To Love and to Kill (34 page)

CHAPTER 101

THE JURY WASN'T
swayed by the defense's argument that Josh didn't know Heather was going to die when he lured her into that trailer. Within a few hours, Joshua Fulgham was found guilty of first-degree murder and kidnapping—the worst possible outcome for Josh at this stage of his trial.

Josh sat stunned. In a way, he, himself, had started to believe the defense's argument that Emilia planned the murder and he had just gone along for the ride as an innocent bystander. Yet, for the jury, it came down to those tapes of the prison calls and Josh's voice, so convincing and layered with anger:
“I should have killed that bitch. . .”.
You listen to Josh talk about a “plan” he had when he got out, one he didn't want to speak to Emilia about over the prison phone, and it is clear that he was not talking about scaring Heather or convincing her to sign a damn piece of paper turning over custody of the children to him.

“I knew this going in,” Lenamon told me. “We pretty much decided that it was going to be fairly easy to prove intent, with all the evidence of Josh and Emilia talking. We knew this was going to be tough because of the way Heather was murdered. Anytime you have ‘heinous, atrocious and cruel' as an aggravating factor, when the victim is clearly suffering and there is pending knowledge that death is coming, that's a huge,
huge
problem for a defense.”

Although the ultimate punishment would rest in the hands of Judge Brian Lambert, the lawyers geared up to argue their cases for life and death in front of the jury during the penalty phase: Would the jury recommend, like it had in Emilia's case, death? Betting men would have probably put all of their money in favor of death in Josh's case. After Emilia's sentence, there likely wasn't anybody in that room—save for Josh's attorneys—who believed the jury would recommend any other sentence.

What the defense had going for it, however, was that the jury supposedly didn't know what Emilia's sentence had been. Both sides had gone through a long question-and-answer process—voir dire—with prospective jurors. So the jury was now going to hear Josh's argument for life without knowing that his co-conspirator was, at that time, sitting on death row.

Lenamon thought about it as the day closed and he began to process how he and Alavi would go about arguing for Josh's life.

His first thought was:
In the state's case, Josh was obviously the villain
.

The bad guy.

A walking volcano of rage that erupted inside that trailer.

“Betrayal,” Lenamon said later, describing what was his second thought. “We focused on the idea that Josh was betrayed”—that and the notion of Josh not having the mental capacity, Lenamon further explained, to deal with said betrayal.

How, though, could Lenamon and Alavi turn a villain into a victim?

CHAPTER 102

APRIL 11, 2012,
on this day, Josh was shuffled out of the courtroom after both sides finished delivering opening statements in the penalty phase of the
State of Florida
v.
Joshua Fulgham
. By now, the jury had to be rather exhausted from hearing lawyers talk. After all, they had just sat and heard closings from the lawyers during the guilt/innocent phase and here they were doing it all over again, just days later.

As they were making their way to the door, the bailiff said something to Josh regarding him mumbling under his breath. The bailiff wanted to know what, exactly, Josh had said.

“I said, ‘If I get the death penalty out of this, I am going to kill you!'”

On April 12, the following morning, before the day's witnesses were summoned to testify, the judge asked Brad King—who had said he wasn't shocked by the statement when he later heard about it, calling the behavior “nothing new” from Josh—if he wanted Josh shackled for the remainder of the proceedings.

Before King could even answer, however, Judge Lambert said he wasn't so much in favor of doing it and would be hesitant to allow it, “absent” any serious “concern” from King's side.

“I'm fine,” King said, looking over at Josh, who was calm and stoic.

“Okay,” Judge Lambert said.

“I mean, I would hope that they're shaking him down before they let him come into the courtroom. . . .”

“Yes,” Lambert verified.

Lenamon said he would speak to Josh about the incident, but this was an “emotional proceeding” and things might be taken out of context and blown out of proportion. The stakes were high. With regard to Josh actually saying what the bailiff had claimed, Lenamon offered, “Judge, for the record, [Josh] did not remember saying that.”

All was forgotten and the penalty phase moved forward. As testimony got under way, Lenamon and Alavi called Josh's mother, Judy Chandler. Judy was tired and upset. She sat down and talked about a son suffering many traumas throughout his childhood; he then became a boy who caused her problems after he adopted a drug habit that spun out of control as quick as it got started. Throughout all of that, Judy said, Josh met the love of his life, Heather Strong, when they were just teenagers. From there, Josh's life got serious.

Babies.

Very little work—and no money.

Drugs.

More drugs.

Constant fighting with Heather.

Then a move to Florida.

As Judy talked about her own life, the jury was given some background and context into what was a dysfunctional cycle Josh had grown up in and then continued himself as he became a father. Judy had her own stories to tell of a fractured time living in Mississippi, a broken and wired jaw courtesy of an ex-spouse, along with many beatings that Josh, who had never really known his real father until he was an adult, had witnessed.

Judy's testimony was the perfect setup for the defense's next witness, Dr. Heather Holmes, a clinical and forensic psychologist out of Miami. Holmes, who was about to drop a bombshell that many never saw coming, had done an extensive investigation into Josh's life.

“Truth,” Lenamon said later. “That was what Gerry Spence taught me. You speak your truth in a court of law—always.”

Alavi and Lenamon needed to convince the jury that Josh did not deserve death; his crimes were committed due to a lack of nurturing he had received as a child and his below-average intelligence, all of which were part of a foundation built on some rather shocking abuse allegations that emerged during that character and personal study Heather Holmes had launched into Josh's life.

Under questioning by Alavi, Holmes listed an impressive and vast list of credentials, before talking specifically about her expertise in forensics, “particularly intelligence testing,” among many other subcategories within the forensic psychology fields.

Brad King listened closely as Holmes talked about her extensive experience testifying in death penalty cases—this as the words “mental retardation” kept coming up. One had to wonder while listening what Lenamon and Alavi had up their sleeve with this type of expert testifying on the stand? What claim were they planning to make? Holmes had some knowledge in dealing with “mentally retarded” adults and children, sure, but what did it have to do with Josh?

Holmes said she met with Josh on three separate occasions. Maybe more important than those meetings and interviews, however, Holmes had reviewed all of the notes in the case from, among several experts, a mitigation specialist Lenamon had hired. All of the specialists working for Lenamon had interviewed scores of people connected to Josh throughout his entire life. They had written a detailed, sweeping report, and Dr. Holmes said she spent long hours reviewing it. She also studied a report written by a neuropsychologist and a second report scribed by Dr. Steven Gold, a post-traumatic stress disorder (PTSD) specialist, each of whom had also been hired by Lenamon to interview and meet with Josh on several occasions.

The questioning then turned to whether Dr. Holmes had looked at any research related to Emilia Carr. Emilia's personal story was important to Josh's case. Lenamon and Alavi had to convince jurors that Emilia was much smarter than Josh, whom they painted as an uneducated “country boy,” as Lenamon called him—a guy who had been totally taken in by her constant badgering and that “I'll take care of everything, you just leave it to me” talk during those prison calls.

In studying Emilia Carr, Dr. Holmes said, she focused on Emilia's IQ test scores. Emilia was certainly more intelligent than Josh, based on those test scores, but she was also smarter than the average person. In effect, Emilia came across as a rocket scientist compared to Josh, who had the intellect, many claimed, of a young adult.

A plan by the defense was obviously coming together: The supersmart woman had taken advantage of the stupid Neanderthal Southern boy/man, who would kill his own wife on demand, if plied with enough promises and sex, and was then pushed hard enough.

But there was more—plenty more.

Holmes said she had interviewed Judy, too. And that interview had opened up an entire new vein in Josh's childhood he hadn't talked about, giving the doctor some insight into why Josh had turned out the way he had.

Alavi asked if Holmes had come to any conclusion after that interview with Judy.

“Yes,” the well-respected doctor testified. “I believe Josh suffers from post-traumatic stress disorder.”

Holmes talked in general terms for a moment about people suffering from PTSD, mentioning Vietnam vets coming back from the war after experiencing “life-threatening” conditions abroad for a prolonged period of time. The other part of it, Holmes added, was how PTSD patients talked about witnessing “difficult things,” having a front-row seat to violence, killing and abuse of all types—in a vet's case, torture and killing and those violent battlefield actions were on top of the list.

“How is it that you went about arriving at the conclusion that Josh suffers from [PTSD]?” Tania Alavi asked the doctor.

“It was based on the interviews, symptoms that he reported,” she stated. But also “evaluations of the doctors who had—one of them who has a very specific specialty in this area.”

“You talked about one of the ways you arrived at that conclusion was based on the
extreme
amount of trauma he suffered,” Alavi asked. She took a moment. The attorney allowed the doctor to consider the first part of the question, and then she dropped that missile nobody saw coming: “Did that include
sexual
abuse?”

“The sexual abuse was
extreme,
” Holmes said slowly, bringing this up for the first time in the trial. “It. Was.
Significant.
”

They discussed various types of sexual abuse and how some forms of abuse can be “more significant” than other types, especially where long-term trauma had been studied.

This had come out of left field: Not once during his interviews with police, during the testimony portion of his trial or when speaking with Emilia (or me), had Josh ever mentioned being the victim of sexual abuse as a child. This revelation emerged during the investigation Dr. Holmes had undertaken. And when she explained the type of sexual abuse Josh had allegedly endured, it might explain why he would want to keep it hidden.

For Lenamon and Alavi, the sexual abuse Josh had supposedly suffered was now the focal point of their case. It was the main artery feeding all of Josh's later behaviors and psychological problems. The doctor said that because of the sexual trauma Josh had undergone as a young child, he'd had trouble all his life with sexual boundaries, in particular. It was the reason why he had become so enraged when Heather crossed those so-called boundaries and admittedly slept with James Acome just days after Josh had gone to jail.

“I mean, clearly they run the gamut,” Holmes testified, referring to the various “types” of sexual abuse and how a victim can be affected. “You can be exposed to somebody who is an exhibitionist. It can go from a noncontact offense, such as viewing child pornography. It could go all the way up into penetration, intercourse, incest, repeated exposure. The extreme depends upon the actual age of the victim.”

The key question in Josh's case, as in any case with such similarities, Holmes mentioned, was this: Did the abuse occur “before development of sexual identity or awareness of either what sex is”? In other words, did Josh understand sex before he was abused? If the abuse had been his
first experience with sex,
either as an act or hearing about it, his brain would have been wired totally different as it pertained to sex of any type.

“I believe it began between the ages of six and seven,” Holmes testified, speaking of Josh's case and how, for Josh, it appeared to be doubly traumatic. “That . . . can be
very
damaging. The longer it goes on, the more frequently it occurs. . . .”

This was the type of expert testimony—as graphic as it would get, as they talked about the actual abuse—that had not been presented in Emilia's death penalty phase. For Lenamon and Alavi, they believed it would make the difference for Josh. The sexual abuse, Lenamon explained, was the driving force behind Josh's entire problem with females, especially his wife. Add physical abuse at home into that, sprinkle on a bit of Josh witnessing violence routinely—and there you have it: the perfect wiring for a future violent offender.

“What
about
the effects of that on Josh?” Alavi pressed Holmes. “Did you form any opinions about that?”

“Yes, I did.... He has a lot of difficulty with sexual boundaries, which is very common for somebody who's been abused. And he has a
lot
of difficulty in relationships with women. . . .”

According to these experts, the mind did not always work in mysterious ways, but pretty much in a direct manner: A kid is sexually abused early in childhood; then his or her entire sexual identity and understanding of sex becomes poisoned and unhealthy as it unwinds throughout his or her life. The wiring is crossed early on and, if not treated immediately and properly by a professional, will then dictate (and feed) who that person becomes later on, particularly as they begin to have romantic relationships.

Holmes went on to say she had corroborated the abuse with independent sources and interviews. So this was not Josh's word against everyone else's, or Josh coming up with an eleventh-hour surprise personal admission to try and save his life. For all intents and purposes, Josh had tried to hide this for as long as he could.

As Josh grew up, not knowing his real father, living in a household where, Judy herself had testified, abuse was a regular part of life, Josh had never learned what healthy relationships were. Throughout his adult life, Josh suffered from PTSD as a symptom of his childhood. He couldn't escape it. In addition, being a male, he did not want to address it in any way or share what happened with anyone because he believed that help in that manner showed weakness and took away from any masculinity he thought he had left.

Summing up her findings, Holmes said at one point, “You're talking sexual abuse, witnessing severe domestic violence, undergoing physical abuse, as well as, you know, exposure to
very
difficult things ... witnessing other tragedies. It becomes more complex and it also becomes more infiltrating in how it affects your life because it's coming from various different locations.”

Witnessing abuse, hearing about it or projecting inside his own head that it might happen to someone he knew (especially one of his own kids) became a trigger for Josh as he grew older. The idea that Josh believed there might be an abuser in his house near his kids (he presumed this about James Acome), or that Heather was going to take the kids back to Mississippi, where there might be a second abuser, was all too much for Josh's violated, childish, strained mind to handle. He did not know how to deal with this information or how to react to it. That internalized anger Josh had projected at his abusers all his life—explosive and ready to blow, pent up all those years—would run the risk of bursting. So when the opportunity presented itself that Josh could fix the problem by getting rid of its source (Heather), he seized upon that end and acted on impulse. Having Emilia there as chief instigator, pushing him along, just made it all that much easier for Josh to effectively snap and kill Heather in order to quash all the pain from childhood reemerging and retraumatizing him. The murder became a release.

“When you witness extreme domestic violence,” Holmes told jurors, “and clearly [Mr. Fulgham's] mother testified she had her jaw broken and wired shut.... [And] when it starts becoming . . . a part of your daily life, you don't feel safe in the home.” He dredged up the old cliché that it was akin to “walking on eggshells,” adding that exposure “to extreme amounts of trauma, whether you're experiencing it or witnessing it as a child,” research proved in case after case, “the effects” were detrimental on a child's “developing brain.”