Former county councilman McCullough seeks new trial
Judge convicted him of theft in 2015
Former Allegheny County Councilman Chuck McCullough, who was convicted in 2015 of taking money from an elderly widow but has yet to serve his sentence, was back in court Wednesday.
The state Superior Court in December found that Mr. McCullough was entitled to an evidentiary hearing on his motion to recuse Allegheny County Common Pleas Judge Lester G. Nauhaus amid allegations that the judge engaged in improper conversations about the case while it was pending. Mr. McCullough wants a new trial.
After Judge Nauhaus rendered his guilty verdict in Mr. McCullough’s non-jury trial four years ago, the defendant filed a motion asking the judge to step down from the case.
A hearing was held Nov. 19, 2015, but Judge Jeffrey A. Manning refused to allow Judge Nauhaus to testify, and Mr. McCullough’s former defense attorney, Jon Pushinsky, would not testify without a full attorney-client privilege waiver.
Mr. McCullough appealed, and Superior Court, in a 2-1 decision, said Judge Nauhaus’ testimony was crucial to the defendant’s allegation that he did not receive a fair trial.
On Wednesday, Judge Nauhaus was the first witness called at the hearing before Judge David R. Cashman.
Mr. McCullough’s attorney, Adam Cogan, questioned Judge Nauhaus relative to three issues he said showed his client did not receive a fair trial.
The first related to a motion Mr. Pushinsky filed in December 2014. Judge Nauhaus admitted that he was “disturbed” when he received the motion and called Mr.
Pushinsky to discuss it. The judge said he told the attorney that the motion was improper.
“The case had dragged on too long,” Judge Nauhaus testified.
“Do you consider your communication with attorney Pushinsky an ex parte communication?” Mr. Cogan asked. Ex parte communication refers to a conversation that would benefit only one side in a case.
“No, sir,” the judge answered.
Under cross-examination by Deputy District Attorney Michael Streily, Judge Nauhaus said he saw nothing improper in the telephone call.
“I was not discussing the issues involved,” the judge said. “I wanted this case to go forward. This was footdragging.”
But later, Mr. Pushinsky testified that the judge yelled at him for even filing the motion and that he felt the conversation was improper. There was a second phone conversation with Judge Nauhaus later, when the attorney called to schedule a status conference with court staff. He said Judge Nauhaus got on the line and asked Mr. Pushinsky what issues he wanted to discuss.
“’You don’t really want me to tell you now, do you?’” Mr. Pushinsky said he asked.
“He said, ‘Yes, tell me.’” Mr. Pushinsky did. However, the attorney testified he did not think the conversations rose to the level of prohibited ex parte communications.
“I thought the judge was just blowing off steam,” Mr. Pushinsky said. “I didn’t think it really addressed issues of merit in the case.”
The second issue was a conversation Judge Nauhaus had with a mutual friend of Mr. Pushinsky’s prior to trial about whether Mr. McCullough should have a jury or non-jury trial.
Judge Nauhaus testified that he spoke with that person, Paul Needle, broadly about Mr. McCullough’s case and told him he thought there was no “jury appeal” and that the defense should consider going without one.
“Mr. McCullough was charged with scamming a demented old woman who had no heirs but a load of money,” Judge Nauhaus testified.
He said there was no back channel deal to get Mr. McCullough to go non-jury.
“I prefer jury trials over non-jury trials,” Judge Nauhaus said.
Mr. Pushinsky said that the question about whether to have a jury hear the case was often discussed with Mr. McCullough, and that he believed his client voluntarily made the decision to have Judge Nauhaus serve as the fact-finder.
But Mr. McCullough argued in his recusal petition that he felt forced to go nonjury, fearing the judge would hold it against him had he sought a jury trial.
The last issue the defense raised was an allegation that Judge Nauhaus discussed his potential verdict with his staff prior to making a decision.
The judge called that allegation “absolute nonsense.”
“I did not have a conversation with anyone as to what my decision was going to be,” he said. “That conversation never took place.”
Martin Schmotzer, a former Democratic state representative, Baldwin-Whitehall school board member and clerk of courts employee, was then called to testify about a conversation he claimed to have had related to that allegation.
He claimed he was told Judge Nauhaus said he didn’t think the prosecution had proved the case against Mr. McCullough, but that the judge’s secretary told him he had to convict him of something because of how it looked.
Mr. Schmotzer at first refused to answer the questions posed to him because he said he wouldn’t go back on his word.
“I refuse to give you their names,” Mr. Schmotzer said.
But after he was briefly held in contempt and taken away by a sheriff’s deputy, Mr. Schmotzer returned and said he received the information from Janine Palmer McVay, a minute clerk in the criminal division. She told him she’d heard it from Judge Nauhaus’ secretary, Peggy Moore.
Mr. Cogan asked Judge Cashman to leave the record open on the issue in case he wanted to call additional witnesses. Judge Cashman gave him a week.
Although Judge Nauhaus never formally recused himself, he sent a letter to Judge Manning six days prior to sentencing, asking that the case be reassigned for health reasons. Judge Cashman got the case, and he sentenced Mr. McCullough to 2½ to five years in prison on Dec. 17, 2015, on five counts each of theft and misapplication of property. The sentence was stayed pending the defendant’s appeal.
During Wednesday’s hearing, counter to what he said at the time, Judge Nauhaus said that he asked to be removed from the case after the recusal motion was filed.
“I didn’t think I could fairly sentence him, just personally,” he said.