Obstruction charge may have been possible in Powell case
In one vignette from search warrants disclosed last month, Josh Powell returned to his West Valley City home and parked in his driveway about 24 hours after someone else had last seen his wife, Susan.
Detective Ellis Maxwell, who would go on to be the lead investigator on the missing person case, walked to the van's passenger side and asked Josh Powell why he hadn't answered Maxwell's calls to his mobile phone. Josh Powell, according to the search warrant, said he shut off his phone to preserve the battery and did not have a charger.
Maxwell looked at the van's center console and saw Josh Powell's phone connected to a charger plugged into the cigarette lighter.
In the 28 months since Susan Powell vanished, most of the discussion has focused on whether Josh Powell killed his wife and whether anyone could be charged with kidnapping and murder when the body remains missing. Yet the recently released search warrant suggests there may have been an alternative.
Utah and federal laws have a term for actions meant to sabotage investigations. It's called obstruction of justice, and it is a felony offense.
Obstruction cases don't require prosecutors to prove the underlying crime. Nor are rights against double jeopardy violated if the same defendant is later prosecuted for the underlying crime.
"They're separate crimes for separate elements," said Brett Tolman, the former U.S. attorney for Utah.
Salt Lake County District Attorney Sim Gill on Friday declined to speculate about what charges could have been pressed against Josh Powell. He has previously said West Valley City police never presented his office a case to be screened for charges. However, an assistant district attorney has been advising West Valley City police since Susan Powell disappeared.
The U.S. Attorney's Office pursued obstruction cases against suspects in the disappearance of 15-year-old Kiplyn Davis. She disappeared from Spanish Fork High School in 1995, and although suspects in the disappearance made denials to investigators, law enforcement learned they had made admissions to others about participating in Davis' disappearance or knowing who did.
A federal grand jury was convened in 2005 to investigate the Davis case. Suspects were issued subpoenas to testify and placed under oath. Some of the witnesses lied, and five people were charged with perjury.
One of those defendants, Timmy Brent Olsen, eventually pleaded guilty in state court to a murder charge for his participation in the Davis disappearance. Like Susan Powell, Davis' body has never been found.
Tolman believes the obstruction case led to Olsen's guilty plea for murder.
"History sort of teaches us," Tolman said Thursday, "if you can put charges on an individual, appropriately so, that serves as another point of leverage."
A spokeswoman for the U.S. Attorney's Office in Utah on Thursday declined to say what role federal authorities are playing in the Powell case. Previously, federal agents helped interview witnesses in the case and placed a GPS tracking device on Josh Powell's van in early 2010.
Utah law says an obstruction of justice charge carries a penalty of 1 to 15 years in prison if the crime under investigation is a capital or first-degree felony. If the underlying crime would be a lesser felony, then obstruction of justice carries a penalty of up to five years in prison.
Gill, speaking in general, said the problem with an obstruction case can come in demonstrating the severity of the offense.
"You have to reference [the underlying offense] because the classification is based on the underlying offense," Gill said.
West Valley City police publicly have referred to their investigation as a missing person's case. In court documents, police have said they are investigating kidnapping and murder.
An obstruction charge, however, would not have necessarily prevented Josh Powell from killing his two sons earlier this year. If charged in a Utah court, he likely would have received a bail and been allowed to continue living in Washington state. If convicted, he would have been a first-time offender who stood a chance at probation rather than prison.
Josh Powell killed his sons, Charlie, 6, and Braden, 4, and himself in a Feb. 5 fire he set while his sons were at his Graham, Wash., home for a supervised visit. Sherry Hill, a spokeswoman for the Washington State Department of Social and Health Services, said that agency has no blanket prohibition on child visitation for people with pending felony charges or convictions.
Tolman, who left the U.S. Attorney's Office a week after Susan Powell disappeared and said he received no briefing on the case, complimented the effort West Valley City police have made investigating the disappearance. Based on his knowledge of the Powell case, Tolman said he would have considered charging Josh Powell with obstruction.
Tolman, however, is not certain whether an obstruction charge would have pushed Josh Powell into admitting to murder as Olsen did.
"Josh, we know now in hindsight, was not going to behave like your typical criminal," Tolman said.
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Being uncooperative isn't obstruction
The Constitution gives us the right to refuse to cooperate with police, and such a refusal by itself does not equate to obstruction of justice. But in addition to lying about not having a phone charger, Josh Powell made overt acts of deception, a search warrant states or implies. He concealed evidence about his wife's disappearance by cleaning a sofa, lied to his sister about his whereabouts, placed a call to his wife's cellphone that was meant to provide an alibi and gave police cellphones with no SIM cards in them, the search warrant states.