By Gene Johnson and Mike Baker Associated Press
SEATTLE — Recently released documents show the evidence against Josh Powell was mounting. The blood in the house. The midnight winter camping trip. A generator, gas can, tarps and shovel in his van.
Legal experts say it was enough to convict Powell of his wife’s murder — even if prosecutors didn’t have her body as evidence. After all, it’s happened hundreds of times before.
So called “no-body” convictions have occurred all over the country, including in Utah. And scholars, defense lawyers and other prosecutors who have followed the case believe Utah authorities likely could have convicted Powell had they pressed forward with the case.
But Powell was never arrested or charged in his wife’s December 2009 disappearance from their home in West Valley City, Utah.
Lohra Miller was the Salt Lake County district attorney for the first year of the Susan Powell investigation. She did not return messages from The Associated Press, but told the Deseret News that her office had not been ready to bring charges because there was no body.
“You have to have either a substantial period of time where the person is missing where you can assume she’s dead and prove beyond a reasonable doubt she’s dead to a jury, or some pretty overwhelming evidence as to the fact that she’s dead and the person did it,” Miller said. “They’re very, very hard cases to prove.”
Powell moved to Washington state weeks after his wife disappeared. And on Feb. 5, as authorities continued their investigation, Powell killed the couple’s two young sons and himself in a gas-fueled inferno.
“They could have gotten a conviction, but … nobody knew he was going to do this,” said Laurie Levenson, a professor at Loyola University Law School in Los Angeles. “You know exactly what the defense is going to argue, and you hope and pray you’re getting closer to the key piece of evidence that’s going to make it a closed case. If I had been this prosecutor, this would haunt me the rest of my life.”
It is harder to win convictions in cases where the victim’s body is never found. Defense attorneys can suggest that the supposed victim is still alive, having taken up a new life somewhere.
Without knowing how a victim died, jurors can only speculate — was it a suicide or an accident? That can lead to reasonable doubt, and an acquittal. When prosecutors do file charges, they want to have their best possible case.
In a sensational disappearance like that of Susan Powell, the pressure on prosecutors to get it right can be especially intense. Last year’s acquittal of Casey Anthony in Florida for the death of her 2-year-old was a reminder that even if a body is found after charges are filed, a cases isn’t necessarily a slam-dunk.
But by no means are such hurdles insurmountable.
Tad DiBiase is a former federal prosecutor in Washington, D.C. He became fascinated with no-body cases after prosecuting — and winning — one. He has tracked down more than 350 such cases that have gone to trial in the U.S., and said that in about 90 percent of them, prosecutors won convictions. That doesn’t include cases in which the defendants wound up pleading guilty before trial.
West Valley City detectives still consider Susan Powell’s disappearance an open case, and they hadn’t yet formally presented it to prosecutors for potential charges.
“Did my office engage in discussions with them? Of course we did,” said Salt Lake County District Attorney Sim Gill. “Prosecutors all the time talk about the relative strengths and weaknesses of a case. But when it’s complete, that’s when it goes through a screening process.”
Gill said it’s not his place to tell detectives when to conclude their investigation, and ongoing speculation about whether his office could have won a murder conviction against Josh Powell “does no good.”
“The West Valley City police officers were working tirelessly,” Gill said.
The search warrant affidavit unsealed late last month summarized much of the evidence that West Valley City police collected — revealing Susan’s blood had been found in the couple’s home, on a tile floor near a couch that Josh Powell had cleaned the night she disappeared. The couch had two fans pointed at it when police searched the home. It isn’t clear how much blood was found.
Josh Powell’s alibi was that he left the house in the middle of that night with the couple’s sons, then 2 and 4, to go camping in the freezing, snowy Utah desert. By the time he returned the next day — Dec. 7, 2009 — Susan had been reported missing because she didn’t show up to work.
Police have indicated they believe Josh Powell’s father, Steve, who has admitted an infatuation with his daughter-in-law, may have some knowledge of what happened to her. But he hasn’t cooperated with authorities.
Whether prosecutors can obtain a conviction in a no-body homicide depends on the strength of the circumstantial evidence, which under the law is given as much weight as direct evidence, such as witness testimony. In this case, DiBiase and others said, the circumstantial evidence was strong.
Several lawyers suggested that even if a defense attorney had tried to explain away the blood on the floor by saying it’s natural that Susan Powell’s blood was found in her house, when combined with the rest of Josh Powell’s bizarre actions that day, it points strongly to his guilt.
“If it’s two days after the killing, do I say, ‘Arrest him?’ No,” DiBiase said. “But two years later? Yeah, arrest him. There comes a point where you have to say, ‘We have to move forward with this.”’
Among the other details in the affidavit:
• When Josh Powell arrived at his house from his purported camping trip, police greeted him and learned that he had his wife’s cellphone in his van, with the digital SIM card removed. He couldn’t explain why he had her phone.
• Asked why he hadn’t been answering his cellphone, Powell said he didn’t have a charger for it and was conserving the battery. A detective could see the phone was sitting on the center console of his car, plugged into the cigarette lighter.
• Asked why he didn’t tell his boss he wouldn’t be coming into work that day — a Monday — Powell said he thought it was Sunday.
• Susan Powell left a letter in a safety deposit box warning that she and Josh had been having marital problems for the past four years, that he had threatened to destroy her if they got divorced, and stating that if anything happened to her, it might not be an accident, even if it looks like one.
• The day after Susan was reported missing, Josh Powell rented a car at the Salt Lake City airport. He returned it two days later, having driven it more than 800 miles.
• Ten days after Susan was reported missing, Josh Powell cleaned out her retirement accounts.
“With all of those pieces of information, there is more than a sufficient basis to charge this case and bring this individual to trial, and quite likely enough to get a conviction,” said Erik Luna, a former prosecutor who taught criminal law at the University of Utah for a decade and is now at Washington and Lee University Law School.
Baker reported from Olympia. Associated Press writer Brian Skoloff contributed to this report from Salt Lake City.