Panel’s Second Action Against Judge Pushes for His Removal

In an unprecedented second action against a judge, the state Judicial Performance Commission asked Tuesday that Justice Court Judge Bernard P. McCullough of San Benito County be removed for misconduct in office.

The commission accused the judge of improperly ordering a jury to find a defendant guilty and of dismissing a misdemeanor charge against a longtime friend without notifying prosecutors.

McCullough is the first judge cited in two separate proceedings by the commission, said Jack E. Frankel, director and chief counsel of the judicial agency.

The recommendation that the state Supreme Court remove McCullough came 18 months after the court had publicly censured him for repeated delays in deciding cases--including one he held for nearly four years.

The judicial discipline agency originally sought the judge’s removal in that first action but later recommended only censure, after an outpouring of support for McCullough among local judges and public officials.

In the new action, the commission charged that the 60-year-old Hollister judge violated the right to trial by jury by improperly directing a verdict against a defendant accused of riding a bicycle while drunk.

According to testimony before the commission, McCullough interrupted the prosecutor’s closing argument and told the jury, “Ladies and gentlemen, I want you to go in that room and find the defendant guilty.”

When puzzled jurors returned in five minutes with the directed verdict, the judge remarked, “For a moment, I thought you wouldn’t follow my instructions.” The verdict later was appealed and reversed in Superior Court.

McCullough was also charged with refusing to arraign a childhood friend accused of obstructing police in a domestic dispute, postponing the case 21 times and finally dismissing the charges without informing prosecutors or explaining why.

Disputed Orders

In another case, the commission said, the judge improperly ordered a prosecutor to proceed with a jury trial in the absence of both the defendant and her attorney. And in another instance, he ordered a trial to start without the presence of defense counsel, it said.

The commission filed a 30-page report with the justices, asking by a vote of 8 to 0 that McCullough be removed for willful misconduct, prejudicial misconduct and persistent failure to perform the duties of office.

While some of the new alleged misconduct occurred prior to McCullough’s censure by the court in April, 1987, evidence of the activities did not reach the commission until after the first investigation had been completed, Frankel said.

Under the state Constitution, a judge is suspended from the bench without loss of pay while a removal action is being considered by the high court. In the 27-year history of the commission, nine judges have been removed from office and 16 others have been publicly censured.

Time to Respond

McCullough has 30 days to ask the state Supreme Court to reject the commission’s recommendations. David E. Pipal of Hollister, an attorney for McCullough, said no decision had been reached on whether to challenge the recommendations and declined further comment. McCullough did not return a telephone call Tuesday.

In explaining his conduct in the trial of the bicyclist, McCullough told the commission he thought that he had authority to direct a verdict of guilty where the evidence did not seem in dispute. He later acknowledged that the law allows a judge only to comment on the evidence.

In the case of the judge’s friend, Frank Cerrato, an apricot grower whom the judge had known since kindergarten, was accused of obstructing an officer called to a dispute between Cerrato and his wife.

The commission said Cerrato and his brother--also a friend of the judge and member of the Board of Supervisors--drove to McCullough’s home, where Cerrato gave his version of the events and asked to be excused from appearing in court so he could help with the harvest. Cerrato told the commission that the judge told him the officer “apparently overreacted.”

Case Dismissed

McCullough told the commission he intended to disqualify himself from the case but “never got around to it” because the prosecutor failed to respond to his request to reconsider the charges. Two years later, McCullough ordered the case dismissed and bail returned, the commission said. The judge denied that he was influenced by his friendship with Cerrato and his brother.

McCullough, a graduate of Hastings College of the Law, practiced law in San Francisco until 1967, when he was appointed by the Board of Supervisors to be district attorney of San Benito County. In 1977, he was appointed by the board to the Justice Court and has been retained in office twice since then by the voters.