Gouker asserted that the statement implicating Little Josh was false, concocted to convince everyone of his son’s guilt in the hopes of saving himself. As a juvenile, Little Josh would receive a much more lenient punishment. In a voice dripping with sarcasm, White called him a “mastermind.”
Pointing to Detective Russ seated to the right of the prosecutor’s table, Big Josh smirked, “All I had to do was convince that guy right there, which I did…It’s not easy to be a mastermind when you’re dealing with dumb people. That guy couldn’t find tits in a strip club. I had to do what I had to do.”9
The testimony was riveting. Jurors sat upright, tilted slightly forward, literally on the edge of their seats wondering what he would say next. As the prosecutor segued into Gouker’s plans after his arrest for parole violations, he admitted after some hesitation that he wanted to get out of jail so that he could kill Amanda, Trey’s mother. When asked about Trey’s father, he testified that he had always hated him but would not go out of his way to kill him, “unless he just happened to be there and it was something convenient.”
Perhaps the only men who were not afraid to contradict Gouker were convicts. Three inmates gave statements or testified against Gouker, claiming that he admitted encouraging his son to commit murder. Gouker wasted no time in discounting those stories.
Although the inmates, one of whom was characterized by Gouker as a friend of Trey’s dad, were housed on the same prison wing as Gouker and often engaged in games of dominoes with him, Gouker maintained that he could not remember having any conversations with them regarding Trey’s murder.
Gouker also discounted statements made by another convict. Big Josh was emphatic that he did not know the man and had never met him. He went so far as to state that he could not pick him out of a line-up. The only thing he did know was that the man was housed at Luther Luckett. Completely discounting the testimony of all three men, Gouker opined that many people, especially convicts with something to gain, often are hungry for fifteen minutes of fame. Everyone in the area was familiar with the Trey Zwicker murder and, by the time of the trial, the case had garnered national media attention. All of the inmates wanted freedom; he figured that they planned to capitalize on the situation by fabricating stories. Inmates falsely claiming to be on the receiving end of jailhouse confessions were nothing new. After Gouker’s statements regarding the inmates who testified against him, the prosecution passed the witness.
At the close of the prosecution’s case, Leslie Smith rose and made her way to the podium, positioning herself to the left of the jury box. Courtroom viewers were anxious to see how the defense would approach Gouker. His testimony could garner two drastically different reactions. Jurors would surely see Big Josh as the cold, sadistic monster he was and this could earn sympathy for Little Josh or the jurors could view the Joshes as two peas in a pod.
Smith immediately highlighted Gouker’s controlling nature. She had to convince the jury that he had an unbelievable talent for controlling those around him. In order to help the jury view him as a puppet master pulling other people’s strings, she needed to demonstrate that Gouker had convinced people to lie for him all the time. The defense theory was that Gouker manipulated the women who claimed Little Josh confessed to them, that they were following instructions from Gouker and were terrified to cross him. This fear was evident in the testimony of the witness who took the stand immediately prior to Gouker, Angelic Burkhead. As she was released from the witness box, she walked slowly toward the courtroom door. However, as she heard the prosecution call Gouker as the next witness, cameras caught her literally sprinting from the courtroom. Smith needed to make sure the jury recognized Gouker for what he was, a person who terrified the people he sought to control.
“Is ‘tell the truth’ code for tell a lie?” she inquired, gripping both sides of the podium and leaning forward.
Gouker agreed that it was, a smile curling the corners of his lips, “Sometimes you’ve got to say it over and over until they say the right fucking story, but yeah.”10
Smith led Gouker through his admission that he had repeatedly asked to view Trey’s body, the implication being that he wanted to see his handiwork in broad daylight. In fact, he was so taken with the facial imprint left in the ground by Trey’s face that he had stopped by “The Spot” the day of Trey’s wake to see it again.
Gouker seemed comfortable with killing and admitted that he had planned on killing someone for a while. He just never thought it would be Trey. Big Josh was forthcoming in disclosing that while in prison he had a lot of time to think and stew over those who had wronged him in the past. He had almost ten years to fantasize about the day of his release and the opportunity to hurt those whom he perceived as his enemies. He even wrote rap lyrics about the actions he would take. He had spent years planning whom he would kill when he was released from prison.
However, his plans were put on hold when Josh Young’s mother passed away approximately nine months prior to his release. Gouker wanted custody of his son, who had been placed in foster care after the death of his mother. He had not had a meaningful relationship with Little Josh in nine years and Little Josh’s mother, Angie, had ensured that Child Protective Services and the court system were well aware of Gouker’s track record for violence. Gouker testified that Angie made it her mission to inform Child Protective Services that he was a “monster,” which she likely did in an effort to protect her oldest child.
Gouker testified that he went to work gaining the trust of Child Protective Services and disproving Angie’s previous claims; he jumped through hoops, attending classes mandated for reunification. He used his charisma to charm the Child Protective Services workers, banking on the fact that most people liked him right away, at least on a superficial level. He related that after the first meeting, the workers believed he was sincere, stating, “I cried and shit like that.” He felt that listing Amanda’s house as his address was extremely beneficial; it was a nice, stable four-bedroom home. Never mind that Little Josh stayed mainly at Cassi’s house; he kept that from Child Protective Services. Gouker had only gained custody of Little Josh six weeks prior to Trey’s death. As he conned Child Protective Services, Gouker also went to work at duping his probation officer.
As White continued to question Big Josh, she conveyed that Gouker was even able to trick his probation officer into believing he was in compliance with the terms of his parole. All the while, Gouker was residing at different addresses from what he had listed and was smoking marijuana on a daily basis. When asked about these examples of deceit, Gouker shrugged, stating that his probation officer was pretty much a rookie and that he had never supervised an ex-convict with a prison record as serious as Gouker’s. Big Josh’s attitude was evident; he did what he wanted when he wanted and even trained government workers could fall victim to his lies.
Gouker testified that he put that charm to use again as he and Amanda hurried to Liberty High School on the day officers recovered Trey’s body. According to Gouker, when they arrived home from McNeely Lake, Amanda became worried because she noticed that Trey’s backpack and school items were still at the house. Upon hearing that a body had been found at Liberty High School, they immediately went there.
Gouker knew he had to show his face at the crime scene. He needed to find out what the police knew. He needed to buy time. Shaking his head, Gouker told the jury that he “needed to put a mask on this monster—fast.”11
Big Josh explained that as time elapsed, he made sure to keep the monster masked, even going so far as to implicate his own son when he felt the police were beginning to suspect him. Explaining that it is easier to tell a story with a little transference, Gouker implored police to investigate his son, expressing concern about whom he would hurt next and stating that he feared he would kill Amanda.
Killing Amanda was exactly what Gouker himself planned to do if given the opportunity. Through his testimony, Gouker related that while incarcerated in Alabama, he immediately went to wo
rk contacting people under his direct control. He was positive that his cousin Cassi would do anything for him. He convinced her to concoct a story that Little Josh confessed to her and that she helped him dispose of the murder weapon.
As she was bringing her questioning to a close, Leslie Smith pointed out Gouker’s past convictions and his pattern of sneaking up on people, using the element of surprise to perpetrate his criminal acts. These acts kept him incarcerated from 2002 until his release in the fall of 2010.
Smith questioned whether Gouker had taken Trey by surprise, sneaking up behind him and punching him to the ground. In support of her argument, she noted his 2002 robbery and assault charges in which he was convicted of beating a seventy-one-year-old man in the face from behind while strangling him with his own belt. She revealed another criminal conviction where he admitted to sneaking up on his victim from behind, punching him, kicking him while he was down and holding him hostage. Admittedly, the element of surprise was very important to Gouker, but perhaps the biggest surprise to spectators in the courtroom was that after such horrendous acts, he was paroled in 2010 to roam the streets of Louisville.
Once Leslie Smith had concluded her cross-examination of Gouker, prosecutor Erin White rose to again question the witness. Convinced that Little Josh was the actual killer in the case, she repeatedly asked for details of the crime in an attempt to demonstrate to the jury that Gouker did not have knowledge of the crime scene because he was not the true killer. Gouker characterized that time as a blur.
At one point, looking straight at Gouker, White stated that had he committed the murder, it should not be so hard for him to relate the facts.
Tilting his head to the side, Gouker paused slightly, “You’re sadistic, man. You want to hear that shit?”
“Tell us what you remember.”
The courtroom quiet, he shook his head and said, “I mean just being covered in Trey, that’s it.”12
At least one juror later remarked that in that moment he firmly believed Josh Gouker was telling the truth.
At the close of the prosecution’s redirect and the defense’s brief re-cross of Gouker, the court inquired whether the jury had any questions for the witness. This is not a common practice in Kentucky and many judges do not allow the jurors to pose questions to witnesses in a trial. However, many benefits to this practice exist for both sides, especially relating to a controversial witness like Gouker.
The questions submitted by jurors allow each side to gauge issues that are prevalent in jurors’ minds and also may give some indication as to how a juror feels on a particular topic or whether he or she finds the witness credible. This jury panel had no shortage of questions for Josh Gouker.
After taking a ten-minute restroom break to allow the judge and attorneys to discuss the jury questions, Judge Willett read those questions aloud to Gouker:
“Would you give your life for your son?”
“Did you want to see Trey’s body so you could get facts to take the rap for Josh Young?”
“Was Josh Young with you when you killed Trey?”
“Did you have Josh Young help you in any way with Trey’s murder?”
“Do you feel bad about anything you have done?”
“What time did you leave to kill Trey?”
“Did Josh Young meet you to help you kill Trey?”
“Did Trey ever go anywhere with you alone before the night he was killed?”13
Despite the time attorneys spent questioning Gouker, perhaps the most telling and poignant question came from one of the jurors:
“Do you love your son, Joshua Young?”
Taking a deep breath and glancing toward Judge Willett, Gouker responded, “This is gonna make me sound like a piece of shit. You’ve got to think though, I don’t know him.” Then after a slight pause he answered, “Much as I can love, yeah.”14
Chapter 15
The Defense and the Media
By the time the prosecutors concluded their case, the trial was in its ninth day. The defense was called upon by the court to present its evidence in the matter. Two of the defense witnesses had previously been allowed to testify out of order: Dr. Nichols, due to his work schedule and Erin Specth, the kidnapping victim from Gouker’s Alabama fiasco, due to the long distance she had to travel.
Of all the witnesses, Erin Specth would likely be one of the most helpful for the defense. Although this woman was kidnapped by Josh Gouker, she felt compelled to testify on behalf of Little Josh. She had never visited Louisville before but she took a fifteen-hour bus ride just so she could testify for the defense. She was completely credible as she related the story of her abduction at the hands of Josh Gouker and Jahaira Friend. Interestingly, according to the woman, no one from the prosecutor’s office or the police department had ever questioned her regarding her experience with Gouker in Alabama.1
She described how absolutely horrible she felt for all Little Josh had been through and that she did not feel he was a willing participant in his father’s actions in any way. According to Specth, Little Josh said a handful of words the entire time she was with him. She found him to be a sweet and gentle boy who looked very uncomfortable with everything that was occurring.
The fact that a victim of Gouker who did not know Little Josh would travel such a long distance to testify for him was compelling. She had nothing to gain by doing so and this added exponentially to her credibility. Her testimony contrasted sharply with Jahaira’s sworn statements. She garnered sympathy for Little Josh and her testimony portrayed him as a victim of his father and not an accomplice.
Having heard from Erin Specth and Dr. Nichols, the defense called three more individuals to the stand. Trey’s dad was first. The defense recalled Terry Zwicker in order to ask him one question: “To your knowledge, was Trey afraid of Joshua Young?” Terry Zwicker’s answer was a definitive “No.”2
The next witness called by the defense was Bridget Fraley, an employee of the Cabinet for Health and Family Services Quality Assurance Department. At the time of Trey’s murder, she worked for Child Protective Services in the Crimes Against Children Unit. Shortly after Trey’s body was found, she was directed to interview his younger sister about the night of his death.
Trey’s younger sister testified for the prosecution in the case of Commonwealth v. Joshua Young and she did a very good job staying calm and answering questions, especially considering her young age. It was apparent that she was telling the truth to the best of her ability. The defense hoped that by calling Fraley, it could contradict the girl’s testimony. She was a young child at the time of Trey’s death and defense attorneys believed she was influenced by the adults in her life and they also believed that she just did not remember some events of the night due to her age and the length of time that had passed between the crime and the trial.
Fraley testified that she had interviewed the child before at her grandmother’s home only days after Trey’s death. At that time, Trey’s sister told her that she saw Trey that evening when she took her bath at seven o’clock. Trey took a shower later and they shared a bag of chips while sitting on the couch. She testified that the last time she saw him, Trey was going upstairs to go to bed.
This was important to the defense, because the child testified in the trial during the prosecution’s case-in-chief that she saw Trey leave the home, which is not what she told Fraley. Whether or not she was sleeping on the couch that evening was important to the case, because Gouker claimed during his testimony that he and Trey stayed up late playing video games after Amanda fell asleep. Had Trey’s younger sister been on the couch sleeping, she likely would have been awoken and seen them. If she was actually on the couch, Gouker was lying and Trey did not die the way that he testified.3
Fraley’s testimony was short but it was helpful to the defense. The next witness would be the only family member of Little Josh called by the defense. Little Josh’s aunt was an attractive woman in her forties with thick dark hair. She was very familiar with all of th
e players in the case. She had grown up in the same area and she was previously married to Josh’s uncle.
Josh’s aunt said she remembered Trey’s funeral vividly. She had arrived with Big Josh, Little Josh and Amanda. Amanda was wearing dark glasses and moaning. Josh’s aunt stayed next to Little Josh for most of the funeral when he wasn’t performing his duties as a pallbearer.
She recalled that Little Josh was devastated and upset. He held his head low and could not bring himself to say much. Even as they left the funeral, he remained upset and agitated, crying as they rode home. Her testimony was important because at least one witness had testified that Little Josh was unemotional at the funeral, implying that he was not sad that Trey was dead. Josh’s aunt contradicted that with her testimony. She was with him for the entire evening and she was positive that he was absolutely devastated about Trey’s death. It was easy to see why Little Josh might hide his emotions in public but break down in private. He had been conditioned all his life to hide emotions and feelings and he was used to devastating change. He had experienced it time and again in his short life. Josh’s aunt knew him well and she testified that she could easily tell by the way he acted at the funeral and during its aftermath that her nephew was very upset. At the conclusion of her testimony, the defense rested its case. They did not call Josh Young to the stand. Josh’s attorneys advised him that he did not need to testify since they felt the prosecution had not proven its case and he had his Fifth Amendment right to remain silent. Josh had trusted his attorneys so far and opted to follow their advice.
By the time the trial began, the local and national media were captivated by the case. As the trial progressed, Gouker submitted to interviews with some news stations where he repeatedly stated that he was solely responsible for Trey’s death and that his son was not involved. Viewers were fascinated as the media revealed the details of severe family dysfunction in the McFarland/Gouker household that resulted in a brutal and stomach-churning act. It was a story stranger than fiction: recently paroled ex-convict Josh Gouker wasted no time regaining custody of his fifteen year-old son, Josh Young, and within six weeks of that placement, Trey Zwicker was dead and Josh, a former honor student and high school wrestler, had descended on an unparalleled downward spiral, accused of murdering his own stepbrother at his father’s behest.
Accused Page 20