Microsoft Judge Takes His Case to the Public

An anonymous reader writes "The Washington Post reports: "About 15 months after the Appeals Court for the D.C. Circuit rebuked U.S. District Judge Thomas Penfield Jackson for talking to the media in the Microsoft antitrust case, Jackson has formally filed his rebuttal.""

Comments

Here's a

[oever]

more convenient link

Re:Here's a

[skelley]

Thanks for link.

Of course, I read this a *week* ago in the Washington Post.

Re:Here's a

[Anonymous Coward]

link to Jackson's original essay and another link to the print version.

So, the rules are bad?

[z_gringo]

He says:

"The distinction between 'judicial' speech and proscribed 'extrajudicial' speech is unrealistic. It conflates the concept of unofficial commentary and personal prejudice, which do not always equate, and draws the line between the permissible and the impermissible on the basis of whether the judge speaks ex cathedra [by virtue of one's position] or simply as a knowledgeable participant in the adjudicative process."

Jackson calls for "more sensible rules" regarding when a judge should speak out. "

So, in effect, he is saying: "Yes, I broke the rules, but it's ok, because I don't agree with the rules."

Hmm..

And what is he, a scrabble champion or something? Do Judges REALLY talk like that?.. I guess so, considering they are just glorified lawyers...

Re:So, the rules are bad?

[gi-tux]

No, I think that he is saying that there are basically no set rules and the people have a right to know, so let's put some specific rules in place. The few rules that exist are so broad in his opinion that they can be used anyway that the appeals court sees fit.

Now I don't necessarily agree with him on this point. I believe that the more narrow and specific you make the laws, the worse they are in the long run. Laws should be relatively broad because you can't see the future when you make them. I do however agree with him on the fact that the people have a right to know.

Maybe this will help free some information to the people in this process. It is a shame that a company is getting away with such a miscarriage of justice in this case simply because the judge made a few comments.

Re:So, the rules are bad?

[vonWoland]

First, to defend the judge's language, his article appeared in a "trade paper," i. e., a journal for jurisits. Hence the unqualified use of esoteric terms like omerta is just as justified as a reference to "snrtRNA" in Natrure or even "M$" on these pages.
Second, there are rule breakings and rule breakings. The judge violated no law, and the appeals court took him to task only for "'deliberate, repeated, egregious, and flagrant' violations of ethical canons"
One can ask whether if one considers an action to be perfectly ethical, one should still refrain form acting in such a manner because the long standing tradition of one's profession says that an action is unethical. In this light, to not act muight be considered cowardly, and ispo fact unethical, which I think is the judge's point.

One could wish, however, that the judge was a bit more circumspect in his statements. Shure, it was good that he was vocal, but perhaps the stridency and the timleness of his speech did more to hurt the cause than help it.

Re:So, the rules are bad?

[Anonymous Coward]

Hence the unqualified use of esoteric terms like omerta is just as justified as a reference to "snrtRNA" in Natrure or even "M$" on these pages.

It's closer to M$ than to snrtRNA. Indeed, snrtRNA is a value-neutral word, whereas both M$ and omerta are derogatory. Indeed, usually omerta refer's to the Mafia's "law" of silence (enforced by death...), so Jackson is indeed comparing the judicial establishment to a criminal organization.

Re:So, the rules are bad?

[vonWoland]

Piont well taken, I shouyld have used ex cathedra as my example. But I still did not find the judge's language to be particularly stilted. In fact, omerta makes it almost colorful.

Re:So, the rules are bad?

[MindStalker]

No rights should be broad, powers should be narrow, and laws should be narrow, and allow for jury nulification if they don't make sense anymore.

Re:So, the rules are bad?

[PainKilleR-CE]

I do however agree with him on the fact that the people have a right to know.

The right to know what? The transcripts for the trial are freely available, but his comments outside of court made him appear biased, whether he actually was or not.

Maybe this will help free some information to the people in this process. It is a shame that a company is getting away with such a miscarriage of justice in this case simply because the judge made a few comments.

The comments he made simply got him removed from the trial. They had little weight in the other portions of the case the appeals court overturned or sent back to the court for review. It seems that this isn't the only rule that Judge Jackson had a problem with, as he ignored quite a few others during the trial, all of which are cited in the appeals court's ruling.

Re:So, the rules are bad?

[rew]

As far as I understand things, he says he didn't break the official rules. He says that the interpretation is currenlty very strict, so that what he did was "uncommon".

Roger.

Re: So, the rules are bad?

[Black Parrot]

> But I still did not find the judge's language to be particularly stilted. In fact, omerta makes it almost colorful.

Nah, polychromous.

Re:So, the rules are bad?

[Anonymous Coward]

There are many examples of laws that were designed to be broad in scope because writing such laws provides the greatest benefit to the government. For example, laws such as "disturbing the peace" or "disorderly conduct" were designed primarily to make it easy for law enforcement to arrest someone in situations where there are no other laws that might apply or might likely result in a successful conviction. And mounting a defense against such laws is difficult enough that most who are charged under them tend to plead guilty and pay the fine rather than try to contest them. So naturally, because of the financial benefit to the law profession as well as the government through fines, court fees and attorney fees, the government has an incentive to keep them on the books. In fact, it is extremely unlikely that such laws will ever be struck down through jury nullification or by appeal to the SCOTUS, since the latter has always refused to hear appeals by those convicted under such laws by the lower courts.

Re:So, the rules are bad?

[Citizen of Earth]

So, in effect, he is saying: "Yes, I broke the rules, but it's ok, because I don't agree with the rules."

Well, despite any notions of 'judicial disobedience', if Judge Jackson had have kept his yap shut, Microsoft could be split in two right now. (Though I'm not sure whether this would have been a good or a bad thing.)

Re:So, the rules are bad?

[arthurs_sidekick]

His comments made him appear biased

He said disparaging things about Microsoft's witnesses after he had heard their testimony and read their depositions. This makes him "sound biased?"

A bias, in the pejorative sense, is a propensity to make a certain kind of judgment independently of the evidence. However, these guys LIED TO HIS FACE, repeatedly. So if he comes to the opinion that they are not trustworthy folks, he's not biased, he's making a judgment on the basis of the evidence.

Or, go ahead and call that "bias" if you like. But then it's no sin to be biased.

Re:So, the rules are bad?

[tchdab1]

He says that the rules are not written, they are implied, and also that they are bad.

And while I agree with him that off-the-record speech does not equate unequivocally with bias, I really wish he had chosen another case to make his point. His actions gave the opposition (from my point of view) an opening to oust him, and they didn't hesitate - they never do.

Re:So, the rules are bad?

[gi-tux]

No when laws get too narrow, they become nit-picky and hard to enforce. A law that can't be enforced should be taken from the books and I believe that laws should be reviewed periodically to verify their need for existance. If a law can't be enforced or has no need for existance any longer, it should be revoked and removed. This doesn't mean that someone convicted of it should be freed, but only that it is no longer necessary.

Laws should be created only where necessary for the benefit of society. Laws should be kept to a very basic level and should include the enforcement and punishment within the law itself. Obviously, the jury (in the USA or whatever in other countries) should always have the right to say that a particular law doesn't apply in this case for some reason (or to find the person not guilty due to unusual circumstances).

While talking about laws, politician should be removed as an occupation from the world. Laws would better reflect society, if the folks that were making the laws spent more time in the real world. The folks that are in those positions seem to often lose sight of the real world, they are too highly focused on the few things that will keep them employed, instead of serving the people that they supposedly represent. There is a reason that they are called public servants.

Now this applies to this because rules of conduct should be done the same way. As a matter of fact, if everything worked like this, even rules in the work-place should work like that and maybe employers wouldn't be spending all of their time figuring out how to rip off their employees and the employees wouldn't spend so much time having to think about how to get around the rules of the work-place to improve themselves.

Did you realize that much of the time that Henry Ford was working on the engine used in the Model T Ford car, he was working for Edison in the power generation field? Did you realize that the Dodge brothers sold their stock in Ford Motor Company (given to them while employed by Ford) to start the Dodge Motor Company? This happened in many other areas as well, but these are famous and related so I use them as an example. It seems that in times of old when invention ran rampant in the world that businessmen were not so wrapped up in controlling employees quite to tightly.

Re:So, the rules are bad?

[PainKilleR-CE]

From the Appeals Court's Opinion:
But the circumstances of this case are most unusual. By placing an embargo on the interviews, the District Judge ensured that the full extent of his actions would not be revealed until this case was on appeal. Plaintiffs, in defending the judgment, do not dispute the statements attributed to him in the press; they do not request an evidentiary hearing; and they do not argue that Microsoft should have filed a motion in the District Court before raising the matter on appeal. At oral argument, plaintiffs all but conceded that the Judge violated ethical restrictions by discussing the case in public: "On behalf of the governments, I have no brief to defend the District Judge's decision to discuss this case publicly while it was pending on appeal, and I have no brief to defend the judge's decision to discuss the case with reporters while the trial was proceeding, even given the embargo on any reporting concerning those conversations until after the trial." 02/27/01 Ct. Appeals Tr. at 326. ...

The published accounts indicate that the District Judge discussed numerous topics relating to the case. Among them was his distaste for the defense of technological integration-- one of the central issues in the lawsuit. In September 1999, two months before his Findings of Fact and six months before his Conclusions of Law, and in remarks that were kept secret until after the Final Judgment, the Judge told reporters from the New York Times that he questioned Microsoft's integration of a web browser into Windows. Stating that he was "not a fan of integration," he drew an analogy to a 35-millimeter camera with an integrated light meter that in his view should also be offered separately: "You like the convenience of having a light meter built in, integrated, so all you have to do is press a button to get a reading. But do you think camera makers should also serve photographers who want to use a separate light meter, so they can hold it up, move it around?" Joel Brinkley & Steve Lohr, U.S. v. Microsoft 263 (2001). In other remarks, the Judge commented on the integration at the heart of the case: "[I]t was quite clear to me that the motive of Microsoft in bundling the Internet browser was not one of consumer convenience. The evidence that this was done for the consumer was not credible.... The evidence was so compelling that there was an ulterior motive." Wilke, Wall St. J. As for tying law in general, he criticized this court's ruling in the consent decree case, saying it "was wrongheaded on several counts" and would exempt the software industry from the antitrust laws. Brinkley & Lohr, U.S. v. Microsoft 78, 295; Brinkley & Lohr, N.Y. Times. ...

According to reporter Auletta, the District Judge told him in private that, "I thought they [Microsoft and its executives] didn't think they were regarded as adult members of the community. I thought they would learn." Auletta, World War 3.0, at 14. The Judge told a college audience that "Bill Gates is an ingenious engineer, but I don't think he is that adept at business ethics. He has not yet come to realise things he did (when Microsoft was smaller) he should not have done when he became a monopoly." Spiegel, Fin. Times. Characterizing Gates' and his company's "crime" as hubris, the Judge stated that "[i]f I were able to propose a remedy of my devising, I'd require Mr. Gates to write a book report" on Napoleon Bonaparte, "[b]ecause I think [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." Auletta, The New Yorker, at 41; see also Auletta, World War 3.0, at 397. The Judge apparently became, in Auletta's words, "increasingly troubled by what he learned about Bill Gates and couldn't get out of his mind the group picture he had seen of Bill Gates and Paul Allen and their shaggy-haired first employees at Microsoft." The reporter wrote that the Judge said he saw in the picture "a smart-mouthed young kid who has extraordinary ability and needs a little discipline. I've often said to colleagues that Gates would be better off if he had finished Harvard." Auletta, World War 3.0, at 168-69; see also Auletta, The New Yorker, at 46 (reporting the District Judge's statement that "they [Microsoft and its executives] don't act like grown-ups!" "[T]o this day they continue to deny they did anything wrong.").

I like that last part in particular. What? Microsoft is supposed to just give up and admit they were wrong? Most people that bother to plea their innocence would be smart to stick to their guns on that issue. It goes on for quite a bit, and there is one paragraph which I have omitted that discusses Microsoft's witnesses. Most of it is just generalizations about Microsoft themselves, though. As for the court's actual opinion on this matter:

While some of the Code's Canons frequently generate questions about their application, others are straightforward and easily understood. Canon 3A(6) is an example of the latter. In forbidding federal judges to comment publicly "on the merits of a pending or impending action," Canon 3A(6) applies to cases pending before any court, state or federal, trial or appellate. See Jeffrey M. Shaman et al., Judicial Conduct and Ethics s 10.34, at 353 (3d ed. 2000). As "impending" indicates, the prohibition begins even before a case enters the court system, when there is reason to believe a case may be filed. Cf. E. Wayne Thode, Reporter's Notes to Code of Judicial Conduct 54 (1973). An action remains "pending" until "completion of the appellate process." Code of Conduct Canon 3A(6) cmt.; Comm. on Codes of Conduct, Adv. Op. No. 55 (1998).

The Microsoft case was "pending" during every one of the District Judge's meetings with reporters; the case is "pending" now; and even after our decision issues, it will remain pending for some time. The District Judge breached his ethical duty under Canon 3A(6) each time he spoke to a reporter about the merits of the case. Although the reporters interviewed him in private, his comments were public. Court was not in session and his discussion of the case took place outside the presence of the parties. He provided his views not to court personnel assisting him in the case, but to members of the public. And these were not just any members of the public. Because he was talking to reporters, the Judge knew his comments would eventually receive widespread dissemination.

It is clear that the District Judge was not discussing purely procedural matters, which are a permissible subject of public comment under one of the Canon's three narrowly drawn exceptions. He disclosed his views on the factual and legal matters at the heart of the case. His opinions about the credibility of witnesses, the validity of legal theories, the culpability of the defendant, the choice of remedy, and so forth all dealt with the merits of the action. It is no excuse that the Judge may have intended to "educate" the public about the case or to rebut "public misperceptions" purportedly caused by the parties. See Grimaldi, Wash. Post; Microsoft Judge Says He May Step down from Case on Appeal, Wall St. J., Oct. 30, 2000. If those were his intentions, he could have addressed the factual and legal issues as he saw them--and thought the public should see them--in his Findings of Fact, Conclusions of Law, Final Judgment, or in a written opinion. Or he could have held his tongue until all appeals were concluded.
Far from mitigating his conduct, the District Judge's insistence on secrecy--his embargo--made matters worse. Concealment of the interviews suggests knowledge of their impropriety. Concealment also prevented the parties from nipping his improprieties in the bud. Without any knowledge of the interviews, neither the plaintiffs nor the defendant had a chance to object or to seek the Judge's removal before he issued his Final Judgment.

Other federal judges have been disqualified for making limited public comments about cases pending before them. See In re Boston's Children First, 244 F.3d 164 (1st Cir. 2001); In re IBM Corp., 45 F.3d 641 (2d Cir. 1995); United States v. Cooley, 1 F.3d 985 (10th Cir. 1993). Given the extent of the Judge's transgressions in this case, we have little doubt that if the parties had discovered his secret liaisons with the press, he would have been disqualified, voluntarily or by court order. Cf. In re Barry, 946 F.2d 913 (D.C. Cir. 1991) (per curiam); id. at 915 (Edwards, J., dissenting).

In addition to violating the rule prohibiting public comment, the District Judge's reported conduct raises serious questions under Canon 3A(4). That Canon states that a "judge should accord to every person who is legally interested in a proceeding, or the person's lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte communications on the merits, or procedures affecting the merits, of a pending or impending proceeding." Code of Conduct Canon 3A(4).

What did the reporters convey to the District Judge during their secret sessions? By one account, the Judge spent a total of ten hours giving taped interviews to one reporter. Auletta, World War 3.0, at 14 n.*. We do not know whether he spent even more time in untaped conversations with the same reporter, nor do we know how much time he spent with others. But we think it safe to assume that these interviews were not monologues. Interviews often become conversations. When reporters pose questions or make assertions, they may be furnishing information, information that may reflect their personal views of the case. The published accounts indicate this happened on at least one occasion. Ken Auletta reported, for example, that he told the Judge "that Microsoft employees professed shock that he thought they had violated the law and behaved unethically," at which time the Judge became "agitated" by "Microsoft's 'obstinacy'." Id. at 369. It is clear that Auletta had views of the case. As he wrote in a Washington Post editorial, "[a]nyone who sat in [the District Judge's] courtroom during the trial had seen ample evidence of Microsoft's sometimes thuggish tactics." Ken Auletta, Maligning the Microsoft Judge, Wash. Post, Mar. 7, 2001, at A23.

The District Judge's repeated violations of Canons 3A(6) and 3A(4) also violated Canon 2, which provides that "a judge should avoid impropriety and the appearance of impropriety in all activities." Code of Conduct Canon 2; see also In re Charge of Judicial Misconduct, 47 F.3d 399, 400 (10th Cir. Jud. Council 1995) ("The allegations of extra-judicial comments cause the Council substantial concern under both Canon 3A(6) and Canon 2 of the Judicial Code of Conduct."). Canon 2A requires federal judges to "respect and comply with the law" and to "act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Code of Conduct Canon 2A. The Code of Conduct is the law with respect to the ethical obligations of federal judges, and it is clear the District Judge violated it on multiple occasions in this case. The rampant disregard for the judiciary's ethical obligations that the public witnessed in this case undoubtedly jeopardizes "public confidence in the integrity" of the District Court proceedings.

Another point needs to be stressed. Rulings in this case have potentially huge financial consequences for one of the nation's largest publicly-traded companies and its investors. The District Judge's secret interviews during the trial provided a select few with inside information about the case, information that enabled them and anyone they shared it with to anticipate rulings before the Judge announced them to the world. Although he "embargoed" his comments, the Judge had no way of policing the reporters. For all he knew there may have been trading on the basis of the information he secretly conveyed. The public cannot be expected to maintain confidence in the integrity and impartiality of the federal judiciary in the face of such conduct.

So, perhaps, I should've used impropriety and impartiality instead of bias, though I have always interpreted bias as meaning (im)partiality.

In this case, however, we believe the line has been crossed. The public comments were not only improper, but also would lead a reasonable, informed observer to question the District Judge's impartiality. Public confidence in the integrity and impartiality of the judiciary is seriously jeopardized when judges secretly share their thoughts about the merits of pending cases with the press. Judges who covet publicity, or convey the appearance that they do, lead any objective observer to wonder whether their judgments are being influenced by the prospect of favorable coverage in the media. Discreet and limited public comments may not compromise a judge's apparent impartiality, but we have little doubt that the District Judge's conduct had that effect. Appearance may be all there is, but that is enough to invoke the Canons and s 455(a).

Re:So, the rules are bad?

[poot_rootbeer]

And what is he, a scrabble champion or something? Do Judges REALLY talk like that?

Educated people do, yes.

I lament the state of education today if you're intimidated by any text written above a tenth-grade reading level.

Re:So, the rules are bad?

[Anonymous Coward]

So it's alright for Microsoft to pay for full page ads in major newspapers and magazines during the trial, but Jackson speaks to the media just once and he gets kicked?

Re:So, the rules are bad?

[z_gringo]

Yeah, I can understand what you are saying, however, if you read the article, he has clearly exceeded the vocabulary that would be found in normal conversation, and is using words that do not contribute to understand what he is saying, but rather the opposite.

Besides, Ive never been a fan of those vocabulary courses, who run adverts saying things like: "impress your friends with words they dont know", etc... I prefer to divert my language skills to expanding my vocabulary in the other languages that I speak. But to be sure, Mr. Jackson could communicate far more clearly with a little less effort...

I liked one of the previous posts...

Re:So, the rules are bad?

[Anonymous Coward]

You do understand that the case was "US v. Microsoft" and not "Judge Jackson v. Microsoft", right?

Re:So, the rules are bad?

[Anonymous Coward]

And given this is an OPINION, REBUTTAL piece in a TRADE journal, I would expect him to use such lanaguage. I highly doubt you could give a rebuttal using "value-entural words[s]".

The bleepin point of language is to get your point across. If you read the damn articles, I would argue that his very argument to address a community through informal, outside talks also coincides with his appropriate use of language in those communications. If he speaks with a newspaper reporter, he can give stories. If he addresses a professional community, he may use such rules as that community readily grasps.

After all, /. does not write stories but lazily points to them. You should realize by now that articles are not written FOR this community but is COVERAGE is down by this community.

You might as well be arguing that all language be dumbed down. Odd, as I've seen people whine and complain about how even decent magazines, online material, and newspapers nationwide are on average written on an intelligent 4th grade reading level. Now you have someone going beyond that, and instead now believe he's presenting airs and doing something wrong.

Re:So, the rules are bad?

[Anonymous Coward]

And what is he, a scrabble champion or something? Do Judges REALLY talk like that?

Yeah, what's up with those big words? I ain't much for fancy book lernin', and I don't like it!

Not talking so much would have helped the cause

[mseeger]

Hi,

i think Jackson did a good work inside the court room and a bad one outside. It was quite clear from the beginning, that there would be an appeal. In that case he should have tried everything to make it waterproof. But with the interviews he served a broadside of grapeshot to his own cause.

It may be a pitty that you may be right but saying so can put you wrong. But that's life.

Yours, Martin

Re:Not talking so much would have helped the cause

[WolfWithoutAClause]

Yeah, well he's only human. Let's face it, the job he had, he could have screwed up a trillion different ways- and he mostly succeeded at this one- the monopoly charges still stick, and there's still big issues for Microsoft from this.

Bearing in mind the administration change in the whitehouse, that's probably the best he could have expected.

Re:Not talking so much would have helped the cause

[dirk]

think Jackson did a good work inside the court room and a bad one outside. It was quite clear from the beginning, that there would be an appeal. In that case he should have tried everything to make it waterproof. But with the interviews he served a broadside of grapeshot to his own cause.

The whole problem was that he had a "cause". As a judge, he should be upholding the law, whether he agress with it or not. His "causes" shouldn't enter into it at all. By virtue of being a banner waver for his "cause" he showed that he could have possibly been tainted in his decision. He shouldn't worry about his "cause", or the appeal, or anything other than making the correct legal decision.

Re:Not talking so much would have helped the cause

[jimhill]

I disagree. Everyone who went into this case did so knowing that Judge Jackson's courtroom was only the first. He should have had a cause -- and that cause should have been the best-run trial with the best-written ruling possible, to make the inevitable appeals simpler for the Appellate Court and to minimize the number of events serving as grounds for appeal.

In some cases he did that. His Findings of Fact were so well-written and thorough that the only possible conclusion was that Microsoft had violated the Sherman Act. In other cases, he did not. One of Microsoft's eternal strategies when they're in court is to goad and provoke judges into saying something intemperate -- voila! Instant grounds for appeal when/if they lose.

Jackson is smart enough to know that and should have had sense enough to keep his tongue in check. Plenty of time _after_ the trial to become known as The Judge Who Broke Up Microsoft and possibly get on a short list for an Appellate Court position.

On a related note, I have to wonder what's taking Judge Kollar-Kotelly so long to issue her ruling. The facts are clear, the public comment is long over, and justice delayed remains justice denied.

Re:Not talking so much would have helped the cause

[Anonymous Coward]

I have never before in my life been so sure that a judge was taking a payoff. By being so hard on Microsoft both in the court and when talking to the press, Jackson very nearly blew the whole thing. A judge should know better.

Re:Not talking so much would have helped the cause

[Anonymous Coward]

It did help the "cause" in some ways. His remarks on the bench provided an indication that his judegment will go against M$ (for excellent reasons). This is the predictability that we all seek in leaders. The case on a huge monopoly is *different* from other cases because there are so many consequences (including those due to delayed justice). I believe this predictability affected M$ stragegy in some ways and is one of the big reasons for the slight easing (at least the apperance of doing so) by the defendent. As has been pointed out, he did nothing illegal. Given the circumstances - and the fact there is (and this has always been foreseen) an appeal only reduces the any ill-effects of his remarks.

All things considered, it would have been better from a purely judicial point of view to withhold his comments till the end of the trial. But from a market, industry and social points of view, I think his remarks were better made (at those times he made them) than unmade.

rathinam at netins point net

Re:Not talking so much would have helped the cause

[kuma]

um, he had an obvious motivation... keeping a bunch of foul corporate scum out of his court.

cause might not be the right word.

he played his hand beautifully, got the findings of fact on record and tainted himself enough to never have to hear another microsoft case again. simply brilliant.

perhaps you are not aware that microsoft had a history of lying to and outwitting judge jackson prior to his "interview"?

Mis-judged

[sfled]

The article states that "(The appeals court)...sent the case to a new judge and sternly chastised Jackson for 'deliberate, repeated, egregious, and flagrant' violations of ethical canons... ". Seems to me they were chastising the wrong party. Unless, of course, MS's use of less-than-ethical tactics were just an oversight on the part of Gates, Ballmer, et al...

Re:Mis-judged

[capt.Hij]

The article has little to do with Microsoft. It is about the conduct of the judge. Regardless of how the defendent acts a judge should not go on record using harsh metaphors describing the conduct of the people that he is supposed to be presiding over. Because of the incredible responsibilites given to the courts the people who run them should show the utmost respect to all parties. They should also conduct themselves in a way that does not lead people to believe that they are biased.

It is silly to think that they do not have biases, but they should at least demonstrate that they can take an even handed approach despite their views. When Penfield went on record and sharply rebuked the conduct of Microsoft before hearing all of the arguments then his decisions became suspect. No matter which side of the fence you are on with respect to Microsoft all parties should be unhappy with Penfield's conduct. It hurt the cause of everybody involved in the case.

Re:Mis-judged

[rcs1000]

Neither Microsoft, nor the Judge, can look back on the trial and think that they behaved fittingly.

Microsoft bribed and bullied witnesses (such as AMD's CEO) to give evidence. They lied about how easy it was to take IE out of Windows, and they played a FUD game like the best of them.

By these standards, Jackson behaved admirably. The only problem is: he's the Judge, he's supposed to be impartial. If, prior to the trial beginning, he has expressed in interviews (albeit unpublished ones) a strong view about one of the parties then he is not going into the trial as an unbiased Judge.

This perception of bias, rather than the speaking to journalists per se, is why Jackson was struck down so.

And, for all Jackson's arguments about the right of Judges to speak out, I have to agree with the appeals court.

Re:Mis-judged

[mitochrondia]

A judge that would make statements of any kind deteriment to the position of either the plantiff or the defendent during a trial either on or off the bench shows an utter lack of regard for the judical process. To prejudge before the evidence is presented is nothing more than a kangaroo court. Sadly, it took him 15 months to make this inane reply. He should have left whatever thoughts he had unsaid. No matter how much you despise Microsoft and the Blue Screen of Death, they deserved a fair and impartial trial. This judge is a mockery to that process.

Re:Mis-judged

[sfled]

True, speaking in public about the case was not a wonderful thing. Yet the Judge had a visceral reaction to the misery (both financial, intellectual and emotional) that Microsoft's shady tactics have caused to the people who work in this industry and in a larger sense to the end-users who are saddled with it's miserable products. I imagine that he was also royally pissed-off when MS tried to pull the same cheap tricks in his courtroom.

The Judge rebuked MS as soon as it became apparent that MS was trying to insinuate the same tactics (FUD, fudging, lying, cheating) into the courtroom as it uses in it's commercial dealings. I have seen barristers fly into a purple rage when lawyers from either side of the argument presume to fool them with technical double-talk and sleight of hand. MS tried to treat the Judge like a fool. Unfortunately, the Judge let himself be baited and let his temper get the better of him. Looks like MS has found another trick to add to it's repertoire.

It is in many ways infortunate that in our society those who are truly passionate about their work are often labeled as irresponsible by the status quo.

Re:Mis-judged

[ClosedSource]

"Yet the Judge had a visceral reaction to the misery (both financial, intellectual and emotional) that Microsoft's shady tactics have caused to the people who work in this industry and in a larger sense to the end-users who are saddled with it's miserable products."

Oh, come on. Jackson's more proabable reason was that he was pissed off that MS managed to get the court of appeals to overturn his previous ruling.

Re:Mis-judged

[NoOneInParticular]

I can't find the source so quickly, but I seem to remember that Judge Jackson did not express any bias prior to the trial. At worst he expressed bias during, but I seem to remember he gave only interviews after the trial. This 'bias' was caused by the behaviour of Microsoft in court.

I remember as it seemed very odd to me at the time. This judge has been lied to during the trial, and when he says that he's pissed off at being lied to after the trial, he is expressing bias and the case is annulled.

But then again, I might be remembering it wrongly altogether. Funny though, if he would have spoken about the trial before the trial to the media, how could he have ever been selected as the judge for the trial?

Re:Mis-judged

[rcs1000]

Now it's my turn to temporise. About two years ago I read in Wired a story of the Microsoft trial; this was published after the trial came to an end.

However, I think it did contain interviews with Jackson from *before* the trial, where he was very uncomplimentary about Microsoft.

Now, this Wired article was written by someone (I think) who went on to write a book about the trial. Again I think, this contained interviews from before and at the beginning of the trial.

Re:Mis-judged

[PainKilleR-CE]

The Washington Post article specifically talks about interviews given during the trial. Considering the nature of the statements cited in the article, it should be fairly easy to see how at least an appearance of bias could be found, if not bias itself, and this was enough for him to be removed from the remainder of the case. Adding in the number of legal procedures that the judge bypassed in the trial gave more weight to the appearance of bias created by his interviews.

If I remember correctly, MS tried to have him removed fairly early on because they believed he would be biased by earlier cases related to MS which he oversaw (previous antitrust case?), but that didn't happen. It's only natural that they'd go on to bring up an appearance of bias in the appeal, and Jackson should've been aware of that possibility.

Re:Mis-judged

[ch-chuck]

Far from 'insightful' - they are discussing the judge's reactions and comments DURING the trial (like during the vidtape of 'why you cannot remove IE w/o breaking Windows', which turned out to be a faked, contrived, presentation), not after appeal, plus, appeals overturned his remedy, but, as the article states:

"Ironically, the appeals court reaffirmed the core of Jackson's work, which found in United States of America v. Microsoft Corp. that the software giant had illegally abused its monopoly position to undermine competition in the software marketplace."

We're just waiting for another 'remedy'.

Re:Mis-judged

[cleetus]

"Oh, come on. Jackson's more proabable reason was that he was pissed off that MS managed to get the court of appeals to overturn his previous ruling."

The appeals court affirmed almost all of Judge Jackson's findings. The fact that there would be an appeal was a foregone conclusion before the trial even started. Jackson was lucky to do such a disservice to his judicial opinion and still have so much of it upheld on appeal.

cleetus

Re:Mis-judged

[Anonymous Coward]

Unless, of course, MS's use of less-than-ethical tactics were just an oversight on the part of Gates, Ballmer
It was no oversight - it was intentional. MS just planned to get the tactics corrected later in Microsoft Antitrust Trial Tactics SP4.

Re:Mis-judged

[toopc]

I can't find the source so quickly, but I seem to remember that Judge Jackson did not express any bias prior to the trial. At worst he expressed bias during, but I seem to remember he gave only interviews after the trial.

He gave interviews during the trial. Actually the trial is ongoing, so even if he gave a interview today he would be giving an interview during the trial. What he did was even worse, Jackson gave an interview while he was still hearing the case - that is the reason his impartiality is suspect.

Microsoft Appeal Panel Blasts Judge Jackson

In speeches and interviews with reporters after his historic ruling, Jackson made a number of remarks directed at Gates and Microsoft, but the interviews he granted during the trial left government lawyers scrambling to counteract the charge that Jackson was biased against the company and over-eager to punish it.

The interviews Jackson gave during the trial were embargoed, meaning they were not to be published until the trial's conclusion.

"The system would be a sham if all judges went around doing this," Edwards said. "The public has something at stake, it's the integrity of the system."

Re:Mis-judged

[leifb]

The only problem is: he's the Judge, he's supposed to be impartial.

Yeah, and that's why judges' opinions on hot-button issues (for example, abortion, in the US) are completely irrelevant to their nomination and acceptance into high court office.

Like the US Supreme Court.

Yeah.

What planet are you from?

Re:Mis-judged

[stephanruby]

The appeals court doesn't need to chastise Microsoft. There is really no point in chastising someone until their proceedings are over. There was also no point in Jackson chastising Microsoft *before* the case even began. Jackson was about to have complete control over Microsoft. Did he really need to "educate" us about Microsoft at that time? Is anyone falling for this excuse.

I'm Torn...

[pridefinger]

...because I can see both sides of the problem here. I can see how his public comments can be seen as partiality. I can see how the "court" is supposed to weigh ALL of the facts before coming to a conclusion... ...but, I _REALLY_ dislike Microsoft. Not because their products suck (that's fodder for another discussion). Not because they are a monopoly. Because they have _ZERO_ scruples. As far as I am concerned, the Judge is right on in his analogies of M$. Quite honestly, one of the biggest reasons I use Linux as my primary OS is because it isn't made by "the beast".

So I'm torn because I see both sides. I think he was out of line, but I think he was absolutely correct.

- Pride

Isn't life delicious?

Re:I'm Torn...

[capt.Hij]

I visited Washington DC only once. After going through and visiting all of the sites one thing really stuck with me. The supreme court building was the only place where people would immediately become quiet when they entered the building. Not only that but they were generally more respectful of the place itself. There was something different about the place they were in.

The capitol building was a loud, almost raucus place. The various memorials were different but all had many people and families making noises. The supreme court, however, was just the opposite. Afterwards when I thought about it, I realized that this is just the way it ought to be.

Given that Penfield was given the ability to order the break up of a public corporation he should have been much more respectful of that responsibility. I can also see both sides of the case. Rather than being torn, I am quite unhappy with both sides.

Re:I'm Torn...

[MercuryWings]

In a society where all men are considered equal, then based on that definition no one man can have the absolute right to judge the doings of another man. In a perfect world, the existence of courts and judges wouldn't be necessary. However, this isn't a perfect world, and there on occasion becomes the need for a third party to make a binding decision in a dispute between two others, be it two individuals or an individual and the law.

This is where the problem lies. In order to ensure that both parties get an equal shake at stating their case, the judge must be considered a neutral party from the get-go. The judge's role is not to impose his own opinions on a case, but to impose the correct interpretation of law that is applicable. His opinions and cbeliefs on the matter should have no reflection on the outcome of the case.

Judges, however, are as human (and imperfect) as the rest of us. We all have our biases and beliefs, and we should not expect a judge to be any different. It is (at least in my opinion) impossible to expect a judge to be truly neutral in their own mind. But at the very least the judge should present the image or impartiality when it comes to cases they are residing on. A judicial system cannot function successfully at providing justice if it is not perceived as providing that justice to all people equally.

If 'judge' Jackson does not like the responsibility and duties of passing himself off as a truly neutral party in a court case, then he should resign from the bench and return to practicing law privately. At least then if he was to shoot off his mouth prematurely it would be normal and considered (unfortunately) part of the normal politics of law.

Re:I'm Torn...

[Gerry Gleason]

The question is does he have a point (in the recent article). Many of us regret that his comments gave the appeals court an easy target to strike down his decision, but I wonder whether that is the only reason, or would they have done the same under even more tortured logic. Is it possible that he could see and anticipate that they (MS) would use any twisted legal tactic to reduce and delay the impact of any decision, and that the public's right to know outweighed the risks to the correct final legal decision. After all, the court left in place everything but his remedy. The basic decisions and findings were sound.

I certainly would like to know if the remedy would have stood on the merrits, and I think it is pretty weak for them to use this as the only or primary reason to strike his ruling. We all understand the tactical reasons to err on the side of silence in this situation, but the Judge Jackson also raises an important point. Is it really necessary to have complete silence in this situation, and it particular, does it serve the public interest. For MS lawyers they were engaged in the battles of an extended war, and they would spare no tactic no matter how damaging to the process.

If he had waited to comment on MS tactics it might have been better, but I'm not sure. The fact is that MS might win in court anyway with their take no prisoners approach, or a least delay until it no longer matters. After all this worked for IBM in the past. Given this, it is better for the public to know more about what is going on at the time it is happenning.

To change the example ... In Illinois there is a criminal case that is still lingering in the public attention because some of the players are current candidates. A man was convicted of murder and later overturned when the DNA evidence cleared him. The prossecuters kept going to court and apposing any reversal, even though evidence was gathering of misconduct on the government side. At some point it is appropriate for a judge to publicly condemn legal manuvering that continues to delay justice. Justice delayed is justice denied.

Re:I'm Torn...

[PainKilleR-CE]

The question is does he have a point (in the recent article). Many of us regret that his comments gave the appeals court an easy target to strike down his decision, but I wonder whether that is the only reason, or would they have done the same under even more tortured logic.

The primary result of the 'appearance of bias' as cited in the appeals court ruling, was the removal of him as judge on the case. It was not part of the ruling to strike down his decision.

Is it possible that he could see and anticipate that they (MS) would use any twisted legal tactic to reduce and delay the impact of any decision, and that the public's right to know outweighed the risks to the correct final legal decision. After all, the court left in place everything but his remedy. The basic decisions and findings were sound.

The court didn't leave everything in place. They threw out or remanded for re-hearing almost 2/3rds of the case. They threw out the penalty that Jackson came up with because he didn't go through the proper (and normal) steps to come to that ruling, and didn't include the proper justification for that ruling. They upheld his 'findings of fact' because they believed that there was nothing wrong with them, and that bias, whether real or simply in appearance, did not have any affect on that portion. However, as the appeals court ruling and many other transcripts from the case can show, the findings of fact are not even the largest part of the case.

Re:I'm Torn...

[sql*kitten]

Because they have _ZERO_ scruples. As far as I am concerned, the Judge is right on in his analogies of M$

Hmm, a choice between Microsoft and lawyer as to who has the fewer scruples.

Sorry, but history suggests that the lawyers do.

Re:I'm Torn...

[PW2]

I believe it is better when people 'keep it real' and not put up false facades as that is a level of deceit not worthy of judges. The people should be able to discern that he is doing an impartial job and also has his own opinions which is easier to see when the judge is more open with his opinions at certain times. A review of the procedings and final judgement (instant-replay like) can be used to guarantee that the man is doing his job.

Re:I'm Torn...

[MercuryWings]

Expecting a judge to maintain an image of impartiality places no expectation on them to put up any false facades - it merely put underscore the importance that their own opinions and beliefs are not (and should not be) relevant to the case. Every court decision that is made (excepting IIRC civil court) is filed with the judge's explanation of why they came to the decision they did, frequently tied to previous cases or interpretations of law. Anybody should be able to read these judgements and see exactly how and why the decision was made. If the judgement is made based on the judge's personal opinions or a misinterpreted fact of law, there is a very good likelihood it will be go to the appeals courts.

If any judge were free to express without hesitation their opinion on a matter before them, the lawyers would have a field day appealing the cases. All it would take is a single comment by the judge against a defendant and, in no time flat, the lawyers have an appeal ready, claiming the judge was prejudiced and was going to convict no matter what the evidence.

The image of impartiality is critical for a function legal system. It has nothing to do with putting on a false facade, or deceit, but to do with an imperfect system that has enough issues these days trying to determine justice without being made to look biased and prejudiced (note the word: pre + judged) by judges who should know the damage caused by their words far outweighs their urge to speak them.

Personally...I think that's a small price to pay when given the responsibility of deciding another person's fate.

Re:I'm Torn...

[sjlutz]

Judges, however, are as human (and imperfect) as the rest of us. We all have our biases and beliefs, and we should not expect a judge to be any different.

I think this is the crux of our problem. We SHOULD expect a judge to be impartial. No matter how wrong the defendant is in any case. If I know a judge hates my guts, and I have to stand up in his courtroom and face his judgement, I EXPECT that he will use the law, and not his personal opinions of me in his judgements.

Judges are people, yes, but they are Judges too. If a judge cannot give an unbiases legal opinion because of their own opinions, they should not be judges. It's part of their job to be impartial. It isn't a "nice to have" trait, it is a requirement.

Re:I'm Torn...

[dlkinney]

My uncle is a judge, and from long discussions with him while fishing, I can tell you that no judge is impartial throughout a trial. Judges who have been around the block know what's-what and quickly size-up who is guilty, what hte merits of the case are, and what the appeals will be founded on. In fact, shared with me advise from a collegue of his: after you have determined in the first few minutes who is going to win the case, rule all objections in favor of the other side, so that they have no grounds for appeal. Of course, a judge can't quite follow that logic, as he/she is bound by precedent, but it demonstrates the realities of being a judge.

Re:I'm Torn...

[corey_lawson]

...for a really humbling experience, you should have gone to Arlington National Cemetery, and seen the Changing of the Honor Guard, the Kennedy's gravesites, or the Lockerbie Memorial...

Re:I'm Torn...

[DunbarTheInept]

The image of impartiality is critical for a function legal system. It has nothing to do with putting on a false facade, or deceit, [snip]

Then why praise the ousting of this judge from the case? All he did was have the honesty not to put on that facade. He was impartial, but impariality is not the same as being brain-dead. There is nothing PRE-judgemental about pointing out how badly the Micorosoft side conducted themselves DURING the trial. If he'd said so BEFORE he saw them acting as such, then THAT would have been prejudiced.

Re:I'm Torn...

[DunbarTheInept]

You cannot separate the two. After all, what kind of profession were the people arguing the case FOR Microsoft? Why - big surprise- they were lawyers too. So it's not a comparasin of Microsoft vs a lawyer. It's a comparasin of Microsoft PLUS a laywer, vs a lawyer.

Don't judge the gags

[maharg]

What do you call a mule when you slap it with a two-by-four ? Anything you like as long as you're on the bench.

Legal Times article?

[Spoing]

I'd rather read JPJ's comments from the Legal Times where he published them. Anyone have a link?

Re:Legal Times article?

[maharg]

here I think - http://www.law.com/servlet/ContentServer?pagename= OpenMarket/Xcelerate/View&t=PubArticleDC&c=PubArti cle&cid=1032128635760&live=true&cst=1&pc=0&pa= 0

I would have given anything...

[Troy H Parker]

to have had Judge Judy try the case. I'd bust a nut watching her snap out a "SHUSH!" to Bill Gates!

Look at these...

[the_real_tigga]

...to get the picture of what the article is all about:

1
2
3

Re:Look at these...

[Anonymous Coward]

Two informative mods? Are the moderators asleep at the switch, or is moderation just random these days?

Re:Look at these...

[Evro]

Don't forget this one.

Re:Look at these...

[TheReverend]

And now, three pictures to show what he should do with Microsoft...
1
2
3

Nail. Ass. Wall.

Re:No one give a flying f**k

[troff]

Hang on a minute.
Strongly suggest you check out the book "US Vs Microsoft (The Inside Story Of The Landmark Case)" at http://www.amazon.com/exec/obidos/tg/detail/-/B000 05NJE0/qid=1034597586/sr=1-2/ref=sr_1_2/103-030365 9-0900630?v=glance . The authors were two of the NYT journalists (including Steve Lohr) and included many of the press clippings of the time.
Reading that, you get one very good idea of incompetence: specifically, Microsoft's inept performance; ineptness that refers to Microsoft's lawyers, the performance of the "expert witnesses" they brought to the stand (who's going to forget Richard Schmalensee slamming down his old student in an economic analysis), or the "IE Removal Tool"... or even Gates's own performance.

Like the old Tim O'Reilly quote: "When people understand what Microsoft is up to, they're outraged". I'm not suggesting getting mad at Microsoft because they're Microsoft, I'm suggesting getting mad at them because of what they do, what they try to do, what they try to FUD.

Don't slam Jackson for doing what many people here would love to do. Slam the system that's letting Microsoft get away with what they're doing. "Yah, you say we're guilty. So you define the crime. Well, we don't like your punishment, so we'll impotently threaten to take our ball and go home, so NYAH!".

And OT, I find it really weird to see ANY Microsoft ad on /. at all.

The Island of Doctor Moureau

[mccalli]

And what is he, a scrabble champion or something? Do Judges REALLY talk like that?

In The Island of Doctor Moureau (the original book, not the film interpretations), there is a human/orang-utan cross which speaks in what he calls "Big Thinks". The Orang-utan's idea is that if he uses big enough words, he'll seem really intelligent.

When the book's protaganist flees home, he can't help noticing that most of the establishment (particularly his local vicar, as far as I recall), seems to be speaking purely in Big Thinks. I suspect our friend Mr Jackson is suffering from precisely the same syndrome.

Cheers,
Ian

Re:The Island of Doctor Moureau

[Anonymous Coward]

I've always thought this about columnist George Will, only it seems to vary with the strength of his argument. When he has a strong argument, he sticks to a vocabulary that is familiar to most people (at least those that read newspapers.) When his argument is not as strong, he trots out the thesaurus.

Re: The Island of Doctor Moureau

[Black Parrot]

> The Orang-utan's idea is that if he uses big enough words, he'll seem really intelligent.

And that differs from the gunner in your IT department, how?

Re:The Island of Doctor Moureau

[BWJones]

seems to be speaking purely in Big Thinks. I suspect our friend Mr Jackson is suffering from precisely the same syndrome.

Actually, in any field where you have enough specialization, there is a considerable amount of "targeted" speech. To put it another way, words can have very specific meanings and often their use is carefully chosen to reflect those meanings. It has nothing to do with using big words for their impressive size or their occult nature.

For instance, I have a good 18 years of post high-school education in biomedical sciences including a not insignificant amount of mathematics. A couple of months ago I went to a presentation of a friend of mine in computational sciences concerning the description of hyperdimensional spaces and how to represent them. (I am using variants of these methods in my research, thus my interest) And here is the deal.....the talk sounded like a foreign language to me. Very esoteric mathematical proofs etc... and I was totally out of my element. However, the audience (members of comp sci, companies like Evans and Sutherland, SGI, Adobe and yes...Nvidia gave him a standing ovation and were obviously impressed and knew exactly what he was talking about. Last week he attended a biomedical/ophthalmology grand rounds presentation I made and he described the same experience to me.

Moral of this story.....don't be so harsh on Judge Jackson simply because you don't understand him. There is an audience that knows exactly what he is talking about including your "Big Thinks" and appreciates it.

Re:The Island of Doctor Moureau

[mccalli]

Actually, in any field where you have enough specialization, there is a considerable amount of "targeted" speech.

Oh, I entirely agree. Interesting that you use an opthalmic example - my fiancee has been studying to be an optician for the past four years, and I've been learning some of the course along the way (in order to help with homework). Yes - the jargon can be quite dense, but it is used to describe information that cannot be put in an everyday sense.

Now, the language of Mr Jackson quite definitely can be phrased in standard English. He chooses not to do so - ex cathedra indeed, he's just talking about telling tales out of school.

So I agree that jargon has its uses. However, I would submit that plain English also has its uses, and that these have been sadly neglected by Jackson.

Cheers,
Ian

Re:The Island of Doctor Moureau

[edxwelch]

Yeah, but he's ment to be addressing the *public*, (see the title of the artical), not a room full of lawers

Re:The Island of Doctor Moureau

[Snover]

There is an audience that knows exactly what he is talking about including your "Big Thinks" and appreciates it.

Except if he's trying to get PUBLIC OPINION on this thing, he should probably speak in language non-law specialists might be able to understand.

And no, I'm not talking about using ebonics, thankyouverymuch.

Re:The Island of Doctor Moureau

[Kierthos]

Funny, I had no problem understanding Jackson's statement, and the closest I ever got to law school was working in a law library one summer.

Oh, and I live in South Carolina, so the public here is a lot dumber.

Kierthos

Re:No one give a flying f**k

[Anonymous Coward]

A Microsoft ad on Slashdot means that Microsoft had to pay to have it put there (unless they've pulled some EULA crap I don't know about), which is a good thing.

Slashdot is also the one place where a Microsoft ad is guaranteed to have absolutely no effect whatsoever.

The judge was incompetent

[greenrom]

We have rules like this for a reason. Judges already have the ability to express their opinions on a case, but they should do so in court where it will become a part of the public record. Holding press confrences or interviews during a trial subjects the judge to unnecessary exposure to media sources. In an ideal situation, we would want a judge to only hear evidence presented in a court room. Any responsible judge would try to avoid listening to any media coverage of a trial in order to ensure he can render an unbiased verdict. The types of questions asked in an interview could cause a judge to be swayed by the media's bias. Even if a judge isn't influenced by such questions, the fact that he could be casts some doubt on the fairness of the trial, especially when the judge gives hints about the eventual outcome before all the evidence has been presented.

Re:The judge was incompetent

[fw3]

Ahh so you know enough about antitrust law and the judiciary to comment on the competence of a senior judge?

I found Jackson's article to be persuasive and as intelligent as I had come to expect based on his performance in the MS trial:

The judiciary is in many ways the most secretive of the three branches of the federal government. It is not subject to the Freedom of Information Act or any other so-called "sunshine" statute. Judicial disciplinary proceedings are conducted in private. Although the judicial system professes to display its decisional processes "on the public record," its most important decisions are made behind closed doors, whether by judges or juries. Law clerks and supporting staff are sworn to secrecy. There are remarkably few "leaks," and no whistleblowers. A veteran journalist once told me that "we know more about how the CIA operates than we do about you."

Jackson demonstrated having a firm grasp on the technical and economic issues at hand. This is strongly at odds with my general experinence. It is most ofen among lawyers and MBA-types that I get the "Microsoft is just a good thing, look at them they're so successfull" attitude.

I'm glad this one indeed is willing to step a little outside the box, and from all I could see of the following 'remedy' proceedings the current judge will be following Jackson's logic, if not the specifics of his recommended solution.

Re:The judge was incompetent

[AlCoHoLiC]

IMHO there's no such thing as unbiased court verdict. Assuming that judges are better people then we is simply stupid. They do have strong opinnions on various thnigs just as we common mortals do.

And yes, Microsoft needs slapping just like mentioned mule, but he should say it ex cathedra not in a interview.

Re:The judge was incompetent

[budgenator]

The types of questions asked in an interview could cause a judge to be swayed by the media's bias
I think Lawyers use this tactic in court enough, asking a obviously biased question to a witness that a judge who has seen this a thousand times would be fairly immune to its effect unlike a first time juror. That's like arguing that the court was biased in Microsoft's favor because they require that documents be submited in MS doc format. (Just guessing about the required part but I'd bet a dollar to a donut hole I'm right)

More Judges Like This One

[doug renfrew]

Jackson, in explaining his order to break up Microsoft, told a reporter a joke about a trainer who slaps a mule with a two-by-four to get its attention. We need more judges like this one...

Re:No one give a flying f**k

[ClosedSource]

"Don't slam Jackson for doing what many people here would love to do."

Yes, like Jackson many slashdotters had made up their mind about the case before the evidence was presented, but as a judge, Jackson should not have.

Microsoft case?

[olman]

What actually happened to the Microsoft trial? Dissenting states shot themselves on the foot over some technicality wrt CE XP modularity. After that, nothing. Nada. Did MS get out of the jail free?

Re:Microsoft case?

[jacquesm]

In theory, no.
In practice: YES
check out google on the myth of the good corporate citizen
basically what it boils down to is that corporations in theory have less rights than a 'regular' citizen, but that in practice with all the legal power that they can buy they enjoy considerably more rights than ordinary people and that they are not ashamed (because of a lack of personal ethics) to abuse these rights

He should have kept quiet

[Get Behind the Mule]

Thomas Penfield Jackson is still one of my heroes, but giving interviews that were critical of Microsoft while the trial was still pending was foolish, and significantly undermined the otherwise good work he did in the trial. His rebuttal has not convinced me otherwise.

I'm still amazed by his Findings of Fact. Until they were published, I just couldn't believe that any judge could understand the technical and business issues related to MS's anti-competitive practices. But he Got It, right on the money, better than my wildest dreams. The Findings of Fact are still the best statement of MS's wrongdoing, and as everybody always mentions, the Appeals Court did not overrule any part of those conclusions.

I also frankly can't blame him for his dim view of Microsoft. They behaved like the worst kind of gangsters in his courtroom, lying under oath, intimidating witness, and manufacturing evidence, all of it shockingly brazen. To this day, they have not shown the slightest sign of insight, remorse or willingness to compromise, even after being convicted in the Federal courts. Judges do not look kindly on attempts to deceive them, for understandable reasons.

Jackson probably just couldn't stop himself from saying what he thought of the defendant, and many of us might have succumbed to the same temptation. If he had given his interviews after the conclusion of the case (including all of the appeals and settlement negotiations), it might have gone a long way toward educating the public about this company -- ruthless corporate crooks long before Enron and WorldCom came along and made it fashionable.

But by coming out with that kind of criticism during the trial, he undermined the message. It leaves the public (not to mention the appeals courts) wondering whether the conviction and punishment were the work of an overzealous judge. Certainly MS can dismiss his Findings of Fact that way. Despite what Jackson says in his rebuttal, the "appearance of impartiality" is essential and indispensible. Otherwise, a public that, for the most part, isn't familiar with the technical and economic issues cannot be sure whether a company like MS is really as bad as they say, and really got what they deserve.

Re:He should have kept quiet

[t482]

Indeed - the ruthless lying reminds me of the actions of big tobacco. The movie The Insider dramatises the issue.

Re:He should have kept quiet

[Reziac]

Ruthless corporate crooks have been around for as long as big business of any sort. There were complaints against large civic contractors for monopolistic practices clear back in the Roman era.

Re:He should have kept quiet

[ArtDent]

I also frankly can't blame him for his dim view of Microsoft. They behaved like the worst kind of gangsters in his courtroom, lying under oath, intimidating witness, and manufacturing evidence, all of it shockingly brazen.

Why weren't any of these shenanigans rewarded with chanrges of Perjury or Contempt? That would seem a more appropriate (and satisfying) consequence.

Free Speech Issue?

[no soup for you]

Says the rebuked judge:

"Our life tenure is all the more reason for us to be able to communicate informally on occasion with a public that must live with our decisions, yet can never vote us out of office,"

From the article it seemed like Jackson was rebuked by the appeals court for the interviews given during the trial. I am 100% for free speech, and I think it should extend to judges as well, but should a judge be able to give instant feedback to the press, and more importantly the lawyers trying the case, as to how the case is proceeding?

Re:Free Speech Issue?

[Nomad37]

Free Speech in the US as in many other places always has its limits, and it's a matter of how things are phrased. If you sign an NDA, then you forfeit your right to speak about topic "X".

If you're sitting in judgment over people's actions (or corporations'), as the Appellate Court points out, you must express your views in the court room! so that the defendant has a chance to answer your criticisms either in that courtroom or in an appellate court.

Jackson defends himself with the argument that people have a right to know what's going on in the courtroom. The parties to a case, however: those most directly affected by the judgment have a much stronger claim - one that Jackson totally ignored.

While totally in favour of Jackson's ruling and findings of fact, I strongly believe that his was one of the worst displays of judicial irresponsibility we have recently seen.

Re:Free Speech Issue?

[Catbeller]

The interviews were held during the trials, yes, but not printed until after the trial was over, per Jackson's demand. So, no ethical rule was violated.

Jackson gave that interview because he knew he was going to be overturned by his political enemies on appeal. He was trying to get the record straight before the shit hit the fan.

AFAIAC, noticing that Microsoft was acting like a pack of lying, entitled weasels who didn't think the law applied to them is an act of intelligence, and not a biased one.

Bias is the presence of unwarranted onus -- Jackson was just noting the obvious.

Jackson's full article at law.com

[Anonymous Coward]

here

Re:Jackson's full article at law.com

[Spock the Baptist]

Thanks for the link.

Judge Jackson does in fact get it, as can be seen in the following paragraph...

"...but if there ever was an era in which lower court judges could rely upon the majesty of the office and the aura of omniscience to inspire confidence in their decisions, that age is long past. People expect other public officials to earn their respect in part by displaying a willingness to answer good-faith questions about actions taken and decisions reached. Judges should be no exception. I know of no good reason why a judge who has made a decision, in a case of obvious interest and concern to many people, should not at least be willing, if not expected, to respond to legitimate inquiries about it from responsible interlocutors, whether they are lawyers, academics, students, journalists, historians or the local garden club."

Well said indeed, Judge Jackson!

The geek community is not the only facet of American society that is apprehensive of the US legal system in its current condition, and of that systems inscrutable machinations. If the members of the bar, and the judiciary do not soon get their collective act together then they ought to expect an onslaught of criticism from the public. If then, such criticisms are not taken to heart, and heeded; then the bar, and the judiciary can only expect the public to energetically seek remedy through legislative action, and/or constitutional amendment.

The era of the judicial imperium is coming to an end.

And a clickable link

[Anonymous Coward]

Here's a clickable link to parent's book.

Why would a Judges Bias be wrong?

[TheLoneCabbage]

First off, the appeals never showed that J. Penfield demonstrated bias BEFORE the trial began. The apeals point out that interviews "early" in the trial show that he as already siding with the prosecution. FOR SHAME!!!

Keep in mind that was AFTER those MS monkeys rigged a demonstration of their software, bribed witnesses, and been caught purgering themselves more than once. I'd be bias too!!

And as long as the bias developed durring the case, what difference should it make? Isn't that what Judges are supposed to do?

Granted, talking to the media was unecesary, and maybe Penfiled had some "Edo" envy, but I don't see how it is wrong. It's not as though national secrets were at issue, or MS was being slandered (no one trusts them anyway).

I'm not looking for a witch hunt (is Bill heavier than a duck?), but Penfiled was right. His rulling was taken away from him on the basis of politics and bribes.

Re:Why would a Judges Bias be wrong?

[Anonymous Coward]

As opposed to the Prosecutions own riggings, bribed witnesses, and purgered testimony?

Both sides should be measured with the same stick. You can't say that MS was alone in it's misdeads.

Re:Why would a Judges Bias be wrong?

[PainKilleR-CE]

Granted, talking to the media was unecesary, and maybe Penfiled had some "Edo" envy, but I don't see how it is wrong. It's not as though national secrets were at issue, or MS was being slandered (no one trusts them anyway).

I can just see it now, a judge instructing the jury: 'its ok to develop bias, as long as its during the trial rather than before'. No, even though we all know there's no way to stop people from having some bias, they should at least try to be impartial, and those instructions will always be to hear the entire case before making any decision.

I'm not looking for a witch hunt (is Bill heavier than a duck?), but Penfiled was right. His rulling was taken away from him on the basis of politics and bribes

No, the case was taken away from him because he decided to talk to the press during the trial instead of holding his tongue until it was over. His ruling was taken away from him because he didn't follow the correct procedures in the court, such as having a penalty phase in the trial before determining a penalty.

Re:Why would a Judges Bias be wrong?

[Anonymous Coward]

> No, even though we all know there's no way to
> stop people from having some bias, they should at
> least try to be impartial, and those instructions
> will always be to hear the entire case before
> making any decision.

But I think the point he's trying to make is that you can't make a decision without having a bias. If all options are the same, then the only way to make a decision is to flip a coin.

Bias before the evidence is even presented is bad.

Bias due to the evidence is good.

Enough things happened in the court room (e.g. pergury) to make any previously unbiased judge become biased against Microsoft.

Re:Why would a Judges Bias be wrong?

[Anonymous Coward]

the Prosecutions own riggings, bribed witnesses, and purgered testimony?

Links, please.

Re:Why would a Judges Bias be wrong?

[stubear]

How about trying to get Lawrence Lessig to sit in as a technical advisor? I guess they forgot to check into his past dealing with Netscape when he tried toconvince Jim Barksdale to sue Microsoft for anti-trust violations long before Netscape's ultimate demise. oops.

Re:Why would a Judges Bias be wrong?

[DunbarTheInept]

Let's say that hypothetically you are in attendance at a trial (not this one) and during the questioning a witness swore at the judge, made threats to the jury, and screamed at the top of his lungs. Then afterward you are asked by others waiting outside what the witness was like. Which answer would be the biased one:

1. Nothing unusual happened. I have nothing to say.
   
2. The witness made an ass of himself.
   

Now, if you are sane, you say the second is unbiased and the first IS biased. If you think like the review court that decided to pull Jackson from the case, you say the opposite.

It is not biased to report the truth about what was said during the trial, and that's all Jackson did.

Re:Why would a Judges Bias be wrong?

[PainKilleR-CE]

Let's say that hypothetically you are in attendance at a trial (not this one) and during the questioning a witness swore at the judge, made threats to the jury, and screamed at the top of his lungs. Then afterward you are asked by others waiting outside what the witness was like. Which answer would be the biased one:

If I was in attendance, the second answer would be the obvious one. If I was in the jury, or I was the judge, I wouldn't be allowed to answer the question.

Re:Why would a Judges Bias be wrong?

[PainKilleR-CE]

But I think the point he's trying to make is that you can't make a decision without having a bias. If all options are the same, then the only way to make a decision is to flip a coin.

You can make a decision without having a bias. Bias means that your decision is based on something other than the provided evidence, or making a decision that doesn't coincide with the evidence presented. For example, if the judge decided to ignore all of Microsoft's witnesses (or a large percentage of them) because one witness was found to have lied, he would be biased. You're supposed to throw out the testimony that was false, not throw out all of the testimony from the side that had a bad witness.

Re:Why would a Judges Bias be wrong?

[DunbarTheInept]

Would you be allowed to answer the question *after* a guilty verdict was already decided, and the only thing left to choose was the severity of the sentence? I'm not sure at what point the ban on talking about it gets lifted. Jackson didn't say the things that got him thrown off the case until after the findings of fact were published.

Re:Why would a Judges Bias be wrong?

[PainKilleR-CE]

Would you be allowed to answer the question *after* a guilty verdict was already decided, and the only thing left to choose was the severity of the sentence? I'm not sure at what point the ban on talking about it gets lifted. Jackson didn't say the things that got him thrown off the case until after the findings of fact were published.


BOth the article and the appeals court's opinion state that he made the statements well before they were published, and requested that the reporters not publish them until afterwards. That's quite different from not making the statements until afterwards, and, as the appeals court said, implied that he knew what he was doing was wrong.

Re:Why would a Judges Bias be wrong?

[DunbarTheInept]

Both the article and the appeals court's opinion state that he made the statements well before they were published, and requested that the reporters not publish them until afterwards. That's quite different from not making the statements until afterwards, and, as the appeals court said, implied that he knew what he was doing was wrong.

Then the appeals court was wrong. I'm not a lawyer. I have no idea if they were LEGALLY wrong, but they were ETHICALLY wrong, and I don't need to be a lawyer to see that. They are stating not simply that it is wrong to PUBLICLY state an opinion on a pending judgement, but that it is simply wrong to HAVE an opinion even if you don't publicise it. The whole point of being a judge is to judge. And that means slowly forming an opinion on the matter as you see the evidence. Asking the judge to have no opinion on the matter, in a jury-less trial is like asking a jury member to never form an opinion during the trial in a jury trial.

Re:Why would a Judges Bias be wrong?

[PainKilleR-CE]

The appeals court was far from wrong legally. As for ethics, the laws applied are in regards to ethics, and if they were ethically wrong, the laws should be changed.

From the US Court of Appeals Opinion:

While some of the Code's Canons frequently generate questions about their application, others are straightforward and easily understood. Canon 3A(6) is an example of the latter. In forbidding federal judges to comment publicly "on the merits of a pending or impending action," Canon 3A(6) applies to cases pending before any court, state or federal, trial or appellate. See Jeffrey M. Shaman et al., Judicial Conduct and Ethics s 10.34, at 353 (3d ed. 2000). As "impending" indicates, the prohibition begins even before a case enters the court system, when there is reason to believe a case may be filed. Cf. E. Wayne Thode, Reporter's Notes to Code of Judicial Conduct 54 (1973). An action remains "pending" until "completion of the appellate process." Code of Conduct Canon 3A(6) cmt.; Comm. on Codes of Conduct, Adv. Op. No. 55 (1998).

The Microsoft case was "pending" during every one of the District Judge's meetings with reporters; the case is "pending" now; and even after our decision issues, it will remain pending for some time. ...

The problem here is not just what the District Judge said, but to whom he said it and when. His crude characterizations of Microsoft, his frequent denigrations of Bill Gates, his mule trainer analogy as a reason for his remedy--all of these remarks and others might not have given rise to a violation of the Canons or of s 455(a) had he uttered them from the bench. See Liteky, 510 U.S. at 555-56; Code of Conduct Canon 3A(6) (exception to prohibition on public comments for "statements made in the course of the judge's official duties"). But then Microsoft would have had an opportunity to object, perhaps even to persuade, and the Judge would have made a record for review on appeal. It is an altogether different matter when the statements are made outside the courtroom, in private meetings unknown to the parties, in anticipation that ultimately the Judge's remarks would be reported. Rather than manifesting neutrality and impartiality, the reports of the interviews with the District Judge convey the impression of a judge posturing for posterity, trying to please the reporters with colorful analogies and observations bound to wind up in the stories they write. Members of the public may reasonably question whether the District Judge's desire for press coverage influenced his judgments, indeed whether a publicity-seeking judge might consciously or subconsciously seek the publicity-maximizing outcome. We believe, therefore, that the District Judge's interviews with reporters created an appearance that he was not acting impartially, as the Code of Conduct and s 455(a) require. ...

The most serious judicial misconduct occurred near or during the remedial stage. It is therefore commensurate that our remedy focus on that stage of the case. The District Judge's impatience with what he viewed as intransigence on the part of the company; his refusal to allow an evidentiary hearing; his analogizing Microsoft to Japan at the end of World War II; his story about the mule--all of these out-of-court remarks and others, plus the Judge's evident efforts to please the press, would give a reasonable, informed observer cause to question his impartiality in ordering the company split in two.

To repeat, we disqualify the District Judge retroactive only to the imposition of the remedy, and thus vacate the remedy order for the reasons given in Section V and because of the appearance of partiality created by the District Judge's misconduct.

Re:Why would a Judges Bias be wrong?

[DunbarTheInept]

The Microsoft case was "pending" during every one of the District Judge's meetings with reporters; the case is "pending" now; and even after our decision issues, it will remain pending for some time. ...

Conveniently ignoring that those comments were not meant to be public. If there was a violation of ethics is was in the reporters publishing quotes they had been expressly told by the speaker were not meant for publishing. Reporters are supposed to get permission to publish quotes.


His crude characterizations of Microsoft, his frequent denigrations of Bill Gates

It's sad to see comments like this coming from Judges that were claiming Jackson was the biased one. It's not Jackson's fault that stating bare facts amounts to ridcule when talking about Microsoft.

Re:Why would a Judges Bias be wrong?

[PainKilleR-CE]

Conveniently ignoring that those comments were not meant to be public. If there was a violation of ethics is was in the reporters publishing quotes they had been expressly told by the speaker were not meant for publishing. Reporters are supposed to get permission to publish quotes.

Jackson told them to publish the quotes after he issued his judgment, which they did. The publishing wasn't even in question, it was the fact that he gave the interviews in the first place. Of course, in most cases there is an appeals process, and Jackson had past experience with Microsoft that would tell him they would appeal his decision, which, as the appeals court stated, meant the case would still be pending even after his final judgment was issued.

His crude characterizations of Microsoft, his frequent denigrations of Bill Gates

It's sad to see comments like this coming from Judges that were claiming Jackson was the biased one. It's not Jackson's fault that stating bare facts amounts to ridcule when talking about Microsoft.

It's sad to see that some people can't distinguish between facts and opinion. Jackson's statements as quoted in the appeals court's opinion were clearly his opinions and presented as such. If he had simply stated facts, they might have left him on the case.

Re:Why would a Judges Bias be wrong?

[DunbarTheInept]

1 - If you can't talk about a case until you are sure it won't be appealed that's the same as saying you can't talk about the case period, ever.

2 - It is not an opinion to truthfully state what Microsoft's behaviour has been.

Re:Why would a Judges Bias be wrong?

[PainKilleR-CE]

1) There's a limitation on the number of appeals any case can have, and the time in which they can be made. Eventually you would be permitted to say whatever you wished about it. There are some things about the case which the judge is permitted to discuss, and the opinion goes into detail on why the things he said don't fall in that area. You might find a better understanding by reading the opinion yourself, the dismissal of Judge Jackson is at the end so you can start from the bottom, basically, if you don't want to read about the parts of the case that were overturned which resulted in the scaling back of the Justice Department's case.

2)
the Judge told reporters from the New York Times that he questioned Microsoft's integration of a web browser into Windows. Stating that he was "not a fan of integration," he drew an analogy to a 35-millimeter camera with an integrated light meter that in his view should also be offered separately: "You like the convenience of having a light meter built in, integrated, so all you have to do is press a button to get a reading. But do you think camera makers should also serve photographers who want to use a separate light meter, so they can hold it up, move it around?" Joel Brinkley & Steve Lohr, U.S. v. Microsoft 263 (2001). In other remarks, the Judge commented on the integration at the heart of the case: "[I]t was quite clear to me that the motive of Microsoft in bundling the Internet browser was not one of consumer convenience. The evidence that this was done for the consumer was not credible.... The evidence was so compelling that there was an ulterior motive." Wilke, Wall St. J. As for tying law in general, he criticized this court's ruling in the consent decree case, saying it "was wrongheaded on several counts" and would exempt the software industry from the antitrust laws. Brinkley & Lohr, U.S. v. Microsoft 78, 295; Brinkley & Lohr, N.Y. Times.

Reports of the interviews have the District Judge describing Microsoft's conduct, with particular emphasis on what he regarded as the company's prevarication, hubris, and impenitence. In some of his secret meetings with reporters, the Judge offered his contemporaneous impressions of testimony. He permitted at least one reporter to see an entry concerning Bill Gates in his "oversized green notebook." Ken Auletta, World War 3.0, at 112 (2001). He also provided numerous after-the-fact credibility assessments. He told reporters that Bill Gates' "testimony is inherently without credibility" and "[i]f you can't believe this guy, who else can you believe?" Brinkley & Lohr, U.S. v. Microsoft 278; Brinkley & Lohr, N.Y. Times; see also Auletta, The New Yorker, at 40. As for the company's other witnesses, the Judge is reported as saying that there "were times when I became impatient with Microsoft witnesses who were giving speeches." "[T]hey were telling me things I just flatly could not credit." Brinkley & Lohr, N.Y. Times. In an interview given the day he entered the break-up order, he summed things up: "Falsus in uno, falsus in omnibus": "Untrue in one thing, untrue in everything." "I don't subscribe to that as absolutely true. But it does lead one to suspicion. It's a universal human experience. If someone lies to you once, how much else can you credit as the truth?" Wilke, Wall St. J.

According to reporter Auletta, the District Judge told him in private that, "I thought they [Microsoft and its executives] didn't think they were regarded as adult members of the community. I thought they would learn." Auletta, World War 3.0, at 14. The Judge told a college audience that "Bill Gates is an ingenious engineer, but I don't think he is that adept at business ethics. He has not yet come to realise things he did (when Microsoft was smaller) he should not have done when he became a monopoly." Spiegel, Fin. Times. Characterizing Gates' and his company's "crime" as hubris, the Judge stated that "[i]f I were able to propose a remedy of my devising, I'd require Mr. Gates to write a book report" on Napoleon Bonaparte, "[b]ecause I think [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." Auletta, The New Yorker, at 41; see also Auletta, World War 3.0, at 397. The Judge apparently became, in Auletta's words, "increasingly troubled by what he learned about Bill Gates and couldn't get out of his mind the group picture he had seen of Bill Gates and Paul Allen and their shaggy-haired first employees at Microsoft." The reporter wrote that the Judge said he saw in the picture "a smart-mouthed young kid who has extraordinary ability and needs a little discipline. I've often said to colleagues that Gates would be better off if he had finished Harvard." Auletta, World War 3.0, at 168-69; see also Auletta, The New Yorker, at 46 (reporting the District Judge's statement that "they [Microsoft and its executives] don't act like grown-ups!" "[T]o this day they continue to deny they did anything wrong.").

Nothing in there looks like opinion to you? It doesn't give the appearance of bias if a judge decides to ignore someone's testimony not because it was proven the person was lying, but because he couldn't 'credit what they were saying'? He thinks Gates has some kind of Napoleonic complex, but there's no record of a psychologist testifying to this, it's his opinion based on what he saw in the courtroom and elsewhere. To get to the point, again from the appeals court:

It is clear that the District Judge was not discussing purely procedural matters, which are a permissible subject of public comment under one of the Canon's three narrowly drawn exceptions. He disclosed his views on the factual and legal matters at the heart of the case. His opinions about the credibility of witnesses, the validity of legal theories, the culpability of the defendant, the choice of remedy, and so forth all dealt with the merits of the action. It is no excuse that the Judge may have intended to "educate" the public about the case or to rebut "public misperceptions" purportedly caused by the parties. See Grimaldi, Wash. Post; Microsoft Judge Says He May Step down from Case on Appeal, Wall St. J., Oct. 30, 2000. If those were his intentions, he could have addressed the factual and legal issues as he saw them--and thought the public should see them--in his Findings of Fact, Conclusions of Law, Final Judgment, or in a written opinion. Or he could have held his tongue until all appeals were concluded.

Far from mitigating his conduct, the District Judge's insistence on secrecy--his embargo--made matters worse. Concealment of the interviews suggests knowledge of their impropriety. Concealment also prevented the parties from nipping his improprieties in the bud. Without any knowledge of the interviews, neither the plaintiffs nor the defendant had a chance to object or to seek the Judge's removal before he issued his Final Judgment.

There's even a nice little statement about him giving one reporter 10 hours of taped interview time. This brought into question how much time was spent with the reporter off tape, and how much information the judge received from the reporter:

What did the reporters convey to the District Judge during their secret sessions? By one account, the Judge spent a total of ten hours giving taped interviews to one reporter. Auletta, World War 3.0, at 14 n.*. We do not know whether he spent even more time in untaped conversations with the same reporter, nor do we know how much time he spent with others. But we think it safe to assume that these interviews were not monologues. Interviews often become conversations. When reporters pose questions or make assertions, they may be furnishing information, information that may reflect their personal views of the case. The published accounts indicate this happened on at least one occasion. Ken Auletta reported, for example, that he told the Judge "that Microsoft employees professed shock that he thought they had violated the law and behaved unethically," at which time the Judge became "agitated" by "Microsoft's 'obstinacy'." Id. at 369. It is clear that Auletta had views of the case. As he wrote in a Washington Post editorial, "[a]nyone who sat in [the District Judge's] courtroom during the trial had seen ample evidence of Microsoft's sometimes thuggish tactics." Ken Auletta, Maligning the Microsoft Judge, Wash. Post, Mar. 7, 2001, at A23.

Re:Why would a Judges Bias be wrong?

[DunbarTheInept]

1) The appeals process is VERY long. Saying you have to wait until there's no chance of them happening anymore is going to take years and years. It means you can't talk about it until the issue is so only nobody cares about it anymore.

[snip long excerpts]

2) Reading the excerpts I see nothing that isn't a statement of fact. It's not Jackson's fault that simply telling the truth ends up painting Microsoft in a bad light. That's Microsoft's fault.

Re:Why would a Judges Bias be wrong?

[PainKilleR-CE]

Reading the excerpts I see nothing that isn't a statement of fact. It's not Jackson's fault that simply telling the truth ends up painting Microsoft in a bad light. That's Microsoft's fault.

So the judge had evidence of the lack of credibility of the witnesses? He had proof that Bill Gates thinks he's Napoleon? There's proof that anyone (let alone Bill Gates) would be better off had they completed Harvard rather than dropping out to become the richest man in the world?

The appeals process wouldn't be nearly as long if Jackson hadn't decided not to follow the judicial Canons and to bypass the judicial process in his court room.

By the way...

[frozenray]

October 19, 2002 marks the 4th anniversary of the beginning of the United States vs. Microsoft case.

Happy anniversary.

Re:OT rant.

[Anonymous Coward]

*gasp!*

someone questioned the establishment! jail 'em!

And you point was?

[Gerry Gleason]

I fail to see how pictures of the judge add anything to the discussion. Does his appearance alter how you feel or think about what he has written?

Of course judges wind up biased

[Anonymous Coward]

That's why they're called judges - they judge

To have someone to sit through all the FUD, paid-for-testimony, and downright perjury that M$ put Judge Jackson through and not expect him to make a judgement as to how evil Gates et al acted is preposterous.

There is not even an assertion that he went into the case biased. It's just watching the Microsofties actions and listening to the Microsoftista apologists make excuses for illegal acts that caused Judge Jackson to come to - get this - a judgement that M$ should be broken up.

But yeah, he should have kept his yap shut for just a few more months...

Web Special

[blazerw11]

Did anybody else get the Forbes Web Special: Take a Tour of Windows XP on this articles page also.

I love that the press can write an article about a judge being biased and then advertise for the company about which the article pertains on the same page. Where's the "read Judge Jackson's reply here" link?

13 yr. old /. reader reply: So now online rags gotta check the article's subject matter before placing ads?
My reply: Yes. Or, maybe just put a link to the document on which you based your article.

Re:No one give a flying f**k

[benhaha]

Merely posting on /. saying "Someone against Microsoft is not necessarily correct" is not flamebait.

You just have to read the appeal ruling to see the incompentence and/or bias (hard to tell which it is). The fact that 1/3 of his rulings were overturned, and another third remanded back for retrial should be evidence enough.

Unless of course, failing to rule against Microsoft purely on the basis that, well, they're M$, the Beast of Redmond, dude, is conclusive proof that the appeals judges are biased. See the appeal ruling (or here if you can't bear to surf to microsoft.com).

Of course on the other hand, the fact that 1/3 weren't either overturned or remanded indicates that Microsoft were in the wrong and/or incompetent. In my opinion, the indications are that the J++ ruling at least was MS incompetence, though others are clearly MS bad.

More plain speaking judges

[Gerry Gleason]

Why should one hesitate to call something what it is in plain language? Yes we all have biases, but I don't think the comments ammounted to bias, but an honest reaction to what was taking place in his courtroom. The only debatable part is whether it is wise to comment before the case is out of the courts, or if you want to claim that he commented directly on the matters before him. Only diehard MS appologists suggest that he expressed bias, although I see a lot of complaints that he hurt the case against MS.

I respectfully disagree, and I would like more discussion about the merrits of what is being said now in this article. He is directly challenging the appeals court rebuke, and I think what he says has merrit. Do you really think MS would have been broken up by now if he had never made these comments? It's not even clear that this would be the most desirable outcome if your aim is the stop the MS campain to take over the world.

Re:More plain speaking judges

[MCZapf]

I don't normally point out spelling errors, but I get the feeling you'll be receptive to this little correction:

"Merit" only has one "r". Ferret, on the other hand...

Re:More plain speaking judges

[5KVGhost]

"Why should one hesitate to call something what it is in plain language? Yes we all have biases, but I don't think the comments ammounted to bias, but an honest reaction to what was taking place in his courtroom."

Ok, let's say you're on trial for insurance fraud. In the middle of the case, while the trail is underway, the judge makes a statement to the media where he expresses his personal dislike for you, strongly implies that you're guilty as sin, and states that you should be severely punished for your crimes. That's his "honest reaction", so it's ok with you?

Of course it isn't. Judges have no business publically expressing their personal opinions on or being political pundits while in the middle of a legal proceeding. Their job is to be impartial, and anything less is unfair to everyone involved.

Re:More plain speaking judges

[Gerry Gleason]

You should read the original article (link thoughfully supplied by another slashdotter in a comment). The judge addresses this point directly. The example statements you make amount to deciding the case before the evidence is in. This is clearly bad, and JPJ sees it as such.

Like I said, read the article, he presents a well reasoned case for judges being more forthcoming in some cases. He even addresses the concern that public comment could be made to gather media fame, but that should not stop him from commenting in all cases.

The tenor of the argument is addressed directly to his fellow judges, and in particular to the appelate court that saw fit to rebuke him in a most public way and with direct terms calling into question his judgement. He is right, and they are wrong (in my opinion).

Did Microsoft Buy Jackson?

[Erore]

Ever since Jackson was rebuked and his decision to breakup Microsoft overturned, I've always had a sneaking suspician that Microsoft might be behind it.

Picture this: Microsoft is losing the case. They know they are in deep trouble. Their worst fear is that they get broken up. Their greatest hope is for a mistrial. But, if there is a mistrial, another judge might still rule for a breakup.

So, what they do, besides help get Bush elected into office, is buy Jackson. The cleverness of it is that they want him to rule against them, throw the book at them, and call them lots of nasty names while doing it and show himself in all ways to be biased against Microsoft.

The outcome, is just what we saw. Yes, Microsoft lost the case, but the Federal Judges are "afraid" of delivering the same verdict as Jackson, so they will come up with lesser remedies. Thus, Microsoft as a single company will survive.

Jackson's repeal above is just him trying to save face in his professional career.

Just a thought.

Re:Did Microsoft Buy Jackson?

[Anonymous Coward]

I've been thinking the same thing & think you've hit the nail on the head. They make the judge look like he really hate them, but @ the same time have the case set up for a mistrial. I wounder if this judge will retire to the Bahamas in a couple of years.

Meta-judicial....

[anonymous cupboard]

Jackson's expressed views were not about the case as such but of Microsoft's and their consel's behaviour whilst presenting the case. If MS were stretching the bounds of good judicial behaviour, I don't see why Judge Jackson can't comment on it.

He's right, and here's why

[Catbeller]

Judge Jackson was a judge who knew, absolutely, that the three judges who were to rule on his case hated his guts bitterly. They had a history of despising his rulings, and attacking him personally, on and off the record.

Keep in mind that the judges were Chicago School adherents -- believers in the notion, heavily relied on in the business community, that monopolies are natural beasts and should not be controlled, and that past rulings on such were errroneous and should be ignored. Judge Jackson had in this regard and others offended these extremely opinionated judges. After he heard they had taken the appeal, he knew he was a dead man. The virulence of the personal attack, rare in such circumstances, as well as the fact that they agreed with his assessment of Microsoft's behavior, and nuked his decision anyway, shows that Jackson had once again judged correctly.

If Jackson had appeared on a throne with cherubs and a personal reference from God, these judges would have slashed him anyway. It was an economic/political act against a judge they considered a monopoly regulator, as well as other liberal crimes -- amazing since he is considered a rather conservative judge.

The "rule" against judges talking Jackson dissects with skill, showing the essential stupidity of it. Why in the world can't a judge answer questions about his thinking process? I wish to God Scalia and Thomas would answer some really tough questions about their Bush v Gore decision. They stand alone against almost all Constitutional scholars with their logic; I'd like them to answer to the people for what they have done.

I don't think the judges would have savaged Jackson had he not been Jackson. It was an attempt by vicious men with a political and economic axe to grind to destroy a fellow judge, and nothing more. Oh, perhaps more: to save Microsoft from their economic enemies, regulators.

Those judges destroyed the judgement against Microsoft almost as effectively as Bush's actions with the DOJ. A shame, since Microsoft lost.

If you are rich enough, you can't be touched.

Re:He's right, and here's why

[Anonymous Coward]

Jackson's opinion was right, his expression of it in that manner was wrong. And the stupid tragedy of it all is that, by being unable to resist the temptation to mouth off, he (and he alone) shifted the focus from Microsoft's behavior to his. And thus the real problem (Microsoft) escapes. Regardless of if he was right or wrong (and I think he was right), it was incredibly stupid and foolish to mouth off like that (and he was yapping BEFORE the appeals judges were decided).

The same stupidity has hurt this country in the last election with the Supreme Court decision and the way people keep going on about it. The real issue should be that the candidate who received the most popular votes nationwide (Gore), did not get elected because of the absurdity of the Electoral College and a questionable Supreme Court decision (that was probably irrelevant because detailed recounts that have happened since the election show Bush would have won Florida even if Gore had gotten the specific voting district recounts he wanted). But people remain so upset with the Supreme Court that the more important issue has faded into the background.

You want to hear from Scalia and Thomas? Why? They are completely opinionated individuals who will twist the law to fit their ideological ends (as have and will many liberal judges). Get over it, and get back to the more important issues, not the smokescreen.

If Judge Jackson spoke AFTER the trial, or even said what he said as part of his official ruling (when Microsoft would have had a chance to rebut, and his comments would have been part of the record), I would defend him. Judges CAN say what they are thinking, they just can't say it to the press before they are supposed to have made up their mind. That isn't a foolish rule, it is required for impartiality so people can trust that they are getting a fair trial (and whether Microsoft is a fair company, or was being fair in their methods, is irrelevant--everyone gets the most impartial trial possible, period).

Penfield was right, and the dumbest thing of all is that he allowed his mouth to distract from the accuracy of his judgement. What a waste.

Re:He's right, and here's why

[CentrX]

The electoral college is excellent for the whole geographic country, instead of just representing a simple numerical majority. The discontent with the election would be far greater and would be concentrated in one geographic region. If this were a repeated occurrence, a real problem would arise. The electoral college ensures that candidates must appeal to the interests of different people across the country, and not just focus on catering to the particular wishes of one region of the country. The electoral college ensures (as a direct election would) that the candidate receives sufficient popular vote to be able to rule, but it also ensures that the popular vote is distributed geographically. This ensures a regional balance, which is vital to ensuring the stability of a large and diverse nation. Bush had this geographic representation: he won 30 states whereas Gore only won 20 states (and D.C.).

The fact is, won the popular vote by 0.5%. That's not very significant, especially considering that either candidate would be able to govern effectively, both with 48% of the popular vote, and that any measurement device has a margin of error.

Re:He's right, and here's why

[DunbarTheInept]

The fact is we'll never know who one the popular vote for real. The margin of error is larger than the 0.5% difference in the counts. If anything, I hope that election convinces the powers that be that a sloppy vote counting system with a 1% margin of error is not good enough and needs fixing, because that much margin actually CAN make a difference. (The margin was even closer in the state of Florida alone, where unlike the national popular vote, that small difference really, really mattered.)

Bush did not "win" 30 states and Gore did not "win" 20 states. The margins were very very close in each and every state, but our broken election system awards the entire state's electors to the majority, efectively disenfranchising everyone else in that state. I understand the need for giving a flat overhead of two extra votes per state so rural states still have a say (which is basicly what the electoral college does). But I don't understand why those votes have to be rounded to reflect the lie that the state 100% supports a particular candidate. If a state has, say, 10 electorial votes, and the popular vote in that state comes out 46% for A, 44% for B, and 10% for C, then A should get 5 electors, B should get 4, and C should get 1. Instead the lie that the state is "fully behind" A is what gets recorded, even though less than half the voters voted for A. That's unfair all around.
Proportioning the state's electors according to the state's vote should be allowed, and it would still preserve the extra votes for rural states that the electorial college gives.

A Little Known Fact

[edward.virtually@pob]

One of the most interesting "little known facts" about Jackson and the MS case is that Jackson was the judge who overruled Stanley Sporkin, who felt the FIRST Department of Justice settlement (over MS's illegal crushing of competition in the DOS and GUI shell markets) was far too lenient, and allowed MS to avoid any real punishment for the illegal basis for its monopoly position. Now Jackson is in Sporkin's shoes and probably wishes he'd not helped MS get away the first time.

Re:A Little Known Fact

[pyrrho]

I think this is part of the process. The judges give you a lot of latitude and show patience. Consider: decisive action isn't making a quick decision and going with it. That's just foolhardy and random. Decisive action is prepared for with a long period of patience and tollerance.

Microsoft, by angering Jackson to the point where he overstepped the bounds of judicial standards, they achieve a sort of dely. But the Thing They Delay itself becomes a much bigger thing. It may look good for Microsoft the company that thinks 2 years ahead. But it is terrible for a company that would want to be around in 100 years.

None of the leniency of the past is lost on the judges. They know MS has been given a chance to reform itself and self direct it's course. They need to know that before they step in an direct it's course themselves, because that is only their role as a last resort.

In point of fact,

[Anonymous Coward]

Jackson actually felt that the trial was a mistake PRIOR to the trial. It was only at the end that he spoke out against MS, after watching MS's behaviour and their witnesses. It would be no different if a judge had to listen to a murder trial and right before passing judgement announced to somebody that they were now opposed to the defendant.

What joke?

[Anonymous Coward]

Let me see. So you have:

- a trainer
- a mule
- a two-by-four (whatever that is)

How the heck can you make a joke out of that?

Re:What joke?

[Anonymous Coward]

A two-by-four (2x4) is a piece of lumber (wood) that is slightly less than 2 inches (~5cm) wide and slightly less than four inches (~10cm) tall. The reference is also sometimes accompanied with the length in feet. Ex: 2x4x8

Re:What joke?

[cachorro]

The joke takes various forms. The punchline is that the trainer can get the mule to do anything, so long as he first whacks the mule over the head with a two-by-four (huge stick) to get its attention.

I realize you were probably trolling for a goatse reference, but I thought some of the ESL readers might appreciate the explanation.

Interestingly

[Anonymous Coward]

You said the Supreme Court building was "respectful", the Capital was "raucus".

You missed the Executive branch which lately meets in a "whore house".

I'm not passing judgement, just making an observation.

Re:Interestingly

[zsmooth]

You're 4 years too late with that comment, bud.

They had some disadventages

[drew_kime]

Reading that, you get one very good idea of incompetence: specifically, Microsoft's inept performance; ineptness that refers to Microsoft's lawyers, the performance of the "expert witnesses" they brought to the stand (who's going to forget Richard Schmalensee slamming down his old student in an economic analysis), or the "IE Removal Tool"... or even Gates's own performance.

As I said when I compiled this summary of their testimony:

The main challenge Microsoft has faced in trying to mount a defense is that they are massively, demonstrably guilty.

The rules want it both ways

[drew_kime]

On the one hand, he's not supposed to speak outside of the courtroom because what he says can be taken as indicating his official position. But on the other hand his comments would have been acceptable had they actually been offered while in court.

So which is it: Do his words outside the courtroom indicate his official position or not? Once we've decided that, we can decide whether it matters that he talks outside of court.

His essential point ....

[rogerz]

seems to be that judges should be allowed to speak their minds in public AND that such pronouncements should not be legally distinguished from statements they make in court.

This seems fine to me, as long as defendants reserve the right to enter the public pronouncements in the official trial record and to respond to them, and base appeals on them, if appropriate. Judicial transparency is good; it contributes to open dialog in a free society. That's what Jackson seems to be saying.

It would be hypocritical, however, to argue that these public statements should be off-limits for defendants (or prosecutors, for that matter). You couldn't have it both ways.

In this case, as many have pointed out, the public statements in fact worked to the defendant's advantage, in that they demonstrated an extra-judicial (i.e. outside the law) bias against Microsoft, based largely on personalities and attitudes, instead of of definable illegal behaviors.

As someone who believes the entire antitrust law to be unconstutional, because it is nearly impossible for a given company to determine ahead of time if a given action is legal or not, I am in favor of judges like Jackson showing their true colors as publicly as possible. I believe this will tend to show that most antitrust prosecutions are based on envy and resentment, not on any objective reading of the law.

Re:His essential point ....

[toddhisattva]

As someone who believes the entire antitrust law to be unconstutional, because it is nearly impossible for a given company to determine ahead of time if a given action is legal or not....

Which is one reason we have judges and trials and so forth -- different people might hold different views of the same law.

What Microsoft did, was systematically spit in the face of the law, point-by-point. It's like firing up a doobie (do the kids still call them that?) in front of police headquarters. Sure, the drug laws suck, and the Sherman Act might have flaws, but you should be prepared to pay for your civil disobedience.

Gandhi and King did jail time. So should Gates.

I believe this will tend to show that most antitrust prosecutions are based on envy and resentment, not on any objective reading of the law.

Had the government done its job and protected Apple's intellectual property (which they bought from Xerox), Microsoft would not have a monopoly. Right there is the government malfeasance which is the usual seed crystal of a monopoly kidney stone.

Also, bear in mind the historical fact that the whole "unbundled" software industry is a result of antitrust action against IBM. A lawyer's boy like Gates should have known to act better. Also remember how antitrust action against AT&T led to widespread adoption of the Internet. Breaking up or otherwise remedying Microsoft will most likely lead to the Next Big Thing.

Re:His essential point ....

[rogerz]

Gandhi and King did jail time. So should Gates.

I never said that Gates was a principled advocate of my views of the constitution. Actually, it is pretty clear that Gates is not a principled advocate of any position. He is quite the modern pragmatist, trying to muddle through in our labyrinthine legal system as best as his money and lawyers will allow. Indeed, I am arguing that this system promotes such Gatesian shenanigans, because the law is so ambiguous.

The following are all prosecutable offences under the Sherman and Clayton acts, and have indeed all been prosecuted against, in some cases with the same defendant:

- Charging too high a price.
- Charging too low a price.
- Competing too strongly against a competitor.
- Being too cooperative with a competitor.
- Not revealing the inner workings of a product publicly.
- Revealing the inner workings of a product publicly.

You get the idea.

Insider Stock Market Trading

[jmcnamera]

One of the problems with Judge Penfield talking to a reporter during the trial about his strong feelings is that the Judge created a situation where it could be leaked and people might have traded on that information.

It was truly a stupid thing that the Judge did.

Re:Insider Stock Market Trading

[Anonymous Coward]

It was amply apparent for several weeks before the findings of fact came out how the judgement would go. The judge seems to have done everything (I was watching the market) to make the stock market (public) learn gradually how the judgement will go. In fact, I greatly wondered if that was by grand design by the judge/DoJ.

The Rules Are Good

[Josh]

Of course I don't blame Jackson one bit for forming the opinions of Microsoft that he did, but the rules are right and he is wrong on this speaking out issue. Consider: anyone who has ever spent any time on Usenet has umpteen examples of how intellectual vanity takes over after a person has staked out a position and they will go to great contortions of logic and common sense to defend that position and preserve the illusion that they were always right. Similarly, a judge who shares their opinion with a reporter while a trial is going on is going to have an incentive of intellectual vanity not to change that opinion upon further reflection or evidence. The rules prevent this sort of influence on trials and therefore lead to less bias. Being a judge is a special job - other people can comment on trials.

Jackson is a Dartmouth Alum

[Myopic]

(I'm a Dartmouth alum, too.)

I wasn't surprised to hear people ridicule Judge Jackson considering the three other most famous Dartmouth alums are Dr. Seuss, Captain Kangeroo, and Mr. Rogers (who spoke at the most recent graduation ceremony).

(it's a joke. laugh.)

peace

Okay..

[Anonymous Coward]

Time for a civics lesson. Judges are part of what branch of government?

THe judicial. What is the job of the judicial department? To judge the constitutionality of laws, to judge the violators of law, and to give all defendants a fair and impartial trial. Now, what Thomas Penfield Jackson did potentially could have jeopardized MSFT's right to a fair trial. "But their M$!!! THEY DON'T DESERVE A FAIR TRIAL! THEY AREN'T FAIR!" Stow it. Our constitution says that EVERYONE deserves a fair trial, and that everyone deserves due process UNDER THE LAW. Whether or not everyone has biases or not, Jackson's actions are why this case will be reversed. He created reversable appeal, and when he did that, he threw his concerns for the law and the constitution out the window. Fact is Fact. No matter what his opinion was, he has a SWORN DUTY to the US constitution to uphold that constitution and the laws of the land. By doing that to Microsoft, by speaking outside of court to the press, he put his popularity ahead of the US Constitution. For that, you bet your ass he should have been slapped down.

What we have here is a judge who wants face time, and was apparently more concerned with a book deal about how he was the first judge to bring down microsoft.. and not a judge who is interested in giving a fair and impartial rendering per the US Constitution and letting the facts settle out where they may.

That's NOT the type of judge this nation needs.

The trial was a setup.

[small_dick]

I can't prove it, but it looks to me like the trial was a hoax.

MS was clearly guilty, so how could the US and Microsoft come up with a way to stretch the penalty phase out four years or so, thus giving MS time to come out with a unix-like replacement and the US government time to make it their "standard"?

Easy enough. Just make the verdict easy to throw out on appeal...Judge yaps his mouth off to reporters, knowing he would guarantee a lengthy appeal by doing so.

End result: Facts hold up, and the penalty is postponed due to Judge's verbosity to the press. This guy has, what, 30 years under his belt in law? He knew the exact ramifications of his actions.

This dog & pony show was planned for public consumption, while MS and the US gov could make the MS product a US standard.

Self -Destruct Strategy

[screwthemoderators]

Its been suggested that Jackson purposefully sabotaged his rulings. There are many reasons he would want to do this: There was a prevalent fear that the economy would tank if Microsoft was found guilty: Jackson may not have had much faith in his own recommendation to divide the company, etc. Try thinking outside the box, or maybe outside the boxen, /.ers!

Cognitive Dissonance -- big time

[ianscot]

Brzzzt! -- does not compute. From the Times article:

Jackson acknowledges that "many judges -- perhaps most -- believe the canon imposes a virtual code of omerta [silence] forbidding any public commentary while a case remains unfinished in any respect, quite possibly forever. . . . The ostensible reason is that anything said informally, but publicly, about a case must perforce detract from the court's 'appearance of impartiality.' "

"So interpreted, the canon represents a variant of that dubious maxim of leadership: Never apologize; never explain," Jackson said. "It also suggests that the judiciary is more concerned with appearances than with actuality."

Wow! Justice Jackson strikes a grand blow against the supposedly tactful silence that's intended to shield justices from the world!... But later:

"As a rule, judges should not speak ill of other judges personally, whether on or off the bench," Jackson concluded his essay. "Personal attacks on judges by other judges also undermine respect for and confidence in the judiciary."

Er, Justice Jackson strikes a blow in favor of politic silence, because criticism undermines the respect people have toward the judiciary?

I'm a reasonable person. Jackson's constant interviews during the MS process sure struck me as biased. He spoke much too often, and much too candidly, to the media for any semblance of impartiality to be left. Maybe MS's conduct deserved contempt from the presiding judge, okay, but he couldn't direct that reaction appropriately. Now he feels personally attacked by the appeals court. In self-justification he's started sliding over obvious distinctions: that "quite possibly forever" in the first quote is a fudge meant to blur the stark rule not to talk about pending cases in particular.

He should've written this article, if he wanted to write it, before the case. If he wanted to float this trial balloon about judicial conduct, was a case of this importance the place to do it? No way.

Judges are different from other people

[LO0G]

Judges aren't allowed to follow the normal rules that apply to other U.S. citizens. They don't have free speech rights. They don't have a 5th amendment right to avoid testifying when that testimony would tend to incriminiate themselves (my grandfather went to jail for 6 months on that one, so I know what I'm talking about). They have a REQUIREMENT that they judge the case in front of them impartially and make their decision based solely on the facts introduced into evidence and the law. They are NOT allowed to introduce their own personal feelings into the case, otherwise they make a mockery of the judicial process. Jackson got slapped down because he violated that appearence of impartiality - he made it quite clear to the reporters that he had judged Microsoft guilty BEFORE the trial started. And that's NOT ok.

Those were exciting times...

[Codifex Maximus]

and I understand that it's hard to contain yourself when such comical activities are undertaken by big players. (I doubt if I could have kept quiet. :) But, there are unwritten rules of conduct; Judge T.P. Jackson appears to have broken some of them.

We're all human. Let's just not give the litigants even a shred of material with which to question important decisions.

What you say can and will be used against you in a court of law. Unfortunately, Judges are held to a higher standard of *prudence* than the common man.

Re:Mis-judged - OT

[sfled]

Thank you to all who replied to this thread for your many thoughtful comments. The marked lack of flames and trolls shows the level of intelligence and respect that many slashdotters use in dealing with each other, and I suspect with the world at large.

Kollar-Kotelly fights abuse of civil rights....

[jerryasher]

Judge Kollar-Kotelly is presiding over our secret FISA court -- the one that recently said no to expanding the Justice Department's powers since they have lied to the court on too many prior occasions. Perhaps she is busy these days fighting the war on terrorism, AND fighting Ashcroft's war on civil liberties.

For more info on the FISA court, see the FAS page on FISA

The Foreign Intelligence Surveillance Act of 1978 prescribes procedures for requesting judicial authorization for electronic surveillance and physical search of persons engaged in espionage or international terrorism against the United States on behalf of a foreign power.

Requests are adjudicated by a special eleven member court called the Foreign Intelligence Surveillance Court.

Re:No excuses for Judge Jackson

[Xtifr]

Enron cooking their books and ripping off California power customers for a few hundred million. So what does Judge Jackson find important? Free browsers.

Damn straight. When my cousin stole a car, got caught, and was brought before a judge, that judge should have ignored his crimes, because there are murderers and serial killers out there, so his crime wasn't important!

Softee was dumb not to settle this thing from the beginning, but the DOJ was certainly going after the wrong company in terms of "harm to the consumer."

My cousin was dumb to steal the car, but the police were certainly going after the wrong person in terms of "harm to citizens".

(Note for those slow on the uptake: my response above is an example of what is technically known as sarcasm.)

Re:No excuses for Judge Jackson

[Strudelkugel]

So it was not illegal for Netscape to offer a free browser, but it was illegal for Softee to do so?

What stops anyone using Windows from downloading another browser?
What stops you from loading Linux or OS2 on your Intel system?
Where exactly is the monopoly here?

My point is that Jackson's technology arguments in support of his monopoly decision are pretty questionable.

If Jackson were the judge in your cousin's case, he would find the auto manufacturer guilty of making a car desireable to a thief.

Sarcasm, take II!

Re:Yahoo : Windows more secure than Linux

[Anonymous Coward]

From the same article:

"I personally find that the open source side of the debate has the stronger argument, even though you might see more vulnerabilities being reported," he said. "Just because software is closed and [most] people don't know there are security holes doesn't mean that security holes don't exist [or that] nobody knows about them. The security holes are still there." As a result, he noted, systems might contain significant vulnerabilities that administrators are unaware of.

Judge Penfield Jackson !=unbiased

[beer_maker]

No, he was making such statements BEFORE he heard the witnesses. And to members of the press, who he swore to secrecy. WTF?! He chose to violate the Judicial Canons and yet tried to hold others to those standards!

Yes, I believe I'll call that 'biased'. And 'hypocritical'. And 'immature". Which are the things he was accusing Billy G. of being, only nobody was allowed to know that he had already made up his mind.

I like conspiracy theories!

[driehuis]

[...]if Judge Jackson had have kept his yap shut[...]

One has to wonder what Microsoft payed him to ruin the governments case :-)

Re:No one give a flying f**k

[troff]

That's because most of the evidence presented had already BEEN presented to the Slashdotters. We work with and/or support Microsoft products and a great many of us also use Linux. We see what a machine is capable of while remaining Open, Free and Libre.

Then we see the licensing, the stability, the usability and the marketing campaigns of these other products. Oh, not to mention the EULA options that say we have to get written permission from Microsoft to publish the results of any benchmarks...

The evidence had already BEEN presented to Slashdotters. And not only had Jackson been in the earlier stages of seeing the evidence presented, he also saw the merits of the people DOING the presenting. Jackson was making up his mind ON THE EVIDENCE... and not just the evidence the lawyers and witnesses presented, but the evidence the lawyers and witnesses themselves instantiated.

(Did I just say "instantiated"? Oh crap, my C++ lectures are starting to get to me... But you see the point anyway...)

Last Post!

[alpg]

Home centers are designed for the do-it-yourselfer who's willing to
pay higher prices for the convenience of being able to shop for lumber,
hardware, and toasters all in one location. Notice I say "shop for," as
opposed to "obtain." This is the major drawback of home centers: they are
always out of everything except artificial Christmas trees. The home center
employees have no time to reorder merchandise because they are too busy
applying little price stickers to every object -- every board, washer, nail
and screw -- in the entire store ...

Let's say a piece in your toilet tank breaks, so you remove the
broken part, take it to the home center, and ask an employee if he has a
replacement. The employee, who has never is his life even seen the inside
of a toilet tank, will peer at the broken part in very much the same way
that a member of a primitive Amazon jungle tribe would look at an electronic
calculator, and then say, "We're expecting a shipment of these sometime
around the middle of next week."
-- Dave Barry, "The Taming of the Screw"

- this post brought to you by the Automated Last Post Generator...