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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.""
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
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...
I'm not really a web designer, I just play one on the Internet.
...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?
Hang on a minute.0 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.
/. at all.
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/-/B00
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
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.
I have no sig, does anyone have one to spare?
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.
Two informative mods? Are the moderators asleep at the switch, or is moderation just random these days?
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.
Always keep a sapphire in your mind
If you blog it...
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.
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.
I would rather be ashes than dust!
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.
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.
-PainKilleR-[CE]
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.
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.
NO ID: BEING FREE MEANS NOT HAVING TO PROVE IT
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.
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.)
Nope, no sig
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.
"Oh, I hope he doesn't give us halyatchkies," said Heinrich.
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.
"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.
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).
Wow! Justice Jackson strikes a grand blow against the supposedly tactful silence that's intended to shield justices from the world!... But later:
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.
"Fundamentalism" isn't about divine morality. It's about human authority.
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.
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