The Phantom Killer: Unlocking the Mystery of the Texarkana Serial Murders: The Story of a Town in Terror (41 page)

On October 3, 1970, Nunn delivered his decision on the motion, citing the exact language used in the 1941 record:

“On this Day the State, appeared by her Attorney, Dick Huie; and the Defendant Appeared in proper person and
by his Attorney
, whereupon the Court sentenced the Defendant to Three (3) years in the State Penitentiary.”

Circuit Judge Dexter Bush had signed the document.

Judge Nunn concluded: “The Court finds from the record that the Petitioner Youell Lee Swinney had an Attorney when he entered a Plea of Guilty and was Sentenced in the Circuit Court of Miller County, Arkansas, on February 11, 1941. That his conviction in Bowie County, Texas, as an habitual criminal on February 11, 1947, is valid.

“Petition for Writ of Habeas Corpus is DENIED.”

It closed, a little tighter, a door to the outside world for Swinney.

Several days later, Harry H. Walsh, a staff counsel for inmates at TDC, wrote the clerk of the Court of Criminal Appeals, forwarding copies of documents from the Miller County circuit clerk’s office, asking for a review.

In a letter on January 21, 1971, Judge Nunn denied Swinney’s appeal, ruling he
had
been represented by an attorney. He recommended denial.

Following protests from Bowie County officials, the board turned Swinney down for parole again.

In the spring of 1971, I freelanced an eight-part series of articles about the Phantom case. I had reviewed all of the records, including contemporary newspaper accounts, had interviewed numerous local officials
associated with the case, and had made trips to the DPS offices in Austin, the Ranger office in Garland, and the main office of the Texas prison system in Huntsville. At the penitentiary I had studied Swinney’s files, which were treated as public records. I had not used Swinney’s name in any of the articles, on the advice of the newspaper’s attorney. (The newspaper’s attorney was Richard Arnold, who as a little boy had been pictured in
Life
magazine with his mother and his brother taking refuge in the Grim Hotel during the height of the Phantom scare, and who later became a federal appellate judge.)

The articles appeared in the
Texarkana Gazette
over an eight-day period. The first article, introducing and presenting the precursor event to the murders, appeared on a Sunday and triggered two events. That afternoon, I received a telephone call from a woman clearly distraught. My wife answered the phone and I never talked to the caller, but she forcibly told my wife that no more should be published of the case. I never knew for sure who the woman was, for she did not wait for me; she just left the message, without identifying herself.

The other event unfolded a few days later in my uncle Bill Presley’s home. By then he had been out of the sheriff’s office for years. That afternoon, a middle-aged man appeared at his door in a state of high anxiety. The former sheriff could see the man was practically vibrating with agitation.

He was concerned about the Phantom series being published. He was vague, but clearly nervous. The ex-sheriff, reading his emotional state, invited him to sit with him in the patio. It was a pleasant spring day, warm and comfortable.

As the visitor settled down, Presley learned the man was Peggy Swinney’s younger brother. The articles stirred old fears, apparently in similar fashion as they had for the woman who had called my house, urging an end to the series. Specifically, the man expressed his fear of Swinney’s getting out of the penitentiary, returning to Texarkana, and what he might do. He felt a personal fear of him and his actions. He was positive that Swinney was the Phantom killer and that there was cause for concern over his possible release.

He told the ex-sheriff of his own family’s fears during the spring of 1946. He had been a teenaged boy at the time. His family had kept the house boarded up, windows covered securely, to discourage any intruder.

One day, he said, when his sister Peggy and Swinney came to their house, she told one of them, “If you knew what I know, you wouldn’t be scared like this.”

His family, he said, was convinced that Swinney was the man sought by the law, if not on that particular day, then later as events unreeled. Subsequently, when suspicions solidified despite lack of direct personal knowledge, the family had cooperated with officers to the extent they could.

If they had known what Peggy knew, it went without saying, they really would have been scared.

He was afraid Swinney would gain release from prison and return to Texarkana and wreak vengeance, perhaps even upon him and his family, although none of them had done anything to harm Swinney. Even Peggy’s testimony, decades ago, played no role in sentencing Swinney. The prosecution had relied solely on the repeat-offender law. Just the knowledge of what Swinney was capable of doing, and that he might become a free man and return, was a terrible inciter to fear.

“Where is Peggy?” the former sheriff asked.

“I don’t know,” said her brother. “She left. I don’t know where she went.”

Twenty-five years after 1946, the images and memories continued to evoke emotional responses that hadn’t been calmed by the passage of time. The nervous system, once conditioned, remembers, and reacts.

S
winney had learned from fellow convicts that hammering away at the system might pay dividends. Time would erode memories of those who might testify against him. Whatever happened, he wouldn’t be any worse off than he was; the right approach might, just might, liberate him.

In May 1972, he made another application for writ of habeas corpus. Judge Nunn had denied his previous application without holding a hearing. If he could get a hearing, he was advised, that could make a difference.

In the new application, he alleged that no attorney represented him in the 1947 trial. He further claimed he had signed no waiver and had no funds with which to hire a lawyer. The application, drafted by an attorney for inmates, covered virtually all bases

Although he had local assistance, Swinney hand-filed the application himself. It went to the Court of Criminal Appeals in the state capital. If the justices found a factual issue that, if true, would grant relief to the inmate, they would order a hearing.

Concepts of the law had changed. In the 1960s, the right to counsel clearly became a constitutional right. Before that, there were a lot of statutory rights in different states that afforded right to counsel, but the Bill of Rights applied solely to federal courts. By time Swinney applied, right to counsel was an acknowledged constitutional right. As he had before, he alleged that he had been denied access to counsel.

This time, Judge Nunn scheduled a hearing on the application and issued a bench warrant for Swinney to be conveyed, by the Bowie County sheriff, at that time C. C. Rachel, from Huntsville to the county jail at Boston, Texas. This came on August 18, 1972.

Three days later, Judge Nunn appointed a young lawyer to represent Swinney in the proceedings.

Jack Carter was sitting in his office that August day when his secretary said, “Judge Nunn is on the phone for you.”

Carter picked up his phone.

“Jack,” said the judge, “I’m going to appoint you to represent the Phantom killer, in order for us to have a hearing.”

Then the judge laughed. Carter interpreted it as Nunn’s way of joking. He really had no knowledge of his newest client and only a vague idea of who the Phantom killer might be. Carter had grown up in neighboring Red River County, had been out of law school at the University of Texas in Austin for five years, and was in the general practice of law. He mainly had tried civil cases and had done very little criminal law. When he received the appointment, he had to acquaint himself with the issues and the law.

After Swinney was transported back to Bowie County, Carter conferred with him in the jail at Boston. Swinney brought with him citations of cases and authorities that his legal counsel in Huntsville had provided. Clearly Swinney had been entitled to a lawyer, so that was not an issue. The question was, had he actually
had
counsel? Swinney maintained that he had appeared without counsel. The issue, a simple and narrow factual one, resisted ready resolution. The witnesses were decades older, did not always remember the trial clearly; others had died. The State’s position was as uncertain as that of the prisoner’s. The outcome would determine whether Swinney would go free or remain behind walls. If his conviction was proved to be suspect, he had to be released.

Reviewing the case, Carter soon gained a feeling that more was involved than appeared on the surface, an enhancement for felony theft. Each time Swinney came up for parole, local authorities recommended that the parole board turn him down. Although the legal issue was not complicated, whether or not he actually had a lawyer, Carter’s job was to represent, to the extent of his ability, a client with a highly unsavory past that many believed included a series of murders. As a young lawyer, he wanted to do everything he could to represent his client, at the same time accepting its ethical difficulty.

It became one of the most challenging cases Carter had experienced. “It seemed like to me that it was hard to ignore the context of this, that
all
of these people were convinced, absolutely, that he
was
the Phantom killer. And for that reason, they had recommended against any parole. And I felt like that had to be in the record somewhere. That was kind of a touchy thing.

“I just felt like the Court of Appeals just needed another whole context of this. Not that I thought anybody had done anything improper. They didn’t. I can certainly see why the people making the recommendations made the recommendations they did, ’cause they were convinced that he was the killer, of several people.”

Carter lost no time in making preparations for the evidentiary hearing scheduled for September, a few weeks off. On August 31 he filed a motion to appoint an investigator for the case, in an effort “to locate any persons who may have some knowledge of the 1947 trial.” On September 1, he went to the D.A.’s office and requested the file on Swinney. Gary Morgan, the D.A.’s investigator, handed Carter the file and provided a desk on which to review the documents.

That August, while Swinney was in the midst of his most serious attempt to gain release, his mother, Myrtle Chaffin, died in Texarkana. The obituary listed him among the survivors, his residence stated, simply, as Houston. By that time, the Texas Department of Corrections had a number of prisons beyond its central location at Huntsville.

One day while Swinney was housed in the county jail, the Reverend A. M. Adams, a young minister in his forties, dropped by to visit any of the prisoners who might be interested in discussing their spiritual, or
any other, concerns with him. He had prayed and counseled with other prisoners before and made his jail visits a part of his ministry.

Before he could make his usual request, the jailer, Jesse Lynch, told him, “You can’t go in today. We’ve closed the jail to outside visitors. I’m not supposed to tell you this, but we’ve got the Phantom killer in here now.”

The label stirred old memories. As a boy in rural Bowie County, Adams’s family, too, had lived in fear of the unknown marauder who killed by night.

The evidentiary hearing was held in two parts, the first beginning on September 11, 1972, and extending to the next day; the second, eleven days later. Carter had sought a delay for the hearing, in order to have more time to prepare his case, as well as to identify and summon witnesses. By this time a state’s witness, former FBI agent Horace “Buzz” Hallett, had already traveled from his home in Durham, North Carolina. District Attorney Lynn Cooksey asked the court for permission to call Hallett out of turn so that he would be able to return home without unnecessary delay. The remainder of the evidentiary hearing was set for September 22. The lawyers agreed to hold the hearing in Texarkana, rather than in Boston, twenty-two miles away.

Three witnesses testified for the state: Winnie Stone, the district clerk; former FBI agent Hallett; and Gary Morgan, investigator for the District Attorney’s office. Essentially, Hallett’s testimony was the focal point, with the other two brief appearances framing his.

Hallett had retired in 1965 after thirty years as a special agent of the federal bureau and was head of security for a large telephone company. He had been stationed in Texarkana from September 1945 until January 1952 as the senior resident agent.

He testified that he had investigated Swinney’s case and was physically present in court during Swinney’s trial in February 1947.

“I was present during the entire trial.”

Cooksey asked, “Was Mr. Swinney represented by an attorney?”

“Mr. Swinney represented himself,” replied Hallett.

“And did you ever hear the Court admonish Mr. Swinney or tell Mr. Swinney that he was entitled to counsel?”

“Yes, I did.”

Cooksey asked him to relate what the trial judge, Robert Vance, said.

Hallett said, “To the best of my recollection, Mr. Swinney asked the judge if he wasn’t going to sentence him as a habitual criminal. And Judge Vance asked him if he was represented by counsel, and he said ‘No, I’m going to represent myself.’ And with that statement, Judge Vance told him that he was entitled to an attorney, that he would appoint him an attorney and would make one available for his defense, and he said, ‘No—’”

“Who said, ‘No—’?” Cooksey broke in.

“Mr. Swinney said, ‘No, I’m going to defend myself.’ And with that, Judge Vance said, ‘Under the provisions of the Constitution of the United States, you are entitled to defend yourself and that will meet the requirements of the federal law.’”

“All right, sir. So Judge Vance, the trial judge at that time, did advise Mr. Swinney that he was entitled to counsel?”

“He did advise him of his rights to counsel and was willing to appoint him an attorney.”

“And at that time, did Mr. Swinney appear to you to be rational?”

“Yes, he did.”

“And he appeared to understand the Judge’s warnings?”