Accused

by Brittany Ducker

  Even after the prosecutors filed charges against Josh Young, they continued to investigate his father. In November of 2011, Gouker agreed to undergo a polygraph test as requested by Detective Russ. At the time, Gouker was being held in Hopkins County for criminal charges from Louisville. The judge issued an order that transported Gouker to Madison, Indiana, to undergo a polygraph test. He signed a consent form and underwent the polygraph at the Madison County Jail on November 28, 2011. The exam consisted of two questions: (1) Did you help plan the boy’s attack and (2) Did you strike the boy with a weapon? Gouker submitted to the test and the results were recorded as “Inconclusive.”

  As Louisville detectives continued to investigate Trey’s murder, it became clearer that Gouker was involved and they made the decision to seek an indictment against him. Detective Russ procured a Direct Indictment of Gouker, meaning that the case did not originate in district court as many cases do. Instead, it was presented directly to the grand jury. Gouker was impoverished, so attorneys were appointed to represent him. Mark Hall and Don Major were both experienced and competent attorneys and did their best to diligently protect the rights of their client.

  Gouker could not have been an easy client. He liked to dominate and control. Again and again, he spoke with the media in direct contrast to the advice of his attorneys. He told the media that he killed Trey and that his son had no involvement in the crime.4

  When he appeared before Judge Willett for arraignment, the court set Gouker’s bond at one million dollars. He was also a state inmate on previous Louisville charges due to his parole being revoked. Gouker faced more charges than Little Josh did. In addition to the murder charge, he was charged with two counts of felony cruelty to animals for killing Trey’s puppy and his sister’s cat. At the arraignment, Gouker asked the judge to allow him to plead guilty to all charges and he admitted that he killed Trey.5

  The judge disregarded this statement and set the case for court dates in conjunction with his son. The pretrial preparations in the matter were time consuming and the discovery received from the Commonwealth was voluminous. Gouker was incarcerated outside of the city, so his attorneys were forced to file motions that allowed them unfettered access to him. Prison visitation rules are notoriously strict, even for attorneys, so in order to adequately prepare the case for trial, they needed more access to Gouker than the usual client. This was a murder case and a convoluted one at that. Gouker’s legal team spent hours painstakingly reviewing discovery in their offices and with Gouker at the prison.

  After a significant amount of time with Gouker, they apparently assumed that some deep-seated mental issues existed with the man. His attorneys filed a motion to have Gouker evaluated for competency to stand trial. Any defendant must be able to aid in his own defense. In order to determine whether he is able to do so, an incarcerated defendant may be sent, on the motion of his attorney, to the Kentucky Correctional Psychiatric Center for evaluation by a psychiatrist. That psychiatrist will generate a report for the court and the attorneys indicating whether the defendant is competent to stand trial. The court then holds a hearing to determine whether he is competent.

  Gouker was sent to the Kentucky Correctional Psychiatric Center. The competency report is a confidential document and is sealed in the court file. However, it is safe to say that, despite his mental health issues, the doctor’s finding was that the defendant was competent to stand trial in the case involving Trey’s death. Gouker did not have a competency hearing. Instead, his attorneys stipulated to the contents of the report on his behalf and, in accordance with that report, Judge Willett issued an order stating that Gouker was competent to stand trial and that the case against him could proceed.

  His attorneys also arranged for an independent evaluation of their client. Gouker submitted to an evaluation with Dr. Michael Cecil, a respected neuropsychologist. Dr. Cecil also found that Gouker was competent to stand trial. However, he highlighted mitigating factors that could impact Gouker’s criminal responsibility, including prior diagnoses of schizophrenia and schizoaffective disorder and several head injuries from Gouker’s past. At the time Gouker entered his plea his counsel had not received Dr. Cecil’s report but Gouker elected to go forward with the plea anyway.

  Gouker indicated to counsel prior to a court appearance on May 10, 2013, that he wished to plead guilty to the charges against him. The Commonwealth refused to offer a plea bargain to Gouker, so any plea he made would be an “open plea” where the judge would choose the length of incarceration. If he entered an open plea, Gouker would have to plead guilty to all of the charges.

  His attorneys strongly advised against the entry of a guilty plea. In a lengthy letter to his client, attorney Mark Hall urged Gouker to reconsider his decision, stating that he felt that there were viable defenses in the case and that it was a mistake to admit guilt prior to receiving and reviewing the report generated by Dr. Michael Cecil regarding competency.

  Gouker did not listen and on May 10, 2013, he pled guilty to all of the charges in the indictment.6 Judge Willett set July 26, 2013, as the date for final sentencing. At that time, he sentenced Gouker to the maximum penalty allowed for each of the charges which resulted in a life sentence. Gouker would not be parole eligible until he had served twenty years of the sentence, with his first parole eligibility date set in October of 2031. In his final sentencing order, the judge explicitly stated that despite parole eligibility in 2031, “it is the recommendation of the trial court that the parole board shall not grant parole to this defendant.”7

  With that pronouncement, Joshua Gouker was committed to the custody of the Department of Corrections to serve his sentence. However, the court had not seen the last of Gouker and, with his son’s trial set to begin three days later, Gouker still had a trick or two up his sleeve.

  Chapter 12

  …And It Begins

  The Jefferson County Courthouse looms on the corner of Seventh and Jefferson Streets in downtown Louisville. The relatively new building is directly across the street from the Louisville Metro Detention Center on one side and the Hall of Justice, home of district court and traffic court, on the other. The courthouse is in the heart of the bustling downtown legal district. On any given day, one encounters crisp professionals in their courtroom best and stragglers who roam the downtown streets. It is a mix of people from all walks of life.

  July 29, 2013, would have been like any other hot summer day in the legal district. Vendors manned the street corners peddling fresh sizzling chili dogs; an eclectic mix of vehicles were parked along the metered streets. A line formed at the security checkpoint metal detectors at the front of the courthouse structure and extended out the front door. Members of the media filed into the building.

  Over two years after the heartbreaking murder of Trey Zwicker, Joshua Young sat poised at the defense counsel’s table with his team of attorneys. After several continuances and postponements, the beginning of his jury trial had finally arrived. As he sat before the judge, Josh faced two charges: complicity to murder and tampering with physical evidence. Although he staunchly maintained his innocence, the prosecutors and many of Trey’s relatives believed that he was involved in Trey’s death.

  Sitting at the defense table, Joshua looked terrified and anxious. After all this time, he would finally tell his side of the story and he could only pray that the truth would come out. He was confident in his legal team and was well aware that they were all personally invested in him and his case. They believed that he was innocent and he knew there was nothing they would not do to convince the jury.

  Josh had remained incarcerated since his initial arrest in the matter, almost two years prior to the start of the trial. He spent both his fifteenth and sixteenth years behind bars with his bond set at $100,000 cash. There was no one able to post that amount of money on his behalf, so as the case progressed, the Louisville Metro Youth Detention Center became his “home.” Prior to his charges in connection with Trey’s death, Josh had never been in seriou
s trouble with the law. His only brush with the criminal justice system was when, at eleven years old, he was apprehended with his mother’s boyfriend as the boyfriend attempted to break into a vehicle.

  The harsh confines of the Detention Center were a culture shock for Little Josh. This was his first time being locked up and, because of the nature of his charges, he was housed with children facing comparable allegations. Prior to being jailed, Josh was a freshman honor student. While incarcerated at the youth detention facility, he participated in educational services that were a far cry from the Advanced Placement courses he studied while in a traditional high school.

  For the two years prior to the trial, however, he was consistent. He kept himself out of trouble, studied hard and waited for the day that his trial would begin. He just hoped that the jury would view the facts in the same manner as his attorneys and his loved ones.

  As he awaited trial, Josh looked like any other seventeen-year-old boy. Only hours before, Josh had worn his detention center-issued jail garb, a one-piece, hunter green jumpsuit that he’d lived in for his two years of incarceration. It felt good to change into regular clothing. As he sat in his courtroom seat, Josh was taller and the chubby-cheeked boy was now a slender young man. The previous two years had been difficult and Josh had watched from afar as his friends went on with their lives and high school experiences. As they attended high school dances, Junior ring ceremonies and Friday night football games, he had observed them from prison, the fear always looming that he might never be free again.

  With all this swirling in his head, Josh glanced at the crowd of spectators beginning to assemble for his trial. The electricity in the courtroom was palpable as everyone settled into their places. Two attorneys represented Joshua in the case. Both were appointed by the court due to the fact that Josh could not afford to hire a lawyer. Both attorneys appointed to represent Josh’s interests were skilled and experienced in juvenile law. He felt blessed by their presence and genuinely liked them. They had been a constant in his life for the previous two years; he had come to depend on them and he trusted them implicitly.

  Leslie Smith was a tall, slender and intelligent woman who exuded confidence in Josh. She was animated, compassionate and, once she believed in a cause, she was passionate and devoted. Josh was grateful that was how she felt about him and his case. As she sat next to Josh, she appeared the picture of poise, a close crop of platinum blonde hair adorning her features.

  Pete Schuler stood at the other end of the table where Josh sat. Older than his co-counsel, Pete also showed belief in his client. When Pete glided across the courtroom, Josh could feel the confidence Pete had in his case. They had waited so long for this day and it was clear that soon Josh would either be returning to the grim walls of the Jefferson County Youth Detention Center or he would be returning “home,” wherever that would be.

  Josh remained a ward of the state and, because he was a juvenile, the public defender’s office supplied a caseworker from the Department of Public Advocacy who attended the trial with Josh and sat at the defense table with him. Her constant presence at Josh’s side reassured everyone that he was not alone, as did the presence of several members of Josh’s extended family and his foster parents, the Walshes.

  The two female prosecutors assigned to the case, Elizabeth Jones Brown and Erin White, were both experienced prosecutors with the Commonwealth Attorney’s Office in Jefferson County. The women worked well together and had spent countless days and nights preparing the Commonwealth’s case against Joshua Young.

  To their right sat the lead detective in the case. By the time the trial took place, Detective Scott Russ was no longer with the Louisville Metro Police Department Homicide Unit. With over twenty years on the job, he had made the decision to forgo working in a department that required around-the-clock availability in favor of working as a patrol officer. He had a family and the set hours of a routine patrol officer were more conducive to that lifestyle. However, having been the lead detective in the investigation into Trey’s murder, he would be called to testify and would be permitted to sit at the prosecution table with Jones Brown and White for the duration of the trial. He would also aid in selecting the jury.

  Commonwealth v. Joshua Young had received intense publicity in the Louisville area and, as a result, Judge Barry Willett made the decision to call in more potential jurors than he usually would for jury selection in a similar trial. By the time all the jurors eventually filed into the courtroom, Judge Willett would remark that it was possibly the most packed courtroom over which he had ever presided.

  The court was prepared for the jury pool and had specific seating arrangements for each of the one hundred and four jurors who appeared. Each was assigned a number and it was by that designation that the court and attorneys would refer to him or her throughout the trial. Jury selection can appear to be a very boring process to an outsider but it is an essential component of the trial process. In fact, attorneys often remark that cases can be won or lost during jury selection alone.

  It is the intention of the system that an accused face a jury of twelve impartial peers. Even prior to the selection process, jurors are asked to complete questionnaires that reveal tidbits of information about them including where they work, whether they have children and whether they possess any knowledge about certain cases. The parties may request these questionnaires prior to trial as a way to prepare for voir dire.

  Much of what happens during this practice may not be available to the casual courtroom observer or even other jurors. During voir dire, the judge, the prosecutor and the defense attorney are given an opportunity to ask specific questions to the jury pool in the hopes of uncovering bias, prejudice or other issues that may affect a potential juror’s ability to be fair and impartial. Each side is given the opportunity to strike a juror “for cause” if they believe that person has an inherent or specific bias that will preclude him or her from being impartial. Each side also has a set amount of preemptory strikes which can be used to eliminate a potential juror for no specific reason at all, except reasons like race and gender.

  In gauging the potential bias of a juror, the court and attorneys must ask about sensitive topics and life experiences. In most cases, including Commonwealth v. Joshua Young, jurors may approach the bench and speak privately with attorneys and the judge outside the hearing of the courtroom. This practice affords privacy to the juror while still allowing the attorneys to discuss sensitive topics.

  In Commonwealth v. Joshua Young, there was no shortage of potential jurors who were excused from duty due to the intense media coverage and the way that coverage had affected their beliefs or opinions regarding Josh’s guilt. For instance, one juror was excused by the court because prior to the trial she stated that she believed prosecutors were right “98 percent” of the time. She had bought the “whole Sunday newspaper and read every word,” and on a scale of one to ten she felt it was “close to ten that he is guilty,” even though she had seen no evidence. The defense felt she was not a juror who could be fair and impartial as the Constitution required.1

  On the flip side, one middle-aged woman was excused due to her sympathy for Josh. In a raspy voice, she informed the judge that she had recently lost her husband of fifty-one years. This had affected her greatly. She had grandchildren and, as she spoke with the judge and attorneys privately at the judge’s bench, she glanced to her left and her gaze rested on Josh. “After seeing this boy, I don’t think I can convict. He’s a kid. My heart goes out to him.” This potential juror was excused as well.2

  Voir dire in Josh’s case lasted well into the afternoon of the first day of the trial and by the end of the process the parties had selected fifteen jurors, although the final jury which would deliberate the case would consist of only twelve people. Due to the nature of the alleged crime and the anticipated length of the trial, the court was clear that it would need alternates in the event of sickness or family emergencies. The alternates would be determined by random drawi
ng at the close of testimony. As the trial began, any of the fifteen knew they could be called to deliberate Joshua’s guilt or innocence.

  By the summer of 2013, Judge Barry Willett had over thirteen years of experience on the bench. Originally elected in 2000, the judge had left behind a career specializing in complex tort and commercial litigation in favor of upholding justice as a Jefferson County Judge. An attractive man with dark hair, a salt-and-pepper goatee and a rosy complexion, he was both seasoned and fair. Throughout the trial he put deep thought into his decisions and listened contemplatively to the arguments of counsel and the testimony of the witnesses.

  Erin White delivered the opening statement for the prosecution. She did a thorough job of setting the stage for the case the Commonwealth intended to present to the jurors.

  Beginning by telling the jurors that Trey was afraid of the dark, she said that he would never have gone alone to the dim, secluded location where his body was found. She detailed the home where he lived with his mother, a home where Gouker ruled “with an iron fist,” a house of horrors saturated in domestic violence and drug use.

  As she stared into the eyes of the jurors, one by one, she drew them into the prosecution’s case. She humanized Trey for the jurors:

  Trey Zwicker was afraid of the dark, yet his body was found in a dark ditch behind Liberty High School and behind [the street] where Trey lived with his mom—Amanda McFarland, with his sister…who was eight at the time, with his stepfather Josh Gouker and with the defendant, his stepbrother, Josh Young.

  Trey’s body was found in a dark ditch, a place where kids would go to hang out, some to smoke cigarettes or smoke pot. A dark place where Trey wouldn’t go alone at night; a dark place where Trey was lured by the defendant, his stepbrother, and by his stepfather.