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    Book Review - A Second Chance for Justice
    BOOK REVIEW

    A Second Chance for Justice - The Prosecutions of Gabe Watson for the Death of Tina Watson by Asher Flynn and Kate Fitz-Gibbon - Cambridge Scholars Publishing ISBN 1-4438-4202-8, published 2013 - cost originally about AU$140 (!) but only US$68 in the US now.

    Declaration:

    I was involved in the trial of Gabe Watson for Tina Watson's murder as a defence witness in the Alabama trial held in February 2012. I advised the defence team on matters relating to scuba diving and attended the trial. I am mentioned a number of times in this book as are people I know.

    Click here to read about the death of Tina Watson while scuba diving and the investigation and prosecutions that followed.

    Before attending the trial, I had neither met nor corresponded with Gabe Watson and had only had one or two short email conversations with his father.

    The Authors:

    Dr Asher Flynn is a Lecturer and Researcher in Criminology at Monash University in Victoria, Australia. Dr Kate Fitz-Gibbon is a Lecturer and Researcher in Criminology at Deakin University in Victoria, Australia. Both attended the Alabama trial of Gabe Watson where they sat in the journalist seats behind the prosecution. At the time of the trial they were described to me by people involved as visiting Australian "law students". Obviously this was incorrect.

    The Incident:

    The book is about the various prosecutions of Gabe Watson for the murder of his wife, Tina, while diving the shipwreck of the SS Yongala off Townsville, Queensland, Australia in October 2003. A simple summary is that the police believed that Gabe Watson turned off the air off his wife's scuba tank on the first dive of a week long holiday and then tried to make out that Tina died accidentally.

    Gabe was prosecuted for murder in Queensland but a guilty plea to manslaughter was accepted instead and he served 18 months in gaol. He was then deported from Australia and re-arrested once he arrived in the US and then again charged with murder in his home town of Birmingham, Alabama. At his trial in early 2012 the trial judge acquitted Gabe due to a lack of evidence presented by the prosecution.

    The whole incident and the investigations and trials were very controversial in both Australia and the US and received a huge amount of media attention. A number of books have been written about the whole matter and a movie for TV made.

    The Book:

    The book is 270 pages broken up into three parts. The first part is called Justice in Queensland, the second Justice in Alabama and the third Achieving Justice . Each part has a number of chapters.

    The idea of a book such as this is very commendable. It is right that where there is a controversial prosecution (and this certainly falls into that category) that after the event a detailed and impartial review be undertaken of the matter. In this case, I do not believe that the book does this job, as it relies too much on believing what the three main police officers who were involved in the investigations (both in Australia and the US) say are factual.

    I believe that the authors have relied too much on people who were involved in the incident and the police investigations for input into the book. For example, Wade Singleton provides the forward to the book. Singleton was the trip director on the dive boat that Gabe and Tina were using and was the one who permitted them to dive the wreck alone contrary to Queensland law. He also was the person who spotted Tina lying on the bottom and brought her to the surface. Due to his involvement, he has a vested interest in having all the blame for what happened placed on Gabe Watson rather than himself (who I believe should have been prosecuted for manslaughter).

    Thus, for me, the book starts off on a very bad note by giving Singleton a forum to once again minimise his involvement in letting Tina dive with Gabe. The family of Tina Watson consider Singleton to be a hero, when in fact if he had done his job according to Queensland law, Tina would very likely still be alive today.

    The first part of the book goes into some detail about Operation Charlie Oswald, the Queensland police investigation into the murder of Tina Watson (as opposed to the investigation of her death). While early on the police considered it was a tragic accident, the involvement of two US divers who were on the boat and who later contacted Tommy Thomas, Tina's Dad, and pushed the view that it was not an accident, changed all this. Eventually a direction came from above in the Queensland police (as stated at US trial by the lead investigator) that it was to be investigated as a murder.

    This section accepts and repeats police "evidence" presented to the Coroner's Inquest about what happened, even though in many cases this was incorrect. For example, statements about the dive computer and how it worked are not correct and the statement that the police contacted every crew and passenger on the two boats involved about a certain matter are not correct. Not everyone was contacted, and even when they were, the questions asked were unlikely to get a true view of what actually occurred.

    On page 26 it has Campbell saying that Stempler's photograph contradicted Gabe's claims about where he left Tina. No it did not, all it did was show where Tina ended up (and even then the police incorrectly worked out where this was).

    On page 27 of the book the authors claim that excepts from the Australian Broadcasting Corporation's Australian Story two part story, quoting the two lead Australian police investigators, "illustrate the extent to which Queensland police attempted, but were unable to corroborate Gabe's version of events". This might be correct if the quotes were actually based on real evidence. The quotes, including one about the matter mentioned in the previous paragraph, are mostly not correct.

    On page 32 the term "bear hug" is used without pointing out that the police use of this term to describe how Tina was allegedly seen being held by Gabe (and then its adoption by the media) was not based on any actual fact or statement. The term "bear hug" was used by a diver to describe a totally different thing he saw that day but was used by the police, first amongst themselves, and then at the Coroner's Inquest, to describe how Gabe held Tina. It is a lie! This is the sort of things that this book should have examined.

    Chapter Two looks at the resourcing of the Queensland investigation. It basically says that it was under resourced. The main reason given is that the investigating officers were not permitted to travel overseas to question witnesses. As there is no evidence presented of why they needed to go and personally interview (again) potential witnesses, it is hard to see that this is true.

    I should comment that at one time I worked beside some NSW police (seconded to my government department) and it was amazing that they could only interview people outside normal working hours and then claim overtime and other expenses. Funnily, one ended up writing off one of our motor vehicles when he was returning from an alleged interview. He was pissed as a newt!

    This chapter also looks at the Coroner's Inquest. On page 45 it is stated that the State Coroner, Michael Barnes, actually closed the coronial inquest. It is not explained why he did this nor how it was reopened. This chapter repeats many of the falsehoods presented at the inquest as being fact and does not examine the truth of the situation or the fact that witness statements that confirmed Gabe's story (eg divers on the small boat that took Gabe and Tina out to the dive line confirmed Gabe said his computer did not record air pressure and that is why it beeped) were ignored and not presented to the inquest.

    Pages 67 and 68 gives percentages of prosecutions in NSW, Victoria, Western Australia and Queensland that are withdrawn. The Queensland rate is about three times that of the NSW rate. The implication from what is written is that this was because the Queensland Office of the Director of Public Prosecutions had a lack of resources. Of course, it could also be because the Queensland Police were over zealous in charging people with serious crimes when there was insufficient evidence to back up the prosecution. I suspect that this is really why it is so high!

    On page 92 there is a statement by Tommy Thomas who claims that Gabe agreed that he lied about going to the anchor rope (not sure what he means by this) and about attempting to attract the attention of some Asian divers on the mooring line. This is news to me and has never been raised anywhere else that I can see. It has been confirmed to me by someone who has read the agreed statement of fact made when Gabe pleaded guilty to manslaughter that this was not mentioned. There is only an acknowledgement that there is a difference between the allegations and what the defence said happened.

    An interesting thing that comes out of Chapter Three (interestingly called Dealing with Gabe) is the fact that the Thomas family knew before Gabe flew to Australia to surrender himself to the authorities that not only was this going to happen, but that Gabe was likely to plead guilty to manslaughter and that the prosecution would accept this in lieu of murder. In fact, within two days of Gabe arriving in Australia, Tommy Thomas had been told by the prosecutor that a plea deal had been reached.

    For the past four years (as I write this in 2013), Tommy Thomas has denied any knowledge that Gabe was going to plead guilty and has always said he was astounded when this happened.

    Chapter Four is called "Bargaining" with the Thomas Family. This chapter states that the Deputy Director of the Office of the Director of Public Prosecutions, Brendan Campbell SC, provided the Thomas family "with deliberately inaccurate information" in relation to the plea bargain. It seems to me that he probably did undersell the chances that a plea was likely to be offered or accepted. It also appears that Campbell did not put clearly to the Thomas family how poor the prosecutions case was and the difficulties they were going to have to overcome.

    The book also makes much of the fact that certain parts of the victim impact statements (from the Thomas family and friend) were decided to be not relevant to the sentencing of Gabe. This ignores the fact that the statements contained references to Tina being murdered when the plea now accepted that she was not murdered.

    The book is also critical of the "water-down set of agreed facts" presented to the sentencing judge. Again, I am dismayed that the authors (who teach law to students) cannot see that some of the "facts" that the police and Thomas family (and the authors) argue should have been considered were no longer relevant once a plea to manslaughter was accepted.

    Much is also made that a trial in Queensland would have had divers on the jury and so made it more likely that they would understand the circumstances better compared to the jury in Alabama. I doubt that it would make any difference and that the jury would have been likely to have more than one or two divers at the most as members.

    Part II starts with a very good explanation of Alabama's right to prosecute Gabe for murder. Later in this part (pages 132-3), Don Valeska, the Deputy Attorney General and prosecutor, claimed that a lack of money meant that many witnesses he wanted to call could not be brought to Alabama for the trial. These include Gary Stempler (who took the famous photo), the skipper of the boat, Dr John Downie (who went out on the first tender with Gabe and Tina and then worked on Tina), an unnamed woman (but who I think really was Tina Graves) and more.

    Valeska's claims about this are not tested at all. Stempler is an American who lives in America, so the cost would have been minimal. I am not sure that having him questioned could have added to the case, personally I think it could have been counter-productive as it would have permitted the defence to raise matters about the actual location where the photo was taken. In addition, Stempler had stated that he heard Singleton tell Gabe and Tina that they could do their orientation dive during the night dive (this is contrary to what Singleton stated happened).

    The skipper of the Spoilsport could not have added anything to what was presented, he had little involvement at all in what went on that fatal day. Dr Downie could have talked about the attempted resuscitation, but he could have been questioned about what happened when Gabe first attempted to descend (he was there), again, counter-productive to the prosecution. Downie was to later say in a statement that he thought Tina appeared panicky.

    If Tina Graves had been called and given evidence similar to what she claimed at the Coroner's Inquest (including she heard Gabe say "I can't believe I pushed her away"), I am certain that her evidence would have been ripped apart, as some claims she made were not supported by any other person who witnessed the same events (she claimed that Gabe made inappropriate comments in his "speech" as they came back into port).

    On page 133 it is claimed that the police re-enactment could not be shown to the jury because the police and others involved were not there to be cross-examined. I am not sure that this is relevant as the judge threw it out for many reasons, not the least of which was that the people re-enacting it were totally unlike Gabe and Tina in size and because the conditions on the day were unlike that when Tina died.

    The funny thing is that the prosecution did spend money bringing people from Australia and the US who were useless as far as prosecution witnesses goes. For example, the owner of Pelagic Pressure Systems, Michael Hollis, whose company made the Oceanic dive computers used by Gabe and Tina as well as Tina's BCD, was a witness who added nothing to the prosecution (and never could have) and in fact, helped the defence considerably (admitting that Tina's BCD was incapable of lifting the weight she had on her). Adam White, who was the Australian expert in the computers, had already testified about the Oceanic dive computers.

    In addition, they brought Uzi Barnai, the videographer on Spoilsport from Australia. I still have no idea what the point was in having him testify, but again, his testimony confirmed the defence's case that Tina drowned and did not die of lack of air. In addition, Caesar Lamonaca, who was at the time of Tina's death, the manager of the Parisian store where Tina worked was brought from another US state. Again, he had nothing to offer that was not presented better by another employee who was also a witness at the trial.

    What is not mentioned in the book is how one witness, Chris Coxon, the Queensland Workcover investigator, had his travel to the trial cancelled by the prosecution the day before he was to leave Australia. This happened when my wife uncovered his report on what happened in relation to the Workcover prosecution of the dive company. This was provided this to the defence team who then had to pass it onto the prosecution. This showed that his evidence would be damning of the dive operator and place the blame for what happened there rather than on Gabe.

    Chapter Six puts again what the prosecution says was the motive, that is, financial benefit. One of these (page 142) was that Gabe would acquire all of Tina's possessions. Of course, the only problem with this, as would have been clearly shown by the defence, was that her debts vastly outweighed the value of her possessions. There is no mention of this.

    The situation relating to life insurance and travel insurance is fairly put I believe. The fact that the talks between Tina and Tommy Thomas about life insurance were excluded from the trial on the basis of hearsay (that is, the fact that Tina actually told Gabe what Tommy says he told her to tell him "she had increased the cover to the maximum") are made out to be an incorrect ruling. I cannot see how the authors believe this was not a correct decision, Tina was not able to be interviewed to confirm or deny that Tommy told her this and that she had then told Gabe.

    The book reports on page 150 the claim by Tommy that Gabe went to Parisians to make a claim on Tina's life insurance. There is absolutely no evidence to support this, he was told by his lawyer to inquire with Parisians about all of Tina's possessions so that he (Gabe) could properly administer Tina's estate. He could not claim on the insurance via any interaction with Parisians. He never lodged any claim at all. The person who did was Tommy who also had already collected all of Tina's belongings (which actually were now Gabe's) and probably had already lodged a claim with the insurance company.

    Also on page 150 there is a claim by the authors that Tommy's conversation with Tina (mentioned above) would have been allowed in Queensland, but no evidence or explanation is given about this.

    Chapter Seven is about the dive where Tina died. On page 154 it is again claimed that Gabe acknowledged that his interaction with two Asian divers did not occur. As I mentioned earlier, I have seen nothing that indicates Gabe ever said this and I have been advised that it does not actually exist. This page also repeats the oft quoted claim of the police that Gabe told 16 different versions of what happened. Again, I have never seen anything produced by the police to justify this claim. They have not even produced anything to show that there were two different versions!

    Much is also made that Gabe claimed to have grabbed Tina by the hand when swimming back to the mooring line and later said it was the vest (BCD) that he grabbed. From my reading of Gabe's various accounts, he says he did both. In any case, if he said one and then the other, it is an immaterial difference.

    One of the biggest errors in the book is a claim on pages 156 and 157 that Ken Snyder claimed in his witness statement taken on the night of Tina's death (22 October 2003) that he had said to Gabe "bullshit Gabe". This is incorrect. His written statement made on the night of 22 October 2003 contained no such claim at all. In fact, it was very supportive of what Gabe had said happened.

    Snyder's "bullshit Gabe" claim was first recorded in 2007 when he made an addendum to his original statement. This was made on 21 April 2007 but was incorrectly dated as 22 October 2003 (presumably the police tried to make their job easier by reusing the original word processing file and only changed the actual content but not the date). By claiming that this statement was made in 2003 it makes it look like it troubled him then. The fact that it was over 3.5 years later makes it very suspect.

    Page 157 also has a claim by Doug Milsap that Gabe gave an account to a dive magazine about the dive that contradicts his statements. However, despite many attempts, I have never seen any evidence that Gabe did this.

    Page 159 claims that there was no medical evidence to support Gabe's comments that his ear was hurting. This is incorrect, he consulted a doctor in Townsville who diagnosed "mild barotrauma" and that his ear drums were red.

    Pages 163 to 166 talks about Dr Stanley "Jay" Stutz, the only person who was believed to have witnessed what had happened underwater (I do not think he actually did, but that is another thing altogether). The book places too much emphasis on Stutz's dive credentials, claiming he was an Advanced diver. The next page claims that he was a Rescue diver. This is not correct, Stutz's only dive qualification at the time was a basic Open Water certification. I do not know if he ever completed these courses (the dive he was doing when Tina dive was part of the Advanced Course).

    The fact is that Stutz had not dived for 10 years till that day and had only done less than 20 dives altogether. He was a total novice whose evidence about diving and things related to diving have to be considered suspect and as such, his ability to be an accurate witness questionable. There is no real discussion of how Stutz's recall of the incident got better as the years went on (at least in his written statements to police).

    This section also contains more claims about financial problems limiting the number of witnesses able to be brought to Alabama for the trial. These are made by Detective Senior Constable Kevin Gehringer. There is no real evidence at all that any worthwhile witness was not able to be brought to Alabama when it is considered that very poor quality witnesses were brought. One of these was the claim that Gabe could not be questioned about emails he sent to Mike Ball (the dive operator - not the person) inquiring about the trip as the person who replied to the emails was not brought to the US. The funny thing is that she was not even called to the inquest and anything in the emails was not really relevant as far as I can see. If anything, it would have shown that Wade Singleton did not follow the rules as she outlined them to Gabe.

    Page 171 has statements that again ignore that Tina had to do the orientation dive, it was not optional as implied. The following pages contain statements from Singleton that implies that it was okay for him to just offer the orientation dives and not insist that Tina (and Gabe for that matter) must do an orientation dive. These pages also ignore statements made by the vast majority of those present that the current on the fatal dive was strong.

    For some strange reason, on page 173 the authors seem to imply that the defence's case that Tina should not have been diving the Yongala was in conflict with Gabe's statement to the police that Tina had done 12 dives and that she always got a little nervous before a dive. The fact is this fits perfectly with that statement. Do they think a diver with 12 dives is experienced? Tina had only done one dive out of her dive course. Hell!

    Pages 174 to 177 outline fairly the defence's view that Singleton did not do his job with the Workcover law. Page 177 lets Gehringer claim that the dive operator breach "wasn't the industry standards [but] higher standards". This ignores that the operator's decision to set higher standards then over-rode the industry standards and were enforceable under the legislation. They were the ones that decided they wanted higher standards and that these were more appropriate.

    Starting on page 177 is a sub-section with a title A Typical Accidental Diving Death?. This part includes some details of the evidence that I was going to give to the murder trial as well as evidence that Dr Carl Edmonds would have given. The six pages that follow accurately, if somewhat basically, present some of that evidence. I would really have liked to have been able to speak to the authors and put this myself, as would Dr Edmonds. However, it is presented via Gabe's lead defence attorney, Brett Bloomston.

    Page 181 has a comment by the authors about a paper that Dr Edmonds wrote for the DAN (Divers' Emergency Network) newsletter on the death of Tina Watson. They state that it is concerning that he had "the need for these comments to be made, nearly six months after Gabe was acquitted". No, it is not, he was merely reporting on the death of a diver and explaining it for divers. This happens all the time and is not unusual.

    The next page raised the matter of Tina's earlier heart arrhythmia but I have no idea why. The two people quoted have stated it had no relevance and nothing is shown in the book to contradict this and neither Dr Edmonds nor myself was ever going to bring this matter up as being relevant. Another strange comment.

    Chapter Eight is about Gabe's character. This chapter totally ignores all the evidence collected by the police about Gabe that contradicted the view being pushed by Tina's family that Gabe was a terrible person. Numerous people, including an ex-girlfriend, made statements to police that refuted the terrible reputation that Gabe had gained due to the media publishing Tommy and his family's views about Gabe. Evidence also existed that Gabe still have very good relationships with all his ex-girlfriends but none of this was presented as this was not favourable to the prosecution.

    Page 192 includes Milsap's ridiculous claims that all Gabe had to do to save Tina was to press the BCD's inflator button and Tina would have went to the surface and "we would not be here today [in court]". The only problem is that this would have almost certainly killed Tina instantly. The next page includes Singleton's comments that Gabe wanted to return to the charter boat to stay the night. He only did this because he had nowhere to sleep and all his possessions were presumably still on the boat (or at least he believed they were).

    Chapter Nine is about the acquittal. After reading this chapter, I am amazed that well educated professional legal teachers like the authors could not see that by lunch time on the second Thursday of the trial that it was probably over. At the lunch break, if I was a betting man, I would have put a considerable amount of money on the fact that the prosecution had run out of evidence and that the judge was going to acquit Gabe when the court came back in. The very experienced court officials had commented to me at the lunch break that this was the weakest murder trial prosecution case they had ever seen and that they expected it to be all over that afternoon.

    In Chapter Ten on page 212, the authors state that the decision to acquit was "abrupt and somewhat unexpected". No it was not, it was entirely expected based on the evidence to date and the refuting of it all by the defence. On page 219 Gehringer (Queensland police) is spouting (to be honest) rubbish comments and says that the financial cost of Gabe's defence to him and his family was a punishment of some sorts for his "crime". Disgusting that a police officer has these views, the system has worked as it should and an innocent man acquitted.

    On page 222 Don Valeska is quoted about comments that the jury made about not being able to make a decision. The problem is, as I have pointed out on my web site, he made these claims outside the court as soon as the trial was over when he was interviewed by the media. No member of the jury could have made any such comment that he could have been aware of. This is because they left the court before he did and he had no way to be in contact with them to know of this.

    Finally, the book ends with some comments from various internet forums. Two of the people quoted are extremely experienced divers, both known to me and one a friend. Their comments show that they accept the decision and are happy with it, but this was a new view and is only because they had recently become aware of the real evidence about the dive.

    Summary:

    All I can say is that this book does not do a very good job of properly investigating the matter of the prosecution. It does not explore the incompetence of the police investigation, the lack of consultation with real experts with knowledge of diving and dive medicine or the decision to withhold all evidence that did not fit into the theory that Gabe murdered Tina. While it does present some of the defence's side (via the lawyers and Gabe's Dad), it is very much overwhelmingly written from the side of the prosecution, and especially from the view of Tommy Thomas and Detective Senior Constable Kevin Gehringer.

    My view about the Alabama prosecution? Don Valeska was given a "shit sandwich" to eat by the then Attorney General Troy King. For political reasons, Valeska had to look like he was eating the sandwich, but without actually getting it in his mouth. I personally think he did not have his heart in it, some of his attempts to refute defence arguments at the trial seemed to me to be poor.

    From all reports, he is a very good practitioner and this was out of character. I also draw this conclusion based on the prosecution witnesses called, the questions asked of them and the fact that Valeska and his team did not appear to forecast the cross-examination that the defence would run and what the answers to these would be. In addition, they knew that I was going to be a witness and knew of my web site and writings. Reading it would have given them a big insight into what the defence team's questions to their witnesses would have been. They do not seem to have even read my pages. If they did do this, then most, if not all, of the witnesses, especially the diving related ones, would never have been called.

    Not worth reading in my view, especially considering the cost of the book.

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