Pennsylvania Disbars Drug-Using Drug Court Judge

The Pennsylvania Supreme Court Western District has disbarred an attorney for misconduct as a judge in a full opinion rather than its usual practice of adopting the report of the Disciplinary Board

In this matter, we consider the request of Petitioner, the Office of Disciplinary Counsel (“ODC”), to disbar Respondent, Paul Michael Pozonsky, from the practice of law in this Commonwealth. Pozonsky was a commissioned judge of the Court of Common Pleas of Washington County who presided over criminal trials, juvenile delinquency hearings, and also directed the rehabilitative disposition of drug offenders in that county’s Drug Court, which he founded. Using his position as a jurist, he directed police officers and court personnel to bring cocaine, which was evidence in the cases over which he was presiding, to an evidence locker in his courtroom; whereupon, for over a year, he stole quantities of this illegal drug from that locker and used it for his own recreational purposes, all while continuing to preside over criminal prosecutions and imposing sentences on defendants for committing crimes which he himself was contemporaneously engaging in. After Pozonsky’s illicit activities were discovered, he resigned his judicial commission and was convicted for his crimes. After considering all the relevant facts and circumstances surrounding Pozonsky’s egregious misconduct while a commissioned judge, and taking into account the mitigating evidence he offered, the Disciplinary Board of the Supreme Court of Pennsylvania (“Disciplinary Board” or “Board”) issued a unanimous report detailing its factual findings and its recommendation that he be disbarred. Because the evidence of record amply supports the Board’s findings and corresponding recommendation of disbarment, we order Pozonsky’s disbarment to both protect the public and to preserve the integrity of the legal profession.

The specifics

Beginning sometime in late October or early November 2010, and continuing through January 2012, Pozonsky exploited his position as a judge to steal powdered cocaine — an illegal controlled substance — that was the principal evidence in criminal or delinquency hearings held in his courtroom. Specifically, he ordered state troopers  who had seized cocaine which was to be used in the criminal prosecutions or juvenile adjudications over which he was scheduled to preside, as well as a court employee — his law clerk — to bring that evidence to his courtroom, where he stored it in an evidence locker in his chambers. He then surreptitiously and regularly removed quantities of this illicit substance from that locker when courtroom staff was not present, smuggled it out of the courthouse, and used it at his home. Pozonsky attempted to conceal his thefts by substituting baking powder and other substances for the cocaine he had stolen and used.

In early 2012, Pozonsky issued an order directing the destruction of evidence from closed criminal cases he had presided over. That, and the manner in which other evidence stored in the evidence locker was being handled, generated suspicion and concern from the Washington County District Attorney, Eugene Vittone, and the then President Judge of that county, Debbie O’Dell Seneca. These matters were referred to the Office of the Attorney General which began a formal criminal investigation of Pozonsky. The investigation resulted, inter alia, in the search of Pozonsky’s chambers by the Pennsylvania State Police who retrieved all remaining evidence stored there on May 9, 2012. Pozonsky resigned from the bench in June 2012, and resumed active status as an attorney; whereupon, he moved with his family to Alaska. While in Alaska, Pozonsky secured a job as a workers’ compensation hearing judge, which he held from October 8, 2012, until he resigned on December 7, 2012. 

He pleaded guilty to criminal charges.

On March 20, 2015, Pozonsky pleaded guilty to one count of theft by unlawful taking, obstructing administration of law, and misapplication of entrusted property and property of a government institution, all graded as second-degree misdemeanors. Four months later, on July 13, 2015, he was sentenced to 1 to 23½ months incarceration, followed by two years probation. Pozonsky ultimately served the minimum term of incarceration — one month — and successfully completed his term of probation.

Justice Baer concurred

Without hesitation, the majority imposes the most severe sanction of disbarment, concluding that “[t]here are few transgressions which more seriously undermine the public’s confidence and trust in the integrity of their judicial system, and which are as offensive to the high standards and principles which other members of the bench and bar strive so faithfully to uphold in the performance of their duties, than those committed by [Respondent, Former Judge Paul Michael Pozonsky].” Slip Op. at 28. While I in no way condone the actions of Respondent, who founded and supervised Washington County’s Drug Court and subsequently stole cocaine from the courtroom’s evidence locker for his personal use, I find this disciplinary case much more challenging to resolve.

My difficulty lies in Respondent’s decision not to present mitigation evidence in the form of a mental health expert to establish the causal connection between what I perceive to be his drug addiction and his misconduct. See Office of DisciplinaryCounsel v. Braun, 553 A.2d 894, 895-96 (Pa. 1989) (requiring evidence of a causal connection between the psychiatric disorder and the attorney’s misconduct to establish mental health mitigation evidence in a disciplinary case). As a result of this omission, neither the lower tribunals nor the majority opinion considered Respondent’s cocaine addiction as a mitigating factor. Interpretation of the governing precedent of this Court compels me to join the majority’s conclusion that to prove legally cognizable mental health mitigation evidence in a disciplinary case, a respondent must present a mental health expert to establish the causal link between the attorney’s mental disability and his misconduct. Considering, as I believe I must, this evidentiary vacuum, I am constrained to agree with the majority that the delicate weighing of Respondent’s transgressions against the other substantial evidence of mitigation, tips the scales towards imposition of the sanction of disbarment.

…In summary, I conclude that, through his own misconduct, Respondent has lost everything he once had. Had persuasive Braun evidence been presented linking his cocaine addiction to his misdeeds, perhaps the lower tribunals or even the majority would have opted for the maximum suspension of five years, rather than disbarment. Personally, I believe that Respondent’s ultimate triumph over his addiction and his contributions to the Drug Court and to the various community organizations he served are worthy of something. However, that value does not tip the scale away from imposition of disbarment, absent appropriate Braun evidence.

Justice Donahue joined the concurrence. (Mike Frisch)