Saturday, September 23, 1972
Swinney Evidentiary Hearing Completed
Testimony was concluded at the Bowie County Building in an evidentiary hearing concerning a request for a writ of Habeas Corpus by Youell Swinney, who has been in prison since 1947.
Swinney was convicted for Auto Theft in February, 1947 in Bowie County Fifth District Court. It was his third felony conviction and the state prosecuted him under the Habitual Criminal Act under which he was convicted, receiving a life sentence.
Fifteen persons testified at the hearing Friday, including Swinney, District Attorney Lynn Cocksey, District Judges Herbert Line, Stuart Nunn and Guy Jones and Sheriff C.C. Rachel.
Jack Carter, Swinney's attorney, called 14 of the witnesses, while Cooksey, representing the state, called one witness.
Swinney filed the request for a writ of Habeas Corpus in 1970, contending that he was not represented by an attorney at the 1947 trial.
Horace S. Hallett of Durham, N.C. who was a Federal Bureau of Investigation agent in Texarkana from 1945 until 1952, testified at a hearing Sept. 12 that the trial judge, Fifth District Judge Robert Vance, advised Swinney of his right to counsel, but that Swinney decided to defend himself.
Swinney testified Friday that he was not advised by Judge Vance of his right o an attorney, nor was he told of the possible punishment he could receive if convicted of the auto theft charge.
Four men listed as members of the jury which convicted Swinney in 1947 were called to testify, but none of the four remembered serving on the jury.
Luther McClure, who owned the automobile Swinney was convicted of taking, testified that he remembered the trial, but added that he had only been present for a short period of time during the proceedings. He said that he could not remember whether Swinney had an attorney or whether Judge Vance advised him of his right to a lawyer.
Frank Cox, district clerk in 1947, said he "vaguely" remembered the trial, but added that he could not recall whether Swinney was told he could have an attorney represent him. However, Cox did say that he was present at a number of trials during his term as district clerk, and that it was normal procedure for Judge Vance to advise defendants that they were entitled to have counsel
Carter called all three Bowie County District Judges; Judge Nunn of the Fifth District, who also presided at Friday's hearing, Judge Herbert Line of the 102nd District Court and Judge Guy Jones of the 202nd District, in addition to calling Cooksey and Rachel, because all five men had at various times received requests for their recommendations concerning parole for Swinney from the Board of Pardons and Paroles.
All five declined to discuss their recommendations for the hearing transcript, citing that the information had been held by court decisions to be privileged
The Board of Pardons and paroles, when considering prisoners for pardon or parole, seeks advice from the district judge of the court in which the prisoner was convicted, from the district attorney and from the sheriff, respectively. Judge Line and Judge Jones both served as District Attorney.
Both Cooksey and and Judge Nunn said that they had opposed Swinney's parole they were not convinced Swinney had been rehabilitated after his habitual criminal conviction.
Cooksey said he was opposed to parole of convicted habitual criminals
In addition, Judge Nunn said that he received a letter from Swinney saying to "dont dare" oppose his parole. Judge Nunn said he had never heard of Swinney before he received the letter
Swinney later denied he ever had written such an order.
Both Cooksey and Judge Nunn denied Carter's question asking if the reason they opposed Swinney's parole was because several local officials had told them that they believed Swinney was involved in several murders in the Texarkana area in 1946.
Both men admitted they had heard the allegations, but added that it was not the basis of their reasoning in opposing Swinney's parole.
FBI agent Hallett had previously testified that Swinney was under investigation by local officials concerning five deaths in 1946. He added however, that no charges were ever filed against Swinney in connection with the deaths
The transcript of the hearing, along with the bill of exceptions, will be transcribed and sent to the Court of Criminal Appeals, which will then rule whether to grant Swinney's request for the writ of Habeas Corpus.
Judge Nunn estimated it would take 90 days to six months for the transcript to be completed and sent to the appeals court.
Swinney, who has been held in the Bowie County Jail at Boston for about two weeks, will be returned the the Texas State Penitentiary at Huntsville to await the appeals court ruling
Story from Texarkana Daily News 09/23/72
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