In a closing statement, the defendant tries to convince jurors he is not a killer. A lawyer for the victim's parents says David Swain is lying.

08:24 AM EST on Friday, February 24, 2006

BY TOM MOONEY
Journal Staff Writer

PROVIDENCE -- David Swain stood beside the courtroom lectern and glanced again at his notes. "This loss of the wife I so loved is a loss for all," he told the jury.

"Shutting off Shelley's air supply -- it pains me to say that -- and then holding her down, is a violent act," he said. "Zero evidence has been presented to show this defendant, me, is capable of this violence."

For 21 minutes yesterday, David Swain tried to convince a jury that he was not a killer. Then it was J. Renn Olenn's turn to make his closing statement. The lawyer representing Shelley Tyre's parents in the wrongful-death civil suit spoke for an hour and concluded that, for almost seven years, Swain has gotten away with murder.

"And the last place he has to go to get scot-free," said Olenn, "is through you."

After eight days of testimony, it is now in the hands of five women and one man to accept or reject the Tyres' allegation that Swain drowned their daughter for money during a 1999 scuba-diving vacation -- and while, at a time when he feared losing his Jamestown dive shop, he was pursuing a romance with another woman.

The Tyres are asking for at least $854,364 -- a figure representing the projected loss of their 46-year-old daughter's future earnings -- and whatever other monetary damages the jury may be inclined to order.

Swain, 50, chose not to offer a defense or to attend the proceedings for the first seven days of the trial. He eventually acted as his own attorney and called just one witness, his 30-year-old daughter, Jennifer, to bolster his claim that he was not a violent man capable of killing. Swain told the jury his "unusual defense" was part of an overall strategy to let the plaintiffs tell their "story," and then he would tell the "humble" truth.

The truth, Swain said, is that his wife died in an "unfortunate, painful accident" and not as the plaintiffs' "highly paid" expert witnesses speculated.

Swain allowed that, yes, there had been some discrepancies between what he told the police in Tortola hours after Shelley Tyre drowned and what he said years later during his deposition. But "one moment to seven years is a long time to remember some things."

Swain pointed out one discrepancy involving his friend Christian Thwaites, whose wife and 9-year-old son were vacationing with Swain and Tyre on that Caribbean trip. Thwaites found Tyre's body in 80 feet of water beside the wrecks of two tugboats.

Swain said Thwaites' notes of that day indicated "we" -- meaning he and Swain -- had performed CPR on Tyre at the surface. But during his testimony, Thwaites said he thought it odd that Swain did not perform CPR on his wife.

Swain also questioned the credibility of James Philip Brown, who runs a dive shop in Tortola and recovered at the dive site some of Tyre's scuba equipment a day after she died. Several witnesses for the plaintiffs have said the condition of the equipment -- a broken mask strap and a mouthpiece missing from her snorkel -- indicated a struggle with an attacker.

"This is a man who owns a dive business . . . to make money," said Swain. "You know he has an interest of what comes of this scenario."

Swain also asked the jury to consider that four years had passed from the time of the drowning to when many of the plaintiffs' experts were inspecting Tyre's scuba gear. Did any of those experts, Swain asked, study how plastic and rubber can wear down over time?

Swain also questioned the findings of Dr. Bruce A. Hyma, the chief medical examiner of Miami-Dade County in Florida, who Swain said had never examined Tyre's body, had only been "paid to review files," yet determined her death a "homicidal drowning."

"Don't you think this respected medical examiner" Swain asked, would have notified the police in Tortola about a killing if there had been one? Yet, Swain reminded the jury he had never been charged with a crime.

Swain said the plaintiffs had concluded years ago that "he did it" and then worked backwards finding the experts willing to say that.

If he had planned to kill his wife, Swain said, would he have been "so bold as to travel to a top vacation spot with close friends and their 9-year-old . . . to warm transparent tropical waters where everybody could see what's going on," when he had dived numerous times with Shelley in the cold and dark waters of Rhode Island? Would he have committed such a "heinous crime" and then left it up to a friend to find her "so his poor 9-year-old son has to witness that?"

Olenn painted a different picture of David Swain, one of a sociopath who had used all his skill as a rescue diver and instructor to kill.

"This crime has every, every element of murder," Olenn said, holding Tyre's air tank before the jury, "with the murder weapon [being] his hand on this valve."

In the last seven years, Olenn told the jury, Tortola police have not prosecuted Swain and Rhode Island authorities can't because it's outside their jurisdiction. In all that time Swain has never offered a single explanation for what happened to his wife, Olenn said.

"He's not given them an answer," he said, pointing to her parents, Lisa and Richard Tyre. "He's not given a simple answer to you." The only thing he's done is "stand up here and look at you and lie."

Olenn said this case was not generated by paid experts as Swain had charged, but by "recreational divers" who suspected foul play early on, took it upon themselves to try to find answers and pleaded with Tortola officials to investigate.

Throughout it all, said Olenn, Swain has offered not the slightest interest in how his wife died.

"Each of you has shown more curiosity about the death of Shelley Tyre than her husband ever has."

"He knows, as we all know, that she battled for her life. . . ."

She did so, Olenn speculated for the jury, with Swain on her back, performing a maneuver experienced divers like himself and Tyre train to use as a means of calming panicking divers.

The rescuing diver clings to the air tank of the other diver and in that position -- out of reach of flailing arms -- attempts to help them recover their regulator to breathe or take them to safety.

Except in this case, Olenn alleged, Swain shut off his wife's air supply, ripped off her mask and prevented her from surfacing long enough for her to drown.

Olenn told the jury Swain surfaced early in his dive not because he was chilled, as he had said in his deposition, but because "he was out of air . . . he had just killed his wife."

The jury deliberated for about 40 minutes yesterday afternoon and will resume this morning.

tmooney@projo.com / (401) 277-7359