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Bleak House 

After more than a decade, a local family is still locked in a battle over alleged abuse. Will a lawsuit bring this case to an end?

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By 2005, though, Michael and his older sister — the siblings who best remembered their parents being together — were not seeing their father at all. Disputes over visitation focused on the younger two children, and the pending criminal case.

Rather than face a trial on the sex-abuse charges, in December 2006 Kevin Clark pleaded "no contest" to three lesser counts of endangering the welfare of a child. In a "no contest" plea, a defendant accepts a sentence without asserting guilt or innocence. Judge Gerard Bigley sentenced Kevin Clark to one year of probation for each count, running concurrently.

State law defines "endangering the welfare of a child" as taking place when a parent or guardian "violat[es] a duty of care, protection or support." Kevin Clark's lawyers say the offenses to refer to the incidents in which he held his children out from the balcony (the very behavior the district judge had called "not the best type of playing").

Val Clark had another interpretation. Based on her understanding of what prosecutors had told her, she says, "I believed this could be used in any civil case and that he was convicted of sexual abuse." But the definition of endangerment does not mention sexual abuse. And a no-contest plea can't be used against a defendant in a related civil trial.

"This was supposed to be our closure, but apparently there have been no consequences for him," says Val Clark.

"It's like the Twilight Zone," Michael Clark says. "There have been so many times when we have been told that we would be protected, but it's never happened."

And so they have turned to the civil suits, which allege a range of physical and psychological abuse in 2001 or before, which contributed to long-lasting psychological and physical trauma.

But the Clark children's first order of business was trying to get Mulligan removed from the case — and again they have been frustrated.

Flynn, who requested Mulligan take the case, says he did so because she is "very familiar with the parties, the issues and the allegations, so it made absolute sense to have the case assigned to her. Besides, she will not be the ultimate decider of the facts; the jury will be."

Mulligan is up for retention on this November's ballot, and her return to the bench is recommended by the Allegheny County Bar Association. Her reputation 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."

Editor's note: This story has been updated to clarify the disposition of the complaint Val Clark filed against Dr. Mark King.

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