Shelley Tyre’s Fatal Dive: Tortola Trial and Slayer’s Act

Shelley Tyre’s scuba death occurred on March 12, 1999, when the 47-year-old Massachusetts school principal drowned during a dive with her husband, David Swain, off Cooper Island in the British Virgin Islands. Local authorities initially called it an accident. Her parents did not believe that, and a decade of investigation and litigation followed: a Rhode Island civil jury found Swain civilly responsible for her murder in 2006, a Tortola criminal jury convicted him of murder in 2009, and a three-judge appellate panel overturned that conviction in 2011 without ordering a retrial.

What Happened on the Dive

Tyre and Swain were vacationing with friends aboard a sailboat in the British Virgin Islands in March 1999. The group anchored near a site called Twin Wrecks off Cooper Island, in roughly 80 feet of water. The two couples planned to dive in pairs so one adult could stay with a child on the boat. Tyre and Swain went in first.¹

Swain surfaced alone. Thirty to forty minutes later, friend Christian Thwaites entered the water and spotted one of Tyre’s yellow fins stuck in the sand. He found her body 20 to 30 feet from the wrecks, on her back, eyes open, her mask missing. He gave her his spare regulator and brought her to the surface, and Swain pulled her into a tender boat.¹ Dive boat captain Keith Royle later testified that when he arrived, Swain, a trained EMT, told him Tyre was already dead and that no further CPR was necessary, saying she had been dead for “minutes.”²

Tortola police questioned Swain and a local medical examiner performed an autopsy. Finding no evident sign of foul play at that stage, authorities released the body to Swain. The death certificate listed the cause as “drowning” and characterized it as “accidental unless proven otherwise.”³

Why the Death Looked Like Murder

Shelley’s parents, Richard and Lisa Tyre of Jamestown, Rhode Island, were unconvinced. Richard pressed his son-in-law on the phone about the buddy system: “I kept saying over the phone to him, but you had the buddy system, you were there! And he kept saying, ‘I wasn’t there.'”⁴ Roughly four months after the death they hired Warwick attorney J. Renn Olenn, who assembled a team of experts and traveled to Tortola. A local dive shop owner had preserved Tyre’s equipment.⁵

What the investigators found on that gear became the backbone of the case. The mask strap was broken on one side and the retaining pin was missing. The snorkel mouthpiece was missing from the same side. The heel strap of the fin found in the sand had been pulled over the sole plate with force experts said Tyre could not have applied herself, and a re-enactment by a local diver suggested a fin could not lodge toe-first in the sand naturally.⁴ Her tank pressure gauge showed she had used less than one-third of her air, which prosecution experts later calculated meant she stopped breathing about eight minutes into the dive.²

Dr. Bruce Hyma, then chief medical examiner of Miami-Dade County, Florida, reviewed the case and concluded the damage indicated a “violent struggle.” His conclusion was blunt: “This death is not a natural death. It is not a suicide. It is not an accident. It is a homicidal drowning.”⁶

The Rhode Island Wrongful Death Verdict

Richard and Lisa Tyre filed a wrongful death suit against Swain in Newport County Superior Court on March 5, 2002, bringing claims under Rhode Island’s Slayer’s Act and for wrongful death and civil liability for a criminal act.⁷ At trial in February 2006, Olenn called Dr. Hyma, engineer Bill Oliver, who analyzed the damaged equipment, and Sergeant Jeff Morgan of the San Bernardino County Sheriff’s Department, who conducted underwater re-enactments and concluded Swain had attacked his wife from behind, turned off her air, ripped off her mask, and held her until she stopped struggling.²

The jury found Swain “intentionally killed Shelley with malice aforethought” and awarded $2,815,085.46 in compensatory damages and $2 million in punitive damages. The Rhode Island Supreme Court affirmed the verdict on May 13, 2008.⁷ Swain filed for bankruptcy. As of 2012, the judgment remained unpaid and had grown to more than $8 million with interest.⁸

The Motive Prosecutors Alleged

Money and another woman. Under the couple’s prenuptial agreement, Swain would receive nothing in a divorce, and Shelley’s income had been supporting his struggling dive shop.⁸ After her death he collected over $600,000 from her estate and life insurance, which a forensic accountant estimated at roughly $630,000 in total, and he spent it on shop renovations, travel, and dating.⁹

The other woman was Mary Basler, a local chiropractor. Both Swain and Basler testified they shared a kiss in August 1998, about seven months before Tyre’s death, and Basler said she told Swain she was unwilling to be involved with a married man. Prosecutors introduced letters Swain wrote to her, including one from October 1998 addressed to “Soulmate Mary” in which he wrote, “I’m wanting to be with you but I can’t change this mess I’ve got anytime soon.” Swain denied that “this mess” referred to his marriage. Both testified their relationship did not become romantic until roughly two months after Tyre’s death, and Basler ended it about a year later.¹⁰

Prosecutors also pointed to behavioral evidence: Swain’s unemotional response, his refusal to continue CPR, and the fact that he was elected to the Jamestown town council two months after his wife’s death.⁴

The Tortola Murder Trial

The civil verdict gave Tortola authorities the evidentiary basis to reopen the criminal investigation. Swain was arrested and charged with murder. His three-week trial took place in October 2009 before Justice Indra Hariprashad-Charles in the Eastern Caribbean Supreme Court’s High Court of Justice in the British Virgin Islands.¹¹

The prosecution’s theory tracked the civil case: Swain swam up behind his wife, cut off her air supply, tore off her mask, and held her until she drowned. The Crown also alleged Swain had stopped others from performing CPR and told an associate to dispose of Tyre’s diving equipment.¹¹

The defense maintained the death was a tragic accident. Attorneys argued that the damage to Tyre’s equipment was consistent with panic, noting her dive logs documented previous panic episodes and that she suffered from TMJ, which they suggested could have caused jaw pain and triggered a fatal panic attack. Defense expert Glen Egstrom, a retired UCLA professor, attempted to establish through air-consumption calculations that Tyre was alive long after Swain had left her, but the prosecution noted he had changed his calculations mid-trial.¹² The defense also attacked the initial BVI autopsy as “botched,” arguing it could not rule out a heart attack or other natural cause.¹³

On October 27, 2009, a nine-member jury unanimously found Swain guilty of murder. On November 10, Justice Hariprashad-Charles sentenced him to life in prison with a minimum of 25 years before parole eligibility under the BVI’s Parole Act of 2009, rejecting the defense request for parole eligibility after 18 years and citing the premeditated nature of the crime.¹⁴

The Conviction Overturned and Swain’s Release

Swain appealed to the Eastern Caribbean Supreme Court of Appeal. On September 29, 2011, a panel of three judges overturned the murder conviction. The court found that the trial judge had given improper jury instructions, particularly on how to treat evidence from the prior U.S. civil trial, and had wrongly refused to let the jury consider accidental death as a defense.¹⁵

The panel declined to order a new trial, reasoning that too much time had passed since Tyre’s 1999 death to reassemble witnesses and that memories had faded.¹⁶ Swain was released from the Tortola prison and returned to Rhode Island with his daughter. “I feel elated,” he told reporters, saying he intended to “breathe a little free air, go for a walk, go home, pick up the pieces and go on.”¹⁷

Attorney Olenn, speaking for the Tyre family, said the ruling was not an exoneration: “No judicial body has declared him innocent. Two distinctly different juries have found him guilty beyond a reasonable doubt of the murder of Shelley Tyre.”¹⁸

The Slayer’s Act and Shelley’s Estate

Shelley Tyre’s will named David Swain as her primary beneficiary and his children, Jennifer and Jeremy Swain, as contingent beneficiaries. Because the 2006 civil jury had found Swain to be a “slayer” under Rhode Island’s Slayer’s Act, he was barred from inheriting. His children then sought the remaining estate, which amounted to $5,572.¹⁹

In December 2012, the Rhode Island Supreme Court ruled 3-2 that the stepchildren were also barred. The majority held the Slayer’s Act must be “construed broadly” so no person profits from their own wrong, relying on undisputed evidence that the Swain children had previously financed their father’s legal defense and had stipulated they would use any inheritance to cover his defense costs and address the outstanding civil judgment. Allowing them to inherit would effectively let the “slayer” profit indirectly from his crime. The dissenting justices argued the statute bars only a “slayer” or a “person claiming through” a slayer, and that the stepchildren were named contingent beneficiaries in their own right.²⁰

Swain was 53 at the time of his 2009 sentencing and returned to Rhode Island after his 2011 release.²¹ The Tyre family established a scholarship in Shelley’s name at Brandeis University.⁸

1
FindLaw. Tyre v. Swain, Rhode Island Supreme Court
2
CBS News. Shelley’s Last Breath
3
Los Angeles Times. Scuba Diving Death Leads to Murder Trial
4
NBC News. Murder or Accident
5
The Hour. Rhode Island Man Faces Caribbean Trial in Wife’s Death
6
Otago Daily Times. Expert Points to Husband in Scuba Dive Death
7
Vlex. Swain v. Estate of Tyre
8
CBS News. Murder or Accident: Shelley Tyre’s Fatal Dive
9
Fox News. Man Accused of Killing Wife Testifies He Courted Other Woman
10
CBS News. David Swain’s Letters
11
Vlex. The Queen v. David Swain
12
Undercurrent. Diver’s Defense
13
The Guardian. Diver Convicted of Wife’s Drowning
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NBC News. Judge Orders Swain to Serve at Least 25 Years
15
Patriot Ledger. Husband Freed in Death of Former Thayer Academy Principal
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CBS News. BVI Overturns David Swain’s Conviction
17
Deseret News. British Virgin Islands Cancels RI Man’s Conviction
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New York Daily News. Rhode Island Man David Swain Freed After Murder Conviction Overturned
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Jamestown Press. Swain Children Will Not Inherit Tyre Estate
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FindLaw. Swain v. Estate of Tyre Reilly
21
CBS News. RI Man Gets 25 Years in Scuba Slay