Update: Appeals court judges take Jackson to task

By Patrick Thibodeau, Computerworld |  Government

(February 27, 2001) WASHINGTON -- The U.S. Court of Appeals continued to express strong doubts today about the federal government's antitrust case against Microsoft Corp., and the judges were unequivocal in their condemnation of trial Judge Thomas Penfield Jackson for out-of-court comments he has made about the case.

"I don't discuss cases with my best friends," said Chief Judge Harry Edwards. "That's the way we operate. We're not supposed to do that." His comments came as the Washington-based appeals court completed two days of oral arguments on Microsoft's appeal of Jackson's ruling last spring that the software vendor violated antitrust law and should be split into two separate companies.

Although both sides again faced tough questions from the panel of seven judges, the attorneys representing the U.S. Department of Justice (DOJ) faced the tougher obstacles -- as they had at yesterday’s session. And it seemed clear by the end of the hearing that Jackson's breakup order could have trouble surviving the appeals process intact. Members of the appeals court raised numerous questions about the ruling -- and about the judge himself.

The appeals court judges, who began their proceedings in the case in the fall, were obviously sympathetic today to Microsoft's contention that comments made by Jackson in speeches and interviews since the trial ended last year were out of bounds and constituted possible violations of the judicial code of ethics.

Among the incidents cited by Microsoft was one in which it said the U.S. District Court judge was quoted comparing the company's executives to gang members convicted of murder. Microsoft attorney Richard Urowsky said Jackson's comments demonstrated bias and gave the appeals court legal grounds to throw out his decision.

Following Urowsky's argument, several of the appeals court judges expressed concern that Jackson's comments had tainted public perceptions of the legal system. Even assuming that Jackson ran the antitrust trial in a fair and neutral way, Judge David Tatel said, members of the public may well "wonder whether this judge is biased against the defendant."

The DOJ also ran into potential trouble today on its claim that Microsoft tried to monopolize the Web browser market. The evidence for that charge depends heavily on an infamous mid-1995 meeting between executives from Microsoft and Netscape Communications Corp., at which it was alleged that Microsoft essentially attempted to reach an agreement limiting Netscape's future development efforts for the soon-to-arrive Windows 95 operating system.

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