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Washington County judge: Evidence against him illegally obtained

| Tuesday, March 11, 2014, 11:12 p.m.

Attorneys for former Washington County Judge Paul Pozonsky want evidence in his corruption case thrown out because investigators failed to get a search warrant before searching his chambers — a request that if granted could put the case in jeopardy, legal experts said.

Attorneys Robert Del Greco and Mark Fiorilli said on Tuesday that state police violated the Constitution in not getting a warrant when they raided Pozonsky's chambers in May 2012 at the Washington County Courthouse. Instead, police relied on a court order from President Judge Debbie O'Dell Seneca that directed state police to seize and audit evidence Pozonsky kept in his chambers from other cases.

Pozonsky, 58, who has since moved to Alaska, is facing 15 charges stemming from allegations he stole cocaine from case evidence envelopes and on in least one occasion replaced it with baking soda.

“What was seized and not seized constitutes the crux of their case,” Del Greco said. “If a government agency intended to seize what they believe to be evidence of a crime, they should have had a warrant.”

Bedford County Judge Daniel Howsare, whom the Supreme Court appointed to hear the case, is considering the request. If he rules the evidence against Pozonsky was not properly obtained, prosecutors could not use it against him at trial, crippling the case. A spokeswoman for the Attorney General's office did not return calls for comment.

Legal experts and former prosecutors said they've never had a case with these circumstances.

“The issue is once you inject the state police, you're injecting another branch of government, and are you stepping beyond the administrative authority? That's the unanswered question. It certainly leaves open the door for argument,” said defense attorney Dan Konieczka, a former Allegheny County prosecutor for 23 12 years. “The way I trained officers is, ‘When in doubt you always go for a search warrant.' ”

Villanova University law school professor Anne Poulin said a person's work area has a lesser expectation of privacy than at home, but warrants are usually required.

“You have to think whether the president judge had the authority to order the evidence audit,” Poulin said. “The more (prosecutors) can make it about an administrative function related to work, the less justification they need.”

O'Dell Seneca said through a staffer that judicial rules prevent her from commenting.

Questions about Pozonsky's handling of drug evidence arose in late summer or fall of 2011. Former District Attorney Steve Toprani turned the investigation over to the Attorney General's office, and prosecutors filed charges in May 2013.

The allegations outline drug cases against nine defendants in which Pozonsky sought or ordered police and prosecutors to give him evidence that ranged from less than a gram of cocaine to more than 100 grams.

Bobby Kerlik is a staff writer for Trib Total Media.

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