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

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

[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.

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!

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

[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: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: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

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: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: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: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: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.

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.

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?

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.

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: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.

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.

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.

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: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.