To Love and to Kill

by M. William Phelps

  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 t
he 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.”

  From the way Holmes described Josh’s childhood, the kid didn’t have a chance of growing into a healthy adult or a productive member of society.

  After being prompted, Holmes explained exactly what type of sexual abuse Josh had endured: “[His abuser, a female, would] ... provide him with cigarettes and ask him to perform oral sex on her. He recalls her pressing his head down there and feeling very, very claustrophobic.”

  As the testimony continued, Holmes described a young man who, basically, would not and could never be normal. Over time, Josh even developed an internal problem with women in general. And as soon as Josh was old enough and strong enough to control females himself, he found he had no choice in the matter but to lash out and commit acts of violence against those females who crossed him in any way. As that narrative played out in his life with Heather, Emilia Carr came along, a woman with above-average intelligence—and the puppet had now met his puppet master. Holmes said Josh’s IQ tests showed him scoring in the neighborhood of 80, thus putting a 40-plus-point difference between him and Emilia.

  “Anything below seventy,” Holmes clarified, putting Josh into an intellectual context, “is considered mental retardation.”

  The doctor then suggested that because Josh had been in a sexual relationship between the ages of six and twelve—which was, in reality, abuse—he was stuck there, emotionally and educationally. And because of this, Holmes reiterated, when he met Emilia and she began to manipulate him with what Josh himself described as “the best sex of his life,” taking total control in the bedroom, well, Emilia had hit on the core weakness within Josh emotionally—one she was able to exploit any way she wanted.

  It was a solid, well-studied, well-researched argument.

  Brad King did not have much in the form of cross-examination for Dr. Holmes. He focused on the idea that Josh’s substance abuse and his personality disorders did not excuse first-degree murder.

  Josh wasn’t “mentally retarded,” King seemed to get across under cross-examination questioning, as had been suggested by the defense. It was ridiculous and the absolute wrong message to share with jurors.

  Beyond that, King argued the validity of the testing done of Emilia, trying to say she was not as smart as the doctor had assessed. Moreover, there had been testing done on Josh while he was in juvenile detention long ago and very little of it backed up Holmes’s findings. In fact, Josh had never mentioned being sexually abused.

  Over and over, Lenamon objected, hammering home one core issue, like any good defense attorney should: There were no grounds for King to be making such accusations as challenging the doctor’s study and research. A lot of it was objective evidence, clinical.

  Unimpeachable.

  The objections alone wore Brad King down.

  In the end, Dr. Heather Holmes presented a compelling argument that she was not about to back down from, no matter what Brad King tossed at her. King would have to bring in his own experts to criticize her work—which he wasn’t prepared to do, of course.

  During closing arguments a day later, the state contended the opposite of what Lenamon and Alavi had sold so well during the defense’s penalty phase case. King and company told jurors not to be fooled by a carefully constructed defense narrative. The truth was, Joshua Fulgham actually had manipulated Emilia and Heather—and he did it solely because he wanted money to bail himself out of jail and hire a good lawyer. Josh made this clear, Hooker and King both said at times, not only during many of those prison calls to Emilia and Heather, but also when he spoke to his mother, Judy Chandler.

  “‘I’m gonna kiss Emilia’s ass to get that money,’” the state quoted Josh as saying during one call to Judy. The money in question was Emilia’s tax return. “‘I need help. I need to work. I need to see my babies. I just got to get out.’”

  Lenamon and Alavi staunchly objected to the admissibility of several recorded conversations before and after they were played by the state. The exchange between the lawyers was a bit emotional and nasty as they argued about it for more than an hour.

  The main thrust of Lenamon and Alavi’s objection during the state’s closing was that Brad King and the state could not have it both ways. King could not argue now that Josh had manipulated Emilia when, during Emilia’s trial, King had argued the exact opposite—that it was Emilia who manipulated Josh.

  The state’s positions in both trials contradicted each other. Lenamon would not stand by and allow King to do this.

  The objections and counterarguments by King went nowhere. The jury, of course, could not unhea
r something it had heard from the SA, and Lenamon knew that.

  Nonetheless, King finished his closing by telling jurors not to believe Josh Fulgham, an admitted murderer and liar.

  Lenamon stuck to the same theme he had during the entire penalty phase: Josh had admitted guilt; he was remorseful; he only wanted the jury to understand that he was not in control of himself during those moments of terror for Heather inside that trailer because he had been severely abused and did not know how to handle rejection, betrayal or jealousy.

  “That man there,” Lenamon said, pointing to Josh, who sat with a glaze of demoralization on his face, staring straight ahead, with a look of abstract nothingness about him, “he deserves to die in prison.”

  It was a bold statement made by a seasoned defense attorney, and Lenamon let it hang in the courtroom for a brief period. He wanted jurors to take it in. He knew that in giving the jury “an out,” a way to feel good about sentencing Josh to life, each juror could walk away satisfied that justice had been entirely served.

  Concluding, Lenamon projected his ideal outcome to jurors: “He’s going to die in prison, as opposed to being killed by the state of Florida.”

  Would everything Terry Lenamon and Tania Alavi had done, however, be enough to save Josh Fulgham’s life?

  CHAPTER 103

  JOSH TOLD ME that the sexual abuse argument presented by his lawyers during the penalty phase was a total fabrication made up by someone in his extended family.

  When me and my cousin were young, Josh wrote to me in a final letter between us, we experimented and tryed [sic] some sexual things.

  That same cousin, Josh went on to proclaim, got into some trouble one day when she was young: [She] took that little bullshit we were doing and made it out that [someone else in our family] was doing shit to us.

  Regarding his cousin, she wrote: [She] lived that lye [sic] for so long and used it as a crutch for her fuck-ups and she has now convinced herself that it really all did happen.