Cold season 1, episode 17: Cold Case – Full episode transcript

Dave Cawley: Journal of Steve Powell, 12:35 a.m., December 8, 2009. 14 hours following the first report of Susan Powell’s disappearance.

Ken Fall (as Steve Powell from December 8, 2009, journal entry): I am feeling sick, because it is possible that Susan is dead. Monday morning Jenny called from Josh’s and Susan’s house, to tell us that the day-care lady had called her when they did not show up with the kids. … The police came to their house, and this information made us extremely fearful that they might be inside, asphyxiated from carbon monoxide, or dead from some other cause.

It was a relief when the police reported that they were not in the house and their van was not in the garage. However the day wore on slowly with no word and with all of us wondering if they were abducted, or if they went on an outing and were killed or trapped in a car accident.

In the evening I went to the gym, and while there received a call that Josh had shown up with the boys, but not with Susan. When I was finally able to speak to him, at about 8:30, he said he saw her early Monday morning, at just after midnight. He was leaving “late” for an outing with the boys. In the various conversations I had with him Monday evening, between that time and nearly midnight, he said that he had bought a generator-heater of some kind so he could go on winter outings. When he told Susan, who he said was in bed asleep, that they were leaving, he says she said “whatever.”

He says he thought yesterday was Sunday. Hence he did not call work. And when he realized his error, he was out of cell phone range. That does not make sense to me, since when I spoke to him Sunday at midday he said Susan and the boys had gone to a stake conference that morning. He also mentioned that she was tired and took a nap that evening. Maybe she was already gone, and he told the boys she was just napping.

None of us were able to reach him on his cell phone all day and he attributes that to being in the backcountry. Susan’s cell phone was with him. He says he was using it to look up a number, and forgetfully put it in his pocket, and forgot to take it out, so it was with him all day until he showed up at around 6:00 p.m. The story is so implausible, and our conversation with Josh so unconvincing that I fear the worst.

I think Susan is dead and Josh spent the 20 hour lacuna disposing of her body far away. … In the last two weeks Josh bought an oxyacetylene welder and a Rug Doctor carpet cleaner. I had no clue why he might want a welder, but now I wonder if it was required for the process of mutilating or disintegrating her body.

Maybe he really did not do anything to her, and she will show up alive. Maybe that is why he is not concerned.

Dave Cawley: This is Cold, episode 17: Cold Case. I’m Dave Cawley. Right back after this.

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Dave Cawley: Two days after Josh murdered Charlie and Braden, his aunt and uncle, Maurice and Patti Leach, issued a written statement. It said Josh had represented himself with great restraint during the child custody proceedings. It said the murder-suicide was as a result of questionable practices of government agencies, by religious bias, by internet kangaroo courts and the news media. It said all of the above had circumvented the Powell family’s due process rights and that was a national tragedy.

Patti Leach was Steve Powell’s sister.

Andrew Adams (fromMay 16, 2013 KSL TV archive): If there’s anybody alive that has knowledge of what happened to Susan Powell, her family believes, it’s Steven Powell and he may perhaps be the best remaining lead in the investigation, despite the fact he’s not talking.

Dave Cawley: Not with police, anyway. While in prison, Steve exchanged letters with with his niece, Nicki Cardenas. At the end of July, 2012, Nicki sent him a copy of a CNN article about James Holmes, the Aurora, Colorado movie theater mass shooter. I mentioned in episode 15 that West Valley police detective Darrell Dain had adopted the phony persona of Shamus from the Department of Defense during a meeting with Steve around that same time. It turns out, Shamus planted a seed.

After Michael committed suicide in February of 2013, Steve became convinced this shadowy figure, Shamus, was responsible for both the Aurora shooting and Michael’s suicide. He supposed the Army, using Shamus, had delivered psychotropic drugs to both Holmes and Michael. Or maybe it was a chemical weapon, procured from the Army’s Deseret Chemical Depot in, of course, Utah.

Steve also wondered if Shamus had engineered the December, 2012 mass shooting at Sandy Hook Elementary in Newtown, Connecticut. They were all connected in Steve’s mind, part of a single, sprawling conspiracy.

[Scene transition]

Dave Cawley: Just days before Michael Powell’s suicide, Washington State Senator Pam Roach introduced Senate Bill 5162.

Pam Roach (from February 1, 2013 Washington Legislature recording): We do have a judge that did have material from West Valley police and chose to ignore it. We have a judge who did order a psychosexual evaluation, chose to make decisions without the results of that order.

Dave Cawley: SB 5162 wasn’t a very catchy name. Supporters called it Charlie and Braden’s Law. Steve Powell called it the Cox-Roach bill.

Pam Roach (from February 1, 2013 Washington Legislature recording): We had a fast track for reunification. DSHS, though they recommended to the judge that Josh, uh, Powell not have the kids, were none the less on a fast track for reunification. That’s what two days a week for two hours a, uh, a visit is.

Dave Cawley: Chuck and Judy Cox traveled to Olympia to speak in support of the bill.

Chuck Cox (from from February 1, 2013 Washington Legislature recording): Without this law, a surviving spouse is essentially able to achieve custody by murder. Or, as in this case, causing the disappearance of Charlie and Braden’s mother, then refusing to cooperate with police.

Dave Cawley: Put simply, the bill meant to prohibit parents suspected of murder from having access to their kids until the murder case was resolved. It would’ve cemented in law many of the suggestions made by the DSHS review board after Josh killed Charlie and Braden.

Judy Cox (from from February 1, 2013 Washington Legislature recording): DSHS and others like West Valley police, Pierce County police, umm, did not take it seriously. And so, because of that, we felt this was a big problem and why it was, in our opinion, treated lightly, that the boys would be ok.

Dave Cawley: Rick Bartholomew from the Washington State Bar Association said the bill was problematic.

Rick Bartholomew (from from February 1, 2013 Washington Legislature recording): Some investigations will take years, umm, and ultimately a person can be exonerated or at least the investigation doesn’t, uh, doesn’t prove anything.

Dave Cawley: The bill underwent changes to address those concerns and on March 12, 2013, the Washington State Senate voted 48 to 1 in favor, sending the bill to the house. Where it stalled, indefinitely. Charlie and Braden’s Law never actually became law. That is, at least not in Washington.

House clerk (from March 5, 2014 Utah Legislature recording): First substitute senate bill 173 having received 72 yes votes, 0 no votes, passes the House, will be signed by the speaker and returned to the Senate for the signature of the president.

Dave Cawley: The following year, in 2014, the Utah Legislature passed a similar bill. 

Craig Hall (from March 5, 2014 Utah Legislature recording): The bill has been changed dramatically in order to thread the needle between protecting parental rights and also protecting the rights of children in these very unusual and unique situations, and infrequent situations.

Dave Cawley: SB 173 changed Utah law, empowering the courts and child welfare workers to keep minor children away from a parent suspected of murder.

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Dave Cawley: Journal of Steve Powell, 5:35 a.m., December 8, 2009. 19 hours following the first report of Susan Powell’s disappearance.

Ken Fall (as Steve Powell from December 8, 2009, journal entry): Sunday night it snowed all night. So Josh headed out after midnight to “camp” with the boys. It was snowing like gangbusters by the time he got out a ways so, according to his story, he decided it was too late to return and so he kept going. Why? The whole thing sounds so wrong, even if it had nothing to do with disposing of Susan’s body. Why would anybody do that? And furthermore, why would anybody believe that someone would go out in that weather just for an outing?

Michael and Alina are very supportive of Josh and advised him to tighten up his story, as it sounds weak and unconvincing. Josh responded that the police may have already tapped his phone, which was the same as saying “be careful what you say.”

Michael commented … that he blamed his mother for this. He said “she is the reason I will probably never get married.” … So I guess Michael, like me, has learned to distrust the marriage principle. John seems to be a misogynist … And Josh has suffered through a mutually hateful marriage relationship since April 2001. Josh’s and Susan’s mutual disdain was evident from nearly the beginning of their relationship.

I am so tired, but can’t seem to sleep. I e-mailed in my request for sick leave a few minutes ago.

[Scene transition]

Dave Cawley: West Valley City police were fast approaching the end of the road. In early 2013, leads in the search for Susan were dwindling. Yet, public focus on the case remained high.

Ellis Maxwell: Yeah, there’s a lot of people in the country, in the world that wanted answers, from the media all the way down to the Cox family because, y’know, believe it or not, they didn’t know a whole lot more than anybody else.

Dave Cawley: As lead detective, Ellis Maxwell served as keeper of the case files. He’d organized reports, warrant affidavits, interview transcripts and everything else for more than three years.

Ellis Maxwell: Y’know, over the course of the investigation I’d managed the digital case file so, y’know I’d, I’d kind of prepared it as, as we were moving through so that we went into a trial it was all done and I could just hand it over to the attorneys.

Dave Cawley: With no chance of a criminal prosecution, West Valley faced a question: what do to with all those documents?

Ellis Maxwell: I don’t think the department could just stand back and go “no.” They’re gonna have to release, umm, some information and there’s a lot of information.

Dave Cawley: The city had received a large number of requests for copies of case files under GRAMA, Utah’s open records law.

Ellis Maxwell: It was decided to sit down and, and go through that entire file and redact it and, and then, y’know, it came down to “ok, do we just release it all or let the GRAMA requests come in” and the decision was made to just, uh, make a public release of it.

Dave Cawley: But the job of redacting all of those documents — blacking sensitive information like medical or financial data, names of potential witnesses, police operational plans — took a lot of time.

Ellis Maxwell: Y’know, we spent days in a, in a big conference room and uh, there was, gosh like eight or 10 of us, and they weren’t just detectives. There was a lot of attorneys in there and, y’know, it was basically myself, maybe a couple of detectives and the rest was legal going through and redacting all of that information. And uh, y’know, it was a daunting task to say the least. I mean, there’s thousands and thousands of documents and reports and, umm, yeah.

Dave Cawley: Before they could give any of those documents out, police also had to ask a judge to rescind the secrecy order that had surrounded the case since its inception.

Ellis Maxwell: The only reason it happened is because the case essentially came to an end. Like, there’s, there’s nobody that can be held accountable. This case is never gonna go into the justice system so now we’ve reached a point that there, we can’t, there’s no reason to retain that information and keep it closed.

Dave Cawley: Before taking that step, West Valley police wanted to finish one more search, this time in Scotts Mills, Oregon.

Andrew Adams (from May 20, 2013 KSL TV archive): Police say they remain committed to the case and finding closure for Susan’s family.

Mike Powell (from May 20, 2013 KSL TV archive): We can’t forget the Cox family, the effect that this has had on them.

Dave Cawley: Detectives had come across information about a piece of property in Scotts Mills where Josh’s aunt and uncle, Patti and Maurice Leach, had previously lived. They’d rented a house on 176 heavily wooded acres in the rural area north-east of Salem.

Ellis Maxwell: The information that we’d received is that it was possible that, y’know, because Josh traveled several hundred miles and if he was to relocate this body, it is probable that he could’ve made it to this area and disposed of her, buried her body there.

Dave Cawley: The mileage meant Josh couldn’t have made it to Scotts Mills in the rental car alone. In order for this theory to work, he’d have needed an assist from Michael or Steve.

Ellis Maxwell: There was a little bit of time, like a day maybe that we couldn’t really account for Steve. Not a whole day but maybe 12 hours or six hours or something like that and it kind of fell in line with this whole piece of property that was related to Steve’s family.

Dave Cawley: Josh and Susan had also visited the property once, together. After Susan disappeared and Josh moved to Washington, Maurice and Patti had invited Josh to come visit in order to get away from the media but Josh never took them up on the offer. West Valley police obtained a federal search warrant. They briefed the Marion County Sheriff’s Office and, on May 14th, 2013 arrived in Scotts Mills with a team of cadaver dogs.

Ellis Maxwell: There was a lot of digging and a lot of searching of this ground.

Dave Cawley: The dogs indicated the possible presence of decomposition at one location. Police spent an entire day raking and probing the ground, running the dogs over and over it. Ultimately, they didn’t find anything. No body, no evidence.

Andrew Adams (from May 16, 2013 KSL TV archive):  Today, police conceded they’re coming to the end of their list of leads. And they even acknowledged the possibility the Susan Powell case could even become a cold case.

Mike Powell (from May 16, 2013 KSL TV archive): Obviously Susan’s still missing so there are pieces that we don’t have. There’s information we don’t have.

Dave Cawley: Police did not reveal at the time that while those dogs were searching in Scotts Mills, a detective and FBI agent were in nearby Silverton, grilling Josh’s uncle Maurice Leach. Maurice’d agreed to take a lie detector test. An FBI polygrapher came down from Portland. During the interview, police records say Maurice told the agent he believed Charlie and Braden were still alive. Steve’d told Maurice the pictures the FBI had showed him following the fire were unrecognizable and possibly staged. Detective Alva Davis told Maurice that was not the case. He had personally seen the bodies.

Over the course of their hours-long conversation, Maurice’s perspective changed. Police records say he expressed anger at Josh and Michael, saying they’d lied to him. He wanted to have words with Steve, because Steve had told him police had made up the stuff about finding pictures of young, naked neighbor girls in his house.

I made several attempts to contact Maurice. He never responded to my messages.

Andrew Adams (from May 16, 2013 KSL TV archive):  Cops arrived here on Tuesday. They combed acre after acre but ultimately called the search when cadaver dogs didn’t turn up leads.

Mike Powell (from May 16, 2013 KSL TV archive): We have not rested. We have not had a break. We have been diligent and meticulously investigating this entire case.

Dave Cawley: West Valley returned home from Oregon on May 16, 2013, empty-handed.

Ellis Maxwell: Y’know, at this point, y’know, a lot of us are just tired. Y’know, it’s been a long investigation and when I say tired, like we’re not physically tired but we’re just mentally like, you only, I mean I don’t know how many times an individual can, uh, come across a potential breaking lead in a case and be shut down. It’s like “nope, this ain’t it. Need to go find something else.” And so I, I think we were all hopeful, I was hopeful. But again at the end of the day, just tons of resources and uh, no results. But we were able to say that she wasn’t there.

Dave Cawley: Detectives weren’t alone in feeling that sense of exhaustion. Chuck Cox wasn’t ready to stop searching. He wondered if Susan’s body might have ended up much closer to home — Steve Powell’s home.

Haley Smith (from November 7, 2013 KSL TV archive): Earlier this year, a Washington judge awarded Powell’s victims, two young girls, 1.8 million dollars. … Powell is now claiming he’s just recently learned about the damages and is in no position to pay up.

Dave Cawley: But Steve did have assets, including the South Hill house from which he’d once filmed those underage neighbor girls.

Nkoyo Iyamba (from May 20, 2014 KSL TV archive): The family of the two little girls that Steven Powell was convicted of photographing now own that house. They were awarded that property in a court-ordered settlement.

Dave Cawley: Chuck, working with his attorney and a private investigator, brought cadaver dogs to the house. They probed the yard, on the suspicion that Josh or Steve might have buried Susan there. Just as with police in Oregon, they didn’t find anything.

[Scene transition]

Dave Cawley: Journal of Steve Powell, 6:30 a.m., December 8, 2009. 20 hours following the first report of Susan Powell’s disappearance.

Ken Fall (as Steve Powell from December 8, 2009, journal entry): Where is Susan? If she were alive someone would have heard from her. This morning it will begin sinking in to her co-workers that she is not coming back.

Will Josh drop the boys off at the day care when he goes to his 9:00 appointment with the police? … Will Josh still be walking free after the 9:00 appointment, or will they lock him up? Through the night I tried to think of things Josh said last night that might suggest that he truly does not have a clue where Susan is. Maybe his story came out sounding cock-eyed because he was so tired. … Michael suggested to Alina and me that if he has killed Susan it was probably not premeditated, since the story is so poorly planned.

If the worst happened, that is he killed her, did he bury her body? Will it ever be found? Frequently the police break down perpetrators during interrogation, and they end up leading them to where the body is buried. Although her parents mean nothing to me, I feel deeply for them, whatever the outcome. I cannot imagine there will be a good outcome.

[Scene transition]

Dave Cawley: Four days after the end of the search in Scotts Mills, Oregon, West Valley City leaders called a press conference.

Wayne Pyle (from May 20, 2013 KSL TV archive): After three-plus long years of the investigation into the disappearance of Susan Powell, we are announcing the end of the active phase of the search for Susan.

Dave Cawley: The case had gone cold.

Mike Powell (from May 20, 2013 KSL TV archive): Today, Susan is still missing. We do not know where she is or what happened to her.

Dave Cawley: That same day, the city attorney and detective Darrell Dain, aka Shamus, went to court and asked a judge to lift the secrecy order.

Ellis Maxwell: I had to sit down myself and, y’know, my supervisors, we had to sit down with the Cox family and, uh, share everything with them first. And so we met with them and, and we shared with them everything that we could share with them and uh, I believe we gave their attorney a copy of that release on a USB drive.

Dave Cawley: Next, reporters received their copies of the redacted case file on 32 gigabyte flash drives.

Mike Winder (from May 20, 2013 KSL TV archive): Tens of thousands of pages and as you go through those, it will be easy to Monday morning quarterback perhaps, uh, but I think at the end of the day, you’ll see a police force that was completely dedicated from the beginning, completely professional from the beginning and did everything they could do to, to find Susan and bring her home.

Dave Cawley: Technically, the Powell case remained open. There were still loose ends, including the ongoing efforts to crack the encryption on one of Josh’s hard drives. So that version of the case file released to the media, was a snapshot in time. Going forward, Ellis continued to take care of the case file. 

Ellis Maxwell: From that point I ended up leaving the major crimes division, or major crimes unit, and went to managing the sex offender compliance program. And then I developed a college internship program and so I ran both of those and took care of the Powell case and every once in awhile I would handle some other investigative cases as they came along but, uh yeah, I did that from ’13 up until December of ’15 when I retired. I had my 20 years and I was done. I was out. (Laughs)

Dave Cawley: Public release of the redacted case file was a huge win for Susan’s family. They seized on the documents. Within days, they began handing out fliers along I-84, from Pendleton, Oregon to Tremonton, Utah.

Andrew Wittenberg (from May 29, 2013 KSL TV archive):  The search for missing Utah mom has led Chuck Cox to a small Tremonton florist. It’s his first time in Utah in more than six months. His hope of finding her was renewed when West Valley police disclosed all their investigation materials.

Chuck Cox (from May 29, 2013 KSL TV archive):  Hopefully we get some more tips, some new tips. And, uh, we did, actually, as a result of the KSL coverage of that.

Dave Cawley: But the redacted case file didn’t paint the whole picture. Important details about Josh and Michael’s relationship and movements in the days after Susan’s disappearance were not included.

Chuck Cox (from May 29, 2013 KSL TV archive): We decided we needed to come down and put out these fliers and get some attention to the people that live along that corridor.

Dave Cawley: The public learned of Michael dumping his Ford Taurus, but the fine detail of his apparent later paranoia over it not have been destroyed. People seized on the reports of Josh having had an affair, not realizing those tips had been largely discredited. The redacted case file held many rabbit holes.

Ellis Maxwell: I don’t think an average person, uh, could sit down and look at this and really wrap their mind around it. Because there’s just, there’s way too much information, way too many details. There was 100 different directions that this case could have gone.

[Scene transition]

Dave Cawley: Journal of Steve Powell, 8:00 a.m., December 8, 2009. 22 hours following the first report of Susan Powell’s disappearance.

Ken Fall (as Steve Powell from December 8, 2009, journal entry): I am so tired, but unable to sleep. I have been lying here thinking about my grandsons, Charlie and Braden. Could Josh do something like this to their mother? Last night Josh went to the recycler to find a stout piece of cardboard to cover the broken window. He said there was a picture of a woman on the carton. As it lay on the living room floor, Braden lay down on it and said “mommy.” That was painful to hear.

I told Michael and Alina that no matter what Susan’s problems were, she did not deserve the death penalty. Neither one has any sympathy for her. Alina is aware and I think Michael too that I was in love with Susan, yet neither seems to be sensitive to any feelings I may have in the matter of her possible demise. That they are so anxious to show solidarity with Josh is also troubling.

I need to be of the same attitude, for the sake of the boys as well as Josh who, after all, is my son. The way his mother and her family treated him while growing up is no excuse for anything he may have done in this matter but I am not the court or a jury. I am his father.

[Scene transition]

Dave Cawley: Steve Powell completed his sentence on the voyeurism charges and left prison on March 23rd, 2014.

Jennifer Graves (from March 23, 2014 KSL TV archive): I knew it was coming and it was gonna be today and y’know what, it had to come and so I’m not particularly pleased about it, but it had to come.

Dave Cawley: Jennifer Graves had no intention of reconciling with her father, who was a registered sex offender.

Carole Mikita (from March 23, 2014 KSL TV archive):  Powell will be on probation for 30 months, required to wear a GPS locator and attend a sex offender treatment program. The corrections facility says he plans to live in Tacoma.

Dave Cawley: That plan soon fell apart. In July, the Washington court of appeals reinstated the child pornography count that Judge Ronald Culpepper had tossed out at the beginning of Steve’s 2012 trial. Steve appealed to the Washington State Supreme Court but the high court declined to take the case.

So, on October 27, 2014, Pierce County prosecutors obtained a new arrest warrant for Steve Powell. Steve and his sole surviving son, John, were living together at a halfway house in Tacoma’s Hilltop area. Pierce County sheriff’s detective sergeant Gary Sanders went and knocked on the door.

Gary Sanders: He was surprised. He tried shutting the door on me but with the warrant, you don’t get to shut the door. … So, John opened the door and I said “is your dad here?” And then Steve was like “whoa, no, you guys,” y’know, and I was like “nope, got the warrant.” So I was able to put him in handcuffs again and take him back to jail one more time.

Dave Cawley: Gary slapped a pair of pink handcuffs on Steve’s wrists.

Gary Sanders: Only two times I’ve used pink handcuffs.

Dave Cawley: You used those?

Gary Sanders: Yes. Umm, handcuffs that, uh, a certain detective from West Valley gave me.

Dave Cawley: Steve’s prison letters had revealed he believed police couldn’t arrest him again on the child pornography charge. He figured that would amount to double-jeopardy. That’s not exactly how double-jeopardy works.

Steve’s second trial didn’t go any better than the first. On July 15th, 2015, a jury found him guilty. The judge sentenced him to five additional years in prison. In August of 2015, Steve appealed that conviction. Washington’s court of appeals heard arguments, then rejected the appeal. Steve in 2017 asked the Washington Supreme Court to review his case. Again, the court declined. Steve was stuck.

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Dave Cawley: About a month before Michael jumped from the parking garage in Minneapolis, Chuck Cox had gone to court in Utah and asked to be named conservator of his daughter’s estate. Susan, in the eyes of the law, was still alive, and would be until five years after the date of her disappearance.

Chuck’s move put him in position to exercise authority over Josh and Susan’s trust and, by extension, her share of the life insurance money. After Michael’s suicide, Chuck amended the trust, making himself sole trustee. He froze out Josh’s mom, Terrica and sister, Alina. Steve had voluntarily surrendered any claim to the money. That might seem a noble gesture, but remember, Steve owed his voyeurism victims restitution. It was in best interest to be penniless.

A year later, in May of 2014, the federal court in Tacoma decided the interpleader lawsuit over the life insurance money. It split the proceeds like this: two-and-a-half million dollars to Susan’s estate, three-quarters of a million dollars to Michael’s estate, about 21-thousand dollars to Alina and 16-thousand dollars to John. Attorney Anne Bremner considered it a victory for the Cox family.

Anne Bremner: Y’know, we won the insurance battle.

Dave Cawley: But hang on a second. That October, Josh’s mom Terri sued Chuck. In her complaint, she said Chuck’s change to the trust had been illegal. She wanted an injunction to keep him from spending any of the money. Terri argued she was entitled to half of the proceeds through the trust, an amount totaling 1.1 million dollars. Terri and Chuck ended up settling out of court, in 2015. Terms of the arrangement were not disclosed.

Anne Bremner: When Michael killed himself, I thought “case over,” Right? “We’re done.” Here came the rest of the Powells.

Dave Cawley: That’s an understandable perspective, given what I’ve just described. But let’s talk about Terri for a minute. You haven’t heard Terri Powell’s voice in this podcast, aside from that first 911 call she made the day of Susan’s disappearance. There’s a reason for that. Terri has long shunned the media. She’s repeatedly expressed a desire to have no contact when I’ve reached out to her. But Terri did speak with police during the investigation and what she said can provide some insight on her mindset.

Terri Powell (from February 1, 2010 police recording): Y’know, I’ve blocked so much of it out, I can’t even remember. In fact, I’m surprised I can even talk about it. Usually, I’m just falling apart.

Dave Cawley: Jump back to February 2010. Jennifer had just confronted Josh while wearing a wire. Steve was formulating his theory about Susan running off to Brazil. And Terri sat down to speak with Ellis Maxwell.

Terri Powell (from February 1, 2010 police recording): I want Susan found.

Ellis Maxwell (from February 1, 2010 police recording): Yeah

Terri Powell (from February 1, 2010 police recording): I want the truth known. I want my family well. I don’t know what we’re going to have to go through from here to there.

Ellis Maxwell (from February 1, 2010 police recording): I don’t know either.

Terri Powell (from February 1, 2010 police recording): I want all my family well.

Dave Cawley: Terri shared many of the troubling events from her divorce. She described how Steve had manipulated the kids, exposing them to pornography and turning them against her. She said she’d felt concern at one point that Steve had “inappropriate interest” in the children, though she never saw him act on it. Terri didn’t seem to remember Josh having threatened her with a knife when he was a teenager, a claim documented in her divorce records.

Terri Powell (from February 1, 2010 police recording): Uh, one thing I’d like to mention, don’t know if I’ve ever specifically said this, I’ve, I’ve never known Josh to be violent.

Ellis Maxwell (from February 1, 2010 police recording): Mmhmm.

Terri Powell (from February 1, 2010 police recording): Never seen him violent—

Ellis Maxwell (from February 1, 2010 police recording): Mmhmm.

Terri Powell (from February 1, 2010 police recording): —that I can ever recall. … I, I can’t imagine him being that way.

Ellis Maxwell (from February 1, 2010 police recording): Mmhmm.

Terri Powell (from February 1, 2010 police recording): And I think that that’s significant, something you should hear from me.

Terri Powell (from February 1, 2010 police recording): Mmhmm. Yeah, absolutely.

Dave Cawley: Ellis observed there similarities between how Steve’d treated Terri and how Josh’d treated Susan. Terri couldn’t see it.

Terri Powell (from February 1, 2010 police recording): I don’t see Josh as manipulative.

Ellis Maxwell (from February 1, 2010 police recording): Mmhmm.

Terri Powell (from February 1, 2010 police recording): I do see him as, y’know, he’ll get in and get things done and he also had, hass a certain disregard for trying to accommodate other people and their needs. But he also seems very gentle.

Dave Cawley: Terri would give her son the benefit of the doubt.

Terri Powell (from February 1, 2010 police recording): The, the kids care about Josh and they, y’know, they want to see, umm, their, they, they want to help him. But I didn’t get any sense when I’ve been around them — and, and they’re willing to do that. They’re willing to help him, which I’m, y’know, I’ve been glad for because I felt like he needed help somehow or another.

Dave Cawley: Ellis, as gently he could, tried to warn Terri that the person responsible for Susan’s disappearance would be held accountable.

Ellis Maxwell (from February 1, 2010 police recording): Eventually there’ll be a—

Terri Powell (from February 1, 2010 police recording): Some kid of answers.

Ellis Maxwell (from February 1, 2010 police recording): —somebody’s gonna have to, yeah, somebody’s gonna have to account for it.

Dave Cawley: But as we now know, no one ever has.

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Dave Cawley: Journal of Steve Powell, 8:45 a.m., December 8, 2009. 23 hours following the first report of Susan Powell’s disappearance.

Ken Fall (as Steve Powell from December 8, 2009, journal entry): I went into Alina’s room a few minutes ago, to find out if she has heard anything. I was crying. Alina mentioned she has mixed feelings about being perfectly straight forward if called on to testify about their relationship. She did not think Susan was quite the [expletive] Josh made her out to be, and thinks Josh may have helped turn her into a [expletive]. I can’t disagree with that, and I am with Alina on that. However, I said we should support him in any way we can, partly for the sake of the boys. … I doubt Susan is alive and I doubt Josh’s hands are clean. If he murdered her, I wish he had not. But she did treat him in an almost schizophrenic way, and a person can take only so much.

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Dave Cawley: Chuck and Judy had first filed their wrongful death lawsuit in the Pierce County Superior Court. In late November, 2014, it jumped to the U.S. District Court in Tacoma. The suit accused Washington’s Department of Social and Health Services, DSHS, as well as the social workers who’d handled Charlie and Braden’s case, of failing to protect the boys, ignoring the threat Josh presented.

Anne Bremner: We want the DSHS to switch gears which is, it’s the best interest of the child. That’s what they should be looking at, not reunification at any cost.

Dave Cawley: Attorney Anne Bremner and the rest of the team took that argument to the judge.

Anne Bremner: What we’re saying is, based on the facts that I think everybody knows, is that there were red flags about Josh. The biggest one being the disappearance of his wife and his involvement.

Dave Cawley: October 7th, 2015, the federal district court ruled against the Coxes. In his decision, Judge Ronald Leighton wrote the court could not “exercise the luxury of hindsight” in judging the social workers for failing to prevent the murder. Leighton said federal law provided the social workers absolute immunity. DSHS, he said, had done its job in notifying the state court of the goings-on, so it also could not be blamed. According to the order, Pierce County Superior Court Judge Kathryn Nelson’s decision to allow visitation at Josh Powell’s house was the closest thing to a cause for the murder.

In a footnote, Judge Leighton also mentioned the failed effort to pass Charlie and Braden’s Law in Washington. He called it bad public policy in general, even though he conceded it would have benefited everyone in the Powell case case. On this, the judge and Anne Bremner disagreed.

Anne Bremner: It should be the law in every state in the nation. It’s pretty simple. Pretty simple, right?

Dave Cawley: Two months later, the Coxes appealed the ruling to the 9th U.S. Circuit Court of Appeals. It took two years before the appeals court heard oral arguments on the case.

Ted Buck (from December 4, 2017 9th U.S. Circuit Court of Appeals oral argument recording): The CPS workers failed to even review the divorce file.

Morgan Christen (from December 4, 2017 9th U.S. Circuit Court of Appeals oral argument recording): Had they reviewed it, is there something they would have found there that you think would have changed this outcome?

Ted Buck (from December 4, 2017 9th U.S. Circuit Court of Appeals oral argument recording): I, yes your honor, I believe that they would have. They would have found that he had threatened to kill his mother with a knife when he was younger. That he had killed animals before. All classic signs people who can snap, people who can do very violent things.

Dave Cawley: Attorney Ted Buck argued the case on behalf on the Coxes in Seattle on December 4th, 2017, almost eight years to the day after Susan’s disappearance.

Ted Buck (from December 4, 2017 9th U.S. Circuit Court of Appeals oral argument recording): The court assumed, without evidence in the record, that Judge Nelson had as much information as the law enforcement officers who were warning the social workers that they had concerns about the safety of the boys. That Judge Nelson had as much information as the Coxes, who’d known Josh Powell for years, as his own sister who obviously had known him for many, many years. The court assumed that the judge knew that visitations were regularly occurring at the Powell house, when the record does not support that.

Dave Cawley: Assistant Washington Attorney General Peter Helmberger argued the “hunches and beliefs” of Susan’s friends and family members were not grounds for concern over and above the courtordered supervised visitation. He noted Charlie and Braden had not been afraid of their father, in fact they’d dashed to greet him at every visit.

Peter Helmberger (from December 4, 2017 9th U.S. Circuit Court of Appeals oral argument recording): It wasn’t concern based on him being violent towards his children unsupervised—

Morgan Christen (from December 4, 2017 9th U.S. Circuit Court of Appeals oral argument recording): There had to be a finding and there was, the box was checked, that the children were at risk of danger and that was the justification for requiring supervised visitation with the natural father, right?

Peter Helmberger (from December 4, 2017 9th U.S. Circuit Court of Appeals oral argument recording): Correct. But it wasn’t, it wasn’t based on any reports or allegations of, of abuse, of physical abuse directed towards—

Morgan Christen (from December 4, 2017 9th U.S. Circuit Court of Appeals oral argument recording): We understand.

Peter Helmberger (from December 4, 2017 9th U.S. Circuit Court of Appeals oral argument recording): —towards his children.

Dave Cawley: Chuck left the courtroom that day feeling confident.

Chuck Cox: To me it was like, why aren’t you ruling now? 9th Circuit, they were very impressive in their ability to get past the bull and down to the truth.

Dave Cawley: So Chuck waited for good news. None came. Time went by and he was reduced to waiting for any news.

On January 10th, 2019, right in the middle of this podcast, the appeals court released its decision. The opinion upheld the immunity for the social workers, meaning they cannot be sued as individuals. But the appeals court reversed the district court’s decision regarding DSHS, sending the Cox family’s negligence claim against the state of Washington back down for trial.

Ted Buck (from December 4, 2017 9th U.S. Circuit Court of Appeals oral argument recording): A jury needs to be able to determine whether, in the face of all of those risks, the state was deliberately indifferent in not moving visitation back to a secure facility, in not assuring that you had a supervisor there who could intervene. These are jury issues.

Dave Cawley: As I record this, that trial is still to come. Anne Bremner said she still hopes a jury will find in their favor, forcing a change in priorities and placing the safety of children above the parental rights of suspected murderers.

Anne Bremner: And it’s going to mean a lot to me and to the Coxes if we get that. It will mean everything.

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Dave Cawley: Of course, one could also argue Washington might not have needed to protect Charlie and Braden from Josh if police in Utah had arrested him in the first place. In the years since the murder-suicide, many people have accused the West Valley City police department of botching the case. So I asked Ellis Maxwell point-blank, if he agreed.

Ellis Maxwell: No, absolutely not, we didn’t botch the case. Umm, it just comes from ignorance in my opinion. But, y’know, I respect it and I understand where they would come up with that. Not knowing everything that I know, you know and, uh, the rest of the investigative team, it’s easy for people to, y’know, Monday morning quarterback the case. Super easy. So I don’t get offended when I hear it and I think the reason why is ‘cause I understand where they’re coming from.

Dave Cawley: But why didn’t he just arrest Josh?

Ellis Maxwell: We were getting there but Josh beat us to the punch, unfortunately.

Dave Cawley: Ellis told me he’d hoped to screen the case against Josh for formal charges — body or no body — in the spring of 2012. Which raises an interesting point: the case had never been screened.

Sim Gill: And the tragedy is that we were moving towards that process. We don’t get to control human behavior.

Dave Cawley: Salt Lake County District Attorney Sim Gill came into office in 2011, midway through the Powell investigation. He learned that while members of his staff had worked with police on search warrants and subpoenas, detectives and prosecutors had not met to review the evidence in a holistic way.

]Sim Gill: I wanted to make sure everybody who was part of the investigation got to give their input and as well as a collaborative collective of legal minds who said “ok, what is the flexibility of the range of our options that we have?”

Dave Cawley: Deputy D.A. Blake Nakamura told me prosecutors were willing to go forward with a no-body case, but it depended on police chasing down every possible lead.

Blake Nakamura: The unique challenge in those kinds of cases is it creates an opportunity for all these alternative explanations that are contrary to what the allegation of a homicide would be: they went off, they met somebody else, they had debt and so they were trying to leave the debt. Remember, there only has to be one person saying I have some reasonable doubt.

Dave Cawley: As we’ve seen, the Powell family worked hard to create those alternative explanations: Susan ran off to Brazil with Steven Koecher, Susan was “sexually motivated,” Susan was suicidal, Susan had abused her boys.

Blake Nakamura: And when you’re having to defeat that by circumstantial evidence that the person, no, is gone. Like, no contact with family, no activity in financial records. That tends to create a compelling picture, but when you’re dealing with reasonable doubt, sometimes that’s not enough.

Dave Cawley: It might seem likely to the majority of people that Josh Powell killed his wife, but prosecutors needed evidence to prove that.

Sim Gill: It’s not just the court of public opinion that gives you a successful prosecution. It’s the evidence that’s necessary under our rule of law with the burden of proofs that we have. When you don’t have that physical body, when that forensic piece is missing there is a whole host of logical possibilities and if I have more than one logical possibility in any realistic sense, I have reasonable doubt.

Dave Cawley: Not arresting Josh at the outset had been a tactical decision. Even now, Sim does not second-guess it. 

Sim Gill: This is not television. This isn’t CSI. This isn’t cutaways where you browbeat somebody and they confess. This is real life.

Dave Cawley: And of course, there would’ve been no point in arresting Josh from the beginning if prosecutors were not at that point prepared to file charges.

Blake Nakamura: When decisions are made to file or not file, those are not light decisions. They are not light decisions because it is a situation where if we file and we’re not successful in that, we can’t go back and say “geez, can you give us another shot?”

Dave Cawley: If they’d charged Josh with murder and a jury acquitted him, it wouldn’t have mattered if someone later discovered Susan’s body. Double jeopardy would’ve prohibited them from charging him again.

In the wake of the Powell case, Sim instituted changes within the district attorney’s office. They mandated in-person screenings of homicide cases before a team of prosecutors, ensuring a diversity of viewpoints and rigorous debate over the strength of the evidence. It’s tough to say if that process could’ve changed the outcome in the Powell case, were it in place from the beginning. But Sim, like Ellis, doesn’t believe police botched the investigation.

 Sim Gill: Absolutely not. Absolutely not. If anything, what I want to communicate from what we learned and what we observed and what we interacted with, that commitment to finding the truth never, they never wavered from that.

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Dave Cawley: On June 6th, 2017, I mailed a letter to Steve Powell. In it, I described my work on this podcast and expressed my interest in speaking with him. In particular, I hoped Steve and I could discuss his planned autobiography, which he’d outlined and given the tentative title “Somewhere on the Moon.” Steve didn’t responded to my letter.

A few weeks later, Steve left prison again after serving just a fraction of his five-year sentence. He’d received time off for good behavior. I actually staked out his address during a visit to Tacoma that October, but never saw him.

Jennifer Graves: Thus far my dad’s been pretty closed mouth about everything in relation to this case and I don’t think he’ll ever change that. Maybe. I don’t know. I mean, miracles happen but I don’t see it happening at this point. I do believe that he knows about stuff, that Josh probably told him stuff. Maybe he wasn’t privy to it as, as he was planning or, or uh, executing his plan. But I think that in, y’know, at the end he was told. I think he knows. Will he ever tell? I doubt it.

Dave Cawley: Pierce County sheriff’s detective sergeant Gary Sanders kept tabs on Steve after he left prison. At that point, Gary was running the county’s sex offender monitoring program.

Gary Sanders: And they’d notified us that he was up in King County, which kind of threw us off, umm, because of health issues.

Dave Cawley: Steve’s health had taken a nose-dive. In the summer of 2018, Gary learned Steve’d been admitted to St. Joseph Medical Center in Tacoma. Gary called the hospital, in the hopes Steve might make a dying declaration. But the hospital told him, Steve was getting better.

Gary Sanders: They mentioned that he was on progression, getting towards outpatient, being released and stuff, umm, so I’d, I’ve kinda, I was still monitoring him but I was not as concerned for the dying declaration.

Dave Cawley: Then, just before 5 a.m. on July 22nd, 2018, Steve Powell died at the hospital from severe cardiomyopathy, heart failure. No one bothered to inform Gary.

Gary Sanders: And I called down there to say “hey, how is he doing, where was he at, still in the hospital?” And umm, they initially wouldn’t tell me anything just because of rules of and stuff and then I explained because of the monitoring and they, they informed me that he’d passed away.

Dave Cawley: Word of Steve’s death started to spread. I learned of it early the morning of July 24th. I immediately sent a text to Ellis.

Ellis Maxwell: Matter of fact, when I learned of, from you, of Steve’s passing, I fired off a text to a couple of other guys that I’m real close with that were a great asset to the investigation and, y’know, we had our chuckles and, y’know, there wasn’t a lot of, of love lost there, so, I mean, we still talk about Steve Chantrey and his music and (laughs), y’know, we’re cops. We laugh about it. That’s how we get through things.

Dave Cawley: Chuck Cox reacted differently to Steve’s death.

Chuck Cox: When Steve passed, I got thinking “what a waste of a life.” He, he’s, he ruined the lives of his children, his family, he took my daughter and the grandchildren, tore apart his own family and now he’s gone. Just what a loss.

Dave Cawley: Steve’s death certificate showed he was cremated on August 6th of 2018. It listed Alina as his next of-kin. Many news stories at the time suggested Steve had died knowing important information about the whereabouts of Susan’s body. But Gary, like Ellis, wasn’t so sure.

Dave Cawley: Did you hold much hope that he might say anything or was that kind of a slim chance in your mind?

Gary Sanders: I think it was a slim chance. Umm, he, he didn’t, I don’t, I don’t think he would have told us. … And to be honest, I don’t know if he did know.

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Dave Cawley: Journal of Steve Powell, 10:30 p.m., December 8, 2009. 36 hours following the first report of Susan Powell’s disappearance.

Ken Fall (as Steve Powell from December 8, 2009, journal entry): I feel like Josh did a truly stupid thing, and probably disposed of her body in a very grotesque way. I think he probably went to some former industrial land just west of West Valley City and cremated her. I don’t see how he could live with an image like that in his mind.

I want Josh to be with his boys, but I am also angry with him for murdering such a beautiful woman. … That he could do such a thing once suggests that he could do it again. If things go too badly, he could murder the boys and hang himself to avoid going to prison and leaving them with the Mormon families that would no doubt take custody of them.

Josh’s life with Susan was utterly miserable, as was hers with him. Why she stayed with him I do not know. Evidently this tragedy is my answer for why Josh hung on. He wanted to do it his way and avoid a messy and costly divorce. I have news for him. This will be a very costly process, and he may lose anyway. Why someone who is otherwise so smart would do something so utterly stupid is beyond me.

Years ago I made up my mind that Josh was, of my kids, capable of doing such a thing. But our conversations of late suggested that I had nothing to worry about, although I thought about it with concern at times. He seemed resolved that doing something so callous would be most disruptive to his and his children’s lives. Now I wish I had talked more about the likelihood that someone involved in such a crime would be caught. If I had only known. If I could only turn back time.

Dave Cawley: On the conclusion of Cold…

Jennifer Graves: Sometimes it isn’t possible, sometimes the right decision is to get out.