The issue isn't so much the way that U.S. District Judge Thomas Penfield Jackson handled the trial or any obvious bias on his part, but the fact that he has made repeated statements about the case to the media and other audiences following the its close. That, says Bill Kovacic, an antitrust professor at George Washington University School of Law, gives Microsoft an opening to ask that Jackson be replaced.
"Microsoft is likely to ask he be disqualified, that his comments both formal and informal reveal a degree of bias that warrants he be removed," Kovacic said.
Legal experts watching the trial expect the U.S. Court of Appeals for the District of Columbia Circuit, which took control of the case last month, to send several portions of the case back to the District Court for further review. If that happens, the appeals court would have to make a decision on replacing or keeping Jackson.
Claims of bias on Jackson's part are expected to be a cornerstone of Microsoft's appeal. While almost no legal experts believe Microsoft could get the ruling against it vacated for bias, many believe Jackson's statements will be enough for his removal from the trial and possible reconsideration of remedies imposed against Microsoft, including his order that the software giant be broken in two.
"Judge Jackson's comments probably don't warrant an independent basis for reversal," said Hillard Sterling, an antitrust attorney with Chicago-based Gordon & Glickson. However, he added, "it's questionable, indeed improper, for a judge to make such comments."
And it is those comments, Sterling said, that make it "virtually certain that he will be booted if additional proceedings are deemed necessary."
Jackson could not be reached for response to these opinions.
Interviews with Jackson started appearing in print and online immediately after the judge issued his June order that Microsoft be broken into separate operating system and software application companies.
In documents filed with the Supreme Court over jurisdiction of the case, Microsoft lambasted Jackson for the interviews, some of which the company says took place long before his breakup order was public knowledge.
Many of the interviews appear to be Jackson's defense of his handling of the case's remedy phase. While many antitrust experts praised his work overall, his decisions during the trial's closing days perplexed them. "Outwardly, it's the gravest weakness of the whole case," Kovacic said.
Rather than giving Microsoft an extended period to review the government's remedy proposal, Jackson cut the process to 60 days.
Jackson's most damaging comment appeared in a June 8 Wall Street Journal story, said John Smith, an antitrust attorney with Nixon Peabody here.
In defense of the short remedy phase, Jackson made an analogy to the end of the Second World War, telling the Journal: "Were the Japanese allowed to propose the terms of their surrender? The government won the case."
Jackson suggested to the New York Times, meanwhile, that Microsoft might have been hoping for a more favorable future after the November elections: "I'm suspicious that they (Microsoft) are just playing for time, hoping they will get to deal with a new administration."
But the future has nothing to do with a case at hand and judge?s responsibility for fairness, Smith said.
"He appeared to be playing spin doctor rather than judge," Sterling said. "It appears that Judge Jackson forgot his defense is to occur in written opinions, not media interviews and talk shows."
Other legal experts concur that Jackson spoke out of turn. "It is unusual for judges to comment publicly over pending cases, particularly when there are still things for them to decide," said Emmett Stanton, an antitrust lawyer with Fenwick & West in Palo Alto, Calif.
Stanton, however, isn't convinced Jackson's statements are enough to get him removed, saying it takes "an awful lot before Court of Appeals judges say it's so detrimental to the administration of justice."
A different outcome?
Microsoft is expected to use Jackson's comments to paint a broad picture of bias. While legal experts expect such a frontal assault to fail, it opens otherwise invulnerable areas of the ruling to attack.
"To the extent the judge lowers his own credibility with the intemperate, out-of-court statements," said Bob Lande, a professor at the University of Baltimore Law School, "on close questions are the reviewing judges going to give his findings less deference than someone else's findings?"
Jackson's handling of the remedy phase will affect the case's outcome, regardless of whether he stays, Sterling said. Many legal experts expect that portion of the case to be sent back to the District Court for further review--meaning that a new judge could impose a different remedy than breaking Microsoft in two.
If the appeals court returns the case to the lower level, the Microsoft case itself contains a precedent for Jackson's removal. The court turned Microsoft matters over to Jackson in 1995 after removing U.S. District Judge Daniel Sporkin, who had refused to sign a consent decree between the Justice Department and Microsoft, arguing the settlement didn't go far enough.
Jackson, appointed by Ronald Reagan about 18 years ago, continues to speak out. Last week he discussed the case at length during a lecture here and with the Financial Times following a speaking engagement at St. Mary's College in Maryland.
The actions suggest that Jackson knows he's gone too far. "I infer from his continued comments he's crossed the bridge," Kovacic said. "What he realizes is the effect of the original comments means there's no going back."
Jackson himself told the Financial Times he expects Microsoft to ask for his removal.
"He speaks like a man who knows if there's another act to the drama, he won't be in it," Kovacic said.