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Defense files brief in Pozonsky case

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In their final arguments before a judge will decide whether to suppress evidence collected from former Washington County Judge Paul Pozonsky’s chambers, Pozonsky’s lawyers continued to argue Monday their client’s Fourth Amendment rights were violated.

The state attorney general’s office, however, failed to meet the 4:30 p.m. deadline to file its arguments, according to court officials.

In their brief, Pittsburgh attorneys Robert Del Greco Jr. and Mark Fiorilli detailed events in the months leading to a May 9, 2012, administrative order that they claim was treated like a search warrant.

In September 2011, a criminal investigation looking into allegations Pozonsky mishandled evidence began, court documents show. Several state troopers, former Washington County District Attorney Steve Toprani and Assistant District Attorney Josh Carroll held a meeting to discuss a specific instance in which Pozonsky ordered authorities to bring powder cocaine evidence to a suppression hearing, to open the package and turn it over to the court, the document said. As a result, the case was referred to the attorney general’s office. Members of the district attorney’s office and state police met with Deputy Attorney General Mike Ahwesh to discuss reports of Pozonsky allegedly halting suppression hearings and ordering drug evidence to be turned over to the court, the document said. The officials became more concerned after learning that Pozonsky allegedly requested a state trooper’s cellphone number, called the trooper and demanded that he turn over drug evidence, court document said.

Shortly after Washington County District Attorney Gene Vittone took office in January 2012, Vittone became aware of the ongoing investigation into Pozonsky. In the weeks that followed, the investigation into Pozonsky intensified, and the attorney general’s office and state police conducted several weeks of surveillance of Pozonsky in his vehicle and in social settings, the defense brief said. Officials also collected information from known criminals who stated that Pozonsky was corrupt, the brief said.

In February 2012, the state began preparations for a trap, with Pozonsky as the target, the defense claims. The trap reportedly included identifying two cocaine cases with suppression hearings that were pending on Pozonsky’s docket. The drug evidence was to be examined prior to hearings and checked again after the hearings. However, the plan never came to fruition, the defense claims.

On May 1, 2012, Pozonsky ordered the destruction of evidence in several cases. The motion concerned Vittone, Ahwesh and state police, and the decision was made to present a motion May 9, 2012, to address Pozonsky’s order. On May 9, during a meeting with various officials, Pozonsky’s law clerk produced a firearm he said he found lying on a table outside an evidence box in Pozonsky’s chambers. Pozonsky demanded the firearm be returned and later informed the officials that the evidence associated with his destruction order already had been destroyed. He also denied part of Vittone’s motion.

Concerned, the officials met again. During this meeting and, later, in hearings on Pozonsky’s suppression motion, both Ahwesh and Vittone have said there wasn’t sufficient probable cause for a search warrant at that time, according to the defense brief.

The officials then approached Washington County President Judge Debbie O’Dell Seneca and requested an administrative order that allowed for the search and seizure of evidence from Pozonsky’s workplace, the brief said.

Pozonsky, 58, who is now living near Anchorage, Alaska, has been charged with conflict of interest, theft, obstruction of justice, possession of a controlled substance and misapplying entrusted government property. He rarely returns to the area for court proceedings.

Del Greco and Fiorilli argue that if Vittone’s true “intent for requesting the search order from O’Dell Seneca was administrative in its purpose, then including Ahwesh and state troopers was unnecessary and the totality of law enforcement’s intelligence regarding (Pozonsky) should have been immaterial to O’Dell Seneca’s decision,” the defense brief said.

“Further evidence demonstrating that the sole purpose of the search was in aid of the criminal investigation is that the court administrator, Christine Weller, was not consulted relative to the scope or purpose of the order; a secret strategic session was held to discuss the execution of the order; Ahwesh and (state police) conducted the search; Weller did not participate in the search or receive a copy of the inventory and Vittone did not participate in the search,” Del Greco and Fiorilli argue. “The sole purpose of the administrative order was to secure evidence against Pozonsky.”

Del Greco and Fiorilli have continued to argue that the state illegally obtained evidence from Pozonsky and that Pozonsky had a reasonable expectation of privacy in his workplace. Fiorilli said Monday that he feels confident in the defense’s positions.

“Our positions have never wavered,” he said. “Because there was no warrant, his rights were violated and the evidence should be suppressed.”

Both parties were required to turn in briefs supporting their positions in the suppression matter by the end of the work day Monday. The attorney general’s office did not file its brief by the deadline. The clerk for Senior Bedford County Judge Daniel Lee Howsare, who is presiding over the case, called the attorney general’s office at 4:30 p.m. Monday and got no response.

A final deadline for additional briefs is set for Sept. 25. Howsare will then issue his decision.

“If the judge doesn’t grant the motion, we will prepare for trial,” Fiorilli said. “We will try to defend (Pozonsky) to the best of our abilities.”

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