Tech Industry

Boldness, pace define Jackson's rule

Those who have reviewed Judge Thomas Penfield Jackson's courtroom performance say he has distinguished himself with strong action and political savvy.

WASHINGTON--With only passing comments, Judge Thomas Penfield Jackson recently touched off a frenzied round of speculation about the possibility of a three-way Microsoft split.

But sources say Jackson may have never intended to pursue that new radical course, instead dropping the strategically placed hint only to lessen the blow of his ruling in favor of the government's two-way breakup proposal.

"The judge provided unexpected air cover when he floated out the three-way split," said one source familiar with the government's case. "That he used a plan floated by a group with ties to the Linux community was brilliant, just brilliant."

Although that interpretation is only speculative, it is consistent with the veteran jurist's track record throughout the trial. Those who have reviewed his courtroom performance say the 63-year-old Jackson has distinguished himself with strong action and even temper while at times showing a political savvy appropriate for a product of Washington's institutions.

Legal analysts point to several instances of Jackson's penchant for bold strokes, such as his selection of U.S. District Judge Richard Posner as mediator last December and his failed attempt to appoint Harvard law professor Laurence Lessig as a special master in an earlier government action targeting Microsoft's business practices. But most agree that Exhibit A has been the pace of the trial, which will come in at just over 19 months, including the remedies phase.

"I think he's set a new standard for these kinds of complex cases," said antitrust expert Mary Cranston, chairwoman of the San Francisco law firm Pillsbury Madison & Sutro. "Fundamentally, he set some short deadlines that in the past the judiciary might have considered impossibly short."

see full text of Judge's final ruling That stands in contrast to other large antitrust trials, such as the failed case against IBM, which dragged on for 13 years, and the divestiture of AT&T, which lasted nine years and ended in a settlement. It also appears to be a departure for Jackson himself.

In 1996, Washingtonian magazine ranked him last among the 15 district judges assigned to the District of Columbia, citing a case backlog that in some instances dated back years. A year earlier, the Legal Times chronicled two days of trial in his courtroom and showed that recesses took up more time than the examination of witnesses.

A graduate of Harvard Law School, Jackson practiced commercial litigation at Jackson & Campbell, the Washington law firm founded by his father. The firm is best known for work it has done for Republican politicians and efforts, including the notorious Committee for the Reelection of the President, which financed President Richard Nixon's 1972 campaign and became a focal point in the Watergate scandal.

Special coverage: Breakup Since his 1982 appointment by President Ronald Reagan, Jackson has seen his own share of controversy. In 1990, he sentenced District of Columbia Mayor Marion Barry to a maximum sentence of six months for a misdemeanor drug conviction. A week later, the judge said that he believed four jurors had failed to disclose biases in favor of Barry and that he had "never seen a stronger government" criminal case. The remarks caused an uproar because the case was pending on appeal and led to motions by Barry's attorneys to throw Jackson off the case.

More recently, he found Iran liable for $300 million in punitive damages over the kidnapping of reporter Terry Anderson, who was held captive from 1985 to 1991.

The hottest spotlight has fallen on Jackson since 1997, when he was chosen to hear the government's motion to hold Microsoft in contempt for violating a 1995 consent decree governing its business practices. After the injunction he ordered was dismissed on appeal, Jackson was tapped to handle the expanded antitrust suit filed by the Justice Department, which was joined by 19 states.

By most accounts, Jackson has handled the pressure well. Even though he had little knowledge of high technology or the software industry going into the case, that has not stopped him from taking controversial stands.

During a courtroom exchange two weeks ago, Jackson asked government lawyers whether their two-way proposal would essentially create two monopolies--operating systems and software applications--from one. Then he referred to a "friend of court" brief filed days earlier by two industry trade groups advocating a three-way split: operating systems, software applications and Internet products.

See MS-DOJ timeline While talk of the proposal created tension worthy of a "Law & Order" episode, Jackson delivered government lawyers a subtle message: By asking for changes in the form of a proposal, not substance, he essentially indicated that he wanted to stick with a two-way split.

Privately, government sources were ecstatic over the courtroom exchange, which made their proposal appear moderate compared with a three-way split. The trade groups advocating the three-way division represented rivals of Microsoft, lessening the company's long-standing contention that the government brought the case at the behest of competitors

"It would be surprising to me if people haven't come to take him much more seriously for his handling of this trial," said Simon Lazarus, an attorney with Powell Goldstein Fraser & Murphy in Washington. "He managed a very complicated process with a certain basic competence and made a lot of very difficult calls, especially with a skeptical appeal court hanging over his shoulder."

Jackson repeatedly rebuked Microsoft in the antitrust trial, chiding lawyers for "mischaracterizing" the testimony of one witness and for trying to embarrass another. He criticized Microsoft chairman Bill Gates' videotaped testimony as "not particularly responsive" to prosecutors' questions.


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Still, the judge's clashes with Microsoft were relatively muted compared with earlier run-ins during hearings over whether the company had violated a 1995 consent decree governing its business practices. Friction between the two sides frequently burst into open conflict, for example, after Microsoft questioned the judge over an order to separate its Internet Explorer browser from the Windows operating system--an order that was later invalidated by the appeals court.

Before the Microsoft trial began, Jackson made it clear that his top priority was to move the trial along quickly to keep the case from devolving into a "Vietnam morass." But the same fast track that has drawn praise among some may also raise questions among appellate judges.

That possibility came home sharply when Jackson rejected a request by Microsoft's attorneys to present new testimony to contest the government's proposed remedy of splitting apart the company.

"Refusing to allow Microsoft to present a case against a breakup is unconscionable," said Richard McKenzie, an economist at the University of California, Irvine, who has written a book blasting the government's antitrust case.

Several legal experts said they believe the decision to cut off Microsoft in the crucial remedies portion of the trial was a rare misstep for Jackson that could hurt the government's case down the road. "That decision could be vulnerable on appeal," Lazarus said.

If so, Jackson may well have something to say about it.

Evan Hansen reported from San Francisco, and Joe Wilcox reported from Washington.