On Monday, July 17, 2023, the legal battle surrounding Mark Cohen, a judge for the Philadelphia County Court of Common Pleas, took a pivotal turn. The Commonwealth of Pennsylvania Court on Judicial Discipline delivered a critical decision, denying Cohen’s motion to prevent Professor Merrill from testifying in his case. This ruling opens the door for Professor Merrill’s testimony to be presented, potentially shedding new light on the unfolding events and implications surrounding the case.

The case is entitled “In the Matter of Mark Cohen,” with case no. 1 JD 23.

The Judicial Conduct Board officially charged Judge Cohen with having authored and shared inappropriate posts on his personal Facebook page. The content on Judge Cohen’s Facebook page essentially consisted of the following: (1) his sympathetic, supportive, or positive views of political figures, living and dead, of the Democratic Party and, generally, of the political “left”; (2) his support for legislation instituted and embraced by the Democratic Party and, generally, the political “left”; (3) his support for policy initiatives or issues embraced by the Democratic Party and, generally, the political “left”; (4) his criticism of political figures of the Republican Party and the political “right”; and (5) his criticism of policy initiatives and legislation instituted and embraced by the Republican Party or the political “right.”

On June 7, 2023, the Judicial Conduct Board of Pennsylvania filed its pre-trial memorandum before the Court of Judicial Discipline wherein it lists the witnesses who are expected to testify at trial, and the subject of the testimony of each; a list of all exhibits they intended to be introduced at trial; the list of stipulations to which opposing counsel can reasonably be expected to agree, including stipulations as to the admissibility or authenticity of exhibits.

The Board’s memorandum also contains a certification that Cohen has been furnished with all non-privileged evidence relevant to the charges contained in the complaint, and a certification that Cohen has not been provided with any exculpatory evidence.

In relation to this, during a pretrial conference, there was a discussion about the admissibility of proposed testimony in this particular case. Counsel representing Judge Cohen objected to the inclusion of Professor Alison Merrill as an expert witness. The objection was based on the argument that Professor Merrill is not a lawyer, and therefore her testimony is deemed unnecessary. According to Judge Cohen’s counsel, the court can independently determine whether the content of Judge Cohen’s Facebook postings can be classified as political or not without relying on expert testimony from Professor Merrill.

The filing states:

“At a Pretrial Conference, counsel for Judge Cohen has objected to the proposed testimony of Professor Alison Merrill as an expert in this case. Counsel for Judge Cohen argues Professor Merrill is not a lawyer and that her testimony is unnecessary since the Court can decide whether Judge Cohen’s Facebook postings are political or not without any expert testimony.”

The Judicial Conduct Board has put forth its reasoning for offering testimony by Professor Merrill, outlining two specific purposes for her involvement in the case. Firstly, the Board intends for Professor Merrill’s expertise to shed light on the definition and application of the term “partisan political activity” concerning the evidence presented in this particular case. By doing so, her testimony aims to provide clarity and insight into how this term is relevant to the actions and content of Judge Cohen’s conduct on social media.

Secondly, Professor Merrill’s testimony is intended to address the workings of the Internet and its relevance to the case. This aspect of her expertise is likely to help the court understand the implications of online communication and how it can influence or be interpreted as partisan political activity, especially in the context of Judge Cohen’s Facebook posts.

Importantly, it is emphasized that Professor Merrill’s role as a witness is not to address the ultimate issue of whether Judge Cohen violated the ethical requirements for Pennsylvania judges. Instead, her testimony is limited to the two specific areas mentioned earlier.

The filing continues:

“This is a case of first impression in Pennsylvania and Professor Merrill’s proffered testimony may well be helpful to the Court.”

Based on these foregoing reasons, the Commonwealth of Pennsylvania Court on Judicial Discipline decided to deny the motion of Judge Cohen to bar Professor Merrill’s testimony.

The order states:

“Accordingly, the Court denies the motion by Judge Cohen’s counsel to bar Professor Merrill’s testimony.”

Judge Mark B. Cohen earned his law degree from the Widener School of Law in 1993. He is a judge for the Philadelphia County Court of Common Pleas. His courtroom is located at 400 John F Kennedy Blvd, Philadelphia, PA 19107, and can be reached at +1 215-686-7000. Cohen’s info can be found on ballotpedia.org.

A copy of the original filing can be found here.