Pozonsky served 13 years as a Magisterial District Judge followed by 14 years as a judge of the Court of Common Pleas. As a judge, he adjudicated criminal cases involving persons accused of drug crimes and juvenile delinquency cases, which often involved drug issues for juveniles. In 2005, he took the lead in creating the Washington County Drug Court, and subsequently presided over that court.
For a period between late 2010 and January of 2012, Pozonsky engaged in a pattern of diverting powdered cocaine from evidence to his personal use. He directed state troopers to deposit cocaine seized as evidence in an evidence locker in his courtroom, and surreptitiously removed quantities of the drug for his personal use, replacing the stolen drugs with substances such as baking powder.
After his actions were discovered, Pozonsky pleaded guilty to one count of theft by unlawful taking, obstructing the administration of law, and misapplication of entrusted property and the property of a government institution, all second-degree misdemeanors. He served one month of incarceration and completed 23½ months of probation.
Pozonsky pleaded guilty on March 20, 2015, and was sentenced on June 13, 2015. Thereafter, the Court temporarily suspended his license to practice on August 19, 2015. The Office of Disciplinary Counsel initiated formal proceedings and at his disciplinary hearing, Pozonsky submitted evidence of his community service activities along with 68 character letters. He submitted written reports from three substance abuse counselors on his recovery, but no medical evidence. Both the Hearing Committee and the Disciplinary Board recommended his disbarment.
On review, the Supreme Court, in a Judgment Opinion written by Justice Debra Todd, found that the magnitude of Pozonsky’s breach of his duty as a public officer outweighed the mitigating evidence he provided. The Court found Pozonsky’s adjudication of drug cases while illegally stealing and using drugs himself to be a significant aggravating factor.
The Court declined Pozonsky’s argument that the evidence showed a causal connection between his drug addiction and his actions. Pozonsky pointed to statements in his character letters that attributed his actions to his drug use, and to evidence from counselors who confirmed his addiction. The Court found that this evidence did not meet the mitigation standard set in Office of Disciplinary Counsel v. Braun, 553 A.2d 894 (Pa. 1989), which requires an attorney seeking mitigation to offer expert psychiatric testimony showing that a medical condition was a causal factor in the misconduct. The Court stated:
Our Court has never held that lay opinions alone, are sufficient to establish that an addiction or mental illness was the cause of an attorney’s misconduct. Indeed, recent decisions of our Court have emphasized the critical role of expert testimony in establishing such a causal link. [Opinion at 26]
Justice Max Baer filed a concurring opinion, joined by Justice Christine Donohue, in which he stated, among other things, that there is no per se rule requiring disbarment in a case where a judge is convicted of a crime. In addition, he wrote that greater weight should be given to the evidence of Pozonsky’s addiction. He agreed with the principle that evidence in mitigation must take the form of expert psychiatric testimony, and concluded that the failure to offer such evidence compelled him to concur with the majority’s decision to disbar Pozonsky. He expressed the view that if such evidence had been offered, the outcome may have been different. He stated:
I find it ironic that the therapeutic justice that Respondent dispensed to the numerous drug-addicted criminal defendants that came before him, many of whom he led to the path of recovery, is not so readily available to him in this disciplinary matter …. [Concurring Opinion at 4]