PROVIDENCE, Rhode Island (9 Apr 2008) While David Swain spent 23 hours of yesterday, like every day, locked in his Caribbean prison cell, his lawyer asked the state Supreme Court to throw out the civil suit conviction instrumental in the former Jamestown Town Council member now facing a murder charge. The uncertain relevance of any immediate decision by a Rhode Island court while Swain remains incarcerated in a foreign country's prison wasn't lost on the five justices. As Swain's lawyer, Anthony R. Leone, began to argue one point of Swain's appeal for a new trial that the civil suit against Swain improperly omitted certain parties Justice Maureen McKenna Goldberg interrupted: "It seems to me this is the least of your client's problems, with all due respect Mr. Leone." But prior to addressing the justices, Leone said that what was at stake "was a matter of justice. It's about having a fair civil trial and certainly anything positive to come out of this civil case could be beneficial in the criminal matter." Two years ago, Swain, 52, went on trial in a civil case, charged with the wrongful death of his wife, Shelley Tyre. An experienced scuba diver, she drowned roughly eight minutes after entering the water with her husband on the last day of their vacation in Tortola in 1999. Tortola officials initially ruled her death an accident. Tyre's parents filed the suit in an effort to prevent Swain from benefiting from their daughter's estate and to get answers about her death, which, they said, their former son-in-law could not, or would not, answer. Swain, who maintains his innocence, chose not to have a lawyer present during the eight-day trial. For the first two days, Swain himself skipped the proceeding. Eventually he showed up to represent himself, but put on little defense. Instead, he heard lawyer Renn Olenn, representing Tyre's parents, make one unchallenged allegation after another: that Swain, who because of a prenuptial agreement would receive nothing if the pair divorced, killed his wife for money to keep his beloved dive shop open, and at a time when he was romancing another woman. The jury deliberated less than three hours before finding that Swain had killed his wife. The conviction forced Tortola officials to look again at the case, and, last November, federal marshals, armed with a murder warrant from Tortola, arrested Swain at his Jamestown scuba shop, Ocean State Scuba. Chief Justice Frank J. Williams referred to Swain's unusual, if not ineffectual, legal strategy as he welcomed Leone to the lectern yesterday. "Too bad you didn't get involved in the civil case," Williams said. The chief justice said pro-se cases cases in which someone represents themselves "are the worst cases we get," often convoluted by defendants' unfamiliarity with courtroom rules. "How are you going to sort it out," Williams asked Leone, "if we can't sort it out?" Leone replied by outlining Swain's reasons for asking for a new trial. Among the key points: that Superior Court Judge Patricia Hurst denied Swain's right to legal representation by refusing to delay the start of the civil trial after his lawyer fell ill with cancer. Hurst also erred, Leone argued, by allowing the jury to convict Swain under the "slayer's statute," designed to prevent perpetrators from benefiting from someone's death. Leone said the question of what benefactors are disqualified under that statute should be determined by a probate court judge, not a Superior Court judge. Further, Leone argued that Swain should receive a new trial because his two grown children from a previous marriage listed in Shelley Tyre's will as secondary benefactors, after Swain should have been made parties to the civil suit. The justices appeared to have little patience for much of Leone's arguments particularly Swain's assertion that Hurst denied him legal representation. | | Ocean State Scuba owner David Swain is in prison in the British Virgin Islands awaiting trial on charges that he murdered his wife while the couple was scuba diving in Tortola. Noting the numerous continuances that Hurst afforded Swain and Swain's own efforts to delay the civil trial Williams said: "How many times does a trial justice have to put up with that? How many continuances were there in this case? ...You think a Superior Court judge really wants a trial to go forward with a pro-se client?" If one does, Williams said, perhaps there ought to be "a competency hearing of the trial justice." Goldberg, rubbing her forehead, added: "Your client danced across the bridge" to bankruptcy court, effectively bringing the civil trial to a dead stop, once his assets were protected. "He obviously had someone on the sidelines" coaching him, she said. Leone's argument that Swain's children should have been listed in the Tyres' suit appeared to win some traction with the justices. But the relevance to the matter now again seemed questionable. "I don't know how to unravel this mess," said Justice Francis X. Flaherty. Leone had a suggestion: give Swain a new trial. Even if the court was so inclined, how could it order a new trial, asked Williams. "He's not here. Your client is out of the country. How are we going to have a new trial?" Said Leone: "Frankly, your honor, that is a question I can't answer." In rebuttal, Olenn, the Tyres' lawyer, argued that Swain had surrendered his rights to a new trial by not raising his many objections at the time of trial. The justices appeared in agreement on that point. "If you don't do that, you have no
salvation," said Justice William P. Robinson III. Referring to one of Flaherty's earlier remarks, Robinson said: "you can't hide in the weeds
and raise an objection after the fact." The justices gave no indication when they might rule on Swain's appeal. Meanwhile, the official inquest into Shelley Tyre's death is scheduled to begin next week in Tortola. The inquest is similar to a grand jury investigation. If indicted, Swain could go on trial late this summer or early fall. CDNN RELATED NEWSBRITISH VIRGIN ISLANDS - PADI dive shop owner charged with murderRHODE ISLAND - Dive shop owner Swain waives extradition on murder chargeRHODE ISLAND - PADI dive shop owner accused of murder may waive extraditionSCUBA FORUMDISCUSS THIS TOPIC - Dive in and have your say at Scuba Forum |
