Penney: No.
Defense: Isn’t it true that you agreed to testify against Anderson in exchange for a life sentence?
Penney: No.
Defense: Do you hope for a life sentence?
Penney: No, no hope. Most likely I’ll burn.
Taken aback by this response, the defense changed the line of questioning.
Defense: Isn’t it true that on September twenty-third, five days before the murders, you had a heated argument with Bob Anderson over a business deal?
Penney: Yes.
Defense: And you swore to get even.
Penney: Yes.
Defense: And naming him as your accomplice in this crime is your way of getting even, isn’t it?
Penney: No. He was my accomplice.
Defense: Isn’t it true that on the night before the crime you went to Mister Anderson’s place of business and stole his car to use in the crime?
Penney: No, it’s not true.
Throughout the cross-examination, Penney stuck to his story. Then Baxter took the stand and corroborated Penney’s testimony in detail.
On re-direct, Prosecutor Park suggested that by reporting his Buick stolen, Anderson was using a ploy to cover up the fact of its disappearance. As for the witnesses who saw Anderson in The Cat and Fiddle on the night of the murders, the latest sighting was at 10:30 P.M., leaving ample time for him to have met Penney at 11:00 P.M. as Penney testified.
Unlike the juries for Penney and Baxter, who reached guilty verdicts in minutes, Anderson’s jury deliberated for twenty-four hours. At last, persuaded by Penney’s testimony and Baxter’s corroboration, they returned a verdict of guilty.
Sentenced to die in the electric chair, the three men were transferred to the state penitentiary in Eddyville.
Anderson’s conviction was not hailed universally. News accounts reported a widespread feeling that the trial revealed a conspiracy to convict Anderson regardless of the law and the evidence. Nonetheless, the Court of Appeals upheld the sentences. The executions were scheduled for shortly after midnight, New Year’s Day, 1943.
Around the country and in Europe, Marion Miley’s friends and mourners were satisfied. In Lexington, the police blotter was closed on the case.
Then, a bizarre turn of events transformed the cut-and-dried case into a cause célèbre.
During the year immediately following his capture, Tom Penney underwent an extraordinary transformation. At the urging of two nuns who visited him in the Lexington jail before and during the trials, he began to study Scripture. Previously contemptuous of religion, totally devoid of a spiritual nature, he was nonetheless a voracious reader. During every spare moment, he pored over material the nuns supplied him. At last, to the skepticism of those who knew him best, he requested formal instruction in Catholicism.
No man could have been better suited to the priestly task he was about to undertake than Father George Donnelly. Tall, eloquent, with an air of no-nonsense authority, Father Donnelly was nonetheless a patient and understanding tutor. From the outset, Tom Penney recognized that he could place full trust in the fair-complexioned curate with the silky white hair. In January 1942 the priest and the convict began to spend long hours together in Penney’s cell. Some prominent members of the Church hierarchy frowned on Father Donnelly’s dedication of so much time to the convicted killer and told him so. Unintimidated, the priest persevered. Over the course of the next twelve months, first in Lexington and continuing in Eddyville, he methodically guided Tom Penney to what Catholic historians would later chronicle as one of the most dramatic acts of repentance and reversals of character in modern Church history.
And it was in the bloom of his new-found faith that Penney dropped the bombshell that turned the Miley case topsy-turvy. Two weeks before the scheduled executions, Penney requested a private meeting with Warden Buchanan. That afternoon in the warden’s office, Penney said, “I lied about Bob. He wasn’t in on the murders. I stole his car like he said. He messed me up over a liquor deal and I wanted to get even. I’m sorry and want to make amends.”
His testimony at the trial had otherwise been true, Penney claimed, except for the name of his accomplice.
“Who was the accomplice?” Buchanan asked.
“Buford Stewart,” Penney replied. “We were pals. We pulled off a couple of hijackings together before the Miley caper.”
A small-time Louisville bartender, Buford Stewart had a police record for a series of minor offenses.
The warden dismissed Penney and had Raymond Baxter brought to his office. “Willie,” the warden said, “Tom says he lied about Bob Anderson. He says he wasn’t your accomplice in the murders.”
“Who’d he say was?” Baxter asked.
“You tell me,” Buchanan countered.
The little man gave a wry grin. “Did he say . . . Buford Stewart?”
Warden Buchanan called Anderson’s attorneys at once. Next morning at the prison, in the attorneys’ presence, Penney and Baxter repeated their new version of the crime. That afternoon, Penney penned a deposition by hand that matched his court testimony in nearly every detail except one—Buford Stewart’s name replaced Bob Anderson’s.
Once again the Miley case became the hottest crime story in Kentucky and beyond. Editorial sentiments ranged from “I told you so” to disdain of the new story, and with reason. Buford Stewart could not defend himself. On February 2, 1942, four months after the Miley murders, the thirty-four-year-old bartender had been killed in a street brawl in Louisville.
Anderson petitioned for a stay of execution. The state’s attorney advised caution. Naming a dead man as an alibi was a timeworn trick.
But the alibi had not come from Bob Anderson, the beneficiary. It had been volunteered by Tom Penney, who had nothing to gain other than, as he claimed, “a clear conscience.” Impressed with Penney’s sincerity, the Court of Appeals granted Anderson a stay, with the stipulation that he file at once for a new trial.
The ruling put the state in a quandary. If Penney and Baxter were executed as scheduled, the state would lose its only witnesses—albeit recanting witnesses now—against Anderson. With no alternative, the state petitioned for and won a stay of execution for Penney and Baxter.
It was a brand new ball game.
Then, as abruptly as he had rekindled the issue, the increasingly mercurial Penney dropped another bombshell. Two weeks after exonerating Anderson, Penney requested a news conference. To reporters assembled before his death-house cell he said, “I have made my peace with God. My conscience is clear.”
Then, in a ringing declaration, he announced: “From this moment on I will say no more about the Miley case, ever.”
Anderson and his attorneys were stunned. Surely Penney’s new stance didn’t mean that he would refuse to testify at Anderson’s upcoming hearing for a new trial?
Indeed, it did, Penny proclaimed.
Nonetheless, Anderson’s petition had been granted and the hearing had been scheduled.
On January 24, 1943, Warden Buchanan, accompanied by prison officials and state police, delivered Anderson, Penney, and Baxter to Lexington, where the convicted trio appeared before the Fayette County Court considering Anderson’s petition for a new trial. True to his word, Penney stood mute throughout the hearing, refusing to discuss the case or explain his silence. Defense attorneys were perplexed. Anderson was enraged.
In light of Penney’s lack of corroboration, the court refused to accept his handwritten deposition exonerating Anderson. With no new evidence to consider,