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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.""
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...
-- -- Warning. Do not stare directly at the sun.
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.
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.
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.
I'm not really a web designer, I just play one on the Internet.
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?
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.
--- My dad's political betting
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...
"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
Did anybody else get the Forbes Web Special: Take a Tour of Windows XP on this articles page also.
/. reader reply: So now online rags gotta check the article's subject matter before placing ads?
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
My reply: Yes. Or, maybe just put a link to the document on which you based your article.
A great many people think they are thinking when they are merely rearranging their prejudices. -- William James
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.
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.
"Oh drat these computers, they're so naughty and so complex, I could pinch them." --Marvin the Martian
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.
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.
If humans are mostly water, and beer is mostly water, then humans must be mostly beer.
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.