Washington County District Attorney Gene Vittone was so disturbed by former judge Paul Pozonsky’s handling of police evidence – including a gun used in a homicide “just lying on a table” in the judge’s chambers – he felt the need to immediately take back any evidence stored in his office vault, Vittone testified Wednesday during a pretrial suppression hearing in the case.
But Pozonsky’s defense attorney, Robert Del Greco Jr., took exception with the decision to request an administrative court order rather than a search warrant, arguing that anything taken from the judge’s office during the May 2012 search should not be allowed as evidence in Pozonsky’s upcoming trial on charges of misapplying evidence.
“I have an obligation as a prosecutor to preserve evidence,” Vittone said. “There were certain questions about how the evidence was being preserved (by Pozonsky), and we needed to take immediate action, in my mind.”
In fact, Pozonsky’s orders to have drug evidence brought into his courtroom and stored in his chambers was so unusual that none of the five people who testified in the three-hour hearing Wednesday had ever heard of it happening before.
“It was one of the strangest things I’ve ever seen,” Vittone said.
Pozonsky, 58, who is now living near Anchorage, Alaska, watched testimony intently while wearing a navy blue suit with his hair neatly combed back. However, he squirmed and rubbed his eyes at times as Vittone testified for nearly an hour.
Pozonsky is accused of stealing cocaine evidence while presiding over several criminal cases. He was charged one year ago Friday with conflict of interest, theft, obstruction of justice, possession of a controlled substance and misapplying entrusted government property.
Washington County’s previous district attorney, Steve Toprani, began hearing from sources of strange practices with drug evidence by Pozonsky and referred the case to the state attorney general’s office in October 2011.
By early 2012, state police investigators set up surveillance operations on Pozonsky, but discontinued after just two weeks because the former judge consistently drove recklessly by running red lights and speeding, Trooper Matthew Baumgard testified. Police even prepared to “set a trap” for Pozonsky using drug evidence, but that plan never materialized.
In early May 2012, Pozonsky ordered evidence in his possession be destroyed, prompting concerns from Vittone, who had just taken office a few months earlier. On May 9, Pozonsky’s law clerk, Josh Camson, found a gun that was supposed to be evidence in an upcoming homicide trial “just lying on a table in the judge’s chambers outside an evidence box,” Vittone testified.
Camson brought the gun into Vittone’s office and told him of the situation, prompting investigators and county and state prosecutors to convene on what to do about the situation.
Pozonsky was irate and demanded the gun be returned, but Vittone said he found a statute that allowed President Judge Debbie O’Dell Seneca to write an administrative order forcing all evidence in Pozonsky’s possession to be returned to investigators. State police immediately went to Pozonsky’s chambers and seized drug evidence, a wooden axe handle and rifle case from a vault near the front doorway, state police Cpl. Louis Reda testified.
Del Greco argued that if investigators were so suspicious of Pozonsky’s actions, they should have requested a search warrant rather than a court order.
“Our theory and cause remains the same that an administrative order is insufficient reason to search an employee,” Del Greco said. “The search was going to occur if he said nothing or if he created a scene.”
Vittone said prosecutors wanted to get any evidence, which also included personal items from defendants awaiting trial, back into their custody before anything happened to it. He added there was nothing illegal about Pozonsky holding evidence, although it was highly unusual.
“I was alarmed by everything that happened that morning,” Vittone said about Pozonsky’s order to destroy evidence and a weapon being left unsecured. “I started researching everything we could do.”
Deputy Attorney General Mike Ahwesh added that investigators went straight to where the evidence was stored and that Camson opened a locked filing cabinet in the vault to hand over the records. He contended that shows no formal search took place, meaning the court order was sufficient.
Senior Bedford County Judge Daniel Lee Howser, who is presiding over the case, left the record open and is awaiting a decision on whether O’Dell Seneca, who is out of town, will be compelled to testify in the suppression hearing. It was not know when he planned to make a ruling on whether the evidence seized from Pozonsky’s chambers will be permitted at trial.
Pozonsky, who has been free on bond since the charges were filed last May, had no comment on the suppression hearing.