Lack of body made it difficult to file charges in Powell case, ex-DA says

Published: Monday, April 2 2012 7:30 p.m. MDT

Pierce County, Wash., prosecutor Mark Lindquist said he was aware of enough evidence that he would have filed charges against Josh Powell if it had been up to his office. A spokesman for the Pierce County Sheriff's Office said his detectives would have arrested Powell long ago if it had been their case.

Miller called Lindquist's comments "completely inappropriate."

"You can't sit back and armchair quarterback after the fact," she said. "It's difficult for me to sit and watch (West Valley police) being criticized in the press for not revealing this evidence to the family. You just can't do that, when you're investigating a case, you have to keep that evidence secure. I feel they have been unfairly criticized for not releasing information to the family."

Miller said the only person to blame for the deaths of Charlie and Braden Powell is Josh Powell, not the West Valley Police Department.

Both the family of Susan Powell, including her parents, Chuck and Judy Cox, and Pierce County sheriff's officials have said they had expected at several points West Valley police were ready to arrest Powell.

The Coxes appeared on NBC's "Today" show Monday and said they believe West Valley police shoulder some responsibility for the deaths of their two grandchildren by not arresting the boys' father before he murdered them and killed himself.

"They had their plan, or as their tips came in and they started working the case, and now seeing some of the evidence that was given right in the beginning, surprises me that they didn't arrest him or talk with him," Judy Cox said.

Chuck Cox said the evidence they'd gathered should have been enough for police to at least bring Josh Powell in for questioning. "I certainly think there was enough evidence at least to arrest him and get some serious discussion out of him. Because he was never actually taken in and interrogated, even if they had to release him, they would have gotten something out of him."

Miller was in office about a year after Susan Powell went missing before she was defeated in the 2010 election by Sim Gill. After Gill took office, he said he also worked closely with the police department. Gill said he spoke again Monday with West Valley Police Chief Thayne "Buzz" Nielsen.

"It's still an open investigation. As long as it's an open investigation, we're not going to speculate or second-guess," he said.

Gill said he talked to Nielsen Monday about several items that he did not disclose, including the Powell case.

"He assured me that there are issues they are pursuing and it continues to be an open investigation. I respect that. My office is not going to speculate or second-guess any decision," he said.

The DA said his office is available to assist in legal matters that the police department may have in its investigation, such as obtaining search warrants.

A former federal prosecutor who today advises police departments on how to investigate cases where there is no body, Tad Dibiase, said Monday he believes West Valley City had a "very makeable" and "very prosecutable case."

Dibiase said of the 360 cases nationwide that went to trial with no body, there has been a 90 percent conviction rate.

"There comes a point where you have to say, 'We have the evidence that we have and we have to go forward and take a shot.' The downside, if you get an acquittal you can't bring the case back and try it again if you find a body."

But retired Salt Lake Country prosecutor Kent Morgan said he did not believe — based on media reports — that there has been any direct evidence presented in the case yet.

"So far as I can tell, there is no body, there is still no eyewitness, there is still no confession, and that pretty much exhausts all the direct evidence I know of," said Morgan, who was not involved in the Powell case.

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