Marco man once charged in wife’s death freed from jail

David Diamond was incarcerated 304 days for violating court order

David Diamond

David Diamond

Judith Diamond

Judith Diamond

David Diamond

David Diamond

Judith Diamond often came to work with bruises, cuts, black eyes — even a cast and crutches, witnesses told investigators.

The Marco Island woman told friends and relatives that her husband of 17 years, David, had a temper and often beat her. She said he’d threatened to kill her as she swam in the pool of their rented home, dunking her head and telling her it would be so easy to kill her as she swam, witnesses said.

She left him several times but always returned.

When the 51-year-old mother of three was found dead June 3 in the swimming pool of their Tigertail Court home, friends and relatives weren’t surprised that the Collier County Medical Examiner ruled it was a homicide.

And on Aug. 13, despite advice from the State Attorney’s Office, Marco police charged David Diamond with second-degree murder.

In January, the State Attorney’s Office dropped the case, citing the lack of evidence and witnesses — not enough for proof beyond a reasonable doubt.

Attorneys blame Marco Island police for that.

At 6 a.m. Thursday, Diamond, 59, walked out of the Collier County jail a free man, after serving 304 days of two concurrent one-year sentences for twice violating terms of pretrial release on a battery charge. It was the maximum Collier County Judge Rob Crown could impose for the first-degree misdemeanors, and he gave him credit for time served since his June 4 arrest.

Judith Diamond’s family had wanted him prosecuted on a murder charge.

They threatened a lawsuit, but her daughter Crystal McElroy said recently they’d decided against that.

“We just want to put it behind us,” McElroy said, declining further comment.

David Diamond, however, is contemplating a lawsuit.

“He wants to sue Marco Island,” said attorney Michael Schneider, who represented him. “My experience with Marco Island in this case and their quote-unquote murder investigator was highly disillusioning. I suggest they go to the FBI Academy and get some more training in forensic investigations.”

Schneider contends a lawsuit could be successful because police were advised by prosecutors not to make an arrest.

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Diamond can never be charged again in Collier with killing Judith Diamond.

That’s not due to the double-jeopardy rule prohibiting prosecution for the same crime twice, but because Marco police arrested him, giving Assistant State Attorney Michael Provost 175 days to bring him to trial after Diamond’s attorney invoked Diamond’s “speedy trial” right.

If he hadn’t been arrested, Diamond could have been charged some day — if more evidence came to light — because murder has no time limit on filing charges.

Marco Island Police Chief Roger Reinke said the department decided to arrest Diamond after considering the evidence, cause of death and their belief Diamond was a flight risk.

“My personal opinion is the evidence in this case was not going to get better,” Reinke said, countering Provost’s recommendation to wait for more evidence. “If you’re waiting for it to improve, I would rather go with what we have. ... I think we owe something not only to the victim’s family, but to the community.”

Reinke conceded that the legal burden to make an arrest is different from what’s required for a conviction, and the decision to prosecute rests with the State Attorney’s Office.

“There’s a lot of cases out there where there’s circumstantial evidence and some day they’re taken to trial,” he said. “I think you can justify not taking it to trial, but perhaps another prosecutor would have taken it to trial.”

Provost declined to point fingers, saying only that he’d had discussions with police before the arrest.

“It’s a matter of proof that a crime occurred,” Provost said. “There’s a lack of proof between the blunt-force trauma and the drowning. All the factors kind of hurt because of the high heat of the water and her alcohol intake.’’

Reports show her blood-alcohol content was 0.23 percent, nearly three times the state’s legal definition of intoxication, 0.08 percent, and the water in the pool, which Judith Diamond liked hot, was 105 degrees.

“We needed proof beyond a reasonable doubt and to be able to prove a reasonable hypothesis of innocence, even assuming that he said, ‘Yeah, I beat her up and I left her alone,’ ’’ Provost added.

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It was Diamond who frantically called 911 shortly after 9 p.m. June 3 to report finding his wife dead in their pool. She’d been drinking all day, he told police, and they’d argued. Marco police believed he confessed on the 911 call, but private investigator John Hisler cleaned up static on the tape to show that wasn’t true.

“Why’d you do this to yourself, whyeeeee?” he says to his wife as a dispatcher listened to him sobbing. “Whyeeeee?”

He told Marco police he found her naked, face-down in the pool, but didn’t pull her out because she was too heavy. Marco police found fresh cuts on his hands, which he blamed on working on his boat.

Witnesses told lead Detective Glenn Zirgibel and Detective Linda Guerrero that in the 18 months before her death, Judith Diamond had suffered a broken nose, broken ankle, black eyes, a finger injury, and severe bruising. Relatives said she’d confided he would kick her while she swam and submerge her head, later telling her how easy it would be to kill her. Even a neighbor reported hearing abuse — yelling, slapping and items being thrown.

Only months earlier, Marco police reports show, they’d responded to a March 13 call about a disturbance between Diamond and his 16-year-old son, Saul, and found Judith Diamond with a bruise under her eye and arm. She told police she’d been injured six days earlier, when her husband threw her out of the house naked after pulling her clothes off. She said she’d spent the night on the patio, covered with a towel — too embarrassed to call police.

The next morning, she said, he allowed her inside and she put on a dress, but that night, she said, he got angry with her again, pulled off her dress and ripped the shoulder strap. She urged police not to arrest him, saying it would only make it worse.

While in a patrol car heading to the jail, he repeatedly stated he didn’t harm her and that she drinks until she falls down and injures herself, something he continued telling police after her death. He contended the bruise was from a man named Fred who sexually assaulted her.

When she died, Diamond was awaiting acceptance into a deferred prosecution program and was to appear in court on the battery charge a week later. Witnesses told police he was upset because he’d recently learned she’d planned to file a sworn statement against him and he wanted her to drop the battery charge.

It did end up getting dropped. Under the law, a defendant has a right to confront his accuser in court — and she was dead.

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It wasn’t only the stories about past abuse that raised suspicions she had been killed. Her body told a similar tale.

An autopsy report by Dr. Manfred Borges Jr. shows Judith Diamond had cuts on her chest, breast, stomach, arms, bruises on her knuckle, legs, forearm and pinkie. There was a scar on her chin, a cut on her face, bruises on her chin, tongue and lip, which also had cuts. His autopsy report also cites internal bleeding and three rib fractures, which police noted were not from CPR efforts.

Marco detectives tracked down employers, friends, neighbors, all of whom told stories of abuse and an obsessive husband who watched his wife and threatened her bosses, accusing them of having affairs with her. They described a controlling man who sometimes wouldn’t let her go to work or made her walk to work. Even her hairdresser said he came to her appointments to dictate how he wanted her hair styled.

Relatives told police he made her strip naked and kicked her into the pool because he believed she’d been having affairs and was unclean. They said he ripped her clothes and threw them in the trash.

A co-worker at a Marco Island dentist’s office described black and blue eyes, bruises on her face, neck, arms, legs, a leg cast and a ripped-off thumb nail. After he was arrested in March, the co-worker, Darlene Meadows, said she told Dr. Michael Sampson: “She’s going to be killed if we don’t do something.”

Sampson detailed abuse, telling detectives: “I was surprised to learn that she was dead, but we’ve all — those of us around her, family, and friends and co-employees — have been rueing this day and (had) been saying to her since we’ve known her, ’Please live someplace else, get a separation, get a divorce, file a restraining order.’”

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“Obviously, what she could have done to avoid death is to stay away from him, but that is the crux of domestic violence issues — the controlling issues and the breaking away,” Provost said. “It’s not an issue of what she could have done, it’s a matter of proof.”

When he made the decision to drop the charge, he cited that lack of witnesses to any assaults on Judith Diamond, among many other factors.

In a memo to State Attorney Stephen B. Russell, Provost noted that their son said he’d never witnessed physical abuse and also detailed incidents his mother told others were physical, saying they didn’t happen the way she described.

No witnesses were found, Provost wrote, and neighbors reported nothing out of the ordinary that night.

The memo said Borges admitted he “relied heavily” on reports of prior abuse in making his homicide determination. When asked if he’d make that same determination if that was taken out of the equation, Borges said homicide was the most likely scenario due to the drowning and blunt-force trauma.

Provost wrote that Borges couldn’t testify beyond a reasonable doubt, as required to prove a criminal case, that the manner of death was a homicide — even taking into account a history of domestic violence.

“There is no direct evidence that links the defendant, or any other person, for that matter, to the blunt-force trauma or the drowning,” Provost wrote. “... Further, (Borges) cannot say that the blunt-force trauma even led to the drowning. They could have been separate events.”

Noting the high water temperature and alcohol content, Provost wrote that prolonged periods in hot water can lead to drowsiness and drowning, an effect multiplied when someone has consumed alcohol.

Provost said he couldn’t refute Diamond’s claims of innocence and recommended dismissing the case.

“He’s innocent, obviously,” said Schneider, Diamond’s attorney. “Marco Island police arrested him with no evidence. That’s why the State Attorney’s Office, with a review, found that there was no evidence to support the arrest.”

© 2008 marconews.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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Comments » 1

Rachael writes:

"If he hadn’t been arrested, Diamond could have been charged some day — if more evidence came to light — because murder has no time limit on filing charges."

Sad... this man just LITERALLY got away with murder. Sick.

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