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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.""
more convenient link
DNA is the ultimate spaghetti code.
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.
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?
I'd rather read JPJ's comments from the Legal Times where he published them. Anyone have a link?
A firewall can not protect you from yourself. Turn off what you do not need. Do not use the firewall to do your work.
to have had Judge Judy try the case. I'd bust a nut watching her snap out a "SHUSH!" to Bill Gates!
...to get the picture of what the article is all about:
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my
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
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
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.
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...
"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.
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?
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...
here
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!
October 19, 2002 marks the 4th anniversary of the beginning of the United States vs. Microsoft case.
Happy anniversary.
"There are already a million monkeys on a million typewriters, and Usenet is NOTHING like Shakespeare." - Blair Houghton
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?
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...
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
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.
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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.
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.
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.
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.
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.
Nope, no sig
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.
Nope, no sig
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.
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.
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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.
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.
Codifex Maximus ~ In search of... a shorter sig.
For more info on the FISA court, see the FAS page on FISA
One has to wonder what Microsoft payed him to ruin the governments case :-)
Bert Driehuis -- All I asked was a friggin' rotatin' chair. Throw me a bone here, people.