On Friday, the court unsealed the evidence amassed during the investigation into Susan Powell’s disappearance. The information contained in the affidavit was overwhelming, especially for those of us who assumed that the investigators and prosecutors involved with the Utah case knew little more than the public.
For many people the decision not to take Josh Powell into custody for the murder of his wife, Susan, appears to have been a systemic failure. That’s understandable, especially in light of the information now available: Susan Powell’s cell phone inexplicably in her husband’s car; her blood on a couch which he had recently scrubbed; his deceitful answers to the police; his suspicious cell phone records; his rental car, complete with a shovel in the trunk, which racked up 800 miles in the days following her disappearance.
This should be enough to convince anyone of Josh Powell’s guilt, especially in light of his final act of unconscionable malice. Now the point is all but moot.
With the death of Josh Powell many questions are being directed at the West Valley City Police Department and the Chief of Police, Buzz Nielsen. There are, after all, several legitimate questions regarding the decision to hold off on Powell’s arrest, and this police agency was ultimately responsible for that decision. So why not arrest Powell two years ago?
There are a couple of potential reasons. The first relates to the right of the accused to a speedy trial. By forestalling the arrest, investigators were looking to sew up the case as tightly as possible. Their goal would have been to ensure that, once arrested, their charging paperwork would have been sufficient to keep Josh Powell in jail until the trial. It would have been problematic to show up without their “A game,” as it were. If this were the reason, then it falls woefully short in the light of recent events.
The second possiblility is that the West Valley City Police Department was and is laboring under a court system with a higher threshold for proof in capital cases. As Pierce County Prosecutor Mark Lindquist acknowledged, the evidence recently divulged would have been sufficient for his office to file homicide charges on Powell here in Pierce County Superior Court. He also pointed out, however, that Utah’s charging structure may have a different threshold.
Put another way, if justice were a line in the sand, it would probably be crooked.
The threshold for charging people with crimes can vary dramatically. One need not cross a state line to see the difference, either. Simply travel from Pierce to King County and a whole new threshold exists, much of it based on the mundane issue of shrinking budgets. In fact, a felony crime under state law might be charged as a felony in Pierce County, but may be charged as a misdemeanor in King County. Such are the vagaries of criminal justice system.
Let us also not forget that the duly elected District Attorney in Salt Lake County, Utah, would have much authority over a case like this. He would be especially keen on making an arrest in such a high profile case, and the decision to hold off should demonstrate the potential legal limitations.
These are, however, mere assumptions. Until the cops or prosecutors decide to share their reasons we will be left to wonder at how this all might have shaken out. Perhaps Powell’s arrest might have pushed back the clock far enough to keep two young boys safe and sound. Or it might have changed nothing.
We should hope that the answers are forthcoming, but in the end Josh Powell’s crimes were his own.