To Love and to Kill (32 page)

CHAPTER 97

ON APRIL 4, 2012,
one minute after 9:00
A.M.
, SA Brad King took to the courtroom floor to give his opening statement. Right out of the gate, King stated that the state's burden was to follow the indictment charging Josh with the crimes of murder in the first degree and kidnapping. King called that indictment a “road map” that the state was bound by law to navigate through. He couldn't deviate from it, even if he wanted. His witnesses, he said, numbering in the twenty-person range, would walk in and testify to those facts supporting the indictment. Quite surprisingly, King noted a few moments into his opening, “I can tell you that for certainty before we ever start ... you will
not
see Emilia Carr get on that witness stand and testify. It will
not
happen from my side.”

Brad King gave no reason why.

After that, King talked about what the jury would hear. He said his witnesses were regular people “like y'all.” Each one would walk into the courtroom, sit down and explain what they knew about this case as it pertained to the indictment. The state's focus would be on facts and evidence. In this case, unlike Emilia's, King mentioned, there was plenty of DNA and forensic evidence, not to mention a complete confession tying the defendant to the murder. And for a prosecutor, those three items amounted to a hat trick, or triple play, on the way toward a win.

The extra weapon the SAO had were the audio recordings of interviews with the defendant and his co-conspirator. Those would tell a story, King promised: a story of how two people lured an innocent woman into a trailer with the
intention
of taking her life, strapped that woman to a chair, scolded her, called her names, hit her in the head with a flashlight—and all
before
murdering her by asphyxiation.

And then King delivered, same as he had during Emilia's trial, a bit of dialogue that summed up his case and, by placing the relationship (or love triangle) at the center, the SA put a perfect little bow around his indictment package: “Now, not only was this relationship kind of tumultuous in the sense of people moving from person to person over time ... through the years between these two in particular, [it] was a
violent
relationship. And you're going to hear, I believe, that on January the sixth, [nearly] two weeks
after
they get married, Heather Strong makes a complaint to the sheriff's office, which causes Joshua Fulgham to be arrested and taken to jail.”

For Heather, King said, that was the death knell, the tolling bells in Joshua's head that became the beginning of the end of her life.

A murder plan was born.

Josh sat, staring at this man he utterly and angrily despised, a prosecutor he hated with fanatical passion. Josh's head was cleanly shaven, smooth as a bowling ball, shiny as a set of military shoes. He was dressed nicely in slacks, a striped dress shirt and a dark-colored tie.

As King got into talking about those phone calls between Emilia and Josh, while Josh was in jail on those trumped-up threatening charges, Terry Lenamon, a lawyer who had behind him some 120 jury trials and was considered one of Florida's most respected and skilled defense attorneys, especially when the death penalty was involved, objected repeatedly. Lenamon claimed those conversations had been discussed during a pretrial motion and not yet made open fodder to talk about in the courtroom.

Circuit judge Brian Lambert, however, overruled each objection.

So King continued.

If there was one advantage Terry Lenamon, who had handled more than eighty first-degree murder cases heading into representing Josh, had over Candace Hawthorne, who had arguably been in the same position with Emilia, it was that there was no need to focus on trying to get Josh off. Lenamon knew Josh was going to be found guilty. Anybody in that courtroom who might have believed otherwise was kidding himself or herself. The evidence was beyond overwhelming here. What Lenamon could instead channel his focus on was the death penalty phase of this trial and make sure that he saved Josh's life—and that began within the guilt/innocence stage of the trial.

The one piece of conversation jurors would hear that was going to bury Josh came out of his own mouth to Emilia' ears:
“I should have killed that bitch when I had the chance.”
It was as good as an eyewitness account of this murder, maybe better, considering what happened weeks after Josh made that statement.

With some words, you speak them, and they cannot be taken back. This was one of those instances.

After spending about thirty minutes going through the same case he had during Emilia's trial, Brad King pulled it all together with some rather chilling final remarks, reminding jurors why they were in this courtroom and had been chosen to hear this case.

“[Heather is] put in a chair.... She's duct-taped to [it], and Joshua Fulgham . . . leans on her, and Emilia Carr was behind her, suffocating her to death. Then a bag was taped over her head and ... she was killed. And that during that”—King paused briefly, not because he was so good at generating emotion within his pleadings to the seven male, seven female jury (there were two alternates present), but because he felt every word he was speaking personally—“she begged them
not
to kill her.”

The images King was able to conjure up were alarming and chilling. Everyone in the courtroom could picture this crime having taken place, Josh and Emilia as the designers and executors.

King finally called the idea of Emilia and Josh luring Heather into the trailer exactly what it was: the “
intent
to terrorize or do bodily harm.”

CHAPTER 98

TERRY LENAMON BEGAN
addressing jurors at 11:00
A.M.
, not long after Brad King finished. Lenamon, who had never faced off against King before in a courtroom, presented the look of the man he was: an imposing figure. Lenamon was tall and heavyset, balding and flashy. He wore expensive suits and had a look of utter (and quite genuine) seriousness written all over his face. His voice carried with it the experience Lenamon had earned and the respect the man deserved. Beyond law school, Lenamon had graduated from famed attorney Gerry Spence's Trial Lawyers College and had become somewhat of an expert at case preparation and mitigation investigation—two aspects of defending the indefensible that would come in handy here. If there was a lawyer appointed to defend those who could not afford a credible defense, Terry Lenamon was that attorney. Joshua Fulgham could not have
hired
better counsel, even if he had a million dollars to do so. Lenamon had been known to call the death penalty “heinous, atrocious and cruel.” He was prepared to fight for Josh's life, no matter how difficult the path, simply because he did not believe the government had the right to choose when someone lived or died.

Married to a prosecutor, Lenamon was one of only a handful of lawyers statewide that met the qualifications to accept capital work. How he ended up with Josh's case was nothing short of a lucky break for Josh. The original lawyer appointed to the case had some problems with the state bar association, so the state called on local Ocala attorney Tania Alavi, who had worked with Lenamon on cases. She called Lenamon and he became lead counsel.

Lenamon believed unfalteringly that the government shouldn't “be in the business of killing people.” He saw the death penalty as extremely “problematic when dealing with issues of race and minorities, social economics and other factors” that don't allow everyone to have a fair shake. What would help Josh tremendously in his case was that Lenamon lived by a quote that celebrated trial attorney Clarence Darrow stated long ago: “The only real lawyers are trial lawyers—and trial lawyers try cases to juries.”

Terry Lenamon understood that he needed to focus his opening on that jury—reach each juror not by trying to make him or her believe Josh was somebody he wasn't, but by using the truth to humanize Josh, a man who had said repeatedly that he was sorry for what he had done. However, Lenamon knew from his years of addressing juries in such cases that this part of the job was a hell of a lot easier said than done. Many jurors had made up their minds, Lenamon knew, by the time they sat down. His job was to try and reach those who hadn't yet judged Josh, and change the minds of those who had. If there was one lawyer who could do this, it was Lenamon, who, as a member of Casey Anthony's legal “dream team,” successfully argued against the state seeking the death penalty in the most-hated-mother-in-America trial of the century, thus persuading the state of Florida to seek life against Anthony, accused (and acquitted) of murdering her daughter, Caylee.

There was part of this case Lenamon was certain of: “That we were going to lose. There was no way we would prevail” with a not guilty verdict. In realizing that, Lenamon and his co-counsel, Tania Alavi, could focus on what Lenamon called an “integrated defense,” whereby saving Josh's life depended upon them “maintaining credibility” with the jury even after Josh was found guilty of first-degree murder. “And then we could begin to flow right into our second phase.”

Same as Brad King's time, the judge indicated that Lenamon had an hour to address the jury. Thus, Josh's lawyer began with his focus on the word “tragedy.” He called what had happened to Heather the culmination and end of several tragic lives colliding with one another, finally blowing up in February 2009, when “my client, Joshua Fulgham, participated in the killing of his wife. . . .”

With that one admission, this jury knew Lenamon's client was taking full responsibility for his part in the murder of Heather Strong. “Remorse,” Lenamon said later, “plays an important part in convincing a jury to vote for life.” Anytime you had a client that was remorseful, Lenamon added, “you highlight that right away.”

There was going to be no argument here by the defense regarding who did what to whom, as far as Josh's role. Yet, as quickly as he got started down that familiar road of what happened inside the trailer, Lenamon threw a curve (thus beginning his argument against the death penalty). Lenamon stated how Josh had not brought Heather to that trailer to murder her. Rather, his
intent,
Lenamon said, seemingly with a proverbial index-finger wag, was to get Heather into that trailer and make her sign that piece of paper giving him custody of the children, solely because he “feared” she would take his kids back to Mississippi and he would never see them again.

Once they got inside that trailer, meaning Josh, Heather
and
Emilia, “things went really bad and things happened very quickly,” Lenamon explained. One thing led to another and Heather wound up dead. It wasn't a plan. There was no
intent.
It was something that took place during the course of an argument. Lenamon also believed Emilia “rubbed” the fact that Heather had slept with James Acome (and how Heather and Ben had set Josh up) “in his face,” which turned Josh into a raging lunatic and he snapped. Although he knew it was going to be a tough sell, this was an important element of Lenamon's fight to save Josh's life. Take away the intent to kill. Take away the idea of Josh planning this. Take away the notion that Josh was a monster, lurking in the shadows, waiting for the right time to kill his wife. Take it all away and you turn him into a man who allowed an inferno of rage to take over after his pregnant girlfriend fed the flames. If Lenamon was able to do that, Josh just might be able to walk away with a life sentence—or better, a second-degree murder verdict and twenty years.

Lenamon talked about 295 calls, by his count, made from the prison by Josh to Emilia, Heather and Josh's mother, Judy Chandler. But “only five” of them were important in the scope of the murder.

“What I would suggest is the one call [Brad King] claims that was of real importance is the call where there was a threat—
‘I should have killed'—
because he's angry about what had happened, him getting stuck in jail,” Lenamon explained to jurors. He said jurors would “hear him tell the police that he never did what Miss Strong claims he did.” He said she “lied [about] him in this situation.” And though Josh had admitted to “a murder [plan] and being a participant in this murder,” he believed he was “wrongly put in jail.”

Lenamon then argued that it was not Josh who killed Heather, actually committing this atrocious act of murder.

“It was Miss Carr who killed her!” he shouted. Josh's part in this crime, Lenamon added, amounted to what he believed was, at best, “second-degree murder.”

Emilia had been willing to do “anything she could,” Lenamon explained later, “to manipulate the situation. Look at that whole ménage à trois situation the three of them were involved in.” That, right there, Lenamon believed, proved “how far Emilia was willing to go” to please Josh and gain control over the relationship.

To jurors, Lenamon then sketched out the love triangle, which, after Ben McCollum became involved, was now a square, with four people involved. And in this instance Josh's chronic jealousy, the defense attorney said, drove him to a place he had never been.

In describing how Emilia fit into all of this, Lenamon chose an easy-to-digest narrative: He talked about how Josh was “in a relationship with Emilia Carr”—that this particular relationship was “kind of . . . convenient for Josh.” However, as far as Emilia was concerned, she truly was “head over heels for Josh.” And Josh, knowing this, “is kind of
using
Emilia Carr . . . because he really is
in love
with Heather Strong. Unfortunately, what you'll see is Emilia really is
in love
with Josh Fulgham.” Thus, she was “so
in love
that her motive to kill” overtook everything else.

Emilia had been convicted and sentenced to death—she was the perfect scapegoat for Josh to pin intent and premeditation on. If there was the slightest doubt in any juror's mind that Josh was cajoled and pushed into this murder, he was going to walk away with twenty years or a life sentence.

As he began to merge into a discussion centered on minimizing the intent-to-kill charge and premeditation, Lenamon pointed out what he found to be a simple fact: The grave Heather ended up in had not been dug beforehand. Josh hadn't gone out there in the days before and excavated a piece of land to put her in, because he didn't know he was going to be involved in killing her. And while he talked about the nonexistence of intent and premeditation, Lenamon brought Emilia into this part of his narrative, portraying her as the driving force behind the actual murder, the mastermind and chief executor as things got under way inside the trailer.

“At that moment, Emilia Carr comes into the trailer and . . . strikes [Heather] with a flashlight, knocking her down.” Then, he explained, Josh grabbed “her and sits her in the chair and is telling her to ‘quiet down, quiet down.'” But it was Emilia Carr, the lawyer insisted, who pulled “out this duct tape, which Josh didn't know [she had] . . . and Josh does help her duct-tape [Heather] to the chair.” He concluded the thought by stating how in “that moment ... it's going to be clear. . . . There's no
plan
to kill.”

From there, Lenamon said, it was Emilia who began arguing with Heather, not Josh, as had been stated previously. He said Emilia screamed at Heather, accusing her of sleeping with James Acome. And she did this, Lenamon suggested, to antagonize Josh and get him worked up into a violent frenzy. The way Lenamon painted this picture, it was Emilia who became enraged first. A shadow of cold washed over her as she scolded Heather, who was unable to move. Emilia even went so far, Lenamon suggested, as to tell Josh not three days after he was in jail, Heather had sex with James Acome on the couch in their living room.

“And Josh loses it. . . . He says, ‘I don't care, let it happen.' And Heather starts saying, backpedaling, ‘Listen, I'm sorry. I'm sorry. I'll leave you alone.' And Emilia's saying, ‘You said you were going to leave us alone before.'”

At this point, it's too late. Emilia had pointed a gun (Josh as a weapon) in Heather's direction and, with her finger on the trigger (bringing up James Acome and sex on the couch), pulled it—this as Josh was already in borderline volcanic rage, red-faced and furious, ready and willing to act on his anger.

The word Lenamon used was “betrayal.” That was all Josh saw. All he thought about. Heather had continuously betrayed him: James, Ben, the marriage, getting him locked up. It was all too much. Josh couldn't take it anymore. He had to act.

“I'm not asking you to make moral judgments here, or whether he was right or wrong,” Lenamon said softly, ratcheting it down a notch, hoping to appeal to the jury's collective sense of right and wrong. “I'm asking you to think what his state of mind was. . . .”

Josh didn't commit this murder, set it up, plan it or make it happen. What he did, Lenamon argued, was
allow
it to happen, once Emilia started the process, and then cleaned it up afterward. And that—the fact that he did not plan or have
intent
—was not enough to put this man on death row. It was second-degree murder.

Concluding, Lenamon made sure the jury knew Josh was a pill-popping addict. Once Josh found himself behind bars, realizing the totality of what he had done, he tried committing suicide. Thus, Lenamon painted an image of a broken and remorseful man sitting in front of jurors, asking them to believe he had no intention of killing his wife on that day in February. Beyond that, however, Lenamon had a bombshell piece of information to drop, and yet he chose to keep it for the testimony portion of his case and not talk about it during the opening.