A bad week for Chuck McCullough got worse Thursday as the Allegheny County District Attorney's Office said it would add charges against the former county councilman who was denied a new judge for his sentencing on earlier theft charges.
Defense attorney Megan Will said the district attorney's office contacted her Thursday and told her that more charges will be filed Friday against McCullough.
McCullough will be charged with perjury and obstruction of justice.
President Judge Jeffrey A. Manning denied McCullough's petition to recuse Judge Lester G. Nauhaus from his sentencing when one witness after another cited rules of evidence, attorney-client privilege or protected sources to avoid testifying at an evidentiary hearing.
“There's absolutely nothing on the record at all to indicate Judge Nauhaus was in any way not impartial ... aside from what was in your petition,” Manning said. “Without evidence, those claims are now scurrilous.”
McCullough, convicted of taking money from an elderly woman's estate, had been scheduled for sentencing Nov. 9. That was delayed when Will, who joined the case a week earlier, filed a petition for recusal claiming Nauhaus called McCullough's previous defense attorney, Jon Pushinsky, and spoke to him “ex parte,” or outside the presence of opposing attorneys.
Will said Nauhaus also used a mutual friend to urge McCullough to waive his right to a jury trial, and allegedly talked to his secretary before agreeing on which counts McCullough would be found guilty. McCullough had wanted a jury trial but waived that right because he feared upsetting the judge, Will said.
Allegheny County District Attorney Stephen A. Zappala Jr. said at the time the motion was filed that McCullough could face additional legal ramifications, given that part of waiving the right to a jury trial involves the defendant's swearing under oath that he or she is waiving a jury willingly, without offers, threats or coercion.
McCullough had sworn before his trial that he was not threatened or coerced into waiving his right to a jury, but claimed in the petition for recusal that he had wanted a jury but “feared repercussions” if he didn't do what the judge wanted.
Martin Schmotzer, a former state representative and member of the Baldwin-Whitehall School Board, took the stand to say he had heard “third-hand” about the conversation between Nauhaus and his secretary. When pressed, he said someone called him to tell him about the conversation but refused to say who it was, and Manning did not compel him to.
Will said she had planned to learn the source's identity from Schmotzer and then call that person to testify later, presumably extending the hearing in a case that originally began with charges in 2009.
When Will tried to call Nauhaus to the stand, his attorney, Caroline Roberto, cited rules of evidence, saying a judge cannot be called as a witness in the trial over which he's presiding or at a related hearing. Deputy District Attorney Mike Streily said he would also like to cross-examine Nauhaus, but Manning agreed with Roberto.
Finally, Will called Pushinsky, who said he parted with McCullough before sentencing over a difference of opinion. Though McCullough stood before the judge and waived his attorney-client privilege for just the alleged communications between Pushinsky and the judge, Pushinsky refused to testify without a full waiver.
McCullough refused a “tell-all” waiver, and Pushinsky said that if the judge compelled him to testify, it would trigger an immediate appeal.
“You're alleging that Mr. Pushinsky had unethical conduct by communicating ex-parte with the judge,” Manning told Will. “He has rights here, too.”
Like the others, Pushinsky stepped down without saying much.
After watching her witnesses fall silent, Will said she would not have McCullough testify. She rested, and Manning dismissed the petition. McCullough, Will and his supporters declined to comment as they left the courtroom, though Will tearfully embraced a former mentor who came to watch the proceedings.
Nauhaus rescheduled McCullough's sentencing for Dec. 17.
Matthew Santoni is a staff writer for Trib Total Media. He can be reached at 412 391 0927 or msantoni@tribweb.com.
