WEST VALLEY CITY — West Valley City detectives faced a difficult decision the day after Susan Cox Powell disappeared: should they arrest her husband, Josh Powell or allow him to walk?
Josh Powell had showed fear, boredom and confusion during his first interviews with police.
"I actually did call my attorneys and they said I should definitely have an attorney," Powell says in one of the recordings obtained exclusively by KSL.
"Do you feel like you're under arrest?" a detective asks.
"I don't know," Powell says between sobs. "I didn't even think it was that, it didn't even sink in yesterday but I don't know where she's at and she ain't back yet."
Ultimately, Powell left the West Valley City Police Department headquarters a free man on Dec. 8, 2009, following that marathon interview. It had very nearly concluded with his arrest.
"I think the reason in Josh Powell's case we think a murder took place is because he accomplished two further murders of his children," former Salt Lake County prosecutor Kent Morgan said. "If he did that, what's the explanation and where did Mrs. Powell go?"
Detectives still do not know where Susan Cox Powell went. She was last seen Dec. 6, 2009. Her mother reported her missing the following day after she failed to show up for work.
Josh Powell and the couple's sons, Charlie and Braden, were also not at home when officers arrived at the family home Dec. 7 to investigate. He arrived later that afternoon, expressing muted surprise at learning Susan was missing. He told police he had taken the boys out at 1 or 2 a.m. that morning to cook s'mores and test a generator along the Pony Express trail in Utah's west desert.
The detectives were immediately skeptical. Publicly, he wasn't a suspect, but police unofficially suspected his involvement. Still, they lacked key physical evidence that could tie him to his wife's mysterious disappearance. Chief among that evidence was Susan's body, or even an indication that she had been physically harmed. Leads poured in, none of them particularly fruitful.
In May, police announced an end to the active phase of their investigation. After three and a half years, the case officially went cold. They also released thousands of pages of documents detailing their efforts to find Susan, including transcripts of interviews with Josh Powell that took place on Dec. 7 and Dec. 8, 2009.
The video and audio recordings of those interviews, obtained exclusively by KSL through an open records request this week, reveal detectives were frustrated by Josh's unwillingness to provide specifics.
In the Dec. 7 interview, the detective chided Josh for speaking without saying anything useful.
"You're kind of being helpful but you're not being helpful," the detective said. Josh was unable or unwilling to provide the detective with names of his wife's close personal friends. "I've been married and I can tell you who my wife's closest friends are."
During both interviews, Josh took long pauses before answering direct questions. He only became animated when discussing topics such as his dislike for his mother-in-law or how well his minivan handled on the desert's dirt trails.
At one point, Powell bragged about being able to feed his family for less than five dollars at Del Taco. Police asked Josh where they should look for his wife. He suggested beauty supply stores. He never expressed urgency or concern about what police were doing to find his wife.
When questioning honed in on his relationship with Susan, their family life or her associations with others outside the house, Josh became vague. He struggled to speak with specificity about conversations with his mother or sister only hours after they took place. Yet, one detective noted Josh could vividly recall pancake ingredients from a breakfast prepared days earlier.
Experts who have viewed the recordings with KSL agree the circumstances of Susan's disappearance gave police good reason to both speak with and suspect Josh.
"The initial goal is to get a confession," said Russell Dean, assistant professor of criminal justice at Weber State University. "Short of a confession, I want to get all the information that that person has about the crime, all the information that that person may know about the victim. And I want them to tell me a story."
Timeline in Susan Cox Powell case:
- Dec. 6 - The last time anyone sawSusanPowell
- Dec. 7 - The day Susan Powell wasreportedmissing
- Dec. 9 - Police call disappearance ofSusanPowell "suspicious"
- Dec. 12 - Family of missing woman'shusbandspeaks
- Dec. 16 - Josh Powell named person ofinterest
- Dec. 17 - 2nd search warrant served atPowellhome
- Dec. 20 - Josh Powell attends Wash. vigil
- Jan. 3 - Friends of missing Utah momlaunchWeb media blitz
- Jan. 4 - Social media blitz kick off
- Jan. 9 - Josh Powell packs up West ValleyCity house
- Jan. 27 - Family, friends put up ribbondisplay at Powell WVC home
- Feb. 5 - Friends plan 'Week of Service'inhonor of Susan Powell
- Feb. 15 - Family accuses missing woman'shusband of abuse
- March 1 - Susan Powell's family, formercopquestion new website
- March 6 - Vigils mark 3-month anniversaryofSusan Powell's disappearance
- Dec. 6 - Josh Powell and his father,Steve,assert that Susan Powell ran away withmissing Utah man Steven Koecher, whodisappeared in Nevada in December 2009.
- Aug. 19 - Abandoned mine shaftssearched inmountains outside of Ely NV
- Aug. 25 - West Valley Police servewarrant toSteve and Josh Powell:
- Sept. - Steven Powell faces charges ofvoyeurism and possessing child porn Sept. 14 - West Valley Police find humanremains in search Sept. 23 - Susan's parents file for custodyof Powell sons
- Sept. 27 - Cox family gains temporarycustody
- Dec. 9 - Josh appears on Dateline
- Feb 1. - Judge denies Josh Powellcustody
- Feb. 5 - Josh allegedly sends message tolawyersaying goodbye, home explodes shortlyafter
The story Josh told detectives proved tedious, though. His answers were evasive and incomplete. The lead detective repeatedly told Josh he was not under arrest and could leave at any time.
"If you don't want to talk…" the detective said.
"Then what?" Powell asked.
"Then I guess you can leave," the detective replied. "I mean, you could leave any time, anyways."
"I, yeah, I mean let me think about it for a couple days," Josh said.
"Your wife is missing Josh, and you want to think about it for a couple days?"
"Yeah but… I've already answered everything," Josh said.
In fact, Powell had answered very little. After hours of fruitless questioning on Dec. 8, the detectives took a different approach. They repeatedly attempted to read Powell his Miranda rights.
Dean said that would have allowed for more direct questions and made the answers admissible in court.
"If you're talking to somebody and you get to a point where you feel the physical evidence, the witness statements and everything that you have points to this individual as the person responsible for committing the crime or some other involvement, then you'd better weigh in on whether or not you want to continue that interrogation without advising that person of their rights," he said.
It took detectives several tries to get Powell to even acknowledge his rights. Once he confirmed that he understood, Josh did not immediately invoke his right to have an attorney present. At more than one point, he stood to leave only to be talked back into his chair by police. They did not, however, detain him until a critical moment.
Two detectives confronted Josh with a stunning revelation after more than three hours of questioning.
"One of our detectives just interviewed your children and your children are telling our detectives that mom went with you… and that she didn't come back," he said.
The boys, Charlie and Braden, had been present for the Dec. 7 interview, but that wasn't the case during the Dec. 8 interview. Morgan, the former prosecutor, believes the detectives might have been making a calculated bluff.
"I think this was designed to evoke some sort of response. It didn't work. Josh Powell looks very clearly, cleanly and with good conscience saying ‘no, she wasn't'," Morgan said.
The video reveals Josh indeed remained stone-faced while denying the idea outright.
"If they said she was with us, they know that's not true," he said.
One of the detectives pressed Josh, asking if his children lie. Powell replied that sometimes they do.
Dean, who spent 37 years as a CSI expert, said that might have been a turning point for Powell.
"If that didn't happen, and you as a police officer said, ‘We know for sure that it happened'… Then he's going to look at you and say, ‘You're fishing for information, and I'm glad I didn't tell you anything before this.'"
Josh's answers at last became direct when the detectives informed him he was being "detained" and that they would be taking his mobile phone as evidence.
"OK, but I do want the lawyer, ‘cause at this point I definitely want a lawyer," Powell said.
Police offered to call one on his behalf, then left the interrogation room while instructing Josh to remain behind. The lead detective returned nearly five minutes later and informed Powell he could, in fact, leave.
"That would suggest to me that they've gone to a superior and said, ‘This is what we've got, should we book him in jail'?" Morgan said. "The answer was, ‘No, that's not enough.' "
The investigative documents released by West Valley City in May reveal police began an intensive surveillance program targeting Josh in the days immediately after the interview. They used a GPS tracker and DEA aircraft to follow his minivan with court approval. When Josh moved from Utah to his father Steven Powell's home in Washington state, detectives followed him. They set up video recording devices outside the home, tracking the comings and goings of both Josh and Steven Powell.
Then, on Feb. 5, 2012, the unthinkable happened: Josh Powell killed himself and his two sons in a house fire in Graham, Wash.
Dean believes people should not judge West Valley City police nor blame them for the deaths of Charlie and Braden Powell.
"There's public opinion that goes both ways on this, that the police goofed up and they should have arrested him, and there's a lot of people that have the other thought that ‘hey, they did everything they could do to this point,'" Dean said. "I'm not saying right, wrong or indifferent. But I'm saying, let's temper our thoughts and think of the choice of words we use about the job the authorities did on that… Those people wanted to solve that case, they wanted to recover (Susan) alive, if possible."
Susan has never been found.
The West Valley City Police Department have not yet responded to repeated requests for comment.
Video contribution: Andrew Wittenberg