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Murder cases dropped against two defendants

July 30, 2011 – By Jason Riley – The Courier-Journal

A Jefferson Circuit Court judge dismissed murder cases against two men on Friday after a key witness wavered about whether the two defendants were responsible.

Wilbur Mucker and Keath Tyson were charged with murder, burglary, robbery and tampering with physical evidence in the April 25, 2009, shooting death of Gerald Garner, 28.

Garner died of gunshot wounds in his home in the 700 block of South 23rd Street.

The witness, who was in a closet during the robbery, told police she recognized the voices of Mucker and Tyson. While the witness was adamant at the time, she was less positive in recent discussions with prosecutors, Assistant Commonwealth’s Attorney Erin McKenzie said.

Another witness who saw the robbers told police it wasn’t Mucker or Tyson, according to McKenzie, who inherited the case from another prosecutor. And no physical evidence linked Mucker or Tyson to the crime.

A capital murder trial for Mucker was scheduled to start Friday, but McKenzie didn’t think she could get a conviction with the evidence and testimony the prosecution had.

Judge James Shake dismissed the case without prejudice, meaning Mucker and Tyson could be re-indicted if more evidence surfaces.

Mike Lemke, Mucker’s attorney, said he doubts his client will be indicted again.

“It’s a good thing it was dismissed,” he said. “It saves the people of this county an unnecessarily expensive trial. The conclusion was that he would have been found not guilty anyway.”

Mucker is in prison on an assault conviction serving a 40-year sentence, Lemke said. Tyson, who has been on home incarceration, was scheduled to have a death-penalty trial in January.

Ryan Vantrease, Tyson’s attorney, said his client has always maintained his innocence and is “just happy to have this done and behind him so he can move on with his life.”

Reporter Jason Riley can be reached at (502) 584-2197.

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