The Phantom Killer: Unlocking the Mystery of the Texarkana Serial Murders: The Story of a Town in Terror (42 page)

“He appeared to understand the Judge’s warnings and was given every opportunity to question any of the Judge’s statements at the time.”

Hallett testified subsequently, over Carter’s objections, to his understanding that Swinney, in jail on the Arkansas side, had agreed through his attorney, William E. Haynie, to be transferred to the Texas-side jurisdiction, after which the Arkansas charges wouldn’t be presented. In Texas he was tried under the habitual criminal act.

“And at the trial, Mr. Hallett, did Mr. Swinney enter a plea of guilty or not guilty?” Cooksey asked.

Hallett responded, “Mr. Swinney attempted to enter a plea of guilty and Judge Vance said he couldn’t accept the plea of guilty to an habitual criminal act charge, that it would have to be a trial.”

During the trial, Hallett said, he appeared as a witness on behalf of the State of Texas by reading Swinney’s criminal record.

Cooksey asked, “And was Mr. Swinney given an opportunity to cross examine you?”

“Mr. Swinney was given an opportunity to cross examine me, and if my memory serves me correctly, he had me qualify myself as to my education and experience in identification matters.”

On cross examination, Carter brought out that Hallett didn’t think Swinney had questioned other witnesses during the trial, that he understood there was a deal made by Swinney’s lawyer to transfer him from Arkansas into Texas but that he had no attorney for the trial itself when he tried to plead guilty. Carter displayed the docket record that reflected Swinney’s plea of not guilty but not that he had tried to plead guilty. Hallett repeated his testimony of Swinney’s attempted plea.

Carter asked, “Mr. Hallett, did Judge Vance ask Mr. Swinney if he had money to hire an attorney?”

“I have no recollection of his using the word ‘money.’ He said, ‘Do you have means to hire an attorney?’ And that’s when he said he didn’t want one again.”

On cross-examination, Hallett testified that he had interrogated Swinney at least five or six times, an hour or two at a time. Carter then asked him of the 250 or more cases he had investigated during his FBI career, how many did he remember as vividly as he did this one.

The judge interjected, “Do you want him to tell you how he remembers it?”

“I’ll be glad for him to,” said Carter.

“All right,” said Judge Nunn. “Tell him about the alleged murders, Mr. Hallett.”

Under questioning by Carter, Hallett began. “Well, for your knowledge, on February the twenty-second, George Washington’s birthday, there were two—a young couple assaulted here in Texarkana and they lived. A short time thereafter, a young couple were killed, the young girl raped. A short time thereafter, I’d say in a span of three or four weeks, without getting all of those old records out, another young couple, the boy was killed, the girl was raped, and the girl was killed. And a short time thereafter, and this date I can be as specific about as the first one because it was another holiday, May 30th, when a young farmer sitting on his porch over in Arkansas was shot, and his wife went to the phone and she was shot, but lived. They are the, what, five murders, eight people, four different
offenses involved, and there was certain information developed during the investigation of these—let’s say eight assaults, three assaults and five murders—that led to Mr. Swinney and his supposed wife.”

Hallett’s impressions were slightly distorted. There was no documented proof that the first murdered girl was raped, though that was the popular perception and seems to have been believed by many lawmen. His memory of the Starks shooting was seriously flawed on two points, that Starks was shot while on his porch (he was inside the house, by a window) and the date, which was May 3, not May 30. He was never contradicted on those points.

Carter drew out from the witness that Swinney had never been tried or convicted of murder and had never been charged with the Phantom killings.

Hallett explained the matter more fully. “You asked about why did he want to get from Arkansas to Texas where in Texas he could plead to an habitual criminal act. I don’t know what was in his mind or his attorney’s mind until, that kind of a deal—”

“Well, of course,” broke in Carter, “he had no attorney when he tried the case, did he?”

“That’s right.”

After a brief exchange between the lawyers, Hallett continued: “It makes sense to this point that if he could go to Texas and be tried as a habitual criminal, he would not be faced with the possibility of the electric chair if he got convicted of murder in Arkansas.”

“If he got convicted of murder,” said Carter. “That’s a big if, isn’t it, Mr. Hallett?”

“I said
if
. That was his gamble at the time.”

Hallett told the court that Sheriff Elvie Davis had informed him that Swinney was being moved from Arkansas to Texas. Hallett did not participate in conferences that led to the decision.

When Carter persisted in the point that Swinney had never been brought to trial for murder, Hallett replied, “He was never charged. You want to know the reason why?”

Judge Nunn said, “He asked you. Tell him.”

“If you know the information,” added Carter.

“I know the information,” said Hallett, “is that we never could find the gun, but the same gun was used in all five murders.”

Hallett’s memory had failed him. The same gun was used in the first four murders, but a different caliber was used in the Starks shootings.

“Now, Mr. Hallett,” said Carter, “isn’t it a fact that the information that you have—I’d like to know where you’re getting this information.”

“From official reports of the FBI laboratory, from cartridge cases and bullets that were sent to them for examinations.”

“So, what you’re saying is that you think he’s guilty of these murders.”

“I didn’t say that.”

“Do you?”

“I didn’t say that. You asked me why wasn’t he tried for murder.”

“That’s right.”

“Two reasons or maybe three good reasons.”

“You didn’t have the evidence is the reason, isn’t it?”

Cooksey broke in, appealing to the Court. “Your Honor, let him answer the question. We’re going to object to counsel—”

Hallett answered, “I say, the gun was never found—”

“All right, sir,” said Carter.

Hallett continued. “—and a lot of testimony would have been presented by his alleged wife who cannot testify against her husband. With that, the prosecuting attorney did not present the case or cases to the grand jury for those two reasons.”

Carter underscored the position that there had not been sufficient evidence to charge him with the murders. He then moved to Swinney’s representing himself at the 1947 trial.

“Would you say that he conducted his trial, pretty good defense of himself?”

“He asked questions that most lawyers would ask, I mean particularly when he was qualifying me as an expert to be able to testify to his criminal record. Then he asked me one or two questions as to the entry on the criminal record which he knew as well as I did.”

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.