To Love and to Kill

by M. William Phelps

  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 proc
ess, 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.

  CHAPTER 99

  BEFORE GOING INTO court that next morning, Josh approached Lenamon. The defendant pulled his attorney aside for a chat. Josh had only heard about Lenamon’s track record and celebrity status shortly before Lenamon came on board. Josh was still having trust issues, wondering if his case was in the best hands possible.

  “You sold me out,” Josh accused Lenamon.

  “Josh . . . what are you talking about?”

  Josh explained that when he got back to his cell after the opening statements the previous evening, several guards had chastised Lenamon for telling jurors that Josh was a killer. Why did he do that? Why admit Josh was a killer when he didn’t have to? Josh was now worried the jury would only see guilt written on his face when they looked at him.

  “The guards,” Josh explained, “they told me to watch out for you. They’re saying things about you, man.”

  “Just trust me, Josh,” Lenamon said. “That’s all I ask. Look, we’re on the same page here.”

  From that moment forward, Lenamon said, “Josh trusted me completely and allowed me to do my job.”

  The first day of the trial was a mirror image of Emilia’s. The state called the same set of witnesses to talk about an unfolding missing person case that had begun with a phone call from Misty Strong: Brenda Smith, James Acome, Misty, Beth Billings, Ben McCollum and several MCSO deputies, all of whom explained how Heather was there one day, working, going about her life, having trouble with Josh and then—poof !—she was gone the next. And the more everyone thought about the circumstances of Heather’s life, Josh Fulgham came to mind as the person most responsible for her disappearance.

  As Detective Donald Buie testified, the jury viewed a videotape of Josh’s confession. It was a profound testament in the entirety of the honesty presented. Here was Josh, broken and obviously feeling the weight of what he had done, explaining to investigators how he and Emilia lured his wife into that trailer, ganged up on her and, after chastising and beating her, placed a bag over her head and suffocated the mother of two to death. Josh had described horrible, gruesome images.

  The confession Josh gave backed up what Lenamon had told jurors during his opening. If one viewed this interview/confession objectively, Josh clearly told the story of Emilia being the hammer, Josh the one holding it, waiting for the right moment to strike. There was even an exchange between Josh and his mother, Judy Chandler, at the end of the interview that had been recorded. After Josh gave it all up to Buie, the detective allowed him to call home. The conversation depicted a confused man taking full responsibility of his actions.

  “I need to talk to you, Momma,” Josh said.

  “You need a lawyer?”

  “No, I don’t need to talk to a lawyer, Momma. I’m guilty. . . . I done it, Momma. I didn’t do it by myself. . . . I just got sick of it, Momma. I wanted my babies. I don’t expect you to take that responsibility of raising them, either.”

  “What?”

  Josh was crying. “I said I don’t expect you to take that responsibility of raising them. I just wanted them, Momma. That’s the only reason I did it. It wasn’t even that, Momma. . . . You know ... I told you she was leaving and going to Mississippi and I had you draw that paper up for me, but she wasn’t leaving, Momma. I lied to you. She wasn’t going nowhere.”

  “What?”

  “I lied to you. . . . But it ain’t going to matter, Momma. They got evidence and everything else, so it don’t matter. I did it. I needed to get it off of me.”

  “I love you.”

  “I know you do, Momma. But I’m sorry. You didn’t raise me to do shit like that. It’s not your fault.... I didn’t do it alone. . . .”

  That conversation was something Lenamon seized upon: Josh’s constant and consistent tale of not being the aggressor, but the muscle, was key here. Yes, he took part in the murder, but it was Emilia right there by his side, egging him on, facilitating it all. And now Josh was remorseful; he was sorry for what he had done.

  As murder trials go, this one was brief—just a few days of testimony and both sides indicated they were done. Each witness had testified almost identically in both trials. There were no bombshells or surprises. Josh did not take the stand. Emilia wasn’t called. The facts were presented, and each lawyer relied on his and her opening and closing remarks to send whatever message was necessary to jurors.

  Once again, Rock Hooker delivered the closing for the state—a true masterpiece of composed style and elegance of presenting facts. Hooker began by stating one simplistic, utterly chilling detail that could not be denied or impeached: “He buried his wife in his pregnant girlfriend’s backyard.”

  That one line painted Josh as a cold, callous killer, getting rid of a problem in the most horrendous way imaginable. One could almost hear the jurors thinking, as anybody in the gallery probably was, too: Why not just divorce her and move on? Why did you have to kill her?

  Hooker, a true expert at taking the words of a defendant and using them against him in the most effective ways, quoted Josh from one of his confessions: “‘I was still sitting on her and I could feel her getting weak and then she was gone.’”

  The guy was talking about the mother of his children.

  Hooker then focused on making sure the jurors were not persuaded by carefully chosen words, catchy turns of phrase or the twisting of the truth. The job they had in front of them was to “determine the facts,” Hooker restated plainly.

  Nothing more.

  Nothing less.

  Look at the facts.

  And those facts, Hooker added, “have been proven beyond a reasonable doubt.”

  Quite heartfelt and emotional, Hooker reminded jurors why the trial was taking place to begin with: “Let me be clear, we’re here because Heather Strong is dead and because she was murdered and buried in Emilia Carr’s backyard. That is why we are here.”

  The one thing Hooker and King had relied on during both trials was the jury’s intellect and common sense. In murder trials especially, juries share a common bond, an intense connection translating into them taking their jobs, collectively, very seriously. It’s one of the reasons why each individual is chosen during that rigorous, often tedious voir dire process. It was that line of thought that Hooker tapped into when he said, “One thing the judge is going to tell you, and sometimes jurors chuckle when they hear this ... the judge is going to tell you . . . that you’re allowed to use your common sense.”

  Hooker pointed out that Josh, same as Emilia, had lied more often than not. Yet, there were certain fleeting moments within those lies for Josh that remained constant. When he finally admitted to the murder, he went back and corrected the record where he needed to.

  The special prosecutor then went through a timeline of the case, before bringing up a PowerPoint presentation to explain the differences between first-degree and second-degree murder, and how Josh’s case fit into the first-degree column. He talked about the “two ways in which a person may be convicted of murder in the first degree,” saying one was “premeditated murder” and the other “felony murder.”

  “Heather Strong is dead.... There is a written agreement that the body found in the hole is actually Heather Strong ... so that’s proven. The second one was that the death was caused by a criminal act of Joshua Fulgham, or Heather Strong was killed by a person ot
her than Joshua Fulgham, but both Joshua Fulgham and the person who killed Heather Strong were principals in the commission of first-degree premeditated murder.”

  Hooker explained what he meant: “Killing with premeditation is killing after consciously deciding to do so. Decision must be present in the mind at the time of the killing.”

  Simple logic: I am going to kill you.

  The premeditation could take place seconds before the murder.

  “The law does not affix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing . . . ,” Hooker made clear. “But it must be long enough to allow reflection by the defendant.”

  The other part, he explained, involved committing a felony in the due course of committing a murder. In this case, Hooker told jurors, “Heather Strong is dead. The death occurred as a consequence of and while Joshua Fulgham was engaged in the commission of kidnapping.”

  When placed into the context of such an honest, straightforward argument, well presented by a seasoned prosecutor, these charges seemed to fit Josh’s case as though he’d written them himself.