How a Diver’s Defense Came Undone

Three years ago, after a civil jury found him responsible for his wife’s death, David Swain, a one-time diveshop owner in Jamestown, R.I., stood in the emptying courtroom and told reporters he “would welcome a criminal trial” someday to clear his name. At least then, he said, “all evidence gets evaluated.” Swain was accused of taking his wife, Shelley Tyre, to Tortola for a dive vacation and attacking her underwater by turning off her air and holding her tight until she drowned. (See our April 2006 story “The Yellow Fin in the Sand” to read the details of Tyre’s death and the civil case.)

Lawyer J. Renn Olenn, who had pursued the wrongful-death case against Swain for four years, stood nearby listening as Swain spoke. Olenn was there again on October 27, in a criminal courtroom in Tortola, when another jury found him guilty of murdering Shelley Tyre 10 years ago while on a scuba-diving vacation.

Yesterday, in sight of the Caribbean waters where Tyre drowned and a few miles from the hilltop prison where Swain, 54, returned after the jury’s verdict, Olenn recalled that moment in Providence on a February day in 2006. “He told the newspapers that once he got his chance to tell his story and that when all the facts came out, it would be clear he couldn’t have committed this crime. Well, he got a chance to say everything he wanted to say, and explain every question that ever existed. From what I could see, it was completely rejected by the jury.”

It was only by chance that Olenn, who drew the blueprint that Tortola prosecutors followed over three weeks to convict Swain, ever entered the case. His wife, Mary, and Tyre’s father, Richard, were acquaintances who shared an appreciation of art history. One day in 1999, four months after Shelley’s drowning, the Olenns visited the Tyres in Jamestown to drop off a museum booklet. The Tyres related the loss of their daughter, an expert diver whose marriage to Swain was in obvious trouble, a fact known by all her friends. Olenn outlined his expertise in investigating aquatic deaths. He offered to take a look at Shelley’s death, which Tortola officials had then ruled an accident.

“It was then just two parents helping each other,” he said. “That went on for a little more than a year until I was able to assemble the evidence that this was very likely murder. I didn’t start out looking for that, but when I discovered it was murder, it became a lawsuit.”

That lawsuit, which ended in a Providence jury awarding Tyre’s parents almost $4 million in damages, forced Tortola officials to reopen the case. Then last October, in the cool confines of the narrow courtroom in Tortola, the Tyres and the Olenns held hands as they strained to hear a soft-spoken jury foreman say the word: guilty. The nine-member jury unanimously found Swain had murdered his wife of almost six years, accepting the prosecution’s — and Olenn’s — theory that he had done so to collect hundreds of thousands of dollars in insurance and other assets while pursuing another woman, and while knowing that a nuptial agreement prevented him from profiting if they divorced.

“I had, at that point, no feeling at all,” Olenn said. “When the verdict was read, [the Tyres] finally had what they needed, and I must say I was thinking about them.”

“Every One of These People Was Convinced It Could Only Be Murder”

Olenn said he believed it was the prosecution’s expert witnesses — the same witnesses he had used in his successful civil case — that persuaded the jury in the circumstantial case that Tyre, 46, had no pre-existing conditions that might have caused her to panic, as the defense tried to suggest, and that her death could be nothing else but murder. Those witnesses included a designer of diving equipment, a pathologist who dove the site where Tyre died, and a premier researcher in the U.S. with over 60 years of experience in diving medicine, who calculated how much air from her tank Tyre had used prior to her death. Together those experts “represented over 200 years of diving investigation, science and medicine,” said Olenn. “Every one of those people was convinced it could only be murder, it could not be an accident. Even the defendant’s witnesses conceded they could not rule out murder.”

Swain, now 53, and Tyre had traveled to Tortola with another couple and their young son for a week of scuba diving. Olenn and Tortola prosecutors theorized that Tyre died about eight minutes after she entered the water with Swain near Cooper’s Island on the last full day of diving. They suggested Swain climbed onto Tyre’s back when they had reached the wrecks of two tugboats at 80 feet and turned off her air until she had drowned. In the struggle, Tyre’s mask strap was broken, the mouthpiece of her snorkel fell off, and Tyre had jammed one of her swim fins into the sand toefirst. A dive shop owner who had rented equipment to them found Tyre’s broken equipment the next day at the site.

Olenn said the dive’s time sequence was a critically important point, and Swain’s own testimony may have worked against him. “His testimony was it took them a minute or two to get down the mooring line, took them about four or five minutes to swim to the wrecks, and then it took five to ten minutes to visit the wrecks,” before the two divers separated, as Swain said they often did. Using that time sequence, “when she took her last breath, he was with her.”

Swain, who has always maintained his innocence, said he never knew what happened to his wife after they separated. Her body was discovered and brought to the surface by Christian Thwaites, Swain’s friend, who entered the water after Swain surfaced alone.

Olenn said Swain’s defense team presented their own expert witness, Glen Egstrom, a retired kinesiology professor from UCLA, who arrived at a different air-use calculation that supported Swain’s claim that Tyre was alive when they separated under water. But, said Olenn, Egstrom “changed his calculations over the weekend, and when he came back on Monday, they were really absurd … The jury didn’t buy it.” Egstrom also reportedly acknowledged under cross-examination that Swain’s reports to authorities after the dive were inconsistent at times.

A New Defense for Appeal: PTSD

Swain was sentenced to life in Tortola’s hilltop prison. He is reportedly considering appealing the verdict to the Eastern Caribbean Supreme Court. The possible defense: post-traumatic stress disorder. That’s because 33 years before he would hear his own jury convict him of murder, Swain sat in a Minnesota courtroom as a jury foreman declared his brother Richard guilty of bludgeoning their mother to death. Richard Swain, then 19, had clubbed Betty Jane Swain with such force that pieces of the plastic bag covering Betty Jane’s head had been embedded in her shattered skull. Their father, a violent man, had run off to become a woman.

The ensuing ordeal traumatized him for life, says his daughter, Jennifer Swain Bloom, and she hopes that if it’s disclosed to another jury, it could spare him from spending the rest of his life behind bars. She says the conviction will be appealed, in part, because the criminal trial judge erred by prohibiting Swain’s past and its mental effects from being introduced into evidence. The jury heard no explanation for his memory lapses of the day Swain died, so consequently, they may have thought he was lying.

“Part of the problem with post-traumatic stress disorder is when terrible things happen to you, you can have memory block,” says Bloom, a California yoga instructor who is raising money for her father’s legal defense. Many PTSD victims are haunted by memories of terrifying moments. But Bloom contends that in her father’s case, the disorder has manifested itself in Swain’s repression of those moments.

His inability to explain appeared evident in a videotaped deposition heard by both the Providence and Tortola juries. Swain is heard answering questions about the day Tyre drowned with the vaguest of recollections. His reply to numerous questions: “I haven’t a clue.” Asked if, as a certified diver and former emergency medical technician, he had ever drawn any conclusion about how his wife might have died, Swain responded: “Nope.”

Swain’s defense team had wanted to call Providence psychologist Paul Block as a witness. He had held 34 therapy sessions with Swain between 2003 and 2004. Block was also to testify that Swain exhibited no violent tendencies. The Tortola prosecutor objected because Block wasn’t a medical doctor, and the judge agreed.

The judge granted Swain a chance for parole in 23 years. Bloom says her father rarely cries but he did the day after the judge sentenced him to life. “If the jury knew [memory loss] was a symptom, and had understood what the guy had gone through, and how that affects the human psyche, they would have understood him better,” says Bloom.

Olenn’s response: “I’ve always felt that David Swain’s children were caused to suffer unbearably due to his actions. I don’t believe, as his children, they will ever be able to accept his guilt.”

The CBS true-crime documentary 48 Hours Mystery was in Tortola to film footage of Swain’s murder trial. The crew interviewed a number of officials linked to the case, and went underwater to film the Cooper Island wrecks where Swain drowned his wife. However, the presiding judge denied their request to film inside the courtroom during trial proceedings. The episode is expected to air this month.

- - from reports by Tom Mooney, Providence Journal