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BLEAK HOUSE, CONTINUED FROM PG. 16
has reached all the way to Philadelphia, where Cervone says that even if he finds some of her actions in the Clark case “a little odd,” he’s always heard her spoken of as a “stellar judge who is beyond impropriety.” But while Schuchardt, Michael Clark’s lawyer, says Mulligan is generally fair, he argues that she should not be hearing this case because of her history with it. She has, after all, already issued opinions expressing doubt over whether sex abuse ever took place — which is a key claim likely to be argued in her courtroom. “It is highly unusual to have a case overseen by a judge who has already rendered a written opinion on the ultimate issue,” he says. And while a jury will hand down a final verdict, Schuchardt says, “The judge will decide questions of law, which includes, crucially, what facts the jury gets to hear.” For example, he says, Mulligan has ruled that testimony and prior orders from the custody case will be inadmissible. Schuchardt asked Mulligan to recuse herself. When she refused, he appealed, but Administrative Judge W. Terrence O’Brien, too, denied the request. In a brief order, O’Brien noted that a jury would hand down the actual verdict. Her earlier rulings “show neither bias nor the appearance of bias,” he wrote. But Cervone, for one, says judges should recuse themselves when there is
“either substantive conflict of interest” or if there is “an appearance of impropriety” — an appearance that may exist “inside the minds of the parties involved.” Such an appearance “will be hard for [Mulligan] to avoid” here. The fact that a jury will ultimately decide the matter “helps insulate the case, but not entirely,” Cervone adds. “Continuity should not be the primary concern here, what should be of concern is overall fairness and getting a full hearing of the facts.” Author and abuse-expert Bancroft puts the matter more succinctly: “It’s absolutely preposterous,” he says. “She has already made rulings in the case.” Bancroft adds that family-court proceedings are often prone to suspicions of favoritism. That’s one reason he opposes sealing records in any case. “If a judge is going to rule, for example, that sexual abuse didn’t occur, then those findings should be made public,” Bancroft says. “[Sealing family court cases] is a severe violation of due process and it is protecting the court and its appointees from scrutiny.” Michael Clark’s concerns are more immediate. Currently, all four children’s suits are set to be consolidated for a single trial, to be held next spring. “Even though I feel like the odds are stacked against us,” says Michael Clark, “we have to push forward.” C D E I T C H @ P G H C I T Y PA P E R. C OM
{BY MATT BORS}
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PITTSBURGH CITY PAPER 10.23/10.30.2013
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