President judge doesn’t have to testify in Pozonsky case

June 12, 2014
Washington County President Judge Debbie O'Dell Seneca

An out-of-county judge quashed a subpoena and ruled Washington County President Judge Debbie O’Dell Seneca does not have to testify about why she signed an administrative order in 2012 to obtain evidence against her then-colleague Paul Pozonsky.

Bedford County Senior Judge Daniel L. Howsare, who is presiding over Pozonsky’s criminal case, also issued a protective order, as requested by the president judge’s attorney, Caroline Liebenguth of the Administrative Office of the Pennsylvania Courts, precluding O’Dell Seneca’s testimony at a hearing in which Pozonsky’s attorneys are hoping to have evidence tossed out.

An administrative order issued in May 2012, which Pozonsky’s attorneys claim was treated like a search warrant, was issued by the president judge, allowing officials to search and seize items from his judicial chambers that later became evidence.

Pozonsky’s lead attorney, Robert Del Greco Jr. of Pittsburgh, said the scenario in which O’Dell Seneca issued the administrative order “masqueraded as an official proceeding.”

Howsare ruled whether there was an official proceeding wasn’t the decisive factor.

Del Greco claimed the president judge violated his client’s Fourth Amendment right prohibiting unreasonable searches and seizures, and agencies investigating the then-judge for some time did not have “enough for a search warrant.”

The senior judge disagreed.

“We believe the order issued by President Judge O’Dell Seneca and the circumstances surrounding its issuance are administrative in nature and fall within the scope of the deliberative process privilege,” Howsare wrote in a memorandum filed Thursday in Washington County Court.

He went on to write Pozonsky did not show a strong necessity or extraordinary circumstances to have the president judge testify, and the testimony of District Attorney Gene Vittone and others was enough to establish the circumstances.

Vittone said under oath last month he was so disturbed by 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.

Pozonsky’s orders to have cocaine evidence brought into his courtroom and stored in his chambers was so unusual that none of the five people who testified at the pre-trial hearing had heard of it happening before.

Pozonsky, 58, who is now living near Anchorage, Alaska, is accused of stealing drug evidence while presiding over several criminal cases. The counts against him include conflict of interest, theft, obstruction of justice, possession of a controlled substance and misapplying entrusted government property.

Vittone’s predecessor, 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.

Under a cloud, Pozonsky retired from the Washington County bench nearly two years ago.

Howsare gave attorneys for the prosecution and defense until the end of the month to notify him if they plan on presenting other witnesses in Pozonsky’s suppression hearing. If testimony is closed, Howsare said he will issue a schedule for the presentation of legal briefs.

Barbara S. Miller covers politics, Washington County government and a variety of other topics for the Observer-Reporter. She is a graduate of Washington & Jefferson College, majoring in English and history. Follow her on Twitter @reporterbarb.

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