Mark McClish, the originator of Statement Analysis®, reviewed the author’s foregoing conclusions, essentially agreed, and then reviewed the statement himself, as well as Peggy’s July 1946 unsigned statements. In the process he added comments that offer further enlightenment—all in 2013, decades after she had made the statements. His analysis obviously came long after the fact, much too late for officers to use; his work does provide an expanded insight into the fruits of the interrogation.
McClish zeroed in on references aimed at further testing her reliability.
As for her account of Swinney’s disposal of the saxophone, McClish commented: “We must remember that nothing happens in a vacuum. There will be other things going on besides the incident itself, which will enter into the statement. Her mentioning that she ‘moved the saxophone case off the seat in the back’ so she and the little girl could sit down is an example of this. This additional information indicates it is a truthful statement. A deceptive story is usually very simplistic.”
When Peggy responded to her interrogator’s question as to whether she had more to tell, McClish pointed out, “By saying ‘No,’ she is not saying nothing else happened that she has not told them. If that was the case, she should have said, ‘No. That is all that happened’ or ‘No, I have told you everything I remember.’ By simply saying, ‘No,’ she may be saying there is nothing else that she wants to add even though she has more information.”
By drawing a line through “this” and replacing it with “it,” McClish noted, she may have revealed a hidden motive. “While the word ‘this’ indicates specificity it also indicates closeness; the word ‘that’ indicates distance. By using the word ‘this’ she is showing closeness to the murders. She may have realized what she was saying and changed the word to ‘it’ which is a more distant way of describing the situation.”
As for punctuating her sentence with a comma instead of a period, McClish clarified: “We end a thought by placing a period at the end of a sentence. The missing period is an indication she purposely stopped writing. She may have more information to share but chose not to.”
Her choice of language also proved to be revealing. “The pronouns ‘we’ and ‘us’ always indicate there was a partnership between the participants,” wrote McClish. “We may not know how much of a partnership existed, but it does mean two or more people did something together.” This suggests the possibility that she cooperated in the killings or was at least more than a terrified witness.
McClish’s additional comments on the November statement focused on details of language that ordinarily are overlooked but which may reveal a subtext of their own in the mind of an expert.
He cited her account of the evening of April 13: “We got out of the show about 8:30. When we went to the show, Swinney left me for about 30 minutes. When we came out of the show, we went out and drank some beer until the cafés were closed, and then we fooled around town and about 3:30 in the morning, Swinney took a notion he wanted to go to Spring Lake Park and rob somebody.”
McClish’s comment: “She states they ‘got out of the show about 8:30.’ At this point in her statement, we believe the two of them are no longer in the show. In the next sentence, she backs up in her story and talks about going to the show and Swinney leaving for 30 minutes. If a story is coming from memory, it should flow in sequential order. This out-of-order statement indicates she may not be drawing this portion of her story from memory.
“The word ‘left’ when used as a verb indicates sensitivity in the statement. She may have withheld some information about what was going on at this point in her statement.
“The number ‘three’ is a liar’s number. When deceptive people have to come up with a number they often choose the number. It should also be noted that when a person is unsure of a number, they use the number three. We have two references to the number three: ’30 minutes’ and ‘3:30 in the morning.’
“‘This car was parked at the place labeled on the map which I drew.’
“The word ‘this’ can indicate specificity but it also shows closeness. She could have said, ‘The car was parked . . .’ which would show some distance. However, she used language that places her close to the car. In the Q & A, she refers to it as ‘that car.’ ‘Swinney made me get in the car . . .’ ‘He made me stay in the car . . .’ ‘He stopped the car there and made me get out of the car.’ She used the word ‘made’ but does not tell us how he made her do something. ‘I don’t know how long they were gone but it seemed like about 30 minutes.’ She may be deceptive or as she stated she does not know how long they were gone which caused her to use the number 30. ‘I started back to the car and when I got back in the car, I heard Swinney shoot two times.’ The word ‘started’ means a person began an action but did not finish it. It is odd she used this word because she tells us that she did make it back to the car. A better statement would have been to say, ‘I walked back to the car and I heard Swinney shoot two times.’ Earlier she said, ‘I walked on down the road.’ Now, she does not use the word ‘walked’ but used the word ‘back.’
“All of her verb tenses were in the past. Since she is recalling what happened, we expect her to use past tense language. Deceptive people will sometimes unknowingly use present tense verbs if the story is not coming from memory. She also used strong tone verbs such as ‘told’ and ‘made’ versus soft tone verbs such as ‘said’ and ‘asked.’ In this type of statement, we would expect to see strong tone language.
“A truthful person will be consistent in his language. If he views a firearm as a ‘gun,’ he will always call it a ‘gun.’ He will not suddenly start to call it a ‘pistol’ because to him it is a ‘gun.’ Deceptive people will sometimes use synonyms because they are making up the story and not following their personal dictionary. A change in language indicates deception unless there is a justification for the change. In her statement, she consistently uses the words ‘gun,’ ‘billfold,’ ‘car,’ ‘little girl’ and ‘little boy.’ She does not use any synonyms to describe these things or people.”
McClish also found her statements taken by Tillman Johnson to be generally reliable. “She appears to be truthful in her unsigned statements given in July. She does use the word ‘pistol’ one time which is a change from ‘gun.’ It may be Swinney called it a ‘pistol’ and she adopted his language, which frequently happens, when two people are interrogated together.
“She used the present tense verb ‘ask’ when she stated, ‘The boy in the car ask us what we wanted.’ Her use of the word ‘ask’ may be due to poor grammar skills and not necessarily deception.” (It also may have reflected Johnson’s interpreting a slurred “asked” as “ask” or even a typographical mishap, for the statement was not tape-recorded.)
McClish continued: “As we saw she did contradict herself several times. She said that she watched the girl while Swinney drove their car to where the couple’s car was parked. In November, she will state that Swinney and the girl drove the car back.
“After shooting the boy, she states, Swinney picked him up and put him in the back seat. She does not mention this in her November statement.”
Summarizing his overall opinion of the statements, McClish concluded:
“After reading the documents, I believe Peggy Swinney is telling the truth in regards to Youell Swinney killing Paul Martin and Betty Jo Booker. However, everyone edits their statements. No one is going to tell us every little detail. Even a truthful person will only tell us what he thinks we need to hear. Therefore, as pointed out, in her statement there are some things she has not told the police. For example, she stated, ‘Swinney told the couple to give him what they had.’ However, she never states what, if anything, they gave to Swinney. There are other areas [where] she has withheld information and may be trying to minimize her involvement.”
Prosecutors now had two signed statements from Peggy that implicated Swinney in the murders of Paul Martin and Betty Jo Booker. Like a savings account they could be
stored away and held in reserve if all else failed. There were two possibilities: She might change her mind about testifying. And should she divorce Swinney, she could be called as a witness whether she agreed or not.
The signed statements constituted an ace in the hole, should a trump card be needed in the future.
Three days after the interrogation in Austin, Peggy appeared in the Miller County Circuit Court, charged with grand larceny as a partner in Swinney’s car theft. Basically it was a holding tactic, to keep her in the clutches of the law as an accomplice. She was essential to the developing strategy.
She pleaded not guilty
The following day—November 26—Judge Dexter Bush ordered Swinney discharged as a patient in the Arkansas State Hospital and returned to Texarkana. Four days after that, Swinney’s attorneys—J. F. McVey, Paul McDonald, and Ted Goldman—filed a petition for writ of habeas corpus. This resulted in his being formally charged with grand larceny involving the theft of an automobile. A few days later, in early December, he entered a plea of not guilty. These maneuvers enabled the county to continue holding him but raised the possibility of his making bond on such a charge.
Another local lawyer, William E. Haynie, served as a contact for Swinney.
Meanwhile, Cleo Swinney visited his brother Youell in jail and found him well taken care of, seeming to refute what their father had claimed earlier. There is no evidence that Youell ever complained, even once, about having the “bat” used on him.
After Youell was arraigned, his brother Cleo telephoned attorney McVey that Youell, as instructed, had pleaded not guilty to grand larceny for stealing a Plymouth. McVey complained about the local representation, charging that Goldman had tried to get Youell to confess to the murders. No evidence supports his contentions. McVey then turned his attention to his favorite substitute, a phantom Phantom, W—, whom he had never seen, classifying him as “psychopathic, possibly praecox with a saddistic [sic] complex.” He instructed attorney Love immediately to seek a change of venue “swearing both against the Judge and the inhabitants of Miller County and any other County in which any of these crimes occurred.”
McVey said he was getting a picture of W—, his candidate to replace Youell as the Phantom, as well as to try to get “a statement from the wife of the first man that was killed, if possible, and to warn her to be very cautious as we have reason to believe that its [sic] possible that an attempt maybe [sic] made upon her.” He seemed confused about the victims and the murders. Presumably he had in mind getting Katie Starks to make a statement that would fit in with his theory of the criminal while ruling out Youell, at the same time setting off alarms that Katie was still at risk from his candidate for the slayer of her husband. He also urged Cleo not to share the information with Youell’s attorneys in Texarkana—another strange defense tactic.
McVey’s barrage of letters left the impression that he was flailing about on all fronts at once. He reported to Cleo that he had made contact with the Arkansas governor, Ben Laney. “The fight is just beginning,” he insisted, adding: “I will leave no stone unturned to see that justice is done.” He included a bill of $16.60 for his phone, telegram, and postal bills. “All this phoning was rather expensive.”
CHAPTER 20
A QUIET “SOLUTION”
Prosecutors and officers on both sides of the state line had pondered how they might overcome the possibility of Peggy’s continued refusal to testify. Sheriff Presley in Texas, for one, was opposed to charging a man in a capital case on circumstantial evidence alone, without eyewitness or strong physical evidence such as fingerprints or other laboratory data. He later told Henry Slaton, a highway patrolman, that he had no doubts about Swinney’s guilt in the Texas slayings. Even with circumstantial evidence, he believed, the suspect could have been convicted and given the death penalty. But the sheriff didn’t want to send any man to his death on circumstantial evidence alone.
During his stint in office, Presley had to convey prisoners to Huntsville whom juries had dealt death sentences. “Not a one of them could read and write,” he said. That knowledge further convinced him that only an airtight case bolstered by more than circumstantial evidence should be required if the death penalty might be invoked. With emotions as high as they were surrounding the Phantom murders, a death penalty might be won merely on a charge, with slight evidence. He believed he had the right man for the crimes but didn’t think that was the right approach, and he wasn’t alone in that stance. Some Arkansas officers agreed.
The goal became to devise a way to take Swinney out of society for as long as possible. An obvious route would be a life sentence as a habitual criminal, a Texas law used on other hardened violators, of which Swinney clearly was. But Arkansas had no such law. There was enough hard evidence, including thefts to which Swinney had admitted to the FBI, to earn him a string of sentences in state and federal jurisdictions. Eventually, however, he would be freed and back on the streets. None of the officers or prosecutors working the case wanted that to happen.
Texas, however, did have a habitual criminal act. If Bowie County could win a conviction for any of the easily proved crimes Swinney had committed, with his record of previous convictions he would be an apt candidate for a life sentence under the act.
No one articulated it publicly that what they proposed was parallel to how the government had nailed gangster Al Capone in the 1930s. Unable to prove Capone’s guilt in murders they were certain he had ordered, government prosecutors convicted him of tax fraud. That took him out of circulation. A similar fate could be woven for Swinney, his captors believed. The overriding goal was to take him off the streets, and keep him off. Rather than risk a murder charge going awry, they felt they had a sure way to accomplish it. Texas’s habitual criminal act, it could be argued, was designed for a case like Swinney’s. (In more recent history in the South, men believed to have murdered civil rights activists similarly were convicted of violating the victims’ rights, more readily proved.)
Sweating it out under the threat of Arkansas’s electric chair, or at the least a long sentence in its relatively harsher prison system, Swinney could see the advantages of a transfer to Texas, so long as it was not for a murder charge. At a time when Swinney’s attorney McVey was trying to set up roadblocks to Swinney’s further incarceration, Texas and Arkansas officers agreed that, considering the differences in state law, Texas jurisdiction would fit more snugly into their intentions. Extradite him to Texas and try him for a felony under the habitual criminal act.
The first step was to secure an extradition order. That document, once accepted by Arkansas authorities, would pave the way to move the prisoner across the state line. Sheriff Bill Presley drove to Austin, the state capital, early on the morning of December 3 to present the request to Texas Governor Coke Stevenson. It was a long 350-mile drive on two-lane highways threaded through small towns. By afternoon, the sheriff had his signed papers from the governor and headed back to Texarkana.
The following morning, December 4, Presley and others headed for Little Rock to complete the legal process. Getting wind of the plans, Love called Arkansas Governor Ben Laney, giving a brief history of the case and pleaded for at least forty-eight hours in which to oppose the move. The governor “half-way” promised Attorney Love he would postpone the matter till December 9, according to Love’s take on the conversation.
He didn’t hear back from Laney, however, and on the afternoon of December 4 Governor Laney granted extradition. Swinney was placed in the custody of Sheriff Presley and taken across the state line to Bowie County. The Texas jurisdiction had played an ace that trumped anything Swinney’s father and lawyer might present: in addition to other charges in Texas, Swinney was a parole violator, having violated terms of his 1945 conditional parole, an undeniable fact.
John Frederick, McVey’s “federal” contact, grew so indignant at the governor’s decision that he promised to take the matter to FBI Director J. Edgar Hoover, U.S. Attorney General Tom Clark, and Texas Go
vernor Coke Stevenson. There is no evidence that he followed through. An hour after his conversation with McVey, however, Frederick did call the county attorney in Bowie County—Maxwell Welch, who would become district attorney in January, succeeding Weldon Glass who had not run for reelection—who, he said, promised him two things: Swinney would get a sanity hearing and since he had been on parole he would be sent back to the Texas penitentiary as a parole violator with perhaps added time because of having stolen a car in Texas. He did not say, however, how much additional time would be added or if they intended to try him as a habitual criminal. It’s possible Welch was not aware of transactions under way in the D.A.’s office in which he was soon to perform.
McVey warned Cleo, as he so often did, to beware of moves by Youell’s captors, “as there is some possibility that Texas may drop all charges and turn Youell loose. If this happens [Miller County Sheriff Elvie] Davis will, of course, try to send him to the penitentiary in Arkansas as a habitual criminal, and if there is any possible way we want to keep him out of Arkansas until we can prevent this at least from happening, it would be best in my opinion.” He believed Sheriff Davis and Judge Bush might try to lull Swinney into believing charges had been dropped, and then proceed. “We cannot relax until Youell is clear of all charges.” Whether the Feds would take action, he didn’t know. “They could, but if they are convinced that he is not of sound mind they may not do anything about it.” At that point he broke off and began castigating his whipping boy suspect, W—.
It was a large—and fantastic—order for a defense lawyer, considering the facts arrayed against the defendant, who had already admitted to several thefts. McVey obviously didn’t realize that Texas, unlike Arkansas, had a habitual criminal act and was not likely to drop charges after it had gone to so much trouble to extradite him.
The Phantom Killer: Unlocking the Mystery of the Texarkana Serial Murders: The Story of a Town in Terror Page 28