President judge should opt for openness

May 29, 2014

“Sunlight is said to be the best disinfectant.”

Louis Brandeis, who would become one of the most revered jurists in the history of the U.S. Supreme Court, made that statement in 1913. It’s a view apparently not shared by Washington County President Judge Debbie O’Dell Seneca, who is doing her best to avoid testifying and perhaps shedding additional light on her involvement in the search of the chambers of then-judge Paul Pozonsky two years ago.

After O’Dell Seneca’s order to retrieve evidence from Pozonsky’s office was carried out, the soon-to-be-ex-judge was accused of stealing cocaine that was being held as evidence in criminal cases he was handling. He is facing prosecution on charges of conflict of interest, theft, obstruction of justice, possession of a controlled substance and misapplying government property. As part of his defense, Pozonsky, through his attorneys, is seeking to suppress evidence seized from his chambers on grounds that it was improperly obtained.

In early May 2012, District Attorney Gene Vittone became alarmed when Pozonsky issued an order that evidence in his possession be destroyed. On May 9 of that year, Vittone said the judge’s law clerk came to him to report that a gun that was to be used as evidence in a homicide case was “just lying on a table in the judge’s chambers.” With that, Vittone sought and received an administrative order from O’Dell Seneca to seize drug evidence and other items from Pozonsky’s office.

Now, Pozonsky’s attorneys want all of that evidence tossed, arguing that an administrative order was not sufficient, and that a search warrant should have been obtained.

They are seeking O’Dell Seneca’s testimony before Senior Judge Daniel Lee Howsare, who was brought in from Bedford County to hear the matter. O’Dell Seneca responded with a motion to quash the subpoena.

First, we see no reason why a warrant should be necessary to secure evidence from a judge’s chambers. Those offices are, or at least should be, the permanent property of the people of Washington County, not of a judge who is using them temporarily. But we also see no reason why O’Dell Seneca should not be required to speak about her involvement in the process.

The judge is citing a 2007 Superior Court decision that says judicial officials are immune from testifying “as to information surrounding their conduct during an official proceeding.” Those last two words, to us, seem important. O’Dell Seneca appears to be stretching the term “official proceeding” past the breaking point. Her action authorizing the seizing of evidence from Pozonsky’s chambers was an administrative function. It’s clearly labeled as such.

There’s a big difference, in our thinking, between compelling a judge to discuss his or her decision on a motion in a murder trial and being required to testify about the lead-up to the issuance of a procedural order not linked to any existing civil or criminal matter.

In her motion, the judge also cites several federal cases to support her reasoning that “even if the proposed line of questioning does not concern information surrounding Judge O’Dell Seneca’s judicial conduct,” she could be required to testify only if she possesses factual knowledge; that knowledge is highly pertinent to the fact finder’s task; and the judge is the only possible source of evidence on the relevant factual information.

It would seem clear that O’Dell Seneca does, indeed, possess some factual knowledge. As to the other issues, that should be up to Judge Howsare to decide.

There’s a whiff of an imperial president judgeship and obstinate obstructionism in the air. Certainly, we can’t have our judges being summoned to testify by every Tom, Dick and Perry Mason, but this case hardly represents a slippery slope. Full disclosure, clarity and transparency are important in the conduct of the public’s business, and in the proceedings of the public’s courts, so it is our hope that Judge Howsare displays independence and compels Judge O’Dell Seneca to provide whatever information she can add to this proceeding and ensure that Pozonsky receives the fairest treatment possible.



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