On 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.
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.
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!