During a second day of hearings into Microsoft's appeal of a breakup order issued last year, Microsoft attorney Richard Urowsky argued that U.S. District Judge Thomas Penfield Jackson showed a bias against the company in comments made to reporters during and after the trial.
"What the statements suggest is actual bias," Urowsky said, noting that some of the media interviews took place before Jackson's final ruling. The judges discounted whether Jackson displayed actual bias and instead noted that just an "appearance" of bias was enough to warrant his removal.
Following the trial's conclusion last June, Jackson's statements began appearing in news stories and books about the case. His views on Microsoft executives and the metaphors he used to describe the case troubled the appeals judges.
Among the examples, in the Jan. 8 issue of The New Yorker, Jackson said Microsoft founder Bill Gates "has a Napoleonic concept of himself and his company, an arrogance that derives from power and unalloyed success, with no leavening hard experience, no reverses." He added that company executives "don't act like grown-ups!"
In the book, "World War 3.0: Microsoft and Its Enemies," author Ken Auletta writes that Jackson took aim at the appeals court that is now hearing the Microsoft case. The court "made up about 90 percent of the facts on their own," Jackson said of the appellate judges' decision in another case.
Also in that book, Auletta writes that Jackson likened Microsoft's "proclamation of innocence to those of four members of the Newton Street Crew convicting in a racketeering, drug-dealing and murder trial he had presided over five years before."
Such sentiments drew the wrath of the appeals judges Tuesday.
"There are lots of things we think and feel about" the parties during a proceeding, said Chief Judge Harry Edwards. "The system would be a sham if all the judges were doing this."
Exercising caution in the courtroom
"We have to be careful about the metaphors we use," Edwards said.
Jackson determined last year that Microsoft abused its monopoly in the market for PC operating system software to unfairly squelch competition in the browser market from Netscape Communications. Microsoft appealed the decision, leading to Monday's and Tuesday's hearings by the U.S. Court of Appeals for the District of Columbia.
A decision on the appeal is expected by April or May. Based on criticism concerning Jackson's decision and his comments about Microsoft, at least one law expert said Tuesday he is certain that portions of the breakup order are likely to be overturned or tossed back to the trial court.
In addition, the appellate judge's harsh criticism of Jackson's comments could cause his removal from the case, which would mean that any portions sent back to the trial court would be heard by another judge.
"Jackson is through with this case," said Bill Kovacic, an antitrust professor at George Washington University Law School.
Microsoft attorney Urowsky said that Jackson violated canons 384, 386 and 455a of the rules of judicial conduct.
Although Urowsky said Jackson's ruling should be tossed, some judges were hesitant to go that far.
"What is the prejudice you put forth as a reason for vacating the judgment, given Judge Jackson was merely stating what was on his mind?" Judge Raymond Randolph asked Urowsky.
Still, the judges emphasized that Jackson's comments need only show the appearance of bias to warrant his removal from the case.
John Roberts, an attorney representing the U.S. government and 19 states that brought the antitrust suit against Microsoft, conceded that Jackson's comments were "wrong" but argued that they did not merit his removal from the case.
"We don't dispute the ex parte comments were wrong," he said. Nevertheless, they did not show bias, he said.
That did not satisfy Edwards. "We do not have ex parte communication...regarding a pending case. That's not how we operate."
What breakup bias?
But Roberts held firm in defending Jackson's comments as not providing any indication of bias, which further inflamed some of the judges.
"This is an appearance standard," said Judge David Tatel.
Added Randolph, "You're constantly saying you have to find bias. I don't think that's the law."
Edwards expressed what seemed to be the sentiment of five, possibly six, of the judges when he said that if Jackson's "comments to reporters do raise a question of bias...then recusal is required."
The judges were especially concerned that Jackson made statements during the trial but asked reporters not to print the quotes until after the case's conclusion.
"His embargo makes his comments worse," Randolf said. If the comments were released during trial, "he would have been off this case in a minute."
The severe questioning of Jackson's comments and his decision led some experts to conclude that Microsoft stands a good chance of having parts of the breakup order overturned or sent back to the trial court.
"Overall, things did not go well for the government," said law professor Kovacic, who concluded that the court will rip up Jackson's 1999 "findings of fact." The findings, which are a judge's distillation of what was proven true at trial, is typically sacrosanct.
"It's clear Jackson will not get the benefit of the doubt typically afforded trial judges," Kovacic said. There is "absolutely no way" that Microsoft will be broken up.