"We are only as blind as we want to be."
It was the 12th of March 1999. A Friday. Forty six year old Shelley Tyre was on the Island of Tortola in the British Virgin Islands with her husband of six years David Swain and their friends Christian and Bernice Thwaites. David had two children from a previous marriage but they were not on vacation. The Thwaites brought their nine year old son Matthew with them.
Shelley Tyre and David Swain with David's daughter Jennifer Bloom
David owned a dive shop and Shelley worked as a Middle School Principal at Thayer Academy in Braintree, Massachusetts. They lived in Jamestown, Rhode Island, United States. Shelley shared David's love of scuba diving and she was an experienced diver. That's why that particular location for their vacation appealed to them. There were a few sites that they wanted to visit so that they could scuba dive.
Their friends, Christian and Bernice, loved to scuba dive too so they all decided to charter a yacht for a week and they traveled to different spots and sites off the coast of Tortola. They went scuba diving once or twice a day and they went in pairs so that Matthew would be not alone on the yacht at any time.
That day, the 12th of March, was the last full day of their vacation. They went to the dive site Twin Wrecks.
Shelley and David went on their dive first. Around thirty or forty minutes later, David returned but he was not with Shelley. They all expected her back shortly. Christian went into the water next. He reached the sea bed at eighty feet and swam towards the wrecks. He saw Shelley's fin in the sand so picked it up so that he could return it to her. But as Christian continued on to the wrecks, he saw Shelley. She was on her back with her face pointing towards the surface of the water. Her eyes were open and her scuba mask was missing.
To prevent her from taking in more water, Christian immediately inserted his spare regulator into her mouth. Christian then grabbed Shelley and swam to the surface. He called to the others on the boat for help. Christian began mouth to mouth resuscitation on Shelley before they even got into the boat. When they were on the boat, David tried CPR but stopped after two pushes. Christian took over but David said:
“Shelley's gone. It's over.”
Authorities in Tortola ruled Shelley's death as accidental. The last day of their luxury vacation had ended in tragedy.
A week later, David flew back to the United States and told Shelley's parents, Richard and Lisa Tyre, that he did not know how or why it happened as he was not diving with Shelley at the time.
Shelley's parents believed that something was wrong. They knew their daughter was an expert diver and they became aware that her marriage was in trouble. They filed a complaint, a wrongful death action, against David in Court in the United States in their capacities as Shelley's natural parents and as her heirs. Their complaint was based on three arguments, namely that David was a slayer, that David caused Shelley's wrongful death and that David should be subject to civil liability for a criminal act.
It was the Prosecution's case that Shelley died about eight minutes after she entered the water. It was their case that David climbed on to her back when they reached the wrecks at eighty feet. They believed he turned off her air until she had drowned. It was their case that Shelley fought for her life in the struggle and as a result, her mask strap broke and the mouthpiece of her snorkel fell off. They believed she jammed one of her swim fins into the sand toefirst.
The Prosecution told the Court that an investigation showed that Shelley's equipment had been damaged in a way that was consistent with a violent struggle. Furthermore, less than one third of the air in Shelley's tank was used during her dive.
At the Trial, Christian testified and told the Court that when David told him “Shelley's gone. It's over,” he stopped trying to administer CPR as he knew David was a former EMT and was medically qualified so he allowed him to take the lead. Christian told the Court that he went to call mayday over the emergency radio channel but David told him not to make that call as he did not want "everybody coming around.” Instead, David called the dive rescue team and they picked up Shelley.
The Court looked at whether Shelley may have panicked as a result of some problem or reaction. But there was nothing to indicate that happened. There were no bite marks on her regulator.
Shelley Tyre and David Swain
The Court heard from experts. Phillip Brown, an advanced scuba diver and owner of Aquaventure Scuba Services, Limited, in Tortola testified. He confirmed that after Shelley's death, Christian gave him Shelley's equipment. He checked the air pressure in the tank and verified that the regulators were breathable. The buoyancy compensator was working and had not malfunctioned. Phillip told the Court that a few days after Shelley's death, David told him to get rid of Shelley's equipment. He testified that David inquired about whether he could speak with the medical examiner before Shelley's Autopsy was conducted. According to Phillip, David said that he was worried that the medical examiner would be unfamiliar with dive accidents.
The Autopsy determined Shelley's death was the result of drowning.
Phillip contacted the police in Tortola. After examining Shelley's equipment and discovering how she died and what happened, he believed Shelley's death was not the result of one of the common causes of diving injuries. Phillip told police about a technique that rescue divers use. The diver approaches the person in trouble from behind and pinches their tank and holds onto the steel valve at the top of the tank. He believed that if a person was in this position, they would have access to the other diver's tank air valve and could shut off the air by turning that valve seven to nine times. And that is what the Prosecution believed. It was their case David was on Shelley's back and turned off her air valve until she drowned.
Doctor Bruce Hyma, chief medical examiner for Dade County in Miami, Florida, testified that he believed that Shelley died as a result of "homicidal drowning."
He based his belief on the circumstances of the case, the area where Shelley was found, the fact there were virtually no currents in that area and the condition of her equipment. The heel strap on Shelley's fin was bent backwards which he believed indicated that a struggle had taken place. He testified that the damage to her mask, the fact that the strap was broken from the inside, indicated that some type of:
“terminal violence occurred that deprived her of her air supply to the point where she would go unconscious and then would die as a result of being submerged in the ocean.”
Bill Oliver, a scuba products engineer, testified that the fact Shelley's mouthpiece to her snorkel was missing, led him to believe that that was caused by some sort of external force.
It was the Prosecution's case that David had a motive. They believed he wanted his wife dead to benefit financially and to pursue another woman. Before their vacation, Shelley was in the process of leaving her position as principal to take a job that was not as well paid but closer to home and she believed that if she was closer to home, it may fix the problems they were having in their marriage. But the move would create a strain on the couple financially. Shelley was the one who made money. Even though David had the diving shop, it didn't make money and Shelley used her own money to keep it in business because it was something David wanted.
They both signed a prenuptial agreement and the Prosecution told the Court that that agreement meant that if they divorced, David would not get any money. But if Shelley died, then he would get everything. Shelley's last will and testament stated that David would be entitled to all of her estate upon her death.
The Prosecution believed that David wanted to pursue a woman called Mary Basler. She was a chiropractor who he met a year before Shelley's death at his dive shop. He kissed her but she told him she did not want to be involved with a married man. He invited her to go away with him for a weekend but she declined. He wrote to her and said:
"I'm wanting to be with you. I can't change this mess I've got anytime soon."
He addressed the letter to Soulmate Mary.
Two months after Shelley's death, David and Mary began dating.
When the Prosecution rested their case, David called just one witness in his defense. He called his daughter Jennifer Swain to testify. She was thirty years old at the time.
Jennifer gave evidence that her father had never been violent and he was a peaceful person. She told the Court that after Shelley's death, David was:
“tearful and angry at the world and at the ocean, at God.”
The Jury returned a verdict in favor of Richard and Lisa. They found that David intentionally had killed Shelley with malice aforethought. They awarded Richard and Lisa compensatory damages with interest totaling $2,815,085.46 and punitive damages of $2 million.
That lawsuit, and in particular the amount of damages that was awarded, left officials in Tortola with little choice. They had to reopen Shelley's case. David was charged with Shelley's murder and had to face Trial in Tortola.
In Tortola, the Jury consisted of nine Jurors.
It was the Prosecution's case that David murdered Shelley in order to collect hundreds of thousands of dollars in insurance and to pursue another woman. They claimed he did this by attacking her underwater by turning off her air and holding her tight until she drowned.
It was a circumstantial case but the Court heard from the expert witnesses who had testified at the civil case in the United States. The Jury heard that Shelley had no pre-existing conditions that might have caused her to panic under water and that her death could be nothing else but murder. The Prosecution focused on the dive’s time sequence. David testified that it took them a minute or two to get down to the mooring line and about four or five minutes to swim to the wrecks, and five to ten minutes to visit the wrecks. After that, they separated. But using that time sequence, that indicated that when Shelley died,which the Prosecution had argued was within eight minutes, David was with her.
It was the Defense's case that Shelley must have panicked and removed her mask. They claimed that they really did not know what happened to her though as David left her and he was not with her when she died.
David was found guilty of murder and sentenced to life in prison, to serve a minimum sentence of 25 years but just two years later,in 2011, that decision was reversed. The Appeals Court held there were issues with the instructions read by the Judge and he did not adequately advise the Jury on how to handle evidence presented at the Trial from the civil case that had taken place in the United States.
No retrial was ordered. David was released from prison. As David left the Court, he said:
"I feel elated."
In an unrelated matter but a matter that was raised in the Trial, David's brother, Richard Swain, was found guilty of bludgeoning their mother, Betty Jane Swain, to death when he was just nineteen years old. Richard placed a plastic bag over Betty's head and clubbed her to death. He hit her with such force and brutality that pieces of the plastic bag were embedded in her shattered skull.
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"The criminal justice system will take a hard look at what happened to Matthew Eappen. It is up to the rest of us to take an even harder look at who is minding our children."
- Eileen McNamara, the Boston Globe
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- Sandra Pupatello