Across from them Hugh’s appellate lawyers from Atlanta busied themselves with paperwork. So far, their voluminous filings had produced nothing beneficial for their client. They had lost in the state supreme court by a vote of 9-0. They had lost on a petition for a rehearing, a formality. They had appealed to the U.S. Supreme Court and lost when it refused to hear the case. Round Two was a petition for post-conviction relief back in the state supreme court, which they lost. They petitioned for a rehearing, another formality, and lost. They appealed that to the U.S. Supreme Court, which again declined to take the case. With the required state filings out of the way, they entered Round Three in federal court with a petition for habeas corpus.
Hugh had been convicted and sentenced to death in the circuit court of Forrest County, Hattiesburg, in April of 1978. Six years later, in the same town but a different courthouse, both he and his case were still alive. According to Witt, though, both were in jeopardy. The finish line was in sight. Hugh’s high-powered lawyers were bright and experienced, but they had yet to gain any traction with their arguments. Keith, who still read every word that was filed, agreed.
As they waited for His Honor, more reporters gathered in the front row behind the lawyers. There wasn’t much of a crowd. It was, after all, rather dry and monotonous appellate maneuvering. When the notice had arrived a month earlier, Keith had wanted to handle the oral argument himself. He knew the case as well as Witt and was certainly capable of going toe-to-toe with the habeas boys, but he realized it was not a good idea. His father’s murder would be discussed to some degree, and he and Witt agreed that he should stay in his chair.
Hugh wanted to attend the hearing and his lawyers had made a request. However, the custom was for such a request to be either approved or disapproved by the attorney general, and Keith happily said no. He wanted Hugh to leave the Row in a box, and not before. It was a pleasure denying him even a few hours outside his miserable little cell.
His Honor finally appeared to call things to order. As the aggrieved and appealing party, Hugh’s lawyers went first and spent the first hour describing in boring detail the lousy job Joshua Burch did defending their client at trial. Ineffective assistance of counsel was customarily relied on by desperate men and was almost always presented on appeal. The problem was that Joshua Burch was not some court-appointed public defender assigned to an indigent client. He was Joshua Burch, one of the finest criminal defense lawyers in the state. It was clear His Honor wasn’t buying the attack on Mr. Burch.
Next, a different lawyer argued that the State’s witnesses had severe credibility problems. Henry Taylor and Nevin Noll were originally co-defendants before they flipped in an effort to avoid the gas chamber themselves.
His Honor appeared to doze off. Everything that was being said had already been submitted in the brick-like briefs filed weeks earlier. For two hours the lawyers droned on. Months ago Keith and Witt had realized that Hugh and his team had nothing new: no surprise witness, no novel strategies, no brilliant arguments missed by Joshua Burch at trial. They were simply doing their jobs and going through the motions for a client who was clearly guilty.
When His Honor had had enough, he let it be known and called for a coffee break.
As a thirty-year veteran of appellate arguments, Witt Beasley had long since learned to make his case with concise and logical written briefs, and say as little as possible in court. He believed that all lawyers talked too much, and he also knew that the more crap a judge heard, the less patience he had.
Witt hit the high points, finished in less than an hour, and they left for lunch.
Knowing the judge as he did, Witt predicted an opinion within six months. Assuming it would be in the State’s favor, Hugh would then appeal another loss to the Fifth Circuit in New Orleans. The Fifth had the reputation of being a fairly industrious court and often ruled in less than a year. If it upheld the State, then Hugh’s next and probably final appeal would be to the U.S. Supreme Court, where he’d already lost twice.
Keith wasn’t counting the months until an execution date could be set, but he was counting the years. If things fell into place for the State of Mississippi, Hugh Malco would be strapped down while Keith was still the attorney general.