PROVIDENCE, Rhode Island (23 Feb 2006) -- David Swain took center stage at his civil trial yesterday, not as a subpoenaed witness, as expected, but as his own lawyer, addressing a jury that may begin deliberating today whether he killed his wife. After seven days of testimony in which Swain has kept away from the proceedings, the jury saw the Jamestown dive-shop owner for the first time in person shortly after 11 a.m. when a sheriff escorted them into the courtroom. There, sitting at the defense table, dressed in a gray suit and boat shoes without socks, was the man whose videotaped depositions they had been watching for two days. One juror appeared startled as she walked by him while the others seemed not to notice him at all. Swain had waited until the end of his trial to offer his first defense to charges that he drowned Shelley Tyre in 1999 during a scuba-diving vacation in the British Virgin Islands. "I'm sure you're well aware I'm David Swain," he said at the start of his opening statement, "and you probably have more questions in your mind where I've been than there are answers." Speaking with a calm, articulate style, Swain explained he had chosen to exercise a rule in civil case law that allows defendants to be absent for some, if not all, of the proceedings. "It is a strategic move to do what I am doing," he said without elaborating. "This is an issue about loss. Loss of the Tyres. Loss of myself. Loss of my children. We've all lost a lot here. . . . That's what we're here to talk about and it's a sad story." Richard and Lisa Tyre of Jamestown filed a wrongful-death suit against Swain, alleging he killed their daughter for money at a time when he was pursuing a relationship with another woman. Swain has professed his innocence. He has never been charged with a crime and has countersued Richard Tyre for defamation. The police on the Caribbean island of Tortola ruled Tyre's death an accident "unless proven otherwise." Throughout the trial, several expert witnesses for the plaintiffs have concluded -- based largely on the condition of some of Shelley Tyre's recovered scuba equipment -- that Swain attacked his wife from behind, shut off her air tank and held her down long enough to drown her in 80 feet of water. Swain yesterday called the allegation "a grand story but it's just not true," . . . a "fantastic story that the plaintiffs have fabricated using their expert witnesses." Swain, 50, said that for "close to six years the plaintiffs have been working hard to find something sordid about me. . . . They found zero violent behavior." The only thing they did find, Swain said, was that his brother, Richard, had killed their mother. It was a "horrible incident" that Swain said took him "years to get through." Swain asked for the jury's indulgence, saying he was not a lawyer: "I'm begging you, keep an open mind." "In a perfect world it would be great to get beyond these tragedies. . . . We've all had enough." SWAIN HAD been scheduled to testify yesterday morning after the Tyres' lawyer, J. Renn Olenn, had subpoenaed him, and Superior Court Judge Patricia A. Hurst had denied Swain's motion to quash that subpoena. But after further consideration Tuesday night, Olenn said he decided yesterday morning not to call Swain after all. "I concluded that three hours of David Swain [in videotaped depositions] was enough for anyone," Olenn said yesterday after Hurst charged the jury with instructions for deliberations. Both Swain and Olenn are expected to give closing arguments today. Swain arrived at court yesterday morning with his own change of plans, said Olenn, which he announced during an in-chambers conference with him and Judge Hurst. "Mr. Swain showed up and said he was going to present a defense," said Olenn. | | Accused of killing his wife: PADI 5-Star IDC Ocean State Scuba owner David Swain is finally in court defending himself. Swain presented one witness -- his 30-year-old daughter, Jennifer. "Your honor, I'd like to call Jennifer Swain," Swain said, sounding very much like an experienced trial lawyer. "Do you recall your deposition on or about May 2003?" Swain asked his daughter, one of two children he has from a previous marriage. Jennifer Swain then recounted how Olenn had asked her questions during that deposition concerning the meeting she attended with her father at the home of Richard and Lisa Tyre shortly after David Swain returned to Rhode Island with Shelley Tyre's body. Under her father's questioning, she described the gathering as a "family meeting" which grew "emotionally charged." "It was emotional because of what happened," she said. "We all lost Shelley. Death is never easy for anybody." Richard Tyre was particularly upset, she said. He wanted to know why David Swain had not been with Shelley Tyre at the time of her death. The jury has heard David Swain say in depositions that he and Shelley Tyre had split up during their dive and that he had no idea what happened to cause her drowning. "The sticking point was you weren't with Shelley when she died," Jennifer Swain said. Despite the frustration over the lack of answers, Jennifer Swain said emotions between the Tyres and her father eventually calmed and they set about working together to make funeral arrangements. "So this emotionally charged family meeting where a very horrible accident happened . . . at some point . . . went back to being a family?" David Swain asked. "Yes." BEFORE JENNIFER Swain's testimony -- and with the jury in recess -- Hurst denied Olenn's motion that the judge rule in the plaintiffs' favor without the jury having to deliberate the case. Olenn said based on the testimony he had presented and the fact that Swain had produced no evidence challenging that testimony, any reasonable person would find in favor of the Tyres. Said Hurst flatly: "I'll need more than that." "What if [the jury] didn't find some of your experts credible?" she asked. The judge raised one example where Olenn's experts were basing their opinions on an unsubstantiated assumption: that Shelley Tyre's air tank held 3,000 pounds of compressed air when she entered the water and therefore she died about eight minutes afterward, based on the remaining air in the tank. What if the tank actually held more or less than that, the judge asked. Wouldn't that sway the findings as to when she died? "The jury has to determine," Hurst said, "whether those underlying facts have been proved to their satisfaction." The Tyres are asking for unspecified monetary damages. In a civil trial, the burden of proof is less than the "beyond a reasonable doubt" standard used in criminal cases. A civil jury only has to prove that the defendant is liable by a "preponderance of the evidence" or, in other words, is more likely than not to have done what is alleged. SOURCE - The Providence Journal |
