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Law360 (August 4, 2020, 11:33 PM EDT) -- A Washington state jury has returned from a pandemic-spurred break to award $98.5 million to the grandparents of two young boys who were killed by their father in a murder-suicide, finding the state's Department of Children, Youth and Families' negligence was to blame for their deaths.
After deliberating for roughly two full days, the Tacoma jury returned on Friday with a verdict in favor of grandparents Charles and Judith Cox, who had custody of the boys before they were killed. The Coxes had alleged that state employees had ignored a series of warning signs about the boys' father, Josh Powell, leading up to the 2012 killings.
Powell was the sole suspect in the 2009 disappearance of the boys' mother, Susan Cox Powell, in Utah, and law enforcement in that state had informed Washington agency employees that they had found child pornography on his computer, according to the Coxes' lawsuit. Josh Powell was nonetheless permitted to move his supervised visitation with the boys from a state-run facility to the private residence where he killed them, according the suit.
The jury found that the DCYF was negligent and this negligence was a proximate cause of the deaths of the boys, Charles and Braden Powell, and awarded $57.5 million in damages for each child. The jury also found that roughly $8.2 million in damages per each child was caused by Josh Powell's intentional criminal acts, reducing the total award to $98.5 million.
Anne Bremner of Frey Buck PS, who represented the Cox family, told Law360 on Tuesday that the state had dropped the ball in its obligation to protect the Powell children.
"In a case where Josh Powell was a suspect and a judge had found probable cause and issued a search warrant — for murder, the disappearance of his wife — where the kids were witnesses, the number one failure was allowing visitation in his home, it's just common sense," she said.
Bremner also called special attention to the commitment showed by the jurors in returning in person to finish the jury trial after a months-long break caused by the coronavirus pandemic.
"I've practiced almost 37 years and I've never seen a jury like this before," she said. "During a pandemic, with all the adversity, to come back and hear this case and pay it the attention it deserved and render that verdict."
Charles Cox added in his own statement that, "Nothing can bring back the boys, but this is the end of a nightmare, and it's gratifying to hear a jury tell the state they were wrong, and to award a verdict that will force them to change the culture at [Department of Social and Health Services] to make sure this doesn't happen to other children in the future."
The DCYF said in a Friday statement that it will review the verdict and "determine next steps."
The case had a circuitous route to trial after being first filed by the Coxes in Pierce County Superior Court in late 2014, undergoing a removal to Washington federal court, two appeals to the Ninth Circuit and a remand to state court.
The case went to trial in February, but was paused on March 17 due to the coronavirus pandemic. Pierce County Superior Court Judge Stanley Rumbaugh brought the parties and all but one juror back on July 13.
That juror asked to be excused because they were in high risk group for danger from COVID-19, according to Bremner.
Bremner said that the trial resumed with safety measures in place, including social distancing for the jurors — who were seated in the gallery — and the wearing of masks for everyone in the courtroom except witnesses who were testifying and attorneys who were examining or arguing.
The Cox family is represented by Anne Bremner, Ted Buck and Evan Bariault of Frey Buck PS.
The State of Washington is represented by its Attorney General's Office, which declined to identify which attorneys were on the trial team.
The case is Judith Cox et al. v. State of Washington, Department of Social and Health Services, case number 12-1-11389-6, in the Superior Court of the State of Washington for Pierce County.
--Editing by Michael Watanabe.
For a reprint of this article, please contact reprints@law360.com.
