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US pulverized as appeals court denounces Judge Jackson

He did a bad, bad thing

MS on Trial Day two's oral arguments before the Washington appellate bench culminated in a surprising onslaught of denunciations and acrimonious commentary on Judge Thomas Penfield Jackson's various crimes and misdemeanors.

At issue were Jackson's colorful statements to the press following the trial, like those comparing Microsoft to the Newton Street Crew crack cocaine distribution outfit, and MS Chairman Bill Gates to His Vertically Challenged Imperial Majesty, Napoleon Bonaparte.

Jackson had the poor taste to speak to the press before he issued his final ruling, though he did place an embargo on publication until after that time. Whether he violated the sacred canons of judgeship is hardly in doubt. He did by a mile.

But whether he broke the law or compromised the trial, inviting injustice to the parties, is another matter which Microsoft struggled with limited success to establish.

So grave were Jackson's abuses, Microsoft chief shyster Richard Urowsky argued, that the entire case -- findings of fact, conclusions of law, and final judgment -- must be discarded lest justice be perverted.

The court did not immediately embrace this conclusion. Opinions, whether good or bad, developed by a judge during the course of a trial are not a basis for recusal; but prejudice, or the appearance of prejudice, most certainly is.

The question, then, is whether Judge Jackson developed his renowned loathing of Microsoft during the trial as a consequence of repeated contact with its officers, or whether he came to the bench with it already fixed in his heart.

"I just don't see any way, other than your own speculation, for concluding that [Jackson] had these views before the trial started," Judge David Tatel told Urowsky. "And don't we need to at least know that, or have some basis for concluding it, if we're going to vacate?"

Urowsky had little to say in reply to that. It's a reasonable assumption, all right, but damned hard to prove.

Proof or not, the court was livid with Jackson for discussing the case with reporters, an attitude it did not hesitate to share with government lawyer John Roberts who was stuck with the unenviable task of defending Jackson's conduct.

"His embargo makes it worse," Judge Raymond Randolph declared. "Had he not placed that embargo he would have been off the case in a minute."

"There are some who might suggest that it violates the whole oath of office," Chief Judge Harry Edwards added. "It's not what we do. We do not have ex parte communications, and the code certainly says that: 'We neither initiate nor consider ex parte or other communications concerning a pending case.'"

"I don't discuss cases with my best friends," he added for emphasis.

Judge David Tatel pointed out that while Judge Jackson might merely have expressed feelings he developed during the trial, and might therefore not have been prejudiced, his loose tongue gave the appearance of prejudice, which is just as bad.

Judge Edwards drove the point home with considerable force. "There are lots of things that [judges] think and feel about advocates and parties during the course of a proceeding; it doesn't mean that we're entitled to say 'because those feelings developed during the course of a proceeding, we're going to run off our mouths'....because there is an appearance problem. The system would be a sham if all judges went around doing this."

Judge David Sentelle, a normally easygoing Southerner, raised his voice in anger: "What possible legitimate reason could you assign to a judge's going to reporters and making derogatory comments about parties to a lawsuit that has been tried in front of him, unless the judge were biased?"

Roberts shrank visibly. His sole defence rested on the supposition that Judge Jackson didn't express his contempt until after the findings of fact were established. He did no harm to MS, Roberts insisted, because he'd settled the hard bits first.

He simply was not getting, or acknowledging, how bad Jackson made the judicial system look to the public.

"It's beyond the pale -- that's what we're saying to you," Judge Edwards insisted. "It is so extraordinary, the ex parte contact. How could anyone assume anything but the worst?"

And again, Roberts insisted that Jackson had done no real harm: "There are two separate questions: whether the judge's conduct was proper, and whether or not the judgment should be vacated, and those require separate analyses. We believe the findings of fact are exhaustively supported by the record."

Judge Edwards was exasperated. "[Jackson was] so far from anything that seems benign -- that's what we're concerned about. You don't think that the public, watching the system, doesn't look at that and think 'good Heavens, is that what judges do? They take preferred reporters in; and they'll discuss with them what's going on in a case, and take their views, and then show them all their notes?' You don't think parties should be distressed by that?"

Yes, Roberts conceded, but insisted that none of this amounts to a basis for vacating his findings of fact.

"I don't see how you can, with a straight face, ask us, if we remand, to send it [back to Jackson]," Judge Sentelle said sarcastically.

However, there was, in the end, a wee bit of a snag in the court's momentum towards steamrolling the US government and flaying Judge Jackson in effigy.

Judge Randolph observed that once Microsoft filed a notice of appeal, Jackson lost jurisdiction over the case. This occurred within five days of his final judgment, issued early in June of 2000, and well before any of his statements became public.

Thus he was, technically speaking, off the case before anyone learned of the profoundly unflattering things he had to say about Gates and Company.

And this, of course, makes it very difficult to reverse him. The motivating resentment to do so is there in vast oversupply, certainly; but the statutory machinery may not quite come together as needed. The last thing the appeals court needs is to overturn Jackson only to be overturned by the Supremes on some technical stuff-up, and see Jackson vindicated in the end.

If we had to make a prediction, we'd read Judge Sentelle's comment with extra weight. The least risky way to tweak Jackson's nose would be to remand the ruling to a different district judge. Whether the ultimate finding is different or not, the point will have been made in public that the appeals court lost faith in him.

And we rather expect it's going to go just that way. ®

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