Federal public defender Kevin Fitzgerald, left, and David Swain appear before U.S. Magistrate Lincoln D. Almond yesterday in Providence.

Journal Illustration / Frank Gerardi

PROVIDENCE One year after a civil jury concluded David Swain drowned his wife, Shelly Tyre, in 1999 during a Caribbean scuba vacation, federal marshals yesterday arrested the former Jamestown Town Council member at his island scuba shop on a murder warrant from Tortola.

News of Swain’s arrest reached the law office J. Renn Olenn, where the Warwick lawyer who doggedly pursued civil charges against Swain for years sat eating a grilled chicken wrap, around 12:30 p.m.

Shaken, Olenn at once called the Jamestown home of Richard and Lisa Tyre, who first filed the wrongful death suit against their one-time son-in-law five years ago. Lisa Tyre wouldn’t believe him. “She didn’t know if it was a dream,” said Olenn.

Three hours later, Olenn watched from the gallery in a federal courtroom in Providence as marshals snapped handcuffs onto Swain’s wrists and led him away to the Donald W. Wyatt Detention Center, in Central Falls, to be held until his extradition hearing next week.

“Something in me locked when those cuffs locked,” said Olenn. “It was like the circle was completed, another long step taken on the journey for justice for Shelly Tyre.”

Swain’s arrest culminated months of quiet diplomacy between U.S State and Justice department officials and diplomats with the British Virgin Islands and the United Kingdom.

Until yesterday Swain, 51, had never been criminally charged in the death of his wife, a private school administrator and expert diver.

He has steadfastly maintained his innocence and said that Shelly Tyre’s death was an accident — as had officials on the popular vacation isle of Tortola until Olenn, based on his successful civil case against Swain, pressed them last year to take another look.

After reviewing much of Olenn’s evidence, Tortola authorities filed a criminal complaint against Swain in March. And in May they filed an extradition request, beginning a months-long process, that Swain return to Tortola to face one count of murder.

If extradited and eventually found guilty, Swain could spend the rest of his life in a Tortola prison, said Assistant U.S. District Attorney Lee Vilker.

Vilker said the civil case Olenn built against Swain, though largely based on circumstantial evidence, played “a significant role” in the criminal charge against Swain.

During almost two weeks of testimony in Feburary 2006, Olenn presented evidence alleging that Swain had killed Shelly Tyre, his wife of 5½ years, by turning off her scuba-tank air and holding her down during a dive at a shipwreck.

Olenn speculated the motive was money and Swain’s interest in another woman. He presented experts who testified how a prenuptial agreement prevented Swain from receiving anything from Shelly Tyre if they divorced but how he had gained more than $570,000 from her death.

Olenn also called at least two witnesses who claimed that the Tortola police never questioned them about what they might have known about Tyre’s death.

One dive shop owner in Tortola testified the police showed little interest that he had found some of Tyre’s scuba gear broken on a dive to the shipwreck the day after her death. Olenn presented a dive expert who said the damage could have been caused by a struggle.

The dive shop owner said the police also never questioned him about what he called Swain’s strange behavior: asking on three occasions that the dive shop owner give away Tyre’s scuba gear even though certified divers such as Swain know the protocol of storing gear for possible inspection after a diving incident.

Olenn also alleged Swain asked to speak to a Tortola medical examiner prior to his wife’s autopsy to introduce the suggestion that Shelly Tyre suffered from an ailment that might have caused her death. Olenn presented testimony from doctors at the civil trial who said she was in fine health.

Shelly Tyre’s parents had sued Swain under the state’s Slayer’s Act, which prohibits anyone found responsible for someone’s death from collecting from their estate.

Civil trials use a less-strict standard of proof than the familiar “beyond a reasonable doubt” used in criminal cases. The “preponderance of evidence” standard of civil trials means a jury has to believe only that it is more likely true than not that the alleged crime occurred.

The jury deliberated for about two hours before reaching a unanimous agreement that Swain had drowned his wife with malicious forethought on March 12, 1999, and awarded the Tyres more than $3.5 million in compensatory and punitive damages.

The jury foreman said at the time of the verdict that the jury used common sense and a process of elimination in drawing its conclusion.

Shelly Tyre, 46, was an experienced diver. “Other than human intervention, how else could she have died?” the foreman said. “And who else was in the vicinity when it happened? Based on all the evidence we heard, there was no one else in the vicinity.”

Swain’s appeal of the damage award was still pending in the state Supreme Court yesterday when two state police troopers walked into Ocean State Scuba in Jamestown under the guise of customers.

Swain came out to help them. A minute later, the troopers walked back out and told the two federal marshals in the unmarked car that the man they wanted was inside.

The marshals walked in and identified themselves. Swain said not a word as the marshals handcuffed him and took him out.

Swain did not know formally why he was being arrested until he appeared before U.S. Magistrate Lincoln D. Almond.

“You are charged in the British Virgin Islands of one count of murder,” said Almond.

Almond asked whether he could afford a lawyer or wanted the court to appoint one. (In his civil trial, Swain represented himself, arguing then and in his appeal that the Superior Court judge hearing the case hadn’t allowed him enough time to find a replacement after his attorney fell ill. Olenn accused Swain of attempting to drag the case out until the Tyers, both elderly, could no longer proceed.)

“For the moment I would like this gentleman to represent me,” said Swain, dressed in blue fleece, jeans and sandals and gesturing to the federal public defender next to him, Kevin Fitzgerald.

But Swain seemed puzzled. “I’m still trying to understand what’s going on …” he started to say before Almond cut him off, explaining he didn’t want Swain to say anything which could be used against him.

Almond said the purpose of yesterday’s court appearance was to determine whether Swain was charged with a crime that is extraditable (murder is) and whether he would waive extradition back to Tortola.

Swain chose to have an extradition hearing. It will begin Wednesday.

Fitzgerald argued that Swain be released on bail until then, noting that Swain had lived in Rhode Island for 30 years, had family here and maintained a business. Shelly Tyre’s death was 8½ years ago, Fitzgerald noted. “Certainly if he was a risk of flight and committed murder, he would have acted on that by now.”

Vilker noted, however, that circumstances have changed.

Swain is facing “life in prison in a foreign country.” That could be a strong incentive to run, he said.

Further, Vilker argued, the law requires that suspects be held in such cases since the United States has an obligation to turn over suspects to foreign countries with which they have extradition treaties.

Almond agreed.

Eight and a half years after his wife’s death, David Swain sat in a prison cell last night. Waiting.

tmooney@projo.com