Lawyers for a former Washington County judge facing trial on theft and drug charges argued Wednesday that key evidence against him was wrongly collected two years ago, and a judge must now decide whether it should be thrown out.
Attorney Robert Del Greco said investigators should have obtained a search warrant before seizing evidence from the chambers of his client, now-retired Common Pleas Judge Paul Pozonsky, 58, which became part of a 15-count state grand jury indictment last year accusing him of pilfering cocaine from evidence bags.
Mr. Pozonsky, who appeared in court Wednesday, retired in July 2012 in the midst of the probe into his alleged actions and moved with his wife to Alaska.
He declined comment after the proceeding.
The defense contended that the former judge's constitutional right to protection from unreasonable searches and seizures was violated May 9, 2012, when President Judge Debbie O'Dell Seneca issued an administrative order allowing Pennsylvania State Police to seize and audit evidence that they found in a locked filing cabinet in Mr. Pozonsky's chambers in the Washington County Courthouse.
In 2011, then-District Attorney Steven M. Toprani, notified the state attorney general's office after state police raised concerns about Mr. Pozonsky's unusual request for and handling of drug evidence, which is maintained by police or the district attorney's office.
Judges rarely, if ever, ask for such evidence for pretrial hearings.
In 2012, state police began surveillance on Mr. Pozonsky but stopped after a few weeks because he was often speeding and running red lights, Trooper Matthew Baumgard testified Wednesday.
District Attorney Eugene Vittone of Washington County testified Wednesday that Mr. Pozonsky's actions further came into question when prosecutors learned he had ordered the destruction of evidence in several cases and when his law clerk told them he found a gun -- part of a homicide case -- on a table outside the evidence box in Mr. Pozonsky's chambers.
In court on Wednesday, Mr. Vittone cited a law that he said gave the president judge the authority to issue the order, adding that several cases were still active.
"I have an obligation as a prosecutor to maintain the integrity of evidence," Mr. Vittone testified.
"With everything that was going on, it certainly raised a question in my mind as to how to preserve this evidence. I believe it's my responsibility to make sure that evidence doesn't get tampered with or destroyed. ... We needed to take immediate action, in my mind."
Deputy Attorney General Michael M. Ahwesh is lead prosecutor on the case.
If visiting Judge Daniel Howsare of Bedford County decides to toss out the evidence, it would "sufficiently hamper the ability for the attorney general's office to proceed," Mr. Del Greco said after the hearing.
Defense attorneys have summoned Judge O'Dell Seneca to testify, but she was not available to attend Wednesday's hearing.
An attorney for the Administrative Office of Pennsylvania Courts representing her is expected to file a motion by Friday challenging the subpoena.
Attorneys for Mr. Pozonsky will then have until June 6 to respond.
In all, the former judge faces eight counts of theft, four counts of possession, one count of misapplication of entrusted property and one count of obstruction, all misdemeanors.
He is also charged with felony conflict of interest, a violation of state ethics law.
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