Antitrust case's big loser: The judge

As both sides declare victory after an appellate court ruling, one clear loser emerges in the landmark antitrust case against Microsoft: Judge Thomas Penfield Jackson.

Evan Hansen Staff Writer, CNET News.com
Department Editor Evan Hansen runs the Media section at CNET News.com. Before joining CNET he reported on business, technology and the law at American Lawyer Media.
Evan Hansen
5 min read
As both sides declared victory after Thursday's appellate court ruling, one clear loser emerged in the landmark antitrust case against Microsoft: Judge Thomas Penfield Jackson.

Microsoft's victory special coverage

The U.S. Court of Appeals for the District of Columbia Circuit removed Jackson from the case, nullifying his order last year to break up the software giant. The move could pave the way for renewed settlement negotiations. Aside from any immediate impact on the case, however, the court's statements were an unusually harsh rebuke of a sitting federal judge.

In 20 pages saved for the end of their opinion Thursday, the appellate judges took Jackson to task for comments made outside the courtroom in a rare show of dispute within the ranks of a painstakingly restrained federal judiciary in Washington.

"We vacate the final judgment on remedies because the trial judge engaged in impermissible ex parte contacts by holding secret interviews with members of the media and made numerous offensive comments about Microsoft officials in statements outside of the courtroom, giving rise to an appearance of partiality," the judges wrote. "Although we find no evidence of actual bias, we hold that the actions of the trial judge seriously tainted the proceedings before the District Court and called into question the integrity of the judicial process."

Jackson has yet to respond to the court's opinion, and calls to his chambers Thursday were not immediately returned. But those who have been following the long-running case believe that he shouldn't have been surprised by the court's statements.

After all, in addition to his comments about Microsoft, Jackson criticized the court itself for actions in an earlier case involving the software company. In a book about the trial by New Yorker writer Ken Auletta titled "World War 3.0," Jackson was quoted as saying: "I take mild offense at their reversal of my preliminary injunction in the consent-decree case, where they went ahead and made up about 90 percent of the facts on their own."

The court cited that passage in its opinion and responded in kind, saying: "Whether the judge takes offense, mild or severe, is beside the point. Appellate decisions command compliance, not agreement."

In many ways, the court's statements read like a long-simmering payback for years of controversial remarks made by Jackson in and out of court. The appeals judges found that Jackson deserved to be removed from the case for speaking to the press in clandestine discussions delving deeply into issues at the heart of the case.

Click to read the court's ruling "The violations were deliberate, repeated, egregious and flagrant," the court wrote.

Under the law, judges are allowed to speak publicly about procedural matters but are strictly forbidden from making discourses on facts and legal theories relating to a pending case. Moreover, judges are barred from holding meetings concerning a case without all of the parties involved represented.

According to the appellate court's opinion, Jackson held frequent conversations in secret with reporters from The New York Times and the New Yorker, candidly laying out his negative opinion of Microsoft's business practices in embargoed interviews. At least one of those conversations was held in September 1999, according to the opinion, two months before Jackson issued his findings of fact in the case and six months before his conclusions of law.

Auletta even got a glimpse of Jackson's private notes on the trial--information that eventually found its way into the book on the case, which was published while the appeal was pending. The appeals court also found that Jackson had privately discussed with reporters his proposed remedy of breaking Microsoft into two separate companies.

"This is remarkable to have a federal judge do what he did and have an appeals court make this kind of ruling," said Ky Ewing, a partner at Washington, D.C., law firm Vinson & Elkins and chairman of the antitrust section of the American Bar Association.

Photo of the U.S. Appeals Court judges Nevertheless, Ewing said the appeals court did not rely heavily on Jackson's behavior in its review of his legal findings. In addition to finding no evidence of actual bias in Jackson's handling of the case, he and others noted, the appeals court ordered only a partial reversal of his ruling.

"The court only disqualified him from the point at which he began to consider remedies," Ewing said. "In adopting a modified or partial disqualification, this was a rather measured response by the court of appeals of conduct it described as egregious."

Jackson's removal from one of the highest-profile civil cases in years caps a career that has been colored by controversy since his appointment to the federal bench by President Ronald Reagan nearly 20 years ago.

He made headlines in 1990 when he sentenced District of Columbia Mayor Marion Barry to a maximum of six months in jail for a misdemeanor narcotics conviction. Only days later, while an appeal was pending, Jackson said he had "never seen a stronger government" criminal case, adding that he believed four jurors had failed to disclose biases in favor of Barry.

In 1995, the Legal Times reported that recesses took more time than the examination of witnesses after monitoring his courtroom for two days of trial. A year later, Jackson was ranked last among 15 of Washington's District Court judges by Washingtonian magazine, which cited a backlog of cases lasting years in some instances.

In the Microsoft case, Jackson could face disciplinary action in addition to being removed, but only if someone involved in the case were to file a formal complaint.

According to federal court rules, complaints about a judge's behavior are referred first to the chief judge of the relevant appeals court, and then, if approved, to a special committee for review. Although state judges have been disciplined for speaking to the press about a pending case, federal judges rarely face similar treatment.

In its opinion, the court cited three previous examples in the past decade in which federal judges have been removed from a case for speaking to the press. But Cynthia Gray, an expert on judicial conduct at the American Judicature Society, said she knows of no instance in the past decade of a federal judge being formally disciplined for such an infraction.

Mary Cranston, an antitrust expert and chairwoman of the law firm Pillsbury Winthrop, agreed that Jackson's dismissal was "an unusual rebuke to the lower judiciary." But she said many practitioners concerned over his public handling of the case will likely welcome the decision's guidance on judicial behavior.

Cranston added that the move could lead to new settlement talks. "This ultimately delays the outcome and gives the new administrators of the case a chance to work out something with Microsoft," she said.

News.com's Jeff Pelline contributed to this report.