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Why didn’t police arrest Josh Powell before it was too late? Detectives share their answers

SOUTH HILL, Wash. — 136 days before Josh Powell murdered his five and seven-year-old sons, police showed up at his home with an arrest warrant in hand.

By then, many Americans were already asking why Powell wasn’t behind bars. He was the only suspect police were seriously considering in the disappearance of his wife, Susan Powell, and, even if police had never found her body, the circumstantial evidence against him seemed air-tight.

But the arrest warrant wasn’t for him. The police had come to take his father, Steven Powell, on charges of voyeurism and child pornography.

Josh Powell stayed free — though investigators did remove his children and place them in state custody. And less than five months later, he would lock himself and his two boys in his home, douse it with gasoline, and burn it down, ending all three of their lives.

It was a heart-wrenching end to an already tragic story, and it left the world asking a question that the people in charge of the investigation would have to struggle with for the rest of their lives: why didn’t they arrest Josh before it was too late?

Dave Cawley, the investigative reporter behind the podcast Cold, asked detectives Ellis Maxwell and Gary Sanders that exact question. And now, in the show’s twelfth episode, they’ve shared their answers with the world.

”There was only one suspect”

Josh Powell

Josh Powell, the husband of Susan Powell, is surrounded by reporters as he leaves a Pierce County courtroom, Sept. 23, 2011, in Tacoma, Wash. (Photo: Associated Press)

“There was only one suspect,” Pierce County Det. Sgt. Gary Sanders told Cawley. “Just the evidence, his story and just totality of circumstances led the spotlight right on one guy.”

That one guy was Josh Powell. Police had found his wife’s blood on their living room couch, had proof that he’d lied about his whereabouts on the day she vanished and had found a will left by Susan filled with warnings about the threat she saw in her husband.

“If I die,” it read, “it may not be an accident, even if it looks like one.”

It all added up to a strong case; strong enough, some thought, to get Josh convicted, even if they didn’t have a body.

Susan’s father, Chuck Cox, was one of those who believed arresting Josh would have worked.

“There was enough circumstantial evidence … to say that he got rid of his wife,” Cox told Cawley. Any details the police didn’t have, he believed, Josh would have spilled once he was in jail. “I think they could have made that case, but the prosecuting attorney didn’t want to do it.”

Instead, police obtained a warrant to seize computers and documents from Josh and Steven Powell’s home, hoping both to stop them from publishing Susan’s childhood diaries and to gather the missing pieces of evidence they needed to make their case unbreakable.

They found enough evidence to make a case that would stick — but that case wasn’t against Josh.

The arrest of Steven Powell

Steven Powell search warrant

Police serve the search warrant into Steven Powell’s home in South Hill, Wash., Thursday, Aug. 25, 2011. (Photo: Associated Press)

There was a fair amount of circumstantial evidence against Josh in the files they seized. His own father, in his personal diary, had written, before Susan disappeared: “Josh hates her so much he even wishes she were dead. He even talks about it occasionally, fantasizing that she might have an accident.”

They’d also found a strange collection of pictures of animated characters engaged in unusual and often illegal sexual acts on Josh’s computer; something that, for a while, detectives and prosecutors hoped might be enough to press charges. The pictures were drawn, though, and so there wasn’t any cause for arrest. They still didn’t have a smoking gun; or, at least, not one against Josh.

In Steve’s possessions, on the other hand, they’d found a collection of voyeuristic photographs, including more than 1,600 pictures of his eight- and ten-year-old neighbors in varying states of undress.

The police used that evidence to arrest Steven and to take Josh’s children, Charlie and Braden, out of his home. But they didn’t forget Josh. Before they came to his door, investigators and prosecutors strongly considered taking him out in handcuffs along with Steven.

In the end, though, they decided it was still too early to pull the trigger.

“We’re not at a point where we could file charges quite yet,” Det. Ellis Maxwell, West Valley Police’s lead investigator on the case, told Cawley. “There was still quite a bit of work to do so that — in the event that I’m up on the stand and a defense attorney’s like: ‘Why didn’t you do this, why didn’t you do that’ — I want to be able to answer.”

Pierce County Det. Sgt. Gary Sanders was on the case, as well, but the call was West Valley’s to make. Sanders was told not to bring Josh in, and he didn’t argue.

“We respect that,” Sanders told Cawley. “I understand it’s easy to Monday-morning quarterback. But you had to think about their thought process and their prosecutor, if they didn’t want to do a no-body prosecution.”

The decision, however, seems to have stuck with Sanders ever since. No more than a quick breath after defending West Valley’s decision, he added:

“But sometimes you’ve just got to pull the trigger and do it.”

Cold: Episode 12

The arrest of Steven Powell sparked a chain of reactions that led to one of the most painful moments in Utah’s collective memory.

Hear the full story of Steven’s arrest and its horrible consequences in episode 12 of Cold.