judges tend to be slightly skeptical of Caribbean justice, and so tend to err on the side of freeing defendants unless the trial was run absolutely by the book.

It wouldn't shock me at all if Swain was freed on appeal. The evidence was heavily circumstantial and the facts occurred long ago, so I suspect the appellate judges will scrutinise every facet of the case very closely indeed.

Just my 2 psi.

from a different thread . . .

 

[Rhone Man]

I already posted a decent length reply on another thread (quoted by Letterboy above), so I won't belabour the same points here, but a couple of other things to bear in mind:

If Swain's conviction stands, it is actually unlikely he would serve his entire sentence in the BVI. He would most likely be repatriated to the US to serve out his time, and would be eligible for parole in accordance with US Federal laws.

His prospects of appeal are probably quite good. I don't know more than the bare facts, but the evidence was seemingly mostly circumstantial, and the events occurred long ago. BVI juries are very pro-conviction, but the appellate judges tend to be softer.

The BVI authorities actually very much hoped that Swain would be charged in the US after the civil suit (US authorities have jurisdiction in criminal cases for murder of a US citizen which occurs anywhere in the world), but in the end they didn't. The decision to prosecute was actually slightly controversial down here - charging a US citizens with murder (particularly of other US citizens) brings nothing but bad press. The easier thing to do was to let it just slide. Terrence Williams (lead prosecutor) really pushed for the extradition out of a personal sense of injustice. Like everyone, Terrence has his flaws, but I don't doubt for a second that he fought so hard for this case because he genuinely believed a deep wrong had been done.

 

[Scott L]

It's Jail...........Why should you have AC in jail...so your saying criminals should be afforded the same modern pleasures as free man. Some free men in the BVI which i happen to b from can't even afford AC...You're really funny! The government has better things to spend money on....Send him a Fan!

I could answer your annoying post better had you provided any information about yourself in your profile. Are you a fugitive? I did not say anything about an unairconditioned jail being right or wrong. I am very much a law and order man. I mearly said 30 years in the tropic heat whilst in jail is unthinkable from my standpoint. I hate to break the news to you, if you live in the USA, most all jails and prisions have A/C. :mooner:

 

[Scott L]

I already posted a decent length reply on another thread (quoted by Letterboy above), so I won't belabour the same points here, but a couple of other things to bear in mind:

If Swain's conviction stands, it is actually unlikely he would serve his entire sentence in the BVI. He would most likely be repatriated to the US to serve out his time, and would be eligible for parole in accordance with US Federal laws.

His prospects of appeal are probably quite good. I don't know more than the bare facts, but the evidence was seemingly mostly circumstantial, and the events occurred long ago. BVI juries are very pro-conviction, but the appellate judges tend to be softer.

The BVI authorities actually very much hoped that Swain would be charged in the US after the civil suit (US authorities have jurisdiction in criminal cases for murder of a US citizen which occurs anywhere in the world), but in the end they didn't. The decision to prosecute was actually slightly controversial down here - charging a US citizens with murder (particularly of other US citizens) brings nothing but bad press. The easier thing to do was to let it just slide. Terrence Williams (lead prosecutor) really pushed for the extradition out of a personal sense of injustice. Like everyone, Terrence has his flaws, but I don't doubt for a second that he fought so hard for this case because he genuinely believed a deep wrong had been done.

Great post! I knew you would offer an informative and fair analysis...

 

[ItsBruce]

After all of the discussion on the Gabe Watson case in Australia, I was doing my best not to post anything here. But, my best does not seem good enough.

1. I find it interesting how many people felt Watson was guilty compared to those that feel Swain is guilty.

2. There was a lot of publicly available information on the Watson case and relatively little here. Based on what little I've seen in the media, I sure do not see proof beyond a reasonable doubt. Perhaps there is more evidence than we've heard.

3. For those critical of circumstantial evidence. In the legal profession, circumstantial evidence is generally considered the best kind of evidence there is. However, many people confuse circumstantial evidence with speculation or weak inferences and therefore think it is bad evidence.

The truth is that circumstantial evidence is harder to fake. Eye witnesses often misperceive, forget or outright lie. (When you watch the crime shows on TV, such as CSI, etc., nearly all of their evidence is circumstantial ... that the suspect's fingerprints are on the murder weapon is circumstantial evidence.)