Former Allegheny County Councilman Charles McCullough, who was found guilty of taking money from an elderly widow for whom he served as power of attorney, has scored at least a partial procedural victory in his appeal to the state Superior Court.
In a 2-1 opinion, the panel has ordered that Mr. McCullough's motion to have the trial judge recused from his case because of alleged inappropriate, one-sided conversations he had regarding the defendant, be heard again -- this time with the requirement that the judge and defense attorney be permitted to testify.
Ultimately, Mr. McCullough, who has not yet begun serving his sentence, could receive a new trial, but any such development would be months away.
The long and tortured history of the case against Mr. McCullough dates to 2007, when the Post-Gazette published a story that showed that $40,000 in donations to Republican candidates had been made in the name of wealthy widow Shirley Jordan.
An investigation revealed that Ms. Jordan, who died long before the trial began, did not intend for Mr. McCullough to make those donations, and he was charged by the Allegheny County District Attorney's office in 2009.
The case finally went to a nonjury trial in 2015 before Common Pleas Judge Lester G. Nauhaus, who found Mr. McCullough, 63, guilty of five counts of theft and five counts of misapplication of entrusted property.
However, as the case was about to move to sentencing, defense attorney Jon Pushinsky filed a motion asking to withdraw from the case because of a "rift" with his client.
And then, two weeks after that, Mr. McCullough filed a motion seeking to have Judge Nauhaus recuse himself from sentencing because of conversations he had about the case outside the presence of all the parties.
In one conversation, Mr. McCullough alleged that Mr. Pushinsky told him that Judge Nauhaus had urged the attorney to try the case before him without a jury, promising that he "'would not be sandbagged.'"
Mr. McCullough claimed in the petition that, though he wanted a jury trial, he went along because he feared repercussions from the court.
Mr. McCullough then alleged another improper conversation, in which an acquaintance of his was told that Judge Nauhaus told a secretary that he did not believe the case was proven but that he had to convict Mr. McCullough on the charges associated with the five checks.
President Judge Jeffrey A. Manning had a hearing on the issue on Nov. 19, 2015.
During that hearing, he agreed with Judge Nauhaus' attorney that the judge could not be required to testify, and that Mr. McCullough would need to provide a full waiver of attorney-client privilege to allow Mr. Pushinsky to testify.
"Here, Judge Nauhaus’ testimony is crucial for McCullough to develop a record on the recusal petition. As McCullough notes, the substance of the allegations in his recusal petition principally implicate Judge Nauhaus," the majority wrote. "McCullough asserts that Judge Nauhaus allegedly behaved in a way that called into question the integrity of the entire proceeding."
In its opinion, the Superior Court said that Judge Manning abused his discretion on that issue and as to whether Mr. McCullough could give a limited waiver of attorney-client privilege to allow Mr. Pushinsky to testify.
As to Judge Nauhaus' behavior, the court said that the allegation involving his verdict in the case is "troubling because it suggests that Judge Nauhaus relied upon influences outside of the record to form an opinion regarding McCullough’s guilt prior to the close of evidence ... If those allegations have merit, then McCullough has a very colorable claim that he was denied due process," the panel wrote.
The Superior Court noted that it is well-established law that a trial court may not use evidence obtained outside of the case to render a verdict, and that if that occurred, it would implicate Mr. McCullough's due process rights.
The appellate court has ordered that a new hearing on the recusal issue be held.
If Judge Manning finds that Mr. McCullough's petition on recusal has merit, the Superior Court could order a new trial.
However, if Judge Manning finds there is no merit after hearing the evidence, Mr. McCullough may then appeal that issue back to the Superior Court. It set a schedule requiring that an opinion by Judge Manning and the record of the proceedings must be filed within 60 days of such an appeal.
In a dissenting opinion, Superior Court President Judge Emeritus Kate Ford Elliott wrote that she believes Mr. McCullough's claims on the recusal issue are "nothing more than smoke and mirrors." She noted in her opinion that Mr. McCullough is an experienced attorney, who understood what he was doing when he waived his right to a jury trial.
"If he wanted a jury trial, he knew he could have it," she wrote. "He did not make any objection at that time, nor at any point during the trial did he seek Judge Nauhaus’s recusal. It was only after he was disappointed by the verdict that he sought to have Attorney Pushinsky withdraw and, with new counsel, filed the recusal motion."
In addition, Judge Ford Elliott said that she did not see how any of the alleged conversations Judge Nauhaus had about the case harmed Mr. McCullough.
Ultimately, although he did not recuse from the case, Judge Nauhaus asked that it be reassigned for sentencing because of health reasons.
Judge David R. Cashman presided at sentencing and ordered Mr. McCullough to serve 30 to 60 months in prison.
That sentence has been stayed pending his appeal.
Mr. McCullough still faces perjury charges that were filed against him shortly after the hearing on the recusal issue. They stem from his statements to Judge Nauhaus, prior to trial, that he was voluntarily waiving his right to a jury trial, and that the decision to have a bench trial was made on his own free will and free from threat.
Those counts were also stayed pending the outcome of his appeal.
The district attorney’s office declined to comment. Mr. McCullough's attorney could be reached for comment.
"It's not proper for me to comment on a case pending before me," Judge Manning said.
Paula Reed Ward: pward@post-gazette.com, 412-263-2620 or on Twitter: @PaulaReedWard.
First Published: December 19, 2018, 8:00 p.m.
