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WEST VALLEY CITY — Finding the body of Susan Powell was key to any decision to file charges in the case, former district attorney Lohra Miller said Monday.
Miller, who was the Salt Lake County DA for about a year after Susan Powell disappeared, said her office worked with West Valley police but never formally considered filing criminal charges against Josh Powell, the woman's husband.
"It never did get to a point we felt like we could file charges," she said. "The difficulty comes where you are trying a case without a body. You have to have either a substantial period of time where the person is missing where you can assume she's dead and prove behind a reasonable doubt she's dead to a jury, or some pretty overwhelming evidence as to the fact that she's dead and the person did it.
"They're very, very hard cases to prove."
She told the Deseret News that she had a prosecutor in her office work "hand-in-hand" with West Valley police. She said at least two of her prosecutors had met at different times with West Valley police to discuss their investigation. But her office never sat down with police to formally screen the case for criminal charges.
When you're trying a murder case without a body, it's like trying a case with one hand tied behind your back. It can be done. You just have to have a really strong case.
–Lohra Miller, attorney
That's led to widespread criticism of those involved in the case since search warrants were unsealed Friday that outlined new details about what police knew within the first three months of the disappearance of Susan Powell.
What went wrong, and what specific evidence was missing? Why did two years pass with no arrest and end in the deaths of the Powell children?
Miller said every murder has two scenes: the crime scene where the murder occurred and the place where the body is discovered.
"It's critical to be able to tie the two together to be able to prove your case. When you're trying a murder case without a body, it's like trying a case with one hand tied behind your back. It can be done. You just really have to have a strong case," she said.
"Eventually charges could have been filed without a body. It's one of those things that takes time and it just wasn't there."
Others, including some family members, now disagree and cite evidence, including: Susan's blood was found on the floor next to a couch in her home; a couch that had recently been cleaned and had fans blowing on it to dry it; Susan's cellphone in Josh's car with the SIM card missing; a tarp, gas can, shovel and blanket in Josh's car; Josh's son telling others that he went camping with his mother and father but his mother didn't come home; Josh Powell emptying his wife's IRA account shortly after she disappeared; 800 unaccounted miles put on a rental car by Josh Powell in two days.
The warrant also referred to: lies that Josh Powell was caught telling to police and to his sister; information about marital and financial problems the couple was experiencing; notes and letters from Susan indicating a fear of Josh Powell, even indicating that if she died, her death may not be an accident; and a witness who said Josh liked to camp in the western desert area, which is full of mine shafts and "tunnels that are very unstable so you could dispose of someone and no one would ever search for the body."
West Valley Police Chief Thayle "Buzz" Nielsen defended his department's handling of the case: "If we could have arrested him we would have," he said Monday, before attending an unrelated community forum in Salt Lake City.
He said he would not have done anything differently in the case and put the blame squarely on Josh Powell. Could the children's deaths have been prevented?
"I don't think so," the chief said. "I think Josh had it planned out."
Pierce County, Wash., prosecutor Mark Lindquist said he was aware of enough evidence that he would have filed charges against Josh Powell if it had been up to his office. A spokesman for the Pierce County Sheriff's Office said his detectives would have arrested Powell long ago if it had been their case.
Miller called Lindquist's comments "completely inappropriate."
"You can't sit back and armchair quarterback after the fact," she said. "It's difficult for me to sit and watch (West Valley police) being criticized in the press for not revealing this evidence to the family. You just can't do that, when you're investigating a case, you have to keep that evidence secure. I feel they have been unfairly criticized for not releasing information to the family."
Miller said the only person to blame for the deaths of Charlie and Braden Powell is Josh Powell, not the West Valley Police Department.
Both the family of Susan Powell, including her parents, Chuck and Judy Cox, and Pierce County sheriff's officials have said they had expected at several points West Valley police were ready to arrest Powell.
The Coxes appeared on NBC's "Today" show Monday and said they believe West Valley police shoulder some responsibility for the deaths of their two grandchildren by not arresting the boys' father before he murdered them and killed himself.
"They had their plan, or as their tips came in and they started working the case, and now seeing some of the evidence that was given right in the beginning, surprises me that they didn't arrest him or talk with him," Judy Cox said.
Chuck Cox said the evidence they'd gathered should have been enough for police to at least bring Josh Powell in for questioning. "I certainly think there was enough evidence at least to arrest him and get some serious discussion out of him. Because he was never actually taken in and interrogated, even if they had to release him, they would have gotten something out of him."
Miller was in office about a year after Susan Powell went missing before she was defeated in the 2010 election by Sim Gill. After Gill took office, he said he also worked closely with the police department. Gill said he spoke again Monday with West Valley Police Chief Thayne "Buzz" Nielsen.
There comes a point where you have to say, 'We have the evidence that we have and we have to go forward and take a shot.' The downside, if you get an acquittal you can't bring the case back and try it again if you find a body.
"It's still an open investigation. As long as it's an open investigation, we're not going to speculate or second-guess," he said.
Gill said he talked to Nielsen Monday about several items that he did not disclose, including the Powell case.
"He assured me that there are issues they are pursuing and it continues to be an open investigation. I respect that. My office is not going to speculate or second-guess any decision," he said.
The DA said his office is available to assist in legal matters that the police department may have in its investigation, such as obtaining search warrants.
A former federal prosecutor who today advises police departments on how to investigate cases where there is no body, Tad Dibiase, said Monday he believes West Valley City had a "very makeable" and "very prosecutable case."
Dibiase said of the 360 cases nationwide that went to trial with no body, there has been a 90 percent conviction rate.
"There comes a point where you have to say, 'We have the evidence that we have and we have to go forward and take a shot.' The downside, if you get an acquittal you can't bring the case back and try it again if you find a body."
But retired Salt Lake Country prosecutor Kent Morgan said he did not believe — based on media reports — that there has been any direct evidence presented in the case yet.
"So far as I can tell, there is no body, there is still no eyewitness, there is still no confession, and that pretty much exhausts all the direct evidence I know of," said Morgan, who was not involved in the Powell case.
Even if there was enough evidence to file charges, Morgan said his job as a prosecutor would be to make sure there's enough evidence for a conviction. He, too, was concerned about Pierce County second-guessing what an agency in Utah was doing.
In 2004, Mark Hacking was arrested for the high-profile murder of his wife, Lori Hacking. At the time of his arrest, his wife's body had not been found. Prosecutors said they were ready to proceed with charges and a trial even without a body. A lot of physical evidence was collected in that case, in addition to a reported confession he gave to a witness. Hacking was arrested after police discovered there were many lies he had been telling his family for years and he had been living a double life.
In 1995, 15-year-old high school student Kiplyn Davis disappeared in Spanish Fork. Her body has never been found. Timmy Brent Olsen pleaded guilty to manslaughter in connection with her death last year.
Another high-profile case nationally involved Casey Anthony, who was indicted on a charge of first-degree murder by a federal grand jury in connection with the death of her 3-year-old daughter. It wasn't until two months later that the remains of Caylee Anthony were found. A jury acquitted Anthony of murder, but found her guilty of providing false information to law enforcers.
West Valley officials continued to back Nielsen and the police department Monday. Neither assistant city manager Paul Issac nor City Councilman Tom Huynh said they had any plans to call for an independent investigation of their department's handling of the case. Huynh said the council may talk about it with the chief, but he supports the job the chief is doing and does not believe there is blame to be placed.
On the Friends and Family of Susan Powell Facebook page, Kiirsi Hellewell, who was Susan's best friend, said she agreed with the comments of West Valley Mayor Mike Winder that no one cared more about the investigation than Nielsen and his investigators and they have put many long hours into trying to solve the case.
There is not a state agency in Utah that oversees another law enforcement agency.
After kidnapping victim Elizabeth Smart was found in 2003, then-Salt Lake Mayor Rocky Anderson called for an independent review of how Salt Lake police handled the investigation.