Blue Byline

A cop's perspective of the news and South Sound matters

Allowing Josh Powell to remain free a failure of the system?

Post by Brian O'Neill on April 3, 2012 at 3:53 pm with 3 Comments »
April 3, 2012 10:27 pm

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.

West Valley Police Chief Thayle "Buzz" Neilsen/ courtesy

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.

Leave a comment Comments → 3
  1. BlaineCGarver says:

    I wonder what is accomplished by all this playing of “Who Shot John”?

  2. cclngthr says:

    A lot of people prefer to jail a criminal with some evidence, but that evidence may be overturned upon pretrial hearings. What is allowed at trial might not be what be what is known (admissible at trial).

    It might be easy to say if a criminal has a history of such crimes and all of this would be admissible in court. Defense attorneys will attempt to block certain evidence at trial and argue the innocence of that person.

    What you, Brian overlooked is the issue of appeal. If a person is charged with a crime, and convicted on some evidence, if that person appeals the conviction and arrest, that appeal can overturn everything if things are not done properly. I think Utah was trying to have an airtight case, and if appealed, the case would be upheld in the higher court.

  3. Brian O'Neill says:

    Thanks for your comment, cc, but in my experience prosecutors are not overly worried about appeals when they consider making initial charges. The more important concern for them is the amount of evidence available upon arrest, so that they can prepare the charges within 72 hours. If they get a conviction then that is all they can really control. Overturning a conviction usually relates more to the trial process and the procedures followed by the attorneys involved than anything else.

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