Ky. teen acquitted of stepbrother's murder

Jason Riley | The (Louisville, Ky.) Courier-Journal

LOUISVILLE, Ky. -- A Kentucky teenager was acquitted Friday night of beating his 14-year-old stepbrother to death, and officials scrambled to get the teen out of jail for the first time since his father tried to pin the murder on him two years ago.

Judge Barry Willett dismissed charges that Joshua Young, now 17, murdered Trey Zwicker in May 2011, leaving him to die in a creek bed.

Young smiled wide, hugged his legal team and gave a beaming look back to his foster family and other supporters after the jury of eight women and four men found him not guilty on a charge of complicity to murder and not guilty on one count of tampering with physical evidence.

On the other side of the courtroom, Trey's family cried quietly or hung their heads in disbelief, seeing the case end with what they felt was a murderer walking free.

"The system failed Trey," Terry Zwicker, Trey's father, said in a phone interview after leaving the courthouse. "I'm upset with the verdict. (Josh Young) got away with murder. He walked away."

But Pete Schuler, an attorney for Young said the teen has lost two years of his life on a case that shouldn't have been prosecuted in the first place, pointing out that Young's father, Joshua Gouker, has already pleaded guilty to murdering Trey and said he acted alone.

"He's such a great kid," Schuler said of Young. "It's just a real honor to represent somebody like him."

Schuler said Young would live with his foster family, who hoped to adopt him.

The jurors, who deliberated about nine hours, declined to comment as they left the courthouse.

Assistant Commonwealth's Attorney Elizabeth Jones Brown said she was disappointed by the verdict, but not surprised. She added that prosecutors knew it would be a tough case. She said she was "heartbroken" for Trey's family.

Before the verdict, jurors watched both Young's interviews with police, in which he denied any involvement, and the testimony of Gouker.

Earlier in the day, Leslie Smith, an attorney for Young, pointed to the diminutive teen and told jurors there was no evidence he was involved in the death of his stepbrother.

"Why are we here?" she asked the jury. "Send this kid home. ... He is innocent and you know it."

Smith blamed Trey's death on Gouker, a felon who said he bludgeoned Trey with a pipe and left him to die behind a high school.

"Do you really think he didn't kill Trey?" she asked jurors about Gouker. "He took a lot of pleasure doing that to that poor boy, he really did."

Jones Brown argued that Gouker put his son up to the murder because he was angry that Trey's mother, Amanda McFarland, had aborted a pregnancy. And Gouker made sure he had alibis that night, having sex with McFarland and going to a gas station and getting cigarettes — as shown on a surveillance camera.

Cassie Gouker — Joshua Gouker's neighbor, cousin and sometimes lover — testified that Young woke her up after the murder, about 1:30 a.m., saying he had killed Trey and needed her to drive him somewhere to get rid of a bloodstained baseball bat and clothing.

After the trial, Schuler said it was very important for the defense when former Kentucky Medical Examiner Dr. George Nichols' testified that Trey died of a traumatic brain injury after being struck in the head from behind with a "rod-like" object, likely by a single person.

"It wasn't a bat," Schuler said of the prosecution's murder weapon theory. "If it was wasn't a bat, then what was this bat and the bloody bag of clothes? It just didn't make any sense. And I think that was the lynchpin" that doomed the prosecution.

Jones Brown said in her closing that Joshua Gouker couldn't describe details of the killing when he testified during the trial, also slipping once and saying "we" when talking about the murder.

Smith said, however, that the jury should throw out anything Gouker has said, because he has repeatedly lied and manipulated police since May 11, 2011 when Trey's body was found.

Also, she said there was no physical evidence against Young, just witnesses who were controlled by Gouker and lied about the teen confessing.

After initially trying to blame the murder on Young, Gouker has repeatedly said he killed Trey alone and has sought to deflect any responsibility from his son.

Young repeatedly denied to police that he or Gouker had anything to do with the murder.

"My dad liked Trey, and so did I," Young told Louisville Metro Police homicide Detective Scott Russ during a June 21, 2011, interview. "I had nothing to do with it and I'm pretty sure my dad" didn't either, saying his father was with Trey's mother the night of the murder.

When Gouker entered his guilty plea in May, he told Willett that he took Trey to the creek to confront him about stealing a lighter and a plate of food.

Gouker said he killed Trey with a pipe, then rinsed it in the creek. No murder weapon has been recovered.

The witnesses against Young were tainted by a police investigation that allowed Gouker to talk with them at the same time as police, letting Gouker control the situation, Smith said.

He is a "puppet master," she said, who has orchestrated this case from the start.

"We don't know what the heck happened that night and we have to accept that we will never know," Smith told jurors, imploring them not to convict Young. "Don't convict this boy because you don't know."