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TACOMA, Wash. — Steven Powell had a small victory on the first day of his trial Monday.
Pierce County Superior Court Judge Ronald Culpepper dismissed a charge of possession of child pornography against Powell. He still, however, faces 14 counts of voyeurism.
The alleged victims in the case are two little girls, former neighbors of Steven Powell, who were recorded with digital cameras through an open bathroom window while they were taking baths.
In making his decision, Culpepper noted that prosecutors could not show that Powell directed the girls to pose provocatively or in an explicit nature and said the evidence did not fit the charge. The girls, ages 10 and 8, were innocently getting into a bathtub and were allegedly photographed without their knowledge, Culpepper noted.
Opening statements in the trial are likely to begin on Wednesday, assuming a jury is selected by then.
Culpepper is expected to decide Tuesday whether prosecutors can use portions of Powell's diaries as evidence during the trial. They want to introduce eight passages from Steven Powell's diaries — which were seized last year from his Puyallup, Wash., home — as evidence. The dates of the journals range from 2003 to 2010.
"The vast majority of the writing is sexually graphic and obsessing over Susan Powell," deputy Pierce County attorney Bryce Nelson said, referring to Powell's Utah daughter-in-law who has been missing since 2009.
Prosecutors read samples of the diaries Monday, saying Steven Powell allegedly wrote: "Susan likes to be admired and I'm a voyeur," "I'm a voyeur and Susan is an exhibitionist," and "I've been going nuts and nearly out of control sexually my entire life."
Prosecutors also noted that in 2004, Powell wrote in his diary that he "likes taking video shots of pretty girls in shorts and skirts, beautiful women of every age."
In the diaries, Powell talked about stalking his daughter-in-law, taking secret videos of her — including some from underneath a bathroom door — and secretly watching Susan from a hallway.
Prosecutors argued that in order for the jury to fully understand how deep Powell was into voyeurism and how obsessed he was with pornography, they want to present portions of those diaries to jurors and introduce other pictures found on discs seized from Powell's home.
Late Monday afternoon, the judge noted that from an initial glance of the diaries, they seem to prove Steven Powell had an obsession with Susan Powell rather than proving any pattern of voyeurism. He said he'd make a final decision about prosecutors using the journals as evidence on Tuesday.
Powell's defense team argued that the diaries are not only irrelevant to his current charges, but the mere mention of Susan Powell would prejudice a jury because of her high-profile disappearance.
Defense attorney Travis Currie wants the court to remember that his client's trial is not about Susan Powell, or about her husband Josh Powell, who is suspected of killing her before he killed himself and their two young sons in February.
Prosecutors noted that police seized thousands of digital images from Powell's home, many of Susan Powell, some adult porn, and many of clothed women who don't appear to know that their photos were being taken. They want some of those images admitted in court to show a pattern beyond the photos of the two alleged victims in Powell's current case.
As early as May 11, 2010, police found "multiple images of Susan (that) were located in a locked cabinet in the defendant's bedroom," according to prosecution memorandum filed in court. Some of the images were taken "through a slightly opened door without her knowledge." Prosecutors say Steven Powell told investigators that some were taken from his son Josh Powell's computer without his knowledge.
Another recording discovered was of Steven Powell gratifying himself while looking at pictures of Susan he had set up on a television screen. Police later recovered numerous files with subcategories that contained pictures of Susan Powell, including one that contained photos focused on her buttocks and another with pictures of her breast feeding.
From a search warrant served in August, police discovered hundreds of videos Powell allegedly recorded of other women and girls. Prosecutors say the files were organized by descriptions of the women, dates and locations.
Other categories of digital files included women from Albertson's, close-ups of women putting groceries in their cars and others titled, "DMV girl," "Tacoma Mall," "gum-chewing cutie," "JWs or Mormons" and "young teen volleyball player."
The files concerning his current case were labeled, "neighbors" and "taking bath-1," "taking bath-2," and "open window in back house," according to court documents. Prosecutors say there were more than 2,000 images of the young girls.
Prosecutor Grant Blinn argued the hundreds of images show that Powell knowingly possessed and created these pictures for his own sexual gratification.
"Repeated admissions by the defendant that he is a voyeur and is sexually aroused or gratified by viewing such images are directly relevant to the issue, and extremely compelling direct evidence that the defendant committed the crimes charged in order to obtain sexual gratification," Blinn wrote in the memorandum arguing that the diaries and photos should be admitted as evidence.
Some of the materials prosecutors want to use in the trial include 35 pages of West Valley police reports outlining the many other discs with pornographic material found during the search of Powell's house.
The defense, however, is objecting to additional pictures being presented or even discussed, saying the 20 pictures the prosecution wants to introduce will prejudice the jury.
"These are not well representative of the vast majority of photos that are on the disc," Currie said, adding that the majority of pictures on the discs are clean photos of family members and self-portraits.
Powell, dressed in a gray suit with a violet tie, sat with his hands clasped tightly during most of the discussion Monday and appeared at times to be slightly shaking.
While the majority of the day was spent selecting a jury and arguing pretrial motions, it was discussion about Powell's own diaries that generated the strongest reactions from the family of Susan Powell.
"It was really surprising to me the extent of his infatuation with my daughter," Chuck Cox said of Steven Powell during a recess Monday. "Clearly he had no idea that (anybody) was ever going to read those journals."
Susan Powell's family — including her father, mother and sister, Denise Cox — were shocked to hear about some of the graphic content of the diaries. Chuck Cox said it makes him wonder even more what role Steven Powell played in Susan's disappearance.
Denise Cox was also upset that Powell seemed to show little expression or remorse as attorneys talked about his diaries.
"Just like it was a normal, average day, like nothing was affecting him. He doesn't understand how much turmoil and how much grief their family has put our family through," Denise Cox said. "He has no remorse in the course for anything he's done. And hearing all that, all the pictures, the images and the journal entries … they should all be admitted because she's one of the victims in this case, and therefore the journal entries he wrote on her should be admitted. It shows how sick he is."
Seventy potential jurors were asked to fill out questionnaires Monday. From them, the court hopes to select a jury of 12.
Five prospective jurors were dismissed immediately when they said they had already developed strong opinions about the case and would have a very hard time being impartial.
One woman, who said her husband was a corrections officer, told Culpepper, "I probably can honestly and truly say I'm biased."
Another dismissed jury candidate told the judge, "I've already formed an opinion" based on media reports. A third said she has close friends who were neighbors of Chuck and Judy Cox and had also formed an opinion.
The remaining 65 prospective jurors were asked to fill out a 36-question form. Some of the questions asked if the prospective juror had heard about the Steven Powell case while another asked about opinions or attitudes regarding sexual assault or sexual misconduct.
When Culpepper asked the room of prospective jurors who had heard at least something about the Powell case, everyone raised their hands.
He told the remaining potential jurors to avoid all media reports about the case and not to talk to any of their friends or family members about it — even avoiding posting comments about it on their Facebook pages. Culpepper said attorneys were looking for jurors who could base their decisions only on the facts presented to them in court.
When asked outside the courtroom whether she believed Steven Powell could get a fair trial, Denise Cox replied, "I really don't care. My nephews are gone. My sister is gone. That whole family has taken my family away from me, and I really don't care what happens, I want him to stay behind bars for the rest of his life."
"I think he can get a fair trial," Chuck Cox said. "I just don't think he has any defense."
Opening arguments in the trial will likely be presented Wednesday. Culpepper said he had a scheduling conflict on Thursday and Friday and the case would probably be in recess during those days. The mother of the young girls is expected to take the witness stand Wednesday. The state said it anticipated calling its Utah witnesses to the stand on Monday and rest its case by the end of that day.
The defense has two potential witnesses on its list, both private investigators from the defense's office. But on Monday, defense attorneys hinted that they may not call any witnesses to the stand.
Alina Powell, Steven's daughter, was also present for Monday's hearing. She appeared to come by herself and sat in the back of the courtroom taking notes.