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.
On cross-examination, Carter elicited from her that she had not been employed in the circuit clerk’s office in 1941 and had no personal knowledge of how the records were kept at that time.
By mid-May, Judge Rolston, as Special District Judge Sitting for the Fifth District Court of Bowie County, Texas, had summed up the proceedings in his findings of fact and conclusions of law. He pointed out that the typed minutes from the circuit clerk’s records were not a form recitation but “entirely original entries” and demonstrated that Swinney was represented by an attorney, citing the language, “Comes the Defendant hereto in proper person and by his attorney.” The Arkansas practice of describing whether a defendant was represented by counsel or not, therefore, said the Judge, made clear Swinney had had counsel in 1941. Based on these records and the testimony of the clerk, the Judge wrote: “The Court further finds that the Petitioner was represented by an attorney in the 1941 conviction.”
Judge Rolston went further, referring to Swinney’s testimony about the circumstances of his guilty plea. “The Court finds that the Petitioner’s testimony regarding his conviction . . . is in certain respects beyond belief and incredible. It is unbelievable that a Judge of a Court of Record would abandon his courtroom on the second floor of the courthouse at night in the dead of winter to go outside the courthouse and back into the Sheriff’s Office to try an accused. The Circuit Clerk would then have had to conjure a proceeding in his head to enter into the Court record or would have had to record a falsehood at the direction of his Judge. The Circuit Court records introduced in this hearing specifically recite that the Court was convened at 9:00 A.M., February 11, 1941; that the Petitioner appeared in person and with his attorney on that Court day and upon being advised of his rights, entered a Plea of Guilty to the charge of Grand Larceny. There is nothing to support or give credence to the testimony of Petitioner that he was tried in the Sheriff’s Office in Miller County, Arkansas, by the Sheriff and the Circuit Judge the night before the entry made in the Court record.”
Judge Rolston further found that Swinney was legally confined and was “not being held on any unproved crimes or illegal convictions but he is being held because he is an habitual criminal.”
He concluded, on the basis of the records, that Swinney was represented by counsel, was tried before the Circuit Judge of Miller County, Arkansas, on February 11, 1941, and entered a plea of guilty after being properly admonished.
The judge further concluded that Swinney was “much more interested in being released from the penitentiary than in challenging the validity of his 1941 conviction and his 1947 conviction in light of the repeated applications for Writ of Habeas Corpus.”
He found that the judgment in 1941 was valid, with all of Swinney’s constitutional rights fully protected.
Another, out-of-district trial judge saw no reason to release the inmate. Swinney had hit another wall. The Court of Criminal Appeals, however, would have the final say.
Jim D. Vollers, an assistant attorney general serving as State’s Prosecuting Attorney representing the State in all cases before the Court of Criminal Appeals, submitted a brief opposing the granting of the writ. He emphasized, and agreed with, Judge Rolston’s characterizing Swinney’s testimony as “beyond belief and incredible.” He pointed out that the trial judge’s finding was additionally supported by Swinney’s criminal record, having been convicted of a federal offense before the 1941 case. “These prior convictions are certainly pertinent matters which the Court can and should consider in determining whether or not his present testimony is credible. The record also clearly reflects that the petitioner’s first inquiry in regard to the status of the record in showing whether or not he had counsel in the 1941 conviction occurred in 1967, some 25 years after the conviction occurred.”
Then he added another argument in support of Judge Rolston’s finding, that Swinney’s testimony was incredible: “the obvious reticence by the petitioner to answer the questions of the district attorney and his evasiveness in regard to such questions.”
The brief concluded by emphasizing the importance of the psychological realities of the living courtroom as well as the immutable characteristics of the record.
“The trial judge obviously had the only opportunity to see and hear this testimony and was in the better position to determine credibility.”
The appellate decision came in late September after judges of the Court of Criminal Appeals had sifted through what it described as “tons” of evidence and testimony. Stating that the appeals court was not bound by the trial court’s findings in a habeas corpus proceeding, the justices turned immediately to the issues of the 1941 case. Both State and the petitioner had produced circumstantial, but not conclusive, evidence.
It noted that in some instances a delay in seeking relief via habeas corpus may prejudice the credibility of the claim. Swinney had waited until 1967 to seek information on the 1941 case, a delay of twenty years after his 1947 conviction. The court cited as the State’s “strongest evidence” the statement made at the time: “. . . and comes the defendant hereto in proper person and by attorney. . . .” The contention was that if Swinney had not had an attorney, his statement would have read, “in proper person and in custody of the sheriff.” In 1972, the summary continued, the Fifth District Court reviewed Swinney’s contention and found that he did have counsel in 1941.
They then shifted over to the petitioner’s argument, emphasizing that the record was “silent” as to the name of his counsel. On the other hand, Swinney had testified that he had no attorney, was not advised of his right to an attorney, and was indigent at the time.
In conclusion, the majority on the appellate court saw no reason to deny the writ. “This decision is not hastily reached—the question is obviously a close one. However, we feel that petitioner has sufficiently sustained his burden in attacking the 1941 conviction.”
Once that step was taken, the way was clear for Swinney’s release. The maximum punishment for the felony of which he was convicted in 1947 was ten years confinement. “He has clearly served in excess of this maximum. Therefore, his immediate release from the Texas Department of Corrections is in order.”
The final line, signed by Judge Truman Ernest Roberts, one of the five judges on the court at the time:
“The writ is granted and petitioner’s release ordered.”
It would be October 16, 1973, before the inmate was processed and actually walked out from behind walls at Huntsville.
More than twenty-seven years after his arrest, Youell Swinney was free.
Soon after the news reached Texarkana, Jack Carter’s telephone rang.
It was Lynn Cooksey, his recent courtroom adversary.
“Jack,” said Cooksey, “Texarkana’s in trouble. Swinney’s on the ground!”
Whether Cooksey’s comment was just a good-natured lawyerly ribbing or a trifle more serious, Carter wasn’t sure. By then, he had already experienced his most traumatic moment.
One day when he walked into his church, Central Christian, he saw a woman visiting with the pastor in his study. Carter didn’t recognize her. As he walked by, she spoke to him and motioned him in.
As he entered, she said, “Mr. Carter, do you know you’re representing the man who killed my daughter?”
He didn’t know her. She was Bessie Booker Brown, Betty Jo’s mother. Although a Baptist, she had been attending Central Christian with her husband.
&n
bsp; Carter was stunned speechless. He struggled for the right word. There was none he could come up with. What can I say? He felt as if he had been knocked to his knees. It brought home to him how meaningful the case was to those who had gone through it, especially the families of the victims. He wanted to say, I was appointed to defend him and had no choice—I didn’t volunteer to represent him!
CHAPTER 25
LIFE AFTER “LIFE”
On a Sunday afternoon after the decision in Austin, Jack Carter sat relaxing in his den, watching the Dallas Cowboys on television, when the doorbell rang.
He reluctantly rose from his easy chair, wondering who was there. He opened the door.
Youell Lee Swinney stood before him.
He was wearing a hat, the first thing Carter noticed. By then, late 1973, you hardly ever saw a man wearing a hat. It was striking evidence of how unaware of the outside world Swinney had become and of how it had changed during his long incarceration.
Swinney thanked him for representing him and credited him for winning his freedom. Carter asked about his plans. Swinney said he was going straight, for good, and never would be back in jail. He was getting a job and had promising years ahead. It was good to breathe the outside air for a change and he just wanted Carter to know how much he appreciated what Carter had done for him, and that’s why he had come, to personally thank him.
They talked for fifteen or twenty minutes at the door. Carter wished him good luck. Swinney left.
Carter didn’t invite him inside. He never saw him again.
When Youell Swinney asked an arresting officer in 1946, “Do you think I’ll be lucky enough to get out in twenty-five years?” he had come, as it turned out, remarkably close to estimating the time he was to spend behind bars. It was his longest stretch, by far. Even that conviction, however, had one thing in common with his previous terms of servitude. He had gotten out before the intended release date, which, this time, would have been at death.
It is impossible to reconstruct the thought process involved in the decision of the five-judge panel of the Court of Criminal Appeals. Several factors leaned in Swinney’s favor. Foremost was a life sentence for a nonviolent crime, that of stealing an automobile. His conviction immediately preceding that, however, had been for a violent act, robbery by assault.
His most obvious ally was time. The years had brought deaths of key witnesses who might have refuted his uncontested claims, while eroding the memories of those who did testify. In addition, during the interim the interpretation of the Constitution had confirmed individual rights that had not been spelled out in some states, which in turn had led to Swinney’s claim that he hadn’t had a lawyer in either 1947 or 1941.
Then there was another matter. The prisons were filling up with young lawbreakers, some extremely violent. An aging inmate, doing life for a stolen car, as an habitual criminal, was unlikely to be considered a risk to society. As he aged, he would be more of a liability to the state in terms of medical care. In 1973 Swinney turned fifty-six. It was an age by which sociopaths tend to burn out, or at least are not expected to perpetrate dramatic violent crimes that would require great spurts of energy. It is doubtful, however, that the appellate judges gave any thought to whether Swinney would commit such a crime, as they were not working with the knowledge of Peggy Swinney’s testimony that named Swinney as a murderer, potentially the Phantom Killer.
Few in the Texarkana community entertained an inkling of Swinney’s past or that he was the main suspect in the Phantom murders. The first public hint of his connection to the 1946 cases did not come until it was inserted into the evidentiary hearing. By then, nearly three decades had elapsed and though the crimes had become a part of Texarkana’s history, even folklore, emotions had lost their edge. Memories, like those of witnesses, were blurred, faded, or evaporated.
At fifty-six, Swinney had the opportunity to start a new life.
Following release, Swinney relocated to Marshall, Texas, about eighty miles south of Texarkana. He lived there from October 1973 to July 1974. A sister lived in Marshall, which was one reason he took employment there. Another sister lived in Texarkana.
During this period, Swinney made a memorable appearance in Texarkana that drew more attention than he expected. On blistering cold Thursday, January 3, 1974, a day on which it was too cold to work, he drove up to visit the sister on the Arkansas side. Sheets of ice covered northeastern Texas and slowed traffic. Roads and bridges remained guardedly open. A tall, well-built middle-aged man with a crew cut wearing a hard hat, he parked an olive green 1973 Ford Maverick out front of the Texarkana Gazette office. A bumper sticker proclaimed: “Not Only Cars Recalled by its Maker.”
Tugging a newspaper clipping from his pocket, he told the receptionist downstairs he wanted to talk to the woman featured as an author in the item that came from the Gazette. She glanced at it and directed him to Editorial.
Upstairs in the open newsroom, he showed the clipping to the first person he saw and repeated his request. The reporter pointed out the editor, Harry Wood, and returned to her work.
Swinney introduced himself to Wood and thrust out the clipping. Wood recognized his name and the lined, weatherbeaten face from a photograph the paper had run. The brief article was about a woman who had written a book. Swinney wanted to get in touch with her. He wanted her to help him write a book.
The editor scrutinized the clipping, of a syndicated book review. There was no local connection, but Wood was loath to dismiss the visitor. Maybe he had something newsworthy to say. What might it be? Swinney didn’t seem eager to leave, either.
Busy reporters and copydesk personnel glanced at the stranger, then back to their work.
“Can we talk in some other place?” Swinney asked.
“We can go to the conference room,” Wood said. Then he beckoned over an associate, Jim Reavis the news editor, sensing the need for a witness should a story develop.
As Wood closed the conference room door, the man in the hard hat introduced himself to the second editor.
“I’m Youell Swinney.” Then he added, matter-of-factly but with a certain flair and a barely concealed tinge of pride, “I’m the man they say was the Phantom.”
It was a startling, even shocking, way to introduce himself, and the two newsmen stood, expressionless, waiting for him to tell them more. He explained what he had in mind. He’d been framed for a crime he didn’t commit. He wanted to write a book about how he’d spent twenty-seven years in the Texas penitentiary as an innocent man.
He spoke persuasively of the injustice done him.
Wood, aware of some details of the case, asked about his companion who had given statements implicating him. How did he explain that?
“The man they called the Phantom” shrugged it off.
“She just cooked up that story to collect the reward money. She made it up. I didn’t have nothing to do with all that, and she knew it.”
The editor told him that he knew a man who wrote books in collaboration. Would he like to talk to him? Sure, that’d be fine.
I hadn’t been in my small office at the farm long that morning when Harry Wood called. It was still shivering cold inside from the prolonged hard freeze that had lingered for days, and I hadn’t had time to heat the space and warm my hands sufficiently
Harry said, “Jim, Youell Swinney is here and would like to talk to you.”
“Swinney?” I said. “You’re kidding.”
“No, he’s here in the office. I wonder if you’d like to collaborate with him on a book.”
The situation didn’t ring true. Why would he show up at the Gazette and be brought into contact with, of all persons, me?
“Is this a joke?” I asked, a bit incredulous.
“No, it’s not a joke,” said Harry. “He’s sitting right here in the office with me now. He’s looking for someone to help him write a book about his experience.”
Convinced he wasn’t pulling my leg, I said, “Sure, I’ll talk to him. But I
doubt I can help him.”
I was more than well acquainted with the case. Years before, I had explored it in a free-lanced eight-part series of articles.
I’d also studied Swinney’s records at the state penitentiary’s main office in Huntsville. I remembered, without referring to my files, a great deal of what I had read and noted there.
We talked.
“I want to write a book about how I was unfairly imprisoned and held for twenty-seven years,” Swinney said. “The Court of Criminal Appeals finally released me last year. Back in 1946 they said I was connected to those killings. I didn’t have anything to do with it.
“Steve McQueen and those other actors were at Huntsville making that movie, The Fugitive. I told ’em my story and they said it was a good one. They said, ‘You oughta write a book and it’d be a best seller!’ I can’t write it by myself and I was looking for someone to help me with it.”
He apparently referred to The Getaway, featuring McQueen with Ali MacGraw, filmed partly in the Texas prison system and released in 1972. The Fugitive was a television series; McQueen wasn’t in it.
“Where were you when the Texarkana murders were committed?” I asked.
“I wasn’t even here then.”
I tried again. “Where were you at that time?”
“I was up in St. Louis,” he said.
That was what he had claimed in his interview when he had entered the prison in 1947. In his version, he’d worked for the Green Tree Construction Company in St. Louis during a period that coincided exactly with when the murders were committed near Texarkana. I’d called Information for such a company and found there was none. I’d checked with the Chamber of Commerce there, to see if such a firm had operated in 1946. I was told none did. At the prison, the assistant warden told me they didn’t check the inmate’s claim. It was just part of his record. Swinney seemed to have forgotten that in 1946 he’d admitted he was in Texarkana but denied that he had killed. His own words disputed his claim to me.
The Phantom Killer: Unlocking the Mystery of the Texarkana Serial Murders: The Story of a Town in Terror Page 35
