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In re Mosley12/21/2004
inions.
Apart from due process considerations, there are other valid justifications for admitting expert testimony on judicial ethics. West Virginia University College of Law Professor Carl M. Selinger has detailed three such justifications: (1) the inaccessibility of legal ethics law, (2) the advantage of objectivity, and (3) the advantage of cross-examination.
First, the relative inaccessibility of legal ethics law supports the admission of expert testimony. " s more ethics rules are drafted to cover only lawyers in particular practice contexts, it is possible for such rules to be much more accessible to, and readily understood by some lawyers than others." Such inaccessibility may support the admission of expert testimony even where the decision maker is relatively familiar with the rules at issue. This is true because the decision to consider expert testimony, subject to cross-examination, is "superior to relying only on the judge's, or a law clerk's, independent research, or on the arguments of non-scholar advocates." I suggest that this proposition is also applicable to cases tried before the Commission on Judicial Discipline.
Further, the admission of expert testimony provides the advantage of objectivity. "From the point of view of achieving justice, the main advantage that can be cited for the admission of legal ethics expert testimony is that it provides decisionmakers with more objective analysis of the issues than they would gain from advocacy alone." This is true because the scholar expert has no attorney-client relationship with the accused; thus, he has no duty to tailor his testimony regarding the alleged ethical violations to fit the defense's theory of the case. Indeed, such tailoring would ruin the scholar's reputation as an expert in the field whose opinions could be trusted by courts and disciplinary bodies.
Finally, the admission of expert testimony provides the advantage of cross-examination. As Professor Selinger states, the opportunity for cross-examination allows for a more thorough analysis of the expert's opinion regarding ethical violations:
" f an expert testifies before the court, cross-examination is available. Thus, the bases of the expert's conclusions can be tested. However, if the court simply reads law review articles or books written by that same expert, cross-examination is not available and it is more difficult to attack the reliability of the opinions expressed."
Thus, this testimony allows the decision maker to consider the expert's objective opinion regarding the alleged ethical violations. Admission further subjects the testimony to scrutiny from both the disciplinary body and opposing counsel. I submit that this system, though not universally endorsed, is preferable to the decision to deny Judge Mosley's right to present expert testimony in support of his theory of the case.
In conclusion, the Commission's actions were improper and constitute an abuse of discretion. Judge Mosley had a due process right to present expert testimony in support of his theory of the case. Furthermore, Professor Stempel's testimony may have been helpful to the Commission in reaching its decision. Accordingly, I would reverse the decision and remand this case to the Commission with instructions to consider Professor Stempel's testimony.
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