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Circumstantial evidence key in Steven Powell trial, former judge says

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

Steven Powell, in court for the his trial on voyeurism charges in the Pierce County Superior Court, in Tacoma, Wash., Tuesday, May 8, 2012 (, Rick Egan) Steven Powell, in court for the his trial on voyeurism charges in the Pierce County Superior Court, in Tacoma, Wash., Tuesday, May 8, 2012 (, Rick Egan)

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.

Steven Powell, in court for the his trial on voyeurism charges in the Pierce County Superior Court house, in Tacoma, Wash.,   Tuesday, May 8, 2012. (Rick Egan, ) Steven Powell, in court for the his trial on voyeurism charges in the Pierce County Superior Court house, in Tacoma, Wash., Tuesday, May 8, 2012. (Rick Egan, )

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."

A small memorial is all that is left Thursday, May 10, 2012, at the site of the Graham, Wash., home where Josh Powell killed himself and his two sons Charlie and Braden by setting an inferno. (Pat Reavy, Deseret News) A small memorial is all that is left Thursday, May 10, 2012, at the site of the Graham, Wash., home where Josh Powell killed himself and his two sons Charlie and Braden by setting an inferno. (Pat Reavy, Deseret News)

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.

A small memorial is all that is left Thursday, May 10, 2012, at the site of the Graham, Wash., home where Josh Powell killed himself and his two sons Charlie and Braden by setting an inferno. (Pat Reavy, Deseret News) A small memorial is all that is left Thursday, May 10, 2012, at the site of the Graham, Wash., home where Josh Powell killed himself and his two sons Charlie and Braden by setting an inferno. (Pat Reavy, Deseret News)

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.

A small memorial is all that is left Thursday, May 10, 2012, at the site of the Graham, Wash., home where Josh Powell killed himself and his two sons Charlie and Braden by setting an inferno. (Pat Reavy, Deseret News) A small memorial is all that is left Thursday, May 10, 2012, at the site of the Graham, Wash., home where Josh Powell killed himself and his two sons Charlie and Braden by setting an inferno. (Pat Reavy, Deseret News)

Cassell believes it was a good move for the defense to get Susan Powell's name out of the trial.

"I think it would divert (the jury's) attention to what they're supposed to be focusing on here," he said.

The judge, however, said he would allow prosecutors to present one diary passage from 2004 when Steven Powell wrote that he "likes taking video shots of pretty girls in shorts and skirts, beautiful women of every age."

The judge also allowed a Pierce County sheriff's detective to describe a few of the thousands of other photos that were found on a disc in Powell's bedroom. The disc included numerous sub-folders that contained pictures of young women and girls apparently taken throughout the Seattle and Tacoma region without their knowledge.

Many of the pictures appear to be taken from inside Powell's house looking out into the street or even into the bedrooms of neighbors. Several pictures displayed to the court during pretrial motions showed a series of photos looking into what appears to be a teen girl's bedroom window. The pictures include shots of the girl changing her clothes and some partial nudity.

Despite the information revealed in court last week that numerous young women and girls in Powell's neighborhood had been secretly photographed, many neighbors declined to speak to the Deseret News. Some claimed they did not have an opinion of what was shown in court, including the man who now lives in the house where the young girls were allegedly photographed.

But Stacey, who did not want her last name printed, said she believes the neighbors were reluctant to talk for a specific reason.

"I think they're all wanting to see justice served at this time," she said. "His son didn't pay for his issues. The father should at least pay for his."

Stacey, who has a 10-year-old daughter, said her house can be seen from Powell's bedroom window. Police came to her house one day while they were trying to identify victims and asked her to look at several photos. She said her daughter was not in the photographs she was shown.

Some neighbors still hang purple ribbons on their doors, Stacey said, which has become a symbol for remembering Susan Powell.

Likewise, residents who live near the Graham, Wash., property where Josh Powell murdered his two sons and committed suicide by setting his house on fire, have not been receptive to the media visiting their neighborhood.

At the site where Powell's house once stood, the rubble from the burned-down structure has been removed. A long piece of yellow crime tape is still tangled in a nearby tree. Several signs saying "Private Property, no trespassing" have been posted on the site.

Two crosses, left near the back of the property, still remain bearing the names of Charlie and Braden Powell.

Trial resumes Monday

Follow @DNewsCrimeTeam for Twitter updates throughout the trial. Live streaming video and audio of the trial will also be available at www.deseretnews.com.

E-mail: preavy@desnews.com Twitter: DNewsCrimeTeam

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