Circumstantial evidence key in Steven Powell trial, former judge says

Published: Sunday, May 13 2012 3:00 p.m. MDT

Live stream: Steven Powell voyeurism trial in Tacoma

TACOMA, Wash. — The opening two days of the Steven Powell trial proved to be quite eventful.

One of the charges against him was dismissed, any significant talk of Susan Powell was banned from the courtroom, and Susan's family felt extremely frustrated.

But based on the evidence that was presented in court during the trial's third day, at least one legal expert believes prosecutors are well on their way to getting a conviction.

"I think the facts are pretty heavily stacked in favor of the prosecution," University of Utah law professor and former federal judge Paul Cassell said. "It's a very tough case for the defense."

Cassell said the pictures of the young girls combined with what he called "overwhelming circumstantial evidence" should result in a conviction of Powell.

After a four-day recess, Powell's trial resumes Monday morning. He faces 14 counts of voyeurism for allegedly taking photographs from his home of two neighbor girls, then ages 8 and 10, while they were in their own bathroom.

Witnesses from Utah are expected to be called by the state to the stand Monday. Although prosecutors had listed nearly two dozen people as potential witnesses, they likely will call only a few people to testify — including one or two West Valley police officers and Jennifer Graves, Powell's estranged daughter.

The defense strategy so far has been to raise doubt about who actually took the pictures of the young girls. No one actually saw Powell take the photographs. And no one has been able to say definitively that the images on the disc found in Powell's bedroom belonged to him.

"The prosecution certainly bears the burden of proving Steven Powell committed those acts. But that proof can be done circumstantially," Cassell said. "You don't need a fingerprint on the camera."

He said circumstantial cases are common in criminal matters and prosecutors have been very successful in getting convictions.

"Powell has essentially admitted that he's a voyeur and it's clear someone was taking pictures of his next door neighbors. It shouldn't be too tough for the prosecution to put one and one together," Cassell said.

Should the defense choose not to call any witnesses to the stand — something attorneys have hinted might happen — Cassell doesn't believe it would affect the defense's case because of the heavy burden of proof the prosecution carries.

"Page one in the defense attorney's playbook is to make the prosecution bear the burden of proof. It's a common defense tactic to poke holes in government's case," Cassell said.

However, in this case, Cassell believes the evidence is simply too overwhelming whether the defense calls a witness or not.

During the first week of the trial, the single count of possession of child pornography against Powell was dismissed. Pierce County Superior Court Judge Ronald Culpepper ruled that the child porn statute in Washington did not apply in this case because Powell did nothing to influence what the young girls were doing. Their actions — taking baths, washing their hair, etc. — were independent of Powell's alleged photographing.

Culpepper also ruled that any talk of Powell's obsession with his daughter-in-law or pictures of Susan Powell — which were found in Steven Powell's home — were not relevant to the charges and could prejudice the jury because of the high-profile nature surrounding her disappearance and the actions of her husband, who killed himself and their two young boys.

That ruling included passages from Steven Powell's journals in which he talked about his obsession with Susan. Culpepper said while the passages were "strange" and "disturbing," they were not relevant to the current case.

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