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New documents raise question: Why weren't charges filed against Josh Powell?

Published: Friday, March 30 2012 9:23 p.m. MDT

Sgt. Mike Powell of the West Valley City Police Department makes a public statement in West Valley City, Friday, March 30, 2012 regarding the ruling made in the state of Washington in reference to the search warrant served at the Steve and Josh Powell residence on August 25, 2011. (Ravell Call, Deseret News) Sgt. Mike Powell of the West Valley City Police Department makes a public statement in West Valley City, Friday, March 30, 2012 regarding the ruling made in the state of Washington in reference to the search warrant served at the Steve and Josh Powell residence on August 25, 2011. (Ravell Call, Deseret News)

WEST VALLEY CITY — Evidence collected by West Valley police more than two years ago was enough to charge Josh Powell, a Washington state prosecutor said Friday.

Susan Cox Powell's sister believes the same thing.

Search warrants unsealed Friday in Tacoma, Wash. — including an affidavit written by West Valley police — provide some of the strongest evidence yet that Josh Powell was responsible for the disappearance and death of his wife.

Much of the evidence revealed in the search warrant came from the first three months of the investigation. Yet no charges were ever filed and 26 months later, Powell killed his children and himself.

Friday, West Valley police still weren't willing to call Josh Powell a suspect in his wife's disappearance and continue to call it a missing persons case after two murders and a suicide.

A family photo of the Powell family. Josh Powell killed himself and his two sons in an inferno in his Washington home last month. Susan Powell has been missing since December of 2009. (, Family photo) A family photo of the Powell family. Josh Powell killed himself and his two sons in an inferno in his Washington home last month. Susan Powell has been missing since December of 2009. (, Family photo)

"Based on the facts we now know, I can say the case against Josh Powell for the murder of Susan Powell is one we would have charged," Pierce County Prosecutor Mark Lindquist said Friday. "There is direct evidence, there is circumstantial evidence, there is motive, there is everything but the body."

Nearly eight pages of the first 18-page warrant — which was written to investigate the crimes of murder, kidnapping and obstruction — listed a slew of details that all points to Josh Powell.

Some of the information had not been previously released: Susan Powell's cellphone was found in Josh Powell's car; Susan Powell's blood was found in her home; a tarp, shovel and gas can were found in Josh Powell's car; and members of Powell's own family accused him of lying within hours of Susan's disappearance.

Pierce County is not the investigative or prosecuting agency in the case of Susan Powell. If charges are filed, the case would be prosecuted in Utah, not Washington.

Josh Powell , the husband of Susan Powell, answers questions outside his Magna home on December 10, 2009.   Susan Powell has been missing since Sunday.  Photo/Laura Seitz (Laura Seitz, Deseret News) Josh Powell , the husband of Susan Powell, answers questions outside his Magna home on December 10, 2009. Susan Powell has been missing since Sunday. Photo/Laura Seitz (Laura Seitz, Deseret News)

West Valley police on Friday would not address questions outside of what was released in the search warrants, including whether there was enough evidence to arrest Josh Powell or whether they believed they needed to find Susan Powell's body before making an arrest.

"Anything specific to our investigation I'm not going to be able to address," West Valley Police Sgt. Mike Powell said. "Anything that might impede our investigation will not be discussed."

Susan Cox Powell's family, however, believes more should have been done. An upset Denise Cox, Susan's sister, wondered Friday from her home in Puyallup, Wash., why the information was kept sealed until now.

“The boys would be alive if they had done something sooner," she said. “I’m wondering why they didn’t do anything two years ago. ... Somebody needs to be held accountable, but I don’t know who."

Thayle Thayle "Buzz" Nielsen, West Valley City Police Chief, makes a public statement in West Valley City, Friday, March 30, 2012 regarding the ruling made in the state of Washington in reference to the search warrant served at the Steve and Josh Powell residence on August 25, 2011. (Ravell Call, Deseret News)

Cox said she was not surprised by the evidence that came out Friday.

“I think that was enough to convict him. I think anyone would have convicted him," she said.

Her father, Chuck Cox, also expressed disappointment that Josh was not arrested, believing police had enough evidence to take Josh into custody "probably within a week I think."

Cox participated with law enforcement in attempts to pressure Josh Powell into cooperating with police. "I told them several times it wasn't going to work," Cox said. "Unless he was in jail facing the charges before the judge, that's when he would have felt the pressure."

Pierce County sheriff's spokesman Ed Troyer said his detectives would have arrested Powell "a long time ago" if this had been their case. He said a detective in Washington state was aware of the details gathered and local authorities had been anticipating that Utah investigators would pursue an arrest.

Sgt. Mike Powell of the West Valley City Police Department talks in the hallway with the press after making a public statement in West Valley City, Friday, March 30, 2012 concerning the Susan Powell case. (Ravell Call, Deseret News) Sgt. Mike Powell of the West Valley City Police Department talks in the hallway with the press after making a public statement in West Valley City, Friday, March 30, 2012 concerning the Susan Powell case. (Ravell Call, Deseret News)

"Obviously, it's frustrating," Troyer said. "We were always waiting for the phone call to go arrest him."

Search warrants served in Utah regarding the Susan Powell case remained sealed Friday. Because of that, Salt Lake County District Attorney Sim Gill could not comment about the case.

“We’re looking to see what that means for us, but right now we can’t comment on what’s alleged in there because they still continue to be sealed under a court order in our jurisdiction," he said. “I don’t know what, if anybody could say they would have caught Josh Powell. The thing that you need is sufficient evidence to prosecute and to gather that evidence as part of an investigation."

But while Utah authorities remained quiet about specifics into their investigation, a Pierce County judge Friday unsealed two search warrants served at the home of Josh and Steven Powell in Puyallup in 2011. Prosecutors did not contest the unsealing and the court hearing lasted less than one minute.

Josh Powell , the husband of Susan Powell, answers questions outside his Magna home on December 10, 2009.    (Laura Seitz, Laura Seitz, Deseret News) Josh Powell , the husband of Susan Powell, answers questions outside his Magna home on December 10, 2009. (Laura Seitz, Laura Seitz, Deseret News)

Although the warrants that were unsealed were in relation to Steven Powell's voyeurism and child pornography charges, it was the information related to Josh Powell and the disappearance of his wife that garnered the most attention.

The original search warrant served in August of 2011 was to retrieve the handwritten diaries of Susan Powell from the home of Josh and Steven Powell.

According to the search warrant affidavit, it took Josh Powell four hours to get home after a panicked neighbor contacted him and told him his wife hadn't shown up for work, even though Josh was in Salt Lake County.

The documents say Josh Powell last used his phone on Sunday, Dec. 6, 2009, at 12:14 p.m. when he called his father, Steven Powell. Josh Powell's next mobile phone activity was not until Monday, Dec. 7, at 3:02 p.m. when a neighbor called and asked him where he was. About 30 minutes later, Josh left a voicemail message on his wife's cellphone asking if she needed a ride home from work.

In this pool photo provided by the Pierce County Sheriff's Dept., a melted gas can is marked with an evidence flag, Monday, Feb. 6, 2012, in the rubble of the home in Graham, Wash., where Josh Powell and his two sons were killed Sunday in what police said appeared to be a deliberately set fire. Powell's wife Susan went mysteriously missing from their West Valley City, Utah, home in December 2009.  (Pierce County Sheriff's Dept., Ed Troyer, Pool, Associated Press) In this pool photo provided by the Pierce County Sheriff's Dept., a melted gas can is marked with an evidence flag, Monday, Feb. 6, 2012, in the rubble of the home in Graham, Wash., where Josh Powell and his two sons were killed Sunday in what police said appeared to be a deliberately set fire. Powell's wife Susan went mysteriously missing from their West Valley City, Utah, home in December 2009. (Pierce County Sheriff's Dept., Ed Troyer, Pool, Associated Press)

But the warrant states Susan Powell's cellphone was in the center console of the vehicle Josh Powell was driving. It was missing the digital SIM card and Josh Powell did not have an answer as to why his wife's cellphone was in the car. The phone had been turned off.

Josh Powell's sister Jennifer Graves called him at 5:27 p.m. that Monday and asked him where he had been. Josh Powell told her he had been at work.

"When Jennifer Graves told Joshua Powell she knew he was lying, Josh Powell then changed his story, telling her that he was camping," the warrant states.

Police made contact with Josh Powell through Graves' cellphone at 5:45 p.m., but Powell didn't arrive at his residence until 6:40 p.m.

When he arrived, police questioned him about why he wasn't answering his cell phone. Powell told the officer he kept his cell phone turned off to preserve the battery and he didn't have a cell charger.

Josh walks around from the back of the moving truck as friends and neighbors of Josh Powell assist him in moving allegedly back to Washington on Saturday.  Saturday, Jan. 9, 2010. Photo by Scott G Winterton Deseret News. (Scott G. Winterton, Deseret News) Josh walks around from the back of the moving truck as friends and neighbors of Josh Powell assist him in moving allegedly back to Washington on Saturday. Saturday, Jan. 9, 2010. Photo by Scott G Winterton Deseret News. (Scott G. Winterton, Deseret News)

But the detective noted in his report that he "clearly saw Joshua Powell's phone sitting on the center consul plugged into a cigarette lighter phone charger," the warrant states.

Police found a generator, tarps, a shovel, a gas can and blankets in the vehicle Powell was driving, according to the warrant. He later told authorities he was testing out a new generator, that he thought it was Sunday and didn't call in to work when he realized it was Monday because he was afraid he would be fired.

Inside the house, police found two fans directed at a sofa. Powell said he had just cleaned it on Dec. 6, 2009.

Police also found blood on a tile floor area near a sofa.

"Forensic tests of this blood indicated it was Susan Powell's," the warrant states.

Susan Powell's purse was found in her bedroom with her credit cards, cash, identification and keys undisturbed.

This pool photo provided by the Pierce Co. Sheriff's Dept. shows the charred remains of the home of Josh Powell, husband of missing Utah woman Susan Powell, Sunday, Feb. 5, 2012 near Frederickson, Wash. Days after a judge ruled against him in a child custody hearing, Powell and his sons were killed when police said he appeared to intentionally blow up the house with all three inside — a tragic ending to a bizarre case that began more than two years ago when the man's wife went mysteriously missing in Utah.  (Ed Troyer, Pierce County Sheriff's Dept., Pool, Associated Press) This pool photo provided by the Pierce Co. Sheriff's Dept. shows the charred remains of the home of Josh Powell, husband of missing Utah woman Susan Powell, Sunday, Feb. 5, 2012 near Frederickson, Wash. Days after a judge ruled against him in a child custody hearing, Powell and his sons were killed when police said he appeared to intentionally blow up the house with all three inside — a tragic ending to a bizarre case that began more than two years ago when the man's wife went mysteriously missing in Utah. (Ed Troyer, Pierce County Sheriff's Dept., Pool, Associated Press)

On Dec. 8, 2009, Josh Powell rented a car at Salt Lake City International Airport after police seized his family's van. When he returned it, it had 800 miles on it. He also purchased a new cellphone that was activated in Tremonton, the warrant states. Police still don't know where Powell took the vehicle to rack up so many miles.

Days later, Josh Powell called the daycare provider for the couple's two children and told her the children were not coming back "and she probably will not ever see them again." He canceled all of Susan Powell's future appointments with her chiropractor and provided a power of attorney to Wells Fargo that allowed him to empty Susan Powell's IRA accounts.

Josh Powell was also the beneficiary of several life insurance policies on his wife totaling $1.5 million, the warrant states.

Sgt. Mike Powell of the West Valley City Police Department makes a public statement in West Valley City, Friday, March 30, 2012 regarding the ruling made in the state of Washington in reference to the search warrant served at the Steve and Josh Powell residence on August 25, 2011. (Ravell Call, Deseret News) Sgt. Mike Powell of the West Valley City Police Department makes a public statement in West Valley City, Friday, March 30, 2012 regarding the ruling made in the state of Washington in reference to the search warrant served at the Steve and Josh Powell residence on August 25, 2011. (Ravell Call, Deseret News)

When Josh Powell was interviewed by police, they said he was not cooperative. He voluntarily surrendered his cell phone, but the SIM card containing vital data was missing, Mike Powell said.

"We believe Josh intentionally removed that SIM card from the cell phone," he said Friday.

Other information revealed in the warrant:

• The last phone call made or received from Susan Powell's cellphone was at 2:29 p.m. on Sunday, Dec. 6, 2009, when she called a friend. She was last seen at 5 p.m. by a friend whom she told that she was going to bed because she felt tired after eating a meal prepared by Josh.

• One month after Susan went missing, the couple's oldest son, 4-year-old Charlie Powell, told a primary teacher "my mom is dead." Charlie also told an investigator that his mom went camping with them, but didn't come home. He did not know why.

Josh Powell, center, the husband of missing Utah woman Susan Powell, leaves a courtroom, Wednesday, Sept. 28, 2011, in Tacoma, Wash., after a judge awarded temporary custody of Powell's two sons to Susan's parents, Chuck Cox and his wife Judy.  (Ted S. Warren, Associated Press) Josh Powell, center, the husband of missing Utah woman Susan Powell, leaves a courtroom, Wednesday, Sept. 28, 2011, in Tacoma, Wash., after a judge awarded temporary custody of Powell's two sons to Susan's parents, Chuck Cox and his wife Judy. (Ted S. Warren, Associated Press)

• Police found a safe deposit box containing a letter Susan Powell had written to her family dated January 2008 that said she did not trust her husband and that "if (she) die(s) it may not be an accident, even if it looks like one." The letter, which Susan had written she did not want Josh Powell to see, was titled: "Last Will and Testament for Susan Powell," according to police.

She asks in the letter that if something were to happen to her, Graves should be contacted.

"Susan did not trust Josh at all," Mike Powell said.

Graves on Friday said Susan had been talking about divorcing Josh Powell in 2008.

“She wanted to make sure that I had some stuff in case anything ever happened to her, I'd have something to go on," she said.

As for the new information released Friday, “I'm kind of past the point of being shocked about anything, it was just another layer,” Graves said.

Ken Landgrebe lights a candle next to photographs of Susan Cox Powell and her sons Braden and Charlie, during a candlelight vigil at McKinley Park in Tacoma, Wash., Monday, Feb. 6, 2012, the day after Braden and Charlie Powell were killed along with their father, Josh Powell, when police said Josh Powell set fire to the house they were in on Sunday. Susan Powell went mysteriously missing from their West Valley City, Utah, home in December 2009.  (Ted S. Warren, Associated Press) Ken Landgrebe lights a candle next to photographs of Susan Cox Powell and her sons Braden and Charlie, during a candlelight vigil at McKinley Park in Tacoma, Wash., Monday, Feb. 6, 2012, the day after Braden and Charlie Powell were killed along with their father, Josh Powell, when police said Josh Powell set fire to the house they were in on Sunday. Susan Powell went mysteriously missing from their West Valley City, Utah, home in December 2009. (Ted S. Warren, Associated Press)

Yet, she admitted the new information was "another blow. There were details that I hadn't heard about."

The blood found on the tile, however, was one of those details Graves had not known.

"I think it's pretty clear in everybody's mind that Josh has done this and he's now killed himself and his children. I don't think he would have done that without making sure she's finished off, too," she said.

"Obviously all along it was enough for me. It was enough for me because I knew he was guilty all along," Graves said. "But does that mean it would have been enough for a jury to convict him? I don’t know."

The warrant also outlined the contempt Susan Powell had for her father-in-law, Steven Powell.

"Susan states how she does not want Steven Powell involved in her life, her children's life and how she wishes Joshua Powell would eliminate Steven Powell from his life," the warrant states.

In this pool photo provided by the Pierce County Sheriff's Dept., an investigator walks through the garage area, Monday, Feb. 6, 2012, in the rubble of the home in Graham, Wash., where Josh Powell and his two sons were killed Sunday in what police said appeared to be a deliberately set fire. Powell's wife Susan went mysteriously missing from their West Valley City, Utah, home in December 2009.  (Pierce County Sheriff's Dept., Ed Troyer, Pool, Associated Press) In this pool photo provided by the Pierce County Sheriff's Dept., an investigator walks through the garage area, Monday, Feb. 6, 2012, in the rubble of the home in Graham, Wash., where Josh Powell and his two sons were killed Sunday in what police said appeared to be a deliberately set fire. Powell's wife Susan went mysteriously missing from their West Valley City, Utah, home in December 2009. (Pierce County Sheriff's Dept., Ed Troyer, Pool, Associated Press)

West Valley Police Chief Thayne "Buzz" Nielsen gave a press statement to the media Friday afternoon before leaving the room without taking questions. While he said he recognized there was great public interest in the case, he described the Susan Powell case as still "active" and one that needs to remain confidential in some areas.

Defense attorney Greg Skordas, a former prosecutor, believes West Valley police were very close to filing charges.

"I'm sure they were very, very close," he said. "Why they didn't cross that threshold, we don't know. ... Perhaps they were even at a point they could have charged."

Skordas said he's sure West Valley police and the DA's office wanted a solid case and the lack of a body delayed any charges.

Sgt. Mike Powell of the West Valley City Police Department talks in the hallway with the press after making a public statement in West Valley City, Friday, March 30, 2012 concerning the Susan Powell case. (Ravell Call, Deseret News) Sgt. Mike Powell of the West Valley City Police Department talks in the hallway with the press after making a public statement in West Valley City, Friday, March 30, 2012 concerning the Susan Powell case. (Ravell Call, Deseret News)

But he doesn't fault the police for taking their time. Skordas said no one could have ever predicted that Powell would have killed himself and his two children the way he did. And as a defense attorney, he believes there is still a good argument that the case was purely circumstantial.

The two search warrants were served on the Puyallup home of Steven Powell and his son, Josh Powell, in August of 2011, and a subsequent search on Sept. 17, 2011.

Steven Powell's defense attorneys say the evidence collected from the Powell house should be thrown out because the search was unconstitutional, calling the effort by police nothing more than a "random fishing expedition style search."

Mike Powell denied those claims Friday, saying the search was done legally.

A hearing on the motion to toss out the evidence is scheduled for April 23. Steven Powell's trial is scheduled to begin May 7.

This undated photo provided by Chuck and Judy Cox shows Braden Powell. Braden and his brother Charlie were killed along with their father, Josh Powell, on Sunday in what police said was an intentional fire set by Powell. Chuck Cox is the father of Powell's wife, Susan, who has been missing since 2009.  (Courtesy Chuck and Judy Cox, Associated Press) This undated photo provided by Chuck and Judy Cox shows Braden Powell. Braden and his brother Charlie were killed along with their father, Josh Powell, on Sunday in what police said was an intentional fire set by Powell. Chuck Cox is the father of Powell's wife, Susan, who has been missing since 2009. (Courtesy Chuck and Judy Cox, Associated Press)

Powell, 61, has been in jail since September when he was charged with 14 counts of voyeurism and one count of possession of materials of minors engaged in explicit conduct. He is accused of taking pictures of two neighbor girls, then ages 8 and 10, through an open window into their bathroom without their knowledge in 2006 and 2007.

Graves said she believes her father knows what happened to Susan. "Whether he helped to plan it or was just told after the fact I have no idea, but I’m certain he knows now."

Contributing: Emiley Morgan, Ben Wood, Associated Press

E-mail: preavy@desnews.com

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