A judge dismissed a child pornography charge against Steve Powell, the father-in-law of missing Utah mother Susan Powell, as his trial began with jury selection Monday.
Pierce County Superior Court Judge Ronald Culpepper agreed with defense attorneys who argued that the crime of possessing child pornography requires that the depictions include sexually explicit behavior or that the defendant have some control over the behavior of the children photographed.
Steve Powell was accused of secretly recording more than 2,000 images of two young, neighbor girls in their home as they took baths and used the toilet.
Prosecutors argued that Washington lawmakers changed the child porn law in 2010 to make clear that such activity is illegal. The law defines "sexually explicit conduct" as the depiction of a minor's genitalia, breast or buttocks for the purpose of sexual gratification of the viewer, and it specifies that the child does not need to be aware that he or she is participating in the conduct.
Prosecutors did not immediately say whether they would appeal. Attorney Anne Bremner, who represents the former neighbors, now 12 and 14, said the family was disappointed, and that the child porn count should have been left for the jury.
Powell still faces 14 counts of voyeurism, alleging that he secretly recorded the neighbor girls and other women without their knowledge. Voyeurism, like the child porn charge, carries a five-year maximum sentence.
Susan Powell's parents, Chuck and Judy Cox, watched as Steve Powell was led into the courtroom Monday wearing handcuffs, a tie and gray suit. While jurors filled out questionnaires in another room, prosecutors and defense attorneys discussed how much should be disclosed at the trial about Steve Powell's apparent obsession with his son's wife.
Susan Powell is presumed dead, apparently at the hands of her husband, Josh Powell, who was Steve Powell's son. Josh Powell killed himself and the couple's two sons in a fiery explosion in February at a house in Graham. At the time, he was involved in a custody fight with the Coxes over the boys.
Josh Powell and the boys had moved into his father's home in Puyallup after Susan Powell's disappearance from their home in West Valley City, Utah, in late 2009.
Officers were searching the home for clues last summer when they said they came across voyeuristic images on Steve Powell's computers. There were images of Susan Powell and other women that appeared to be secretly recorded, and pictures of naked women with Susan Powell's head superimposed, authorities said.
Opening statements are not expected until Wednesday. Susan Powell's parents, hope the trial will lead to answers.
"We don't expect a great deal, but we want to be there," said her father, Chuck Cox. "Maybe he'll decide he has lost, and that he needs to propose a bargain to tell the detectives what he knows. Perhaps he might decide he can inflict one more insult by blurting out something that might be useful."
Police in Utah have characterized Steve Powell as uncooperative in their investigation of Susan Powell's disappearance. He has invoked his right to remain silent, and no evidence has emerged that he was in Utah the weekend she disappeared.
Johnson can be reached at https://twitter.com/GeneAPseattle