The judge, says the scuba shop owner, "wasn't being impartial."

01:00 AM EST on Tuesday, March 21, 2006

BY TOM MOONEY
Journal Staff Writer

Jamestown scuba shop owner David Swain has appealed a jury's civil judgment which last month found he drowned his wife Shelley Tyre in 1999 during a Caribbean diving vacation.

His appeal accuses Superior Court Judge Patricia A. Hurst of several missteps, including denying his motion for a continuance after one of his lawyers fell ill with cancer, and blocking another lawyer from entering the case late on his behalf.

"Obviously I'm not happy with how I was treated," Swain said yesterday in a telephone interview. "From the various proceedings it was clearly looking like this judge wasn't being impartial."

The court record, however, indicates that Hurst warned Swain as early as 2004 that he should seek out a new lawyer if his current one was unable to defend him, a point echoed yesterday by lawyer J. Renn Olenn, who represented Shelley Tyre's parents, Richard and Lisa Tyre, in their wrongful-death lawsuit against Swain.

"This case was scheduled for trial as far back as 2003," said Olenn, but in 2004, Swain's lawyer, Paul Anderson, was stricken with cancer. From that point on, Hurst repeatedly encouraged Swain to seek alternative counsel, said Olenn.

"It was not as if this was something new," Olenn said.

Swain chose not to appear for most of the eight days of testimony during his trial and no lawyer represented him. He did arrive toward the end to represent himself, call his daughter as his only witness, and to make a closing argument before the jury during which he described his wife's drowning as a mysterious accident.

Swain and Tyre were scuba diving with friends for a week on a chartered sailboat off Tortola. On March 12, 1999, the last vacation day for diving, Swain and Tyre entered the water together while their friends and their friends' young son waited on the boat. Swain surfaced alone about 35 minutes later. Their friend, Christian Thwaites, found Tyre's body minutes later after he entered the water.

Olenn presented about two dozen witnesses, including experts in the field of underwater forensics, to advance his theory that Swain attacked his wife from behind, shut off her air supply and held her down until she drowned.

Olenn told the jury that Swain killed his wife for money at a time he was romantically pursuing another woman. A prenuptial agreement prevented Swain from receiving anything from Tyre if they divorced. But Olenn said Swain gained more than $570,000 from her death.

The jury deliberated less than three hours to find the former Jamestown Town Council member liable for Shelly's Tyre's death. They awarded her parents more than $3.5 million in compensatory and punitive damages, which with interest since the time of Tyre's death raises the total award to more than $6 million.

In his appeal, Swain also questions Hurst's refusal to allow another lawyer, Stephen M. Peltier, to enter the case on his behalf last October. Swain said Peltier wanted to delay the trial by two or three months to come up to speed, but Hurst refused.

Peltier said yesterday: "She felt it was time to proceed with the case and she was probably justified in doing so." Swain came to him just two or three days before the trial was to start and the case "had already been around for a bit," said Peltier.

Swain said he is also appealing on the grounds that the evidence in the case -- largely the broken scuba equipment of Shelley Tyre -- was not properly acquired and may have been tampered with.

Swain said Olenn and his team had court permission only to talk to people about the case, not to gather evidence and he questioned the evidence's "chain of custody."

Said Olenn of Swain's appeal: "I think it is abundantly clear that he has sought to delay this matter, and continues to delay some more in the hopes that time will pass along with the lives of Mrs. and Mr. Tyre" both of whom are in their late 70s.

On Thursday, Judge Hurst is scheduled to rule on Swain's motion for a new trial.

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