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

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

[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)

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: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

[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?

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...

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: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.