Referring to this issue, she reemphasized its importance to the jurors and she continued, “We know that Gouker and Amanda went to the [convenience store] between 1:06 and 1:09. We also know that Gouker was wearing the same clothes the next day.” She turned to point out the pictures of Gouker illuminated on the projection screen in the courtroom which showed him wearing the same jersey that evening at the convenience store and the next day at the scene of Trey’s murder after his body was found. She continued, “There he is at the store, and there he is at the scene the next day—number 34 Louisville jersey.”7
She detailed the evening of the murder and the dysfunction in the household. She agreed that the home was rife with domestic violence. However, she did not agree with the rendition of the facts as related by Gouker and Little Josh. Gouker claimed he had played video games with Trey late on the evening of May 10, 2011. However, Trey’s eight-year-old sister claimed that she slept on the couch that evening, according to her testimony, in the exact spot where Gouker claims he sat. Also, in Little Josh’s initial interview with Detective Maroni, he testified that he saw Trey after Trey had taken a shower and changed that night. He knew what Trey was wearing. However, his later statements and the statements of others were that Josh was no longer at the home when Trey took a shower, so Jones Brown argued that the only way he could have seen Trey’s clothing was if he was present at the crime scene.
According to Jones Brown, Gouker convinced Josh to participate in the killing. She urged the jurors to believe that although Josh was a small boy, he had the capability to swing a bat with enough force to cause Trey’s injuries. She reminded jurors that children younger than him can hit home runs. At the time the murder occurred, she remarked, Josh was “not in the courtroom wearing a sweater vest,” referring to Little Josh’s innocent appearance as he sat in the courtroom looking like the young, seventeen-year-old boy that he was at the time of his trial.
She urged jurors to not fall victim to sympathy just because Little Josh had a bad dad and a bad life. According to Jones Brown, jurors should not let their sympathy cloud reasonable doubt. She felt even if he was pressured by his father, Little Josh had the free will to say no. She told them Little Josh had talked about the crime repeatedly without his father and that he “bragged and laughed” about it. According to Jones Brown, Josh Gouker was a control freak and his son desperately wanted to impress him. Jones Brown reminded jurors that their job was to go through the facts and hold Josh Young accountable for Trey Zwicker’s murder. As her argument came to a close, Jones Brown had a final statement for the jurors:
Trey Zwicker was brutally murdered at age fourteen when he was finishing his freshman year in high school, because Josh Gouker was a control freak and Josh Young wanted to impress him. Trey will never finish high school, never get to grow up alongside his dad, never get to take care of his sister. This was an utterly senseless and heartbreaking murder. One of the participants is being held now for the rest of his life. Now it’s the defendant’s turn.8
And with that contention, she rested the case for the Commonwealth.
Chapter 17
The Verdict
After the attorneys on both sides of the case completed their closing arguments, Judge Willett tendered his instructions to the jury and explained that as they deliberated, they would be secluded from the outside world. His bailiff collected their cell phones.
At the start of the trial, the court had chosen fifteen jurors with the understanding that three would not actually deliberate but would be designated alternates. As the trial progressed, one juror was excused for illness and another was removed from the jury because she was seen dozing during testimony. Immediately prior to submitting the case to the jury, the judge removed the final alternate and the remaining twelve jurors prepared to deliberate.
It was a terrifying feeling for Josh Young. He and his defense team had done all they could. As the jury deliberated, Josh spent the next hours in agonizing limbo. When the jurors came back with a verdict, one of two things could happen. He could spend the rest of his life in prison or he could receive a second chance at life after two years of incarceration in a juvenile detention center.
It was 8:17 P.M. Friday when the jury notified Judge Willett that it had reached a verdict. By this time, the trial had stretched from July 29 until August 9.
The feeling in the pit of his stomach was indescribable when Josh was notified that the jury had reached a verdict. He legs wobbled as he made his way back into the courtroom. As he settled into his chair, he was flanked by the two women who had worked so hard to support him as well as the man who’d worked tirelessly on his case. Leslie Smith sat to his left and his social worker to his right. Pete Schuler was to the social worker’s right, the same positions as during the trial.1
It was a helpless feeling, because the decision was entirely in the jurors’ hands. The attorneys related the information and made their assertions, but in the end the jury controlled the outcome. Those twelve people came from a variety of backgrounds and experiences and it was hard to predict how their life experiences would affect their decision making.
Now the jurors filed silently back into the courtroom and took their seats in the jury box. The audience buzzed with anticipation. Trey’s family had waited two long years for this moment and so had Josh and his supporters. The moment of truth had arrived and it was clear that, regardless of the verdict, one side of the gallery would be very unhappy and one would feel satisfied that justice had been served.
Judge Willett looked toward the jury box, his face serious, then spoke, breaking the tense silence that hung heavily in the air. “Has the jury reached a verdict?” he asked, making eye contact with each of the jurors. As the jurors nodded, he gestured toward his bailiff, “If you’ll hand the jury form to the deputy he’ll bring it over.”2
The foreperson nodded silently and handed the jury verdict forms to the bailiff who walked them to the judge sitting resolutely behind the bench. As Judge Willett retrieved the verdict forms and read through them, Josh’s life hung in the balance.
Judge Willett glanced upward and began to speak slowly and determinedly, “Verdict form number one—murder. We the jury find the defendant not guilty under instruction number one.” He took a breath and continued, “Verdict form number two—tampering with physical evidence. We the jury find the defendant not guilty under instruction number two.”3
Josh felt happiness and excitement surge through him. He was going home, wherever that might end up being. Hands balled into fists, he shook them slightly in the air with his eyes closed and then buried his head into his arms on the table top, overcome with emotion. Leslie Smith reached over, patting the boy gently on the back. This is what they had worked so hard for. Josh suppressed a smile. He was so happy that he had a second chance at life, but he could not forget that Trey did not, and that knowledge hung over him. It was not truly a victory, because Trey was dead. The acquittal was bittersweet. Josh lifted his head and looked sadly at his social worker, meekly mouthing “Thank you” two separate times to the jurors who still sat in the jury box.
“Madam foreperson, are those in fact the verdicts of the jury?” Judge Willett asked as he laid the forms down on his bench.
“Yes, your honor,” she said softly.
Judge Willett called the attorneys to the bench and asked them for permission to discharge the jury. With everyone in agreement, he again addressed the jurors, “I will ask you to retire back to the jury room to give me five minutes of your personal time to answer any questions that you may have and thank you personally for your service.” The courtroom watched as the jurors filed out of the courtroom and with that, the judge turned to the gallery.
“Members of the gallery, thank you very much for staying calm and well behaved. These are tough cases for everybody involved. The case is dismissed. The defendant will be released from custody.”4
Trey’s family stood, looking agonized, then fled the courtroom. They believed that Josh
Young was involved in the murder of Trey and they felt as though they did not receive justice. As they raced from the courtroom, Terry Zwicker appeared devastated by the verdict. He made a beeline for the elevator. In his opinion, the system had failed his son. A female relative of Trey could be heard blurting out, “I hate Amanda.” Clearly, many of the members of Terry’s side of the family blamed Amanda for bringing Gouker into Trey’s life. They blamed her for allowing the monster around her children even though they believed she was well aware of the violence of which he was capable.
As she left the courtroom, Prosecutor Elizabeth Jones Brown could be heard remarking to the media that her team “always knew this was a tough case” and that “they’ve got a long road ahead of them.”5 The acquittal appeared to hit her hard, but she maintained her composure and professionalism.
Defense attorney Pete Schuler told reporters that he was “thrilled” with the verdict and that he hoped Josh could put the entire ordeal behind him. As Schuler spoke with reporters, the rest of the legal team was busy preparing for Josh’s release. After two long years in custody, he was still a minor and needed to be released to the custody of the Cabinet for Health and Family Services. Social workers made arrangements for Josh to return home with the Walshes where his little sister would be waiting happily to greet him.
He would get to see her immediately and he was ecstatic. It appeared that after all he had been through, he would finally get that second chance he’d dreamed of for two years. Joshua Young walked out of Jefferson County Youth Corrections Center that evening. It was an overwhelming feeling, but he was happy. He was free and he had great hopes for his future. He was thrilled that the system had worked on his behalf. The previous two years in custody had been trying. However, everything had worked out for the best and he hoped that he could finally put the past behind him and look toward his future.
Several jurors on the case quietly discussed their deliberations in Commonwealth v. Joshua Young. None of the jurors felt the prosecutors had presented proof of Little Josh’s guilt beyond a reasonable doubt. It was clear to those jurors that Gouker was the person who had delivered the fatal blows that killed Trey. They did not believe Little Josh was involved in the murder in any knowing way, although some jurors pondered whether he might have been his father’s unknowing pawn in the matter. They opined that it was possible Trey and Little Josh snuck out together and that Gouker seized the opportunity to kill Trey without Josh’s prior knowledge.
The jurors clearly did not believe the state had proven its case against Little Josh for murder and tampering with physical evidence and they made the decision to acquit the boy and send him home.
Chapter 18
The Real Culprit?
Josh Young was placed into a very bad situation with a convicted felon who had been in jail for nearly ten years. Gouker had a history of abuse, yet his son was removed from a foster home where he thrived to “live” (since he rarely slept under the same roof as his father) with a man known to have a violent streak.
The issues in Child Protective Services are a national problem. From Kentucky and Arizona to New Jersey and Vermont, there are problems. In New Jersey, four adopted boys were found to be so malnourished that one, at age nineteen, was just four feet tall and weighed only forty-five pounds. The situation was discovered only because a neighbor saw the nineteen-year-old looking for food in a trash can in the early hours one morning.1
Amy Dye was adopted in Kentucky in 2006 by her great aunt and cousins when she was five. When Garrett Dye, then twelve years of age, was asked to write what he would tell his friends about his potential new sister, he wrote: “I will tell them that she is the best sister ever. I would like her to be funny and happy wherever she goes.”2
A little less than five years later, Garrett Dye beat Amy to death in the driveway of their home. Amy was nine.
Was this a tragedy that could have been averted?
Complaints of overworked caseworkers, children being left in homes they should be removed from and children being pulled from loving homes for unspecified reasons litter the child welfare landscape. In Amy Dye’s case, it was revealed that Garrett Dye had started to have “worrisome behavior problems,” like bringing a gun to school. In the years preceding her death, a school nurse, teachers and others reported their concern that Amy was being mistreated or abused at her adoptive home, but their concerns were ignored or not properly investigated, the judge in the case ruled.3
It has been reported that overworked CPS caseworkers in Arizona ignored, on average, about 26 percent of the 3,200 phone calls they received on their abuse hotline during a typical week.4 So about 832 calls received no response. Is it mathematically possible that all of those calls were false alarms? Or was a child abused and no one did anything to stop it?
In the case of the four malnourished boys, a caseworker for the New Jersey Division of Youth and Family Services had visited the house multiple times over the previous two years. According to The New York Times, “The case is the latest in a series of discoveries revealing the collapse of New Jersey’s child welfare system, which left the youngsters it was charged with protecting vulnerable to abuse and neglect in troubled homes with little oversight.”5
In Vermont, the death of two infants has prompted a government investigation into the Department of Children and Families, according to a VPR News report.6 The article’s headline reads “Social Workers Expose Flaws in Child Protective Services” and tells of how social workers informed the government about “staffing shortages, lack of communication between state agencies, and what they said are sometimes unrealistic evidentiary thresholds needed to remove kids from dangerous homes. They said these problems, and others, are leading to the types of situations that might have led to the deaths of [the] infants.”7 One issue that a social worker raised was the fact that hearsay cannot be admitted in family court hearings: “When children tell doctors, for instance, that their injuries were inflicted by a caregiver, that information can’t be admitted in court. And…abusive parents can easily convince children to change their testimony before a judge.”8
There are many problems that plague Child Protective Services, according to an essay on the WSIU Public Broadcasting website on Child Protection Reform. “Nationally there is a very negative public opinion of state CPS agencies,” the essay says. It goes on to point out that “the single most important reform that has the most impact on children and families is the amount of training that child protection investigators receive. In many states training is at best minimal.”9
It is hardly a new revelation that children sometimes fall through the cracks when they remain involved with the child protection system. One need only turn to the mainstream media to encounter stories of children lost in the shuffle. Though the majority of people involved in the system work diligently to protect our youngest and most defenseless citizens, rising caseloads and strained budgets negatively impact the services rendered to children languishing in state care.
Over the last two decades, several cases highlighting the failures of Child Protective Services workers horrified our nation. In 2001, Florida’s Department of Children and Families met with public outcry when the State’s Attorney’s Office revealed that four-year-old Rilya Wilson was missing from her foster home placement. The media later reported that she had been missing for over a year from her foster home and that her caseworker had been unaware of her absence.
It was discovered that young Rilya’s caseworker had falsified documents stating that she made routine visits to the home when, in fact, she had not set foot in the residence for over a year. It was further learned that the caseworker’s own supervisor had not reviewed the files as required by department policy. During the child’s torturous time in that foster home, it is believed the young girl was routinely starved, abused and kept in a dog crate. Her foster mother was eventually convicted and sentenced to prison.10 The young girl was never found. Sadly, she is one of many missing foster children in the sta
te of Florida.
Arizona’s child protective system came under similar scrutiny after the death of Raziah Bates, a ten-month-old baby girl, in 2010. After several anonymous calls to the department, a caseworker visited the child and her single nineteen-year-old mother. The worker advised the mother that the baby needed medical attention. She told the mother she would visit again and that if she had not sought medical attention, she would remove Raziah from the home. The caseworker never returned and the child died two weeks later. The mother faced torture and murder charges stemming from the death.11
Following this shocking loss, the shortcomings of the San Joaquin County CPS office became a hot topic of conversation. Employees within the agency went on record stating that “what killed this baby is a social worker who had too many cases and not enough time.” Nearly one quarter of that local office’s staff told reporters that “they aren’t spending enough time with families to recognize all potential threats.”12 The workers had impossible caseloads and not enough time to adequately manage them.
There must be a mechanism for preventing senseless deaths and disappearances of children involved in the foster care or child protective systems. There is no doubt that there are thousands of caring, compassionate and dedicated CPS workers in America and the majority of those workers strive to protect the children involved in the system. However, even the most informed and well-intentioned worker cannot possibly overcome strained budgets, colossal caseloads and an ever-growing number of children in care. The system is overloaded and, as a result, children fall through the cracks.13
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