Did no body mean no case against Josh Powell?

Ever since Josh Powell set fire to his rented home in
Graham last February, killing his two young sons and
himself, people have been asking why police hadn’t
arrested Powell for the murder of his wife in 2009.

The answer it seems comes down to lacking one
piece of evidence: a body.
Despite multiple searches, Susan Powell is still missing.
Her disappearance from their Utah home is still considered
an open case.

Police in West Valley City, Utah talked with the
prosecutor about the possibility of a murder charge
against Josh Powell. At the time Susan Powell went
missing, the district attorney in Salt Lake City County
says they were not ready to file charges against Josh
because there was no body. Without Susan’s body, she
argued, murder is very, very hard to prove.

Some legal observers disagree.

A former federal prosecutor in Washington, D.C.,
Tad DiBiase, examined more than 350 cases that went to
trial with no body. It turns out jurors and judges are
able to find defendants guilty without a body as evidence
of the crime. About 90 percent of those cases ended in
conviction.

You’d think that a good defense attorney could
offer a convincing argument that most people who go
missing could still be alive, living a secret life or held
against their will. That’s reasonable doubt.

Let’s look at what we know about the Powell case.
Josh says he went camping with his sons and when he
returned, he was greeted by police who said his wife,
Susan, was missing. She hadn’t gone to work. Recently
unsealed affidavits in a sex crimes case against Josh’s
father, Steven Powell, reveal some damning information
about Josh:

– Powell had his wife’s cell phone.
– Powell told police he didn’t answer his cell
phone because he was preserving battery power, even though
officers could clearly see that his phone was plugged into
a car charger.
– Powell put 800 miles on a rental car the day
after Susan was reported missing.
– Susan left a letter in a safe deposit box
detailing their marital problems.
– Susan’s blood was found in the family home.
– Ten days after Susan was reported missing, Josh
emptied Susan’s retirement accounts, even though she was
considered missing, not necessarily dead.

Powell moved to Washington state weeks after his
wife disappeared. And on Feb. 5, as authorities continued
their investigation, Powell killed the couple’s two young
sons and himself in a gas-fueled inferno.

“They could have gotten a conviction, but … nobody knew
he was going to do this,” said Laurie Levenson, a
professor at Loyola University Law School in Los Angeles.
“You know exactly what the defense is going to argue, and
you hope and pray you’re getting closer to the key piece
of evidence that’s going to make it a closed case. If I
had been this prosecutor, this would haunt me the rest of
my life.”

West Valley City detectives still consider Susan Powell’s
disappearance an open case, and they hadn’t yet formally
presented it to prosecutors for potential charges.

“Did my office engage in discussions with them? Of course
we did,” said Salt Lake County District Attorney Sim Gill.
“Prosecutors all the time talk about the relative
strengths and weaknesses of a case. But when it’s
complete, that’s when it goes through a screening
process.”

In a sensational disappearance like that of Susan Powell,
the pressure on prosecutors to get it right can be
especially intense. Last year’s acquittal of Casey Anthony
in Florida for the death of her 2-year-old was a reminder
that even if a body is found after charges are filed, a
cases isn’t necessarily a slam-dunk.

But by no means are such hurdles insurmountable.

Whether prosecutors can obtain a conviction in a no-body
homicide depends on the strength of the circumstantial
evidence, which under the law is given as much weight as
direct evidence, such as witness testimony. In this case,
DiBiase and others said, the circumstantial evidence was
strong.

Several lawyers suggested that even if a defense attorney
had tried to explain away the blood on the floor by saying
it’s natural that Susan Powell’s blood was found in her
house, when combined with the rest of Josh Powell’s
bizarre actions that day, it points strongly to his guilt.

“If it’s two days after the killing, do I say, `Arrest
him?’ No,” DiBiase said. “But two years later? Yeah,
arrest him. There comes a point where you have to say, `We
have to move forward with this.'”

The Associated Press contributed to this report.