If not for a “circumvention of the Fourth Amendment,” the criminal case against former Washington County judge Paul Pozonsky wouldn’t exist, his attorney argued Friday morning during a hearing to determine if Washington County President Judge Debbie O’Dell Seneca should be required to testify in a suppression hearing for his client.
Pozonsky’s attorneys are attempting to suppress any evidence removed from his chambers in May 2012. An administrative order, which Pozonsky’s attorneys claim was treated like a search warrant, was granted by the president judge, allowing officials to search and seize items that later became evidence.
Pittsburgh attorney Robert Del Greco Jr. said the scenario in which O’Dell Seneca issued the administrative order “masqueraded as an official proceeding.”
Caroline Liebenguth, an attorney with the Administrative Office of the Pennsylvania Courts, previously filed a motion to quash a subpoena ordering O’Dell Seneca to testify. In the same motion, she requested an order protecting the president judge from being subpoenaed again in the case.
Liebenguth argued in her motion that “judicial officers are immune from testifying as to the information surrounding their conduct during an official proceeding.”
“Although it was labeled as an administrative action, it was a court order,” Liebenguth said Friday.
She said there are only two occasions when a judge can be compelled to testify.
“There are extreme situations,” Liebenguth said. “When they have factual knowledge or when they are the only person who can testify to the facts. That’s not the case here.”
But Del Greco said the meeting in which the order was signed was “off the record.”
“It was an off-the-record, covert, sealed meeting. In my opinion, that it occurred as such requires the president judge to testify.”
He argued agencies were investigating his client for some time and did not have “enough for a search warrant.”
“So they asked for an administrative order,” Del Greco said.
While he’s not placing any “fault” on the president judge, Del Greco said he wants her to testify to a number of issues, including “what she was thinking when she signed the order.
“There was a search of his office. Items were seized. Items were taken to the state police, to the grand jury, and at no time was there probable cause for that seizure.”
Del Greco said there is a strong argument for throwing out evidence against Pozonsky.
“If there is no probable cause and we have the Fourth Amendment and the Pennsylvania Constitution, then you can’t do anything. The answer is not to go to the president judge and get an administrative order to do what we can’t do legally,” Del Greco said. “That’s the argument in a nutshell.”
The Fourth Amendment to the U.S. Constitution states people have the right to be secure in their persons, houses, papers and effects against unreasonable search and seizure. Moreover, there must be reasonable cause for a search to be warranted, and official paperwork must describe the place to be searched and the items to be seized.
Senior Bedford County Judge Daniel Lee Howsare, brought in to handle the case, left the suppression hearing open to see whether O’Dell Seneca would testify or not. He did not issue a ruling Friday on her motion to quash the subpoena.
Pozonsky, 58, who is now living near Anchorage, Alaska, is accused of stealing cocaine evidence while presiding over several criminal cases. He was charged more than a year ago with conflict of interest, theft, obstruction of justice, possession of a controlled substance and misapplying entrusted government property. He remains free on bond.