The Phantom Killer: Unlocking the Mystery of the Texarkana Serial Murders: The Story of a Town in Terror (43 page)

“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.

T
he 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 worker 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.”

“No one ever told you that you had a right to an attorney?”

“No, sir.”

“Now, did Mr. Goldman [i.e., his attorney] ever consult with you about a charge in Miller County, Arkansas?”

“No, sir.”

“And no other lawyer ever talked to you?”

“No, sir.”

Swinney testified that he had fought extradition. He asserted the reason for extradition was for his having violated Texas parole. When Cooksey focused on the matter, however, he backpedaled.

“Mr. Swinney, you testified that you fought extradition and went to the Governor’s office; is that correct?”

“I didn’t actually—I didn’t put up any opposition because I didn’t know how. At the time the Governor asked me a few questions, if that’s fighting extradition, well, then, I fought extradition that way. He asked me if I felt like ought to be returned to Texas and be put in the Texas penitentiary as a parole violation and I told him, No, that I didn’t understand what the charge was against me.”

“Well, Mr. Swinney, you see, you are confusing me, now, because I thought you told Mr. Carter a while ago that you understood that they were going to try you for an habitual criminal and that’s why you fought extradition.”

“Yes, sir, that’s right. That’s one of the reasons, yes, sir.”

Swinney continued a pattern of evasion. Cooksey returned to the issue of extradition. Swinney insisted he’d been told parole violation was the only basis for his extradition. Cooksey asked for specifics. Was the Bowie
County D.A. in Little Rock for the hearing? He didn’t remember. Were any lawyers representing Texas there? He didn’t remember.

Swinney repeatedly contended that he didn’t know the charge in Miller County, that he had been convicted previously at both state and federal levels without an attorney, that FBI agents had questioned him without telling him he could have an attorney, that he knew nothing about court procedure, and that Judge Vance had never asked him if he wanted an attorney appointed, the opposite of what FBI agent Hallett had testified. The court docket also recorded that Swinney was charged with felony theft in Miller County. He appeared in court and undoubtedly heard the charge.

Swinney seemed to have created his own interpretation of the extradition proceedings. (No record of a hearing before the governor in Little Rock has been found. Tillman Johnson, the last survivor of the lawmen, believed Swinney waived extradition. Other records indicate that Governor Laney did sign off on extradition. This was not pursued in the hearing.)

On re-cross examination, Cooksey returned to the theme. “Mr. Swinney, the truth of the matter is, when your father employed three attorneys for you, you knew that they were going to charge you with murder in Miller County?”

“No, sir, I didn’t know that.”

“And you knew that you had an attorney who made a deal with the Texas authorities that they would not pursue their murder case if you would go to Texas on the habitual criminal act?”

“No, sir, I didn’t. I knew that they were going to file habitual criminal law, but I didn’t know anything else.”

The two local attorneys for Swinney who had filed the writ of habeas corpus in 1946 were Paul J. McDonald and Ted Goldman. By 1972 McDonald was dead. Swinney swore he had not conferred with either, nor with J. F. McVey from Missouri.

Carter called Goldman to the stand.

Goldman verified his signature on the petition for the writ but had no recollection of it. He could not remember if he had represented Swinney or not. That had been twenty-five years before.

The final witness for the State was Tillman Johnson, Miller County’s chief deputy sheriff in the 1940s, now working as an insurance claims adjustor.