Carter returned to Hallett’s memory of the trial.
“How does it happen, Mr. Hallett, that you remember the exact day that this took place, this trial?”
“I had an unfortunate incident following an operation,” said Hallett, “and I was off on sick leave for some time, and that was the first day that I went back to work following that illness.”
On re-direct examination, Cooksey established that the FBI had investigated Swinney for violation of the Dyer Act, interstate transportation of stolen motor vehicles, and that Hallett had interrogated Swinney in that connection.
“Now, at the time you counseled or interrogated Mr. Swinney, did you give him any type of warnings at that time?”
“At the beginning of each interrogation he was advised of his rights to an attorney; he did not have to make a statement if he didn’t care to; that any statement he made could be used in any court against him.”
“All right, sir. And was this done on the five or six occasions that you talked with Mr. Swinney?”
“On each occasion.”
At the end of the day’s session, the court recessed until September 22, enabling Hallett to return home to North Carolina while giving time for both sides to organize their witnesses.
A few days later, Carter filed, for Swinney, a new, revised application for writ of habeas corpus, alleging virtually the same as the one Swinney had filed from Huntsville, that he had been convicted in 1947 without counsel. In this instrument, however, Carter added that Swinney had been eligible for parole but had been rejected because of protests from Bowie County officials.
The evidentiary hearing resumed with give-and-take between Swinney’s appointed lawyer and Judge Nunn. The issue was Carter’s attempted subpoena of Charles Shandera, a member of the state Board of Pardons and Paroles, and all tangible records of the board relating to Swinney. The judge asserted that such documents were privileged communications and whether local officials protested was also a confidential matter, as ruled by higher courts.
The judge added: “But I don’t mind telling you, all three of us did [protest] and the district attorney and the sheriff, everyone did connected with the case. I don’t mind telling you. And the fact that we protested doesn’t keep him from getting a pardon. The Board of Pardons and Paroles can still send him somewhere else, but he’s not supposed to come back to Bowie County. That’s up to them, but if he gets out and buggers up again, they can’t say, ‘Well, the judge and sheriff said it was all right to turn him out.’ That’s the only thing I care about.
“Let the record show that there is nothing in any of the correspondence from the three judges, the sheriff, and district attorney basing our refusal upon any alleged commission of any crime. It’s just simply a protest which we have a right to lodge. There’s nothing said about any crime; I’ll put that in the record myself. . . . There’s nothing in any of the correspondence with the board alleging that he has committed any crime or has been convicted of any crime other than the one that he’s convicted on.”
As the hearing progressed, it became evident that a quarter-century or more had made deep inroads into the witnesses’ memories. Several jurors in the 1947 trial had no memory of the event, the defendant, or the case. Some had served on numerous juries; the youngest one was, in 1972, sixty-three years of age. Others had died. The judge, Robert Vance, had died. The district clerk at the time, Frank Cox, had only a vague memory of a case that mingled among a multitude during his three terms in office.
Carter called the prosecutor, Cooksey, acting as respondent for the State, to the stand. The purpose was to build a bill of exceptions keyed to the judge’s ruling that actions taken by county officials, as well as by parole board members, were privileged communications.
Cooksey testified that he had merely checked the block on the letter from the parole board that noted “protest,” without commenting why.
“But you did have a reason for checking that block?” asked Carter.
“I had subjective thinking, yes, sir,” replied Cooksey.
“And what was that?”
“First of all, this man is an habitual criminal. He has been once again in the State of Texas convicted of a felony. He’s a three-time loser and I believe in Article 63 of the penal code of the State of Texas and I believe that it should be a mandatory life sentence, and I do not believe in parole after the third felony violation and conviction.”
Carter asked if the “alleged offenses” influenced him.
“Of course that would have to have some bearing on it, Mr. Carter,” said Cooksey. “Certainly it does, and another thing, the manner in which he wrote the judge, Judge Nunn, the disrespect he showed for his high office of district judge, I can’t personally see that this man is rehabilitated enough to come back out on the streets, and I personally don’t want him on the streets.”
Cooksey said he had “never, never” recommended parole for an habitual criminal. “I’ve only recommended parole, that I can recall, three times. They were all young and first offenders.”
After several witnesses had stepped down, Carter said, “I guess I want to call Judge Nunn.”
Nunn testified he had recommended that Swinney not be paroled.
“I had never heard of Youell Swinney. I got a letter from him when he was in the penitentiary and he told me he was coming up for parole and to not dare protest it. I began to look into the thing, and I found out a whole lot about the man I didn’t know, because if he’s going to dare me to protest, why, he’s going to have to get in line to find me. I’m not a bit afraid of him.
“As a matter of fact, he would have probably gone through unnoticed; it would have probably slipped through as a matter of routine if he hadn’t written me that letter, but I got busy and seeing if I could find who this man was. I found out he was an habitual criminal, going back to reform school days, back in the thirties when he went to reform school. I don’t feel that a man of that type should be turned loose on the public.”
(Based on at least one other report, Nunn skimmed over more recent developments. According to Tillman Johnson, Swinney had been more vocal toward the judge, actually threatening him. Johnson said Swinney had told an informant that he was going to kill the judge as well as others involved in his case. The word reached authorities, including Judge Nunn, that Swinney intended to “get” all the officers involved in his arrest and conviction—a long list. Many were concerned about what might happen if he left prison. There is no official record of this, however, just Johnson’s oral report; Johnson asserted that others knew of it as well.)
“Judge,” said Carter, “are you familiar with the theory concerning Mr. Swinney’s involvement—”
“I’ve heard of it, yes.”
“And—”
“I don’t know whether he’s guilty or innocent, have no idea. That didn’t influence me in any way. I guess subconsciously, in the back of your mind you know those things, but the reason was the fact that he was an habitual criminal and apparently he hasn’t been rehabilitated.”
He repeated that he had no objections to a state board to parole him “as long as he doesn’t come back in this part of the world and commit some other crime,” but he wasn’t going to withdraw his protest. He said if he was unable to locate a file on a man up for parole, he inquired among people with knowledge of the case.
“In this case nearly everybody is dead, except Mr. [Frank] Cox and a few of those in there, and they can’t remember much about it, and at that time Mr. Bill Presley was alive and that’s where I got my information as to his prior criminal history.”
Carter asked, “Did you get your information from Mr. Presley concerning this theory about these murders?”
“Yes, he told me quite a great deal about it which I didn’t know about, but, as I said, that wasn’t the dominating matter at all, but it was in Mr. Presley’s mind, but it wasn’t in mine at all.”
“The dominating matter, you’re saying, was the fact that he was an habitual
criminal?”
“That was with me, yes. And, as I said, when the time comes, I can always consider again. I have no desire to keep a man in the penitentiary the rest of his life, but I want to make sure he’d rehabilitated and he’s not going to get out and commit something else.”
At that, Judge Nunn resumed the bench and declared a noon recess.
Following lunch, Carter called to the witness stand the key figure, who had initiated the action leading to the hearing.
CHAPTER 23
ON THE WITNESS STAND
The man on the stand could have been taken for any nondescript working man life had largely passed by: middle-aged, crewcut hair, sunburned from outside exposure—a day laborer, perhaps a truck driver. He was neither. He had just spent over a quarter-century in prison, this time around, and he was playing his last card in a continuing campaign to rejoin the free world. One more time he was seeking to overturn his conviction as a habitual criminal and a sentence of life imprisonment. He was fifty-five years old, an old con who had spent the bulk of his life behind bars, paying off a series of debts society had assessed him over the years since he was a boy. Most psychologists would have classified him as burned out, unlikely to commit the high-energy crimes of which he had been accused or suspected.
His words, hardly those of remorse, bristled with embittered denials.
Youell Lee Swinney, for the first time, was taking the stand.
Carter began. “Would you state your name, please?”
He responded in a low voice. “Youell Swinney.”
“Speak up loud enough so everybody can hear, Mr. Swinney. You are the same Youell Lee Swinney that was convicted in Bowie County in 1947 for auto theft and as an habitual criminal?”
“Yes.”
During the testimony, Swinney asserted that he remembered the 1947 trial well, including the names of the judge, Robert Vance, and the prosecutor, Maxwell Welch. His memory of the trial, he claimed, was vivid, a quite different response from the other witnesses. He said he had had no attorney but had spoken with the judge about representation.
Carter asked him to tell of the conversation.
“Well,” said Swinney, “he asked me one time if I had an attorney present in court. I didn’t hear him clearly and he asked me again the same question. I told him that I did not, and he saw that I was having difficulty hearing and he beckoned me to the bench. I approached the bench and he asked me if I had talked to an attorney about representing me. I told him, ‘Yes, sir,’ that I had talked to Mr. Bill Harkness and I hadn’t been able to raise his fee. And about that time Mr. Maxwell Welch walked up and says, ‘Your Honor,’ says, ‘we’ve got an open and shut case against this man and I can’t see why we should delay the hearings any longer.’ They began to talk and I sat down. The trial started.”
(It is significant that Swinney claimed to have talked to the judge, by then dead, at the bench, a position from which no one else in the courtroom could hear and therefore remember hearing. In the correspondence between Swinney’s relatives and several lawyers there is no mention, at any time, of Bill Harkness, a noted criminal defense lawyer in Texarkana who had also served as mayor on the Texas side. In addition to three lawyers involved in the case, Swinney’s father had approached attorney Elmer Lincoln but had not followed through. Swinney’s mentioning Harkness is almost certainly inaccurate, whether from a flawed memory or intent.)
Carter continued. “Were you ever advised by the judge or the D.A. or anyone that you should have an attorney?”
“No, sir, I wasn’t advised—”
“Were you advised that you had a right to have an attorney?
“No, sir.”
“Were you advised that if you couldn’t pay for an attorney, that the State would furnish you one?”
“No, sir. I did not have an attorney and I did not sign a waiver of attorney.”
He claimed he didn’t tell the judge he wanted to represent himself. He didn’t know he could have a lawyer, he said, or else he would have asked for one.
Swinney’s memory of his conversation with Judge Vance conflicted with what former FBI agent Horace Hallett had recalled. Both witnesses, no doubt, were aware of the penalties of perjury, which would have been more of a serious risk to Hallett than to Swinney, who was already incarcerated, unlikely to fear a further penalty, and making his most serious bid for release.
Swinney claimed Hallett’s testimony was the first he had heard of an agreement for him to go from Arkansas to Texas to be tried as an habitual criminal. He said he had fought extradition because he’d learned the Texans wanted to try him as a habitual criminal. The extradition hearing was in the governor’s office in Little Rock, at which time the governor granted the extradition, he claimed.
“Did you want to come to Bowie County to be tried?”
“No, sir. I didn’t want to come because, as I said, I’d heard that they were going to file an habitual criminal law in my case.”
Carter segued into the February 11, 1941, proceedings when Swinney had been assessed three years in the Arkansas penitentiary. Swinney claimed he had no attorney, was not advised of his rights to have an attorney. Cooksey objected to bringing in the 1941 case. Judge Nunn referred to the previous writ application made by Swinney, based on that case, and noted that he, the judge, had searched the records and found Swinney had had an attorney.
Responding to Carter’s questions, Swinney again said he had no attorney, did not waive his right to an attorney, never told the judge he didn’t want an attorney.
The exchange then turned to Swinney’s status in the prison. He said he was “a state approved trusty,” which enabled him to earn credits for good time. He had been a trusty for ten years, had skills, and could make a living for himself if he were released.
“Do you know what the status of your parole possibilities are at this time?”
“Yes, sir.”
“What?”
“Well, I have been recommended for parole. I’m recommended for parole now, but because of parole protests they won’t parole protests.”
On cross-examination by Cooksey, Swinney admitted he’d been represented by an attorney, William E. Haynie, in the 1944 jury trial for robbery by assault. He also admitted a federal conviction for transporting a stolen car across state lines, for which he had pleaded guilty, without an attorney. He testified to serving nineteen months of the three-year federal term, and of serving twenty months of his three-year Arkansas term. He also mentioned serving several months in reform school in the 1930s. He failed to remember a federal counterfeiting conviction during World War II.
“So, then, your testimony is your first conviction was in federal court?”
“Well, I’m not—it’s been so long I don’t remember. I mean, I’m not absolutely positive of the dates I was in federal penitentiary.”
“Was that your first penitentiary to be in?”
“Yes, sir.”
“Leavenworth?”
“Yes, sir.”
Citing records from the Arkansas State Hospital crediting him with a high school education in 1947, Cooksey asked if that was correct. Swinney stated it was incorrect.
“I didn’t finish the sixth grade. I went to Texarkana Junior High School. I didn’t finish the sixth grade.”
Cooksey also noted, referring to a 1946 record, “that the report shows in your personal history that you are on a charge of grand larceny in Texarkana and that your father’s attorney in Montgomery City, Missouri, and attorneys Will McDonald and Ted Goldman, of Texarkana, are handling this case. Is that correct?”
“Yes, sir.”
“Is that on a Miller County charge or a Bowie County charge?”
“Miller County charge.”
“What were you charged with in Miller County in 1946?”
“I never was charged, as far as I know.”
“You never were charged?”
“As far as I know.”
“Well, what case were you telling the case wo
rker about here when you told them that these attorneys were handling your case?”
“They was asking me about what the charge was and I told them that I didn’t know what I was charged with.”
“And until this day you still have no idea what the Miller County charge was?”
“Right.”
“But yet you employed three attorneys—”
“I didn’t employ them.”
“Did your father employ them?”
“Yes, sir.”
“You have a case here in Miller County in 1946, Miller County, Arkansas, that you don’t know what the charge was—”
“No, sir. I was never informed.”
“Never informed of it, yet your father employed three attorneys to represent you?”
“Yes, sir. He talked to the judge and then hired the attorneys.”
“It also says here, Mr. Swinney, that you told whoever wrote this thing up that you were arrested and taken to jail. You came to Texarkana on a visit; you were arrested and taken to jail there on July 15th on a charge of grand larceny.”
“Yes, sir.”
“Is that correct?”
“I didn’t say that.”
“You didn’t say that?”
“No, sir, I didn’t tell that interviewer that. That information was brought down by the officer, I suppose.”
Cooksey went on. “And then it says, ‘states that he was not guilty when sent to the penitentiary to Texas and was not guilty of the present charge and knows nothing about it.’”
“Yes, sir.”
“Now, then, what present charge did you tell the interviewer?”
“I didn’t tell the interviewer any charge.” Swinney persisted in denying he was guilty of any charges and that he didn’t know what charge he faced in 1946, an amazing position in light of the series of daily interrogations he underwent in jail then. “Not guilty of any charge.”
Cooksey next delved into the series of interrogations in 1946. “Did any of the FBI agents ever give you a warning and tell you that you had a right to an attorney?”
“No, sir, they did not.”
The Phantom Killer: Unlocking the Mystery of the Texarkana Serial Murders: The Story of a Town in Terror Page 33