A Judge Gets Slammed

By ADAM COHEN

Federal appellate arguments are often snoozeathons, arcane debates over obscure procedural questions. But last week's hearing on Microsoft's antitrust appeal had all the malevolent energy of a public flogging. "I don't think we'll see anything like it again," says George Washington University law professor William Kovacic. "You just don't see seven members of an appeals court throwing stones at a colleague and basically asking for more stones."

The target of those judicial projectiles was Thomas Penfield Jackson, the judge who presided over the Microsoft trial. The reason for the appellate court's displeasure: Jackson's intemperate comments to the press while the case was pending--notably, comparing Microsoft at various points to a French emperor and a D.C. drug gang. Or as Chief Judge Harry Edwards acerbically put it, Jackson's propensity to "run off [his] mouth." The legal system, Edwards said, "would be a sham if all judges went around doing this."

This particular tongue-lashing wasn't just a dispute among judges. It has potentially enormous implications both for the Microsoft case and for the entire software industry. Microsoft insists that Jackson's public comments showed judicial bias, and thus are grounds for reversing his liability ruling against the company. Even if the appeals court doesn't go that far, Jackson's statements may very well provide it with a basis for reversing the sweeping remedy order that would divide Microsoft into two companies.

That Judge Jackson crossed some sort of a line is hard to dispute. Buried in a footnote of World War 3.0, one of several new books about the Microsoft antitrust case, is the startling acknowledgment that Jackson granted author Ken Auletta "about 10 hours of taped interviews." That's a lot of time for a reporter to get out of any source, much less one bound by the Code of Conduct for U.S. Judges to avoid commenting on pending cases. Judge Jackson also spoke with other media, including the New York Times and the Wall Street Journal.

Making matters worse, Jackson's comments were not particularly judicious. According to Auletta's book, the judge compared Microsoft to the Newton Street Crew, a Washington gang over whose murder and drug-trafficking cases he had presided. "I am now under no illusions that miscreants will realize that other parts of society view them that way," Jackson told Auletta. He also criticized Bill Gates for having a "Napoleonic" view of himself and Microsoft.

Judge Jackson did not talk to Auletta until after the last day of the trial. But those conversations occurred before the judge had issued his findings of fact, and before he issued his order breaking up Microsoft. Judge Jackson embargoed his comments until he issued a judgment. He may have felt that meant he was not talking publicly during the trial. But Microsoft argued the embargo only made things worse: if his conversations had been known, he might have been removed from the case back then.

This appeals court was already considered more favorable to Microsoft than Jackson was. Jackson's public comments may just give the court the ammunition it needs to do what it already wanted--to trim back the rulings against the company. The court could use Jackson's statements as a basis for throwing out his entire decision. But many court watchers believe that would be a mistake. "It shouldn't reverse for the same reason the judge shouldn't have made the comments," says Steven Lubet, a judicial-ethics expert at Northwestern University School of Law. "A legal opinion should stand or fall on its own reasoning." In fact, the court didn't seem entirely hostile to the government's case. At one point, Chief Judge Edwards reminded Microsoft's lawyer that antitrust law protects nascent companies from "predatory conduct."

More likely, the court of appeals may reconsider Judge Jackson's order to cut Microsoft in half. But that's something the court would be doing whether or not Jackson had spoken to the media. The appeals court was clearly concerned that carving up the software giant was both excessive and possibly ineffectual. Some of the judges were also troubled that Jackson did not allow Microsoft more opportunity to be heard during the remedy phase.

Judge Jackson's defenders say Microsoft baited him into talking. It's true that Gates' lawyers subjected the judge to withering criticism throughout the trial, pillorying him daily to reporters on the courthouse steps. And Jackson wouldn't be the first trial judge Microsoft got removed for bias. Judge Stanley Sporkin, the judge in an earlier Microsoft trail, was taken off the case after he rejected a settlement as being too lenient based in part on facts he had read in a book critical of the company.

The comment that could end up causing Jackson the most trouble may be one that wasn't about Microsoft at all. He made the mistake of telling Auletta that a three-judge appellate panel that had heard an earlier phase of the Microsoft case had "made up about 90% of the facts on their own." It was a slap at some of the very same judges who heard the appeal last week--and who now have the power to reverse him. Whether or not that comment violated judicial canons, it clearly violated something else: common sense.