The Boys from Biloxi: A Legal Thriller (47 page)

Like a boxer hanging on the ropes, beaten, bloodied, but refusing to go down, Hugh Malco’s legal defense took one blow after another and came back for more. In October of 1984, the federal judge in Hattiesburg rejected every claim. The lawyers dutifully appealed to the Fifth Circuit, which affirmed the lower court in May of 1985. With nowhere else to go, the lawyers appealed to the U.S. Supreme Court, again. Even though the Supremes had already said no to Petitioner Malco on two previous appeals, it took them seven months to say no for the third time. They ordered the State of Mississippi to set a date for the execution.

Keith was at the capitol preparing to testify before the state senate judiciary committee when Witt Beasley found him. Without a word he handed him a scrap of paper on which he’d scrawled,
Execution set, March 28, midnight. Congratulations.

The news raced around the state and picked up steam. Almost every newspaper ran the headlines and archival photos of Jesse Rudy on various courthouse steps. The
Gulf Coast Register
re-ran the old team photo of Keith and Hugh as Little League all-stars, and that background proved irresistible. Stories flourished about their childhood on the Point. Former coaches, teachers, friends, and teammates were tracked down and interviewed. A few declined to comment, but most had something colorful to add.

Keith was inundated with requests for interviews, but as much as he enjoyed the exposure he said no to every one. He knew there was still a good chance the execution would be delayed.

In their two years in office, the governor and the attorney general worked well together. Bill Allain had held the AG’s office four years before Keith, and was always ready for advice if needed. He had enjoyed his term as AG; his current gig was another matter. In a nasty campaign, he had been slandered with allegations of grotesque sexual misconduct, and, though he received 55 percent of the vote, the dark cloud would never go away. He longed for the private life of a country lawyer in his hometown of Natchez.

The white men who wrote the state’s constitution in 1890 wanted a strong legislature and a weak governor; thus, a four-year limit. No other elected office in the state had a one-term restriction.

Bill Allain was leaving office, and not soon enough.

He and Keith had a standing lunch date for the first Tuesday of each month at the governor’s mansion, during which they tried mightily to avoid any talk of politics. Football and fishing were favorite topics. Both were Catholic, oddities in a state that was 95 percent Protestant, and they enjoyed jokes about Baptists, tent preachers, snake handlers, even the occasional cheap shot at a priest. In February of 1986, though, there was no way to avoid the biggest story in the state.

Being the governor, and a natural storyteller to begin with, Allain did most of the talking. As the AG, he had been in the middle of the execution of Jimmy Lee Gray, and he enjoyed recalling the drama. “It gets crazy at the end. Lawyers shotgunning motions and petitions in every possible court, talking to the reporters, trying to get on camera. Politicians chasing the same cameras, screaming for more executions. Governor Winter was getting hammered with human rights folks on one side, death penalty hawks on the other. He got something like six hundred letters from twenty different countries. The Pope weighed in, said spare the boy’s life. President Reagan said gas him. It became a national story because we hadn’t executed anyone in a long time. The liberal press was eating us for
lunch. The conservative press was cheering us on. With two days to go it looked as though it might really happen, and Parchman became a zoo. Hundreds of protesters came out of nowhere. On one side of Highway 49 there were people yelling for blood, gun nuts waving rifles, on the other side there were nuns and priests and kindlier folks who prayed a lot. Every sheriff in the state found an excuse to rush up to Parchman for the big party. And that was just a warmup. Malco’s will be an even bigger circus.”

“He filed a petition for clemency yesterday.”

“I just saw it. It’s on my desk, somewhere. How do you feel about it?”

“I want him executed.”

“And your family?”

“We’ve discussed it many times. My mother is somewhat hesitant, but I want revenge, as do my three siblings. It’s that simple, Governor.”

“It’s never simple. Nothing about the death penalty is simple.”

“I disagree.”

“Okay, I’ll prove how complicated it is. I’m punting this one over to you, Keith. You’ll make the decision on clemency, not me. I can go either way. I knew your father and had great respect for him. The contract murder of a district attorney was an attack on the very core of our judicial system and cannot be tolerated. I get that. I can make that speech; indeed I have. I understand revenge. I can pull that switch. But, on the other hand, if killing is wrong, and we can all agree that it is, then why do we allow the State to kill? How does the State become so self-righteous that it rises above the law and sanctions its own murders? I’m confused, Keith. As I said, it’s not a simple issue.”

“But clemency is your issue, not mine.”

“That’s the law, yes, but no one has to know about our little arrangement. It’s a handshake deal. You make the decision. I’ll make it public and take the heat.”

“And the fallout?”

“I’m not worried about that, Keith, because I’ll never again run for office. When I leave here, and it won’t be soon enough, I’m done with politics. I have it from a good source that the legislature is serious about allowing gubernatorial succession. I’ll believe it when I see it, but it won’t affect me because I’ll be gone. My days of looking for votes are over.”

“Well, thanks, I guess. I didn’t ask for this and I’m not sure I want the responsibility.”

“Get used to it, Keith. You’re the odds-on favorite to get this job in two years. There are at least four death row cases coming down the pike.”

“More like five.”

“Whatever. My point is that the next governor will have his hands full.”

“I’m not exactly an unbiased player here, Governor.”

“So, you’ve made your decision? If you say no clemency, then Malco will get the gas.”

“Let me think about it.”

“You do that. And it’s our secret, okay?”

“Can I tell my family?”

“Of course you can. I’ll do what you and your family want and no one will ever know about it. Deal?”

“Do I really have a choice?”

The governor flashed a rare smile and said, “No.”

The governor generously offered the state’s Learjet and the attorney general immediately accepted. When the last appeal was denied shortly after 8
p.m.
, Keith left his office in Jackson and flew to Clarksdale, the nearest town with a runway long enough. He was met by two state troopers who walked him to their patrol car. As soon as they left the airport, Keith asked them to turn off the flashing blue lights and slow down. He was in no hurry and in no mood for conversation.

Alone in the rear seat, he watched the endless flat fields of the Delta, so far away from the ocean.

They are twelve years old.

It is the most glorious week of the year: summer camp on Ship Island with thirty other Scouts. The disappointing end to the baseball season is long forgotten as the boys camp, fish, crab, cook, swim, sail, hike, kayak, sail, and spend endless hours in the shallow water around the island. Home is only thirteen miles away but it’s in another world. School starts in a week and they try not to think about it.

Keith and Hugh are inseparable. As all-stars they are greatly admired. As patrol leaders they are respected.

They are alone in a fourteen-foot catamaran with the island in sight, a mile away. The sun is beginning to fall in the west; another long lazy day on the water is coming to an end. Their week is half gone and they want it to last forever.

Keith has the tiller and is tacking slowly against a gentle breeze. Hugh is sprawled on the deck, his bare feet hanging off the bow. He says, “I read
a story in
Boys’ Life
about these three guys who grew up together near the beach, North Carolina I think, and when they were fifteen they got this wild idea to fix up an old sailboat and take it across the Atlantic when they finished high school. And they did. They worked on it all the time, restored it, saved their money for parts and supplies, stuff like that, and the day after they graduated they set sail. Their mothers cried, their families thought they were nuts, but they didn’t care.”

“What happened to them?”

“Everything. Storms. Sharks. No radio for a week. Got lost a few times. Took ’em forty-seven days to get to Europe, landed in Portugal. All in one piece. They were broke, so they sold their beloved boat to buy tickets home.”

“Sounds like fun.”

“One guy wrote the story ten years later. The three met at the same dock for a reunion. Said it was the greatest adventure of their lives.”

“I’d love to be on the open sea for a few days, wouldn’t you?”

“Sure. Days, weeks, months,” Hugh says. “Not a care in the world, something new every day.”

“We should do it, you know?”

“You serious?”

“Why not? We’re only twelve, so we have, what, six years to prepare?”

“We don’t have a boat?”

They think about this as the breeze picks up and the catamaran glides across the water.

Keith repeats, “We don’t have boat.”

“Well, those three didn’t either. There must be a thousand old sloops dry-docked around Biloxi. We can find one cheap and get to work.”

“Our parents won’t allow it.”

“Their parents didn’t like it either, but they were eighteen years old and determined to do it.”

Another long pause as they enjoyed the breeze. They were drawing closer to Ship Island.

“What about baseball?” Keith asked.

“Yeah, that might get in the way. Do you ever wonder what’ll happen if we don’t make it to the big leagues?”

“Not really.”

“Neither do I. But, what if? My cousin told me that this year, 1960, there’s not a single player from the Coast in the majors. He said the odds of getting there are impossible.”

“I don’t believe that.”

“Okay, but let’s say something happens and we don’t make it. We could have our sailing adventure as a backup. We’ll set sail for Portugal the day after graduation.”

“I like it. We might need a third mate.”

“We have plenty of time. Let’s keep it our secret for a couple of years.”

“Deal.”

From a few miles away they saw the blinking lights of two helicopters hovering over the prison like fireflies. Highway 49 saw little traffic on the busiest of days, but by 9
p.m
. cars were backed up north and south of the main entrance. The shoulder on the west side was covered with protesters holding candles and hand-painted signs. They sang softly and many of them prayed. Across the road, a smaller group watched and listened respectfully and waved their own signs. Both sides were monitored closely by what seemed like an entire army of county deputies and highway patrolmen. Directly across from the gate was a makeshift press compound with a dozen news vans. Cameras and wires ran here and there as reporters scurried about waiting for news to break.

Keith noticed a brightly painted van from WLOX-Biloxi. Of course the Coast would be there.

His driver turned at the gate and waited behind two other patrol cars. County boys. It was an execution, a big night for law enforcement, and an old tradition was being revived. Every sheriff
in the state was expected to drive to Parchman, in a late-model patrol car, and sit and wait for the good news that things had gone as planned. Another murderer had been eliminated. Many of them knew each other and they gathered in groups and gossiped and laughed while a team of inmates grilled burgers for dinner. If and when the good news came, they would cheer, congratulate one another, and drive home. The world was safer.

At the door of the administration building, Keith brushed off a reporter, one who had enough credentials to get inside the prison. Word spread quickly that the attorney general had arrived. He qualified as a victim and was permitted to witness the execution. His name was on the list.

Agnes had asked him not to go. Neither Tim nor Laura had the stomach for it, but they wanted revenge. Beverly was wavering and resented the governor for putting pressure on the family. The family just wanted it to be over.

Keith went straight to the superintendent’s office and said hello. The prison attorney was there and confirmed that the defense lawyers had surrendered. “There’s nothing left to file,” he said somberly. They chatted for a few minutes, then climbed into a white prison van and headed for the Row.

Two folding chairs were in the center of a small, windowless room. A desk and an office chair had been shoved to the wall. Keith sat and waited, jacket off, tie loosened, sleeves rolled up. It was a warm night for late March. The door latch snapped loudly and startled him. A guard walked in, followed by Hugh Malco, then another guard. Hugh’s eyes darted around. He was visibly rattled by Keith’s presence. He was handcuffed and ankle-chained and wore a white shirt and pants, which appeared to be well-ironed. The death outfit. Burial clothes. He would be hauled back to Biloxi and laid to rest in the family plot.

Keith did not stand but looked at the first guard and said, “Take off the handcuffs and chains.”

The guard balked as if asked to commit a crime. Keith snapped, “You want me to get the warden?”

Both guards removed the cuffs and chains and laid them on the desk. As one opened the door the other said, “We’re right outside.”

“I won’t need you.”

They left and Hugh sat in the empty folding chair. Their shoes were five feet apart. They stared at each other, neither blinking, neither willing to show the slightest uneasiness.

Hugh spoke first. “My lawyer said you’d be a witness. Didn’t expect you to drop by for a visit.”

“The governor sent me. He’s struggling with the clemency issue, needs some help. So he gave me his proxy. It’s my call.”

“Well, well. That should suit you just fine. Life and death hangs in the balance. You get to play God. The ultimate ruler.”

“Seems an odd time to start the insults.”

“Sorry. You remember the first time you called me a smart-ass?”

“Yes. Mrs. Davidson’s sixth-grade class. She heard me, marched me into the hall, gave me three licks for foul language, and you laughed about it for a week.”

Both managed a brief smile. A helicopter buzzed low, then went away.

Hugh said, “Quite a scene out there, huh?”

“Quite. Are you watching it?”

“Yep. Gotta small color unit in my cell, and because the guards are so swell around here they’re giving me some extra time on the last night of my life. Looks like I’ll go out in a blaze of glory.”

“Is that what you want?”

“No, I want to go home. As I understand things, the governor has four options. Clemency, no clemency, a reprieve, or a full pardon.”

“That’s the law.”

“So, I’ve been thinking about one of those full pardons.”

Keith was in no mood for levity or nostalgia. He glared at him and asked, “Why did you kill my father?”

Hugh took a deep breath, dropped the stare, and looked at the ceiling. After a long pause, he said, “It wasn’t supposed to happen like that, Keith, I swear. Sure we hired Taylor to bomb the office, but nobody was going to get hurt. It was a warning, an act of intimidation. Your father sent my father to prison, and Jesse was investigating the Dusty Cromwell killing. He was coming after us and we felt the heat. Bombing his office in the courthouse would be the ultimate warning. I swear we had no plans to hurt anyone.”

“I don’t believe that. I heard every word Henry Taylor and Nevin Noll said in court. I watched their eyes, their body language, everything, and there was no doubt in anyone’s mind that you and Nevin hired Taylor to kill my father. You’re still lying, Hugh.”

“I swear I’m not.”

“I don’t believe you.”

“I swear, Keith.” The tough criminal facade cracked a little. He wasn’t pleading, but he sounded like a man telling the truth and desperately wanting for someone to believe him. Keith stared at him, neither blinked, and the first trace of moisture appeared in his eyes. They had not spoken to each other in years, and Keith was hit hard with the realization that perhaps things would be different if they had kept talking.

“Was Lance involved in the killing?”

“No, no, no,” Hugh said as he shook his head, an honest reaction. “He was here in prison and knew nothing about it. And it was not supposed to be a killing.”

“Tell that to my mother, Hugh. And my brother and sisters.”

Hugh closed his eyes and frowned, his first pained expression. He mumbled, “Miss Agnes. When I was a kid I thought she was the most beautiful woman in Biloxi.”

“She was. Still is.”

“Does she want me dead?”

“No, but she’s nicer than the rest of us.”

“So, the family’s split?”

“That’s none of your business.”

“Really? Sure feels like it’s my business. It’s my neck on the chopping block, right? So am I supposed to be begging for my life here, Keith? You have the king’s power, up or down, life or death, off with my head or just let me keep it. Is that why you stopped by before the main event? You want me to grovel?”

“No. Did Lance take care of Henry Taylor?”

“I don’t know. Believe it or not, Keith, I don’t get a lot of gossip from the Coast here on the Row, and I’ve had other more pressing matters on my mind. But no, it would not surprise me if Lance took care of Henry Taylor. That’s the way our world works. That’s the code.”

“And the code said it was time to get rid of Jesse Rudy.”

“No, wrong again. The code said it was time to teach him a lesson, not to hurt him. That’s why we chose to bomb the courthouse, a rather brazen attack on the system. Taylor blew it.”

“Well, I for one am glad he’s dead.”

“That makes at least two of us.”

Keith glanced at his watch. There were voices in the hall. A helicopter hummed in the distance. Somewhere, a clock was ticking.

Keith asked, “Will Lance be here tonight?”

“No. He wanted to be with me till the end, but I refused to approve him. I can’t stand the thought of either of my parents watching me die like this.”

“I’m not going to watch either. I gotta go.”