Judge betraying pro-MS bias?

Or is she about to blow Gates' mind?


Since Chairman Bill Gates began testifying in court Monday against the non-settling states, US District Judge Colleen Kollar-Kotelly has made a number of rulings which appear to favor Microsoft.

Most significant, in our humble opinion, is the decision to allow Gates and other MS witnesses to give presentations in court. The judge had ordered that all such testimony be submitted in writing; and the states have not been granted any waivers. But MS has, most notably with a demonstration Monday which The Chairman said shows that removing Internet Explorer will cause Windows to malfunction.

Now we all know that such a demo can be rigged a hundred ways. The only hope of challenging it would be with a second demonstration by the states showing that removing IE can cause Windows to perform even better. (At least that's the case with 98lite, though it's possible that MS has deliberately rooted IE deeper into XP so that it will break the OS if it's yanked.)

Next, according to the Associated Press, today's proceedings saw a surprising number of decisions in MS' favor, chiefly regarding lines of questioning and exhibits to be introduced. A Gates memo purportedly indicating retaliation against Intel for supporting a 'non-MS' operating system was rejected. Gates was also permitted to ignore a question from states' attorney Steven Kuney regarding a proposed remedy for MS' retaliatory tactics.

"The judge gave Kuney little latitude during his questioning. She sustained almost every objection made by [MS attorney Dan] Webb, even appearing to contradict her earlier guidelines on what sort of testimony was allowed," the wire service says.

The tea leaves

There are two ways of reading this. One is to take it at face value and imagine that the judge has chosen sides and is deliberately making the states' case difficult to argue.

The other is to say that she's being meticulous in her single most important responsibility as a judge, which is to ensure that the accused is given every possible opportunity to defend himself. This would be absolutely crucial if she's leaning in the states' direction. This is so partly for practical reasons -- if she's inclined towards the states she needs to give MS a generous chance to talk her out of it.

It's also crucial for appearance's sake. Judge Jackson's incredible stuff-up was appearing to be (or actually being) biased against the defendant. If Judge Kollar-Kotelly intends to cut MS off at the knees, she has got to appear to have given the company every bit of slack that she reasonably can.

I rather doubt that the judge's indulgence of MS indicates that she's been taken in. Indeed if I were in Billg's shoes, I'd wipe that inane, smug smile off my face, and cross my fingers instead. ®


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