The Wall: Chronicle of a Scuba Trial
Chapter 6
Trial, Day 3 - Wednesday
The first witness of the day is Ocean Realm's divemaster Charlene Marvich. She is called in by Kirkland, for the defense. A slim woman with close cropped hair, her figure is de-accentuated by a grey two-piece suit. From the back of the room it appears that she wears no makeup.
"Miss Marvich, please state your full name, where you currently live and what you do."
"Charlene Esther Marvich. I live in Miami, Florida and currently work for Scuba Duba, a dive store in Miami."
"And your age Miss Marvich? I'm sorry, it is Miss Marvich? You are not married?"
"Yes, that's correct. I am 23."
"And would you explain to the jury how you have come to testify here today."
"You asked me to come."
"Are you being paid to testify here today?"
"No, only my expenses. My income is quite limited for trips like this."
"So your expenses for coming to Cleveland have been provided?"
"Yes, I received an airline ticket and hotel reservations, and some other expenses for food."
"Have you been subpoened by the court to appear here today?"
"No, I am here of my own volition."
"Did Mr. Pearson, the plaintiff's attorney, ask you to come testify?"
"No, he did not."
"But you have met Mr. Pearson before?"
"Yes, I have."
"Where? He deposed me in Miami about 7 or 8 months ago."
"And you have not heard from him or his office since then?"
"No."
"Do you understand the charge that Mr. Pearson has brought before this courtroom?"
"OBJECTION! The case is Knowlton vs. Ocean Realm, not Pearson vs. Ocean Realm. Mr. Kirkland is prejudicing the witness before the jury."
"Sustained."
"Ms. Marvich, I'll rephrase the question. Do you understand what the charge is in this case?"
"Yes, I think so."
"Could you state it in your own words, what your understanding is."
"That the company I worked for, Ocean Realm, and myself, their divemaster at the time, were negligent in leading a dive at which Jennie Knowlton disappeared."
"You understand that is a serious charge?"
"Yes, very serious."
"How many times, since that accident, would you say you have been questioned by various people, including the Cayman authorities, Ocean Realm personnel, lawyers, reporters, about what happened? Please confine your answer to people other than your friends or relatives. I am specifically referring to people who have written down or recorded what you said. How many times, Ms. Marvich?"
She pauses for a moment, then:
"I would say about 6 or 7 times. I had two interviews on Cayman by the authorities, one by my manager at Ocean Realm, one by a reporter for the Georgetown newspaper -- that interview I did at the request of Ocean Realm, so it wouldn't look like we were hiding anything -- one by Dr. Bergofsky when he came to visit, and one with Mr. Pearson and yourself at my deposition and, let's see, also an interview with my current employer, Scuba Duba in Miami. I guess that's six altogether."
"And each time you recounted what happened, did your story ever change in any way?"
"Change? Of course not. I said the same thing each time. The truth."
"Well, did anyone, at any time, ever accuse you of changing your story, of varying any of your observations?"
"No, at least not to me."
"Miss Marvich, thinking back to the events of that day, do you recall anything unusual about the boat ride out to the dive site?"
"No, not really. It was pretty routine. I did help one or two divers with their gear, but Ms. Knowlton was not one of them. I remember she was buddied up with her boyfriend, but there didn't seem to be anything unusual about that. We had our usual dive briefing at the site, and it was pretty routine. Actually, conditions that day were pretty good. I've been in some pretty bad diving conditions, but these were excellent."
"How about after you got in the water?"
"No. Again, it went pretty smoothly. Visibility was great, we were right over the wall, and our descent down the wall went well. Of course I had been there many times before, I knew what to look for, and I found it. That was my job."
"So please tell us what happened."
"Well, I took them down the wall, as I've done many times with other groups. I had nine going down and nine when we reached our maximum depth, which was about 100 feet for me on that dive. I was at all times the deepest diver. Coming up at about 78 feet I spotted Ernie, the name we give to a giant crab that hangs out there. She's always a crowd pleaser, and I motioned for the others to take a look.
"About 10 feet higher I came upon Bert. He's a large green moray eel. Sometimes he's hiding but when I can find him I always show him off. Divers love to see moray eels and Bert's a big one. I have to be careful though, because he can bite, so I motion my divers to look but not touch. I have to make sure they don't get too close. So I'm sort of monitoring their interaction with the creature."
"What happened next?"
"Well, I'm not exactly sure. Several minutes had passed since I had counted heads and before ascending further I did a quick count. To my astonishment I only counted eight divers. So someone had wandered off, which by itself isn't all that unusual. Most often a stray diver will be above us, because they're low on air or having trouble clearing their ears. But when I looked up I could see the surface and there was no diver in sight. My first thought was that someone had gone all the way up and out on the boat, but then I realized he should still be in view, considering not all that much time had passed. Then I looked down and I was horrified."
"What did you see?"
"A good way down -- perhaps seventy-five feet -- I saw our lost diver. As I said, visibility was excellent, so there was no mistake. And she was continuing to sink."
"Did you see bubbles coming out of her regulator?"
"Absolutely. Bubbles get bigger as they ascend, due to the decrease in pressure, so there was no doubt she was breathing and descending at the same time."
"Was she kicking herself down?"
"Mr. Kirkland, I've been asked that a hundred times. I wish I could say for sure. But at that depth I just couldn't tell. I could see her alright, and see her air bubbles, but it was impossible to say if she was actively kicking. I'm certain she was breathing, though."
"What did you do next?"
"I signaled everyone to ascend and get back to the boat. To send any of the other divers down after her would have been pointless. Her boyfriend wanted to go down but I insisted he also return to the boat. Fortunately he obeyed. Then I went down as far as I could safely go, but there was no way I could catch up with her. She was gone."
At "gone" Miss Marvich starts crying. Kirkland hands her some tissues.
She wipes her eyes. "I'm sorry. There was nothing I could do. Nothing. There was no way I could catch up to her."
"What did you do next?"
"At about 150 feet I checked my air gauge, and figured I had just enough air for a safe ascent and a five minute safety stop. I had to turn back or I would have been a goner too. So I slowly ascended and got back on the boat about 15 minutes later."
"Then what happened?"
"Well, Tilade [the boat captain] radioed ahead and got two rescue divers out. But there was nothing they could do. That wall is 5000 feet straight down. I went back into the water to show them the site of disappearance, but their search was futile, as I knew it would be."
"Then what happened?"
"We all went back to the shop on the boat."
"Did you talk to her boyfriend on the way back?"
"I asked him what happened, but he was in no mood to talk. He was pretty distraught and I don't think he had a clue himself about what happened. So I let it drop. I figured plenty of people would be asking questions, and I would learn what he knew soon enough."
"And what did you learn?"
"Basically what's been said. No one had an explanation. Everyone was so busy watching the moray that no one really saw her break away, including her boyfriend, her assigned buddy. So there was really no explanation."
"Did you continue to work for Ocean Realm after the accident?"
"Well, I got an immediate leave of absence with pay, pending the investigation. The investigation went pretty quick, and was over in less than a week. After that I was let go."
"You were fired?"
"Well, not exactly. I was asked to resign. I was told that if I resigned I would be given a month's severance pay and helped to get another job in the states. Ocean Realm is a pretty big outfit and they explained it just wouldn't be good for business if I stayed on the island. They didn't blame me but given the circumstances I agreed to go. I was a part timer and really didn't have any choice. And quite frankly, I was glad to leave. I had two more months to go before returning to college, and I took a job in Miami."
"Did Ocean Realm help you get that other job?"
"Yes. I had an interview with Scuba Duba after my boss at Ocean Realm called them. And that went well and I worked there the rest of the summer. Then I went to work for them after college."
"So you're a college graduate?"
"Yes, from Nova University in Florida."
"Degree in?"
"Business."
"How has this accident affected your career?"
"Well, I still plan to become a scuba instructor, and plan to open my own shop some day. I have the degree, but right now I'm trying to gain experience. And save some money. So my plans are on track. But on a personal level this accident has been devastating. Not a day goes by that I don't think about it. Most dive professionals go through life without a single bad accident, maybe one of their divers gets scraped by some coral or bitten by a moray eel, and that's about it. Diving's really pretty safe, when you think about it. But early in my career, one of my divers disappears. That's hard to live with. I know I did nothing wrong. For some ungodly reason that girl was determined to get away from us. But I don't know why. I honestly don't know why."
"Thank you for coming Miss Marvich. I have no further questions. The rules of the court require that you stay and answer any questions Mr. Pearson may have."
"OK"
Pearson rises.
"Miss Marvich, I think we all agree this was a tragic event. A young woman is dead and another young woman is testifying that this event has traumatized her life. So it's tragic all around, is it not?"
"Yes, it is."
"And we are not hear today to punish you in any criminal way, is that correct?"
"OBJECTION!"
"Sustained." The judge looks at plaintiff's counsel. "Mr. Pearson, this court and all its participants are well aware this is a civil case. Please confine your questions accordingly."
"Yes, your honor. Miss Marvich, how long have you been a scuba divemaster?"
"Three years."
"You became a divemaster during college?"
"Yes, I graduated from Nova University in 1996. I was working in Cayman during summer break."
"How long had you been with Ocean Realm when the accident occurred?"
"It was my second summer with them."
"Have you ever had an accident victim on any other dive?"
"Only one. A diver was stung by a stingray at Stingray City. He was treated with local first aid and did fine."
"Stingray City?"
"That's a shallow area near the north wall where stingrays hang out. It's actually our most popular dive on Cayman. People snorkel there too."
"No other accidents?"
"Not with me, no."
"On this wall dive, were you the only divemaster?"
"Yes."
"Was that intended?"
"I'm sorry, what do you mean?"
"Were there supposed to be two divemasters?" Or were you the only one assigned?"
"I was the only one. We don't usually have two unless the group is larger, or there are terrible conditions."
"So at Ocean Realm it's usual to go down with nine divers and only one divemaster?"
"Yes, unless you have, I think 10 is the limit for this dive. They block it at 10, so it's never more than 10. If it is I am sure they would add a second divemaster or make it into two groups, something like that."
"In your training, did you learn about the concept of placing all divers between you and the wall on a wall dive?"
"I'm sorry, I'm not sure I understand your question."
"Well, what is the correct positioning of you and the divers on a wall dive?"
"I'm sorry, Mr. Pearson. I don't know if there is a correct position as such. This isn't ringing a bell."
"Correct position, Ms. Marvich. You, then the divers, then the wall, so you can watch them. Was that taught to you in your training?"
"No, not that I can recall."
"No, it wasn't, or no you can't recall?"
"I don't remember it, if it was."
"On this dive where Ms. Knowlton disappeared, what did you understand was your responsibility?"
"To guide the dive."
"Did that include taking nine divers down the wall?"
"Yes."
"And did that include bringing nine divers back up?"
"OBJECTION!"
"Sustained."
"No further questions, your honor."
* * *
Kirkland's next witness is called.
"Your honor I would like to call to the stand Ms. Debbie Schwartz."
Pearson looks at his co-counsel, there is a hasty conversation between the two, and then
"OBJECTION! Ms. Schwartz is not on the witness list, we have not deposed a Ms. Debbie Schwartz, and we have no notice of this witness."
"Your honor, I can explain. We have been trying to reach Ms. Schwartz for over a year. She is the only boat diver we were not able to interview in person. The reason was that she left on an extended trip to Nepal shortly afterwards and only returned to the states a month ago. We only were able to interview her two weeks ago. Her testimony is important to our defense, and I would be happy to break court for a day and schedule an immediate deposition so my witness can be questioned by Mr. Pearson before her courtroom testimony. She has agreed to stay in Cleveland, if necessary."
Most unusual, this move. You are supposed to announce your witnesses in a civil trial way in advance. The opposing attorney has to have a chance to question them. Now it is the judge's call. Since there is precedent for a 'last-minute' witness under extenuating circumstances, refusing this surprise witness could be reversible on appeal. On the other hand, letting her testify gives Kirkland a potentially unfair advantage, since Pearson doesn't know what she's going to say.
Judge Whittaker calls them to her side but their conversation is inaudible. Pearson gesticulates with his arms and seems to be nonplussed about this brazen attempt to introduce a surprise witness. Then the judge speaks.
"Mr. Pearson has declined the option of having a mid-trial deposition. However, I have granted him the right to call the witness back tomorrow, and Mr. Kirkland has agreed to make his witness available at any time tomorrow. Is this acceptable to all parties?"
Both lawyers nod yes. This move gives Pearson more time to investigate the new witness's testimony, if necessary, and question her the next day. One can only assume Kirkland has great faith in this witness, who is now called to the stand. She is short, somewhat overweight, with short stringy hair. Unlike the previous witness, her figure is full and obvious under a two piece blue business suit.
"Please state your name."
"Deborah Vicki Schwartz." She has a thick New York accent.
"And where do you live, Ms. Schwartz?"
"Manhattan. Specifically, the upper west side."
"OK. And what can of work do you do?"
"I am a travel writer."
"For a magazine, newspaper?"
"Free lance"
"Were you in Nepal on assignment?"
"Well, yes and no. I went to climb Mt. Everest. It did generate several articles by me, but that's not the main reason I went. I went on my own."
"You were there over a year?"
"A year and three months, actually. I also traveled in India and China."
"You climbed Mt. Everest?"
"Yes, I did, and I'm proud of it. 29,028 feet. I was a lot thinner then."
"But you were in Grand Cayman in July 1996?"
"Yes?"
"On vacation, or writing?"
"Both, actually. I did a story for Travel and Leisure."
"You were on the boat when Jennie Knowlton disappeared?"
"Yes, unfortunately I was."
"Whom were you with?"
"Henri. He's a guy I travel with occasionally."
"A boyfriend?"
"At the time, yes."
"Did you ever know Ms. Knowlton, the deceased?"
"No. Never saw her before in my life. Until that fatal boat ride."
"What do you remember about her?"
"Kind of quiet. Kept to herself with her own boyfriend. The one thing I remember was the weights."
"The weights?"
"Yea, we wear lead weights when we dive. She had on a lot."
"A lot?"
"Yea, it's an interest of mine. When not mountain climbing I tend to gain weight. On the boat I was kind of pudgy, and I'm self conscious of it. But she was thin, beautiful really. I estimate about 115 pounds, 5 feet 4, something like that. Well, I wear 10 pounds of lead in warm water, because of my body fat. She had on 16 pounds. I mean that's a lot. And I notice things like that."
"How did you know?"
"It's just one of the things I notice. I mean, women notice those things. I'm particularly kind of self-conscious about that. She had on four 4-pound weights. I always check what other woman are wearing. Like looking at their jewelry. Instead, I look at lead weights."
"Did you say anything to her?"
"Yes, I did."
"What?"
"I kind of joked, and said something like 'that's an awful lot of weight. How come you need so much?' "
"What did she say?"
"I was just making conversation, it was a friendly question, but she gave me a stare like I had really insulted her. I thought she was just going to ignore me, but then she said, 'I need it. I float.' Her tone was, 'bug off.' She clearly didn't want to discuss it. So I just clammed up and didn't say anything more."
"Did you tell anyone about this afterwards?"
"No, no one asked me. Well, I told my boyfriend, but we didn't make too much of it at the time, and so I guess it never appeared anywhere officially. I didn't even think about it until I got back from Everest and talked to you."
"Did you write about the accident?"
"You mean the scuba accident?"
"Yes, was there another?"
"Well, there were two deaths on Everest when I was there."
"No I'm sorry, I mean the scuba accident where Ms. Knowlton disappeared. Did you write about that?"
"No, I didn't. I mentioned it to a couple of editors, asked them if they wanted me to investigate, they said no, it'll probably be in litigation, there's no body found, and it could be bad for business, maybe after the trial. They just weren't interested. So no, I didn't write a word about it. My Cayman piece was all travel happy and touristy, if you know what I mean. I actually enjoyed my trip, this was just a tragic, tragic event we endured. I wish I had never been on that boat. But it happened and there's nothing I can do about it."
"Ms. Schwartz, to the best of your knowledge, did Ms. Knowlton dive with those 16 pounds of lead weight?"
"Yes, I mean I never saw her take the weights off her belt."
"Thank you. No further questions."
Pearson rises.
"Ms. Schwartz, we have never met before, is that correct?"
"Yes, that's correct."
"I have no questions at this time. But I will have some tomorrow. You will be available then, is that correct?"
"Yes, I will."
"Thank you. Your lawyer will be in touch with you."
Kirkland speaks. "Your honor, in view of the delay in cross examining Ms. Schwartz, I would like permission to recall Mr. Harrison tomorrow, to specifically ask him his opinion of the significance of this new testimony."
"OBJECTION! That witness has already testified. Mr. Kirkland would like to try this case, and then try it again, to see if he can get it right the second time."
"Your honor, this case, like all cases, should be about the truth. We have an extenuating circumstance that must be addressed by the court. Mr. Harrison has already been admitted by the court as a witness. All I ask is that he be allowed to comment on the more recent testimony."
"You will have your wish. But I will not delay this trial another day beyond tomorrow. If he cannot testify tomorrow, he will not appear, is that understood?"
"Yes, your honor. Frankly, I don't even know if Mr. Harrison is in town, let alone willing to come back. It is a chance I will take your honor."
Pearson objects no further. After all, the judge's decision allowing Harrison to return could be another point of appeal.