The Phantom Killer: Unlocking the Mystery of the Texarkana Serial Murders: The Story of a Town in Terror (44 page)

Johnson testified that he had investigated Swinney in 1946 and 1947.

Cooksey asked, “Now, are you aware of the agreement that was made between the officials of Miller County and Bowie County?”

“Yes, sir,” said Johnson.

“What was the agreement, Mr. Johnson?”

“There was an agreement made between the courts of both counties through a attorney, W. E. Haynie, who represented Mr. Swinney, that he would be released from Miller County to Bowie County for prosecution over here, in Bowie County.”

“All right, sir. And what was to become of the Arkansas charges?”

“Those charges were to be dismissed.”

“All right, sir. And was this agreement carried out?”

“Yes, sir.”

“Was Mr. Swinney delivered to Texas authorities?”

“He was.”

On cross-examination, Johnson testified that the Arkansas charges were dropped, as agreed, but he did not know when. “It was agreement that was not reached in one day and immediately delivered to Texas. Everything worked over a period of time.” Carter cited records that the charges hadn’t been dismissed until June 21, 1951, four years after the trial.

The hearing had ended.

Several months later, on February 20, 1973, Judge Nunn recommended that the writ be denied.

Ten days later, Carter mailed an appeal to the Court of Criminal Appeals.

O
n March 19, 1973, the Court of Criminal Appeals, the court of last resort in Texas for criminal matters, reviewed the case. Judge Carl E. F. Dally ordered the trial court to hold a supplemental evidentiary hearing, if needed, and certify the records to the Court of Criminal Appeals.

The appellate judge focused on the 1941 Arkansas conviction, for which Swinney earlier had contended he’d had no attorney. The judge’s order noted the circuit court’s form recitation that Swinney “appeared in proper person and by his attorney” but that the document was “
silent
as to
named counsel
.” He further commented, in capital letters: “THE DOCKET SHEET IS SILENT AS TO COUNSEL BEING PRESENT.” At the 1972 hearing, the judge observed, Swinney had claimed that at his 1941 trial he had no counsel, wasn’t advised of his right, and had not waived counsel. This raised in Judge Dally’s mind “a serious question to the validity of the 1941 Arkansas conviction for the purposes of enhancement.” The prisoner, he said, “may be entitled to relief.” To clarify these points, he ordered the trial court to hold a supplementary evidentiary
hearing within forty-five days, to see if the State could produce additional evidence, and transmit all records back to Austin.

If the trial court failed to return the entire record within sixty days, the appellate court would presume that Swinney’s allegations were true. In the summary sheet, the judge wrote: “Since there is no affirmative showing that P [i.e., Petitioner] was represented by counsel, I think P’s evidence is sufficient to grant the writ.”

In his summary, Judge Dally brought up a matter that suggested the issue of the Phantom murders had no bearing on the case or any decision. “For some reason, counsel appointed at the habeas corpus hearing subpoenaed all of the parole board records, Mr. Shandara, and went into tons and tons of evidence about all sorts of collateral matters, including that of the parole board’s refusal to parole Petitioner due to some protests by the D.A. and the trial judge. This is the reason why this record is extremely voluminous, even though if Petitioner’s counsel had stayed with contention #1, the hearing could have been about 5 minutes!”

(Carter, having no way to know which direction the higher court might take, sought additional points to cover unknown eventualities, a common tactic of lawyers.)

In a final note: “Petitioner has well in excess of 10 years credit, so granting of writ would allow immediate discharge without re-trial.”

After more than twenty-five years, the tide had finally turned against efforts to hold Swinney.

Judge Nunn, previously diagnosed with cancer, filed an affidavit on April 6 that he would be absent from the bench for an indefinite period. He was going to M. D. Anderson Cancer Hospital in Houston for treatment. During his absence he requested that another judge be assigned.

Three days later, the presiding judge of the First Administrative Judicial District of Texas, in Dallas, named Morris Rolston of the 76th Judicial District to fill in for Nunn.

The supplemental evidentiary hearing, with Judge Morris Rolston sitting in the Fifth Judicial District, began April 17 in Boston.

Lynn Cooksey, as district attorney, represented the State. Jack Carter, of the firm of Newman and Carter, again represented Swinney.

Testimony from Tillman Johnson opened the session. Johnson recalled the 1941 case for car theft.

“All right, sir,” said Cooksey. “Now in waiting on the court, did you ever see the circuit judge in Arkansas appoint attorneys for defendants?”

“Yes, sir, in nearly all felony cases, to the best of my knowledge, it was customary to. Where the defendant was unable to hire an attorney or was not represented by one.”

“And what was the normal procedure for Judge [Dexter] Bush, if an indigent defendant charged with a felony desired to plead guilty?”

“He would always appoint one of the attorneys to confer with that defendant out of the courtroom, and to report back to him as to what they wanted to do.”

Johnson had served as deputy sheriff from January 1939 until 1956. He acted as bailiff for the entire period, serving in Judge Bush’s court.

“He died in office,” said Cooksey. “Yes, sir. Now do you ever recall any defendant charged with a felony in Judge Bush’s court not being represented by counsel?

“No, I don’t.”

“Mr. Johnson, on the conviction of Youell Swinney in 1941, to the best of your recollection did Youell Swinney have an attorney?”

“I can’t say that the man was represented by an attorney. It was general procedure that the man would be represented by an attorney, but as far as remembering him as a individual having an attorney up there, I cannot.”

Johnson, while certain that Swinney had representation, was unable to recall the lawyer’s identity. Too many years had passed.

Swinney took the stand in his own behalf. On direct examination, Carter rapidly moved to the February 1941 Arkansas case.

“What transpired upon going down and pleading guilty, if you will just explain to the Judge?” asked the attorney.

“Well,” said Swinney, “on the night of the tenth or the eleventh, Sheriff Elvie Davis came to the jail where I was at and asked me if I would plead guilty, and I told him that I would. And so he said, ‘Well, I’ll take you down to my office.’ He said, ‘Judge Dexter Bush and Prosecutor Dick Huie is down there, if you just want to enter your plea of guilty.’ I told him that I would do that, that would be all right. And so about seven-thirty that night,
he took me down at his office and I pled guilty there; and the only people who were there were Judge Dexter Bush, Mr. Dick Huie, the prosecutor, Sheriff Elvie Davis, and myself.”

(By that time, the sheriff, prosecutor, and judge were all dead and in no position to refute any of the testimony.)

“All right, sir, and did you have an attorney at that time?”

“No, sir.”

“Did the Judge ask you if you wanted an attorney at that time?”

“No, sir.”

“Did you tell the Judge that you did not want an attorney?”

“I didn’t tell him that I did not want one, no, sir.”

“Did he ask you anything about an attorney?”

“No, sir, an attorney wasn’t mentioned.”

“Mr. Swinney, at that period in your life what was your financial condition?”

“Well, I had just been released from Leavenworth two or three months prior to that and I was living with my brother, C. C. Swinney.”

“Did you have any job?”

“No, sir.”

“Did you have any means or method of obtaining the funds to hire a lawyer?”

“No.”

The lawyer introduced the letter Swinney had written to the Miller County circuit clerk asking if he’d had an attorney in that case and the reply.

Subsequently, Cooksey cross-examined Swinney, who said he was taken from the jail in the top of the courthouse, down to the sheriff’s office on the first floor, at night. Cooksey asked if the judge was standing or sitting. After some hesitation, the prisoner said the judge was sitting behind Sheriff Davis’s desk. Who had brought Swinney down to the office? The sheriff, himself; no deputies present. Was he taken down in handcuffs? No. Prosecutor Dick Huie, the witness continued, asked if he had talked to the sheriff about a three-year sentence; Swinney said he had. “I believe the judge asked me if I was willing to plead guilty for a three-year sentence, and I told him that I was.”

“All right,” said Cooksey, “then did the judge ask you to plead?”

“Well, as I said, he did. Said, ‘You have talked to the—’ I mean the prosecutor asked me if I had talked to the sheriff and agreed to a three-year sentence, and I told him that I had. I mean the judge was talking to me.”

“All right, and then did the judge say, ‘How do you plead?’”

“Yes, sir. He said, ‘Well, you do plead guilty?’ I said, ‘Yes, sir.’”

“All right, did he take your plea and sentence you all at the same time?”

“Yes, sir, right there.”

“Did he pronounce sentence on you?”

“Yes, sir.”

“So you are telling Judge Rolston that the judge didn’t know anything about the case other than just right there and—”

“Well, I know that Sheriff Elvie Davis told me that he was going to talk the case over with the judge and see if he could arrange a three-year sentence.”

“Now, did this strike you as unusual, that they would take you down to the sheriff’s office and hold court in the sheriff’s office?”

“No, sir, I didn’t know.”

“Well, hadn’t you just gotten out of Leavenworth?”

“Yes, sir.”

“Were you sentenced to Leavenworth in a sheriff’s office?”

“No, sir, I was sentenced in the courtroom, federal court.”

“All right, but was your Leavenworth conviction your first conviction?”

“Yes, sir, it was; felony conviction, yes.”

(Swinney had grossly understated his prison record, which went unquestioned. He’d spent time in three federal prisons—El Reno, Leavenworth, and Atlanta. Prosecutors apparently had not checked his FBI rap sheet, which would have painted a darker picture of his past than he had admitted.)

“First felony conviction?”

“Or—you know—”

“Now had you appeared in the courtrooms before?”

“No, sir.”

“Before your Leavenworth conviction, you had not appeared in a courtroom?”

“No, sir, I hadn’t actually gone through a trial, no.”

“No, I didn’t say go through a trial. I said appear in a courtroom.”

“Well, I had probably been in some courtrooms, but I don’t know anything—I didn’t know anything at that time about court procedure.”

“Okay, but now this didn’t strike you as unusual, that the sheriff would take you down there to the sheriff’s office at night—”

“No, sir.”

“—and you plead guilty to the judge in the sheriff’s office?”

“No, it didn’t strike me.”

“Well, when you were sentenced by the federal judge—I assume it was a federal judge, since you went to Leavenworth. Is that correct?”

“Yes, sir.”

“That was done in a courtroom, was it not?”

“Yes, sir.”

“Well, didn’t you think that was the proper way to do it?”

“Well, I just didn’t have any thoughts about it. I thought since the sheriff and the judge had me brought down there, it was all right. As I say, I don’t know anything about court procedure.”

“Well, you do now, though, don’t you?”

“Yes, sir. Very little.”

“Well, does that appear unusual to you now?”

“No, sir, it doesn’t.”

“All right, do you know that the sheriff is dead?”

“Yes, sir.”

“Do you know that Judge Bush is dead?”

“Yes, sir.”

“Do you know that the prosecutor is dead?”

“No, sir, I didn’t know that.”

“Didn’t know that. And so nobody is here except you, who you say you were taken down to the sheriff’s office, and that was not unusual.”

“To me it wasn’t, no.”

“All right, was this on the night of the tenth, or the night of the eleventh?”

“I can’t recall that, whether it was on the night of the tenth or the eleventh. The judgment says the eleventh. So I assume then that it was the night of the eleventh.”

“All right, did they whisk you off to the penitentiary that night?”

“No, sir, a day or two later.”

“All right, and no clerk was there?”

“No clerk; no, sir.”

“Nobody was there but just the sheriff, the prosecutor, and the judge—in the sheriff’s office?”

“And myself, yes.”

“The four of you.”

“Yes, sir, the four of us.”

“So the court accepted your guilty plea, then, and sentenced you to three years without discussing anything with you except ‘are you guilty?’”

“The judge, yes, sir.”

“And the judge sentenced you at that time. Is that right?”

“Yes.”

“Was he wearing a suit?”

“Yes, sir, he had on a suit.”

“Had on a suit?”

“Yes.”

“But nothing else in the circumstances there arouses your suspicion that that was kind of an unusual procedure?”

“No, sir.”

His client’s time in the witness chair ended, Carter then called as defense witness Swinney’s older brother, Cleo C. Swinney, a solid working man with a clean record. On direct examination, Carter documented his client’s testimony that in 1941 he was living with his brother and was unemployed.

“Did he have any means of employing a lawyer?” asked Carter.

“No, sir,” said Cleo Swinney, “he couldn’t get a job because he had been released from the federal institution, and at that time jobs were scarce and an ex-convict, it was impossible for him to get a job even on the farm.”

Cooksey called, as a witness, a clerk in the Miller County circuit clerk’s office, Brenda Roberts, who testified that defendants without an attorney were described in records as being in custody of the sheriff, whereas those with an attorney were designated as appearing “in proper
person and by attorney.” Thus Swinney’s case indicated that he had been represented by an attorney, although unnamed. She displayed another case from the 1940s: “And comes the defendant hereto, in proper person and in custody of the sheriff,” meaning, she said, the defendant did not have an attorney.