State Supreme Court Orders Judge Off Bench

The state Supreme Court on Monday ordered the removal of a Northern California judge for ordering a jury to convict a defendant and other violations of constitutional rights.

The justices said the judge, Bernard P. McCullough of San Benito Justice Court, had twice held trials without the presence of defense counsel. In one instance, the defendant broke into tears when the judge insisted on proceeding even though she was not prepared to defend herself, the court noted.

The court also found that McCullough had used his power to “benefit a personal friend” by delaying the man’s arraignment on misdemeanor charges for over two years and then dismissing the case without notifying prosecutors.

McCullough already had been publicly censured by the court in April, 1987, for repeated delays in deciding cases--including one he had delayed for nearly four years. Despite the rebuke, the court pointed out, the judge failed to resolve that case until March, 1988, when an investigation into his conduct was reopened by the state Judicial Performance Commission.

“His failure to respond to our public censure evidences a lack of regard for the commission, this court and his obligations as a judge,” the court said Monday in an unsigned, 22-page opinion.

McCullough, a 61-year-old former San Benito County district attorney, is only the eighth judge to be removed by the Supreme Court since the commission was established in 1961 as a judicial investigative agency. He was appointed to the post in 1977 and was elected and reelected to office since then.

The judge, who had admitted he made “judicial errors” but denied any malicious intent, declined comment on Monday’s ruling. He did note that many members of the community--including the San Benito County Bar Assn.--had urged he be retained in office. “Even the lawyers of the people who were my so-called victims supported me,” he said in a brief telephone interview.

The commission had recommended McCullough’s removal in an 8-0 vote last October. The judge has been suspended without loss of pay since then, pending action by the high court. Under Monday’s ruling, he will be allowed to resume the practice of law if he passes the professional responsibility exam of the State Bar.

The court, upholding the commission, found that in one case McCullough violated the right to a jury trial by directing jurors to convict a defendant accused of riding a bicycle while drunk. As the prosecutor made his closing argument, the judge interrupted, telling him to “sit down,” and then told jurors: “Ladies and gentlemen, I want you to go into that room and find the defendant guilty.”

Five minutes later, the jury returned with a guilty verdict. “For a while there, ladies and gentlemen, I thought you were not going to follow my instructions,” the judge said. Later, the conviction was overturned on appeal.

McCullough said later he believed his action was lawful, but in Monday’s ruling the justices said he should have known such an instruction was not authorized by state or federal law. “Depriving a criminal defendant of his fundamental right to be tried by a jury manifests disrespect for the constitutional protections of our legal system,” the justices said.

In another case, the court found that McCullough had improperly assisted a friend who was charged with obstructing a police officer during a domestic dispute.

The judge, the court said, conferred privately with the defendant and his brother--who was a member of the Board of Supervisors that appointed McCullough to office--and then delayed action on the case for more than two years before he finally dismissed it.

On another occasion, the court said, the judge ordered a drunk-driving trial to proceed without the presence of the defendant or her attorney, who had unsuccessfully sought postponement because of his involvement in another case.

And in still another case, McCullough ordered a trial to proceed for another drunk-driving defendant whose attorney also could not appear. The defendant began crying when the judge insisted she try to represent herself, the court noted. “She understandably did not call witnesses, cross-examine the prosecution’s witnesses, or herself take the stand,” the court said.

The actions violated the defendants’ rights to counsel and a fair trial, the court found.

In another case Monday, the court, in a 5-2 decision, eased the way for a corporation to contest a demand by the State Board of Equalization for information about possible future acquisitions the board wanted for assessing taxes. The court, resolving a six-year dispute between the board and the Union Pacific Railroad, said the company need not provide such information unless it is “reasonably relevant” to determining the value of corporate property.

The justices ruled in favor of the judiciary in a bureaucratic “turf fight” between Superior Court judges and elected county clerks over the power to hire, fire and supervise courtroom clerical staffs. The court, ruling in a San Diego case, held unanimously that under a recently enacted state law, such authority may be exercised by judges. The 1987 statute allows counties to transfer management authority of courtroom clerks to an administrator under the supervision of the local bench.