FC: How a biased Judge Jackson blew it, and robbed the Feds of victory

From: Declan McCullagh (declanat_private)
Date: Fri Jun 29 2001 - 07:22:45 PDT

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    ---
    Background:
    http://www.politechbot.com/cgi-bin/politech.cgi?name=penfield
    Quotes from yesterday:
    http://www.wired.com/news/antitrust/0,1551,44899,00.html
    ---
    
    http://www.wired.com/news/antitrust/0,1551,44902,00.html
    
       Real MS Verdict: Jackson Blew It
       By Declan McCullagh (declanat_private)
    
       2:00 a.m. June 29, 2001 PDT
       WASHINGTON -- Thomas Penfield Jackson is not merely a federal judge
       with a soft spot for government prosecutors and an undisguised
       contempt for Microsoft executives.
       
       He's also a media blabbermouth, whose private chats with reporters
       wound up costing the Justice Department its biggest victory in a
       generation.
       
       On Thursday, the U.S. Court of Appeals for the D.C. Circuit ruled that
       Jackson's bad habit of trash-talking Microsoft honchos -- likening
       them to gangland killers and stubborn mules who should be walloped
       with a 2-by-4 -- was ample reason to overturn his breakup order and
       return the case to a different judge.
       
       In stentorian language seldom heard in discussions of a fellow jurist,
       the appeals court unanimously condemned Jackson's "rampant disregard
       for the judiciary's ethical obligations," and said he'd no longer be
       permitted anywhere near this case.
       
       During a hearing in February, the judges went even further, suggesting
       that Jackson engaged in more out-of-court chatter than any other judge
       in U.S. history. "The system would be a sham if all judges went around
       doing this," complained Chief Judge Harry Edwards.
       
       Microsoft's adversaries were left fuming on Thursday, insisting that
       if Jackson had held his tongue, the breakup order would have remained
       intact.
       
       "I wish he hadn't spoken out of turn the way he did because I truly
       believe that if he had exercised better judgment, we wouldn't have
       seen his remedies vacated," said Norm Hawker, a research fellow at the
       American Antitrust Institute, which advocates aggressive use of the
       antitrust laws.
       
       "He essentially pulled the carpet out from under his own findings,"
       Hawker said.
       
       Remaining silent were Jackson's fans in the Washington establishment,
       who cheered the rotund jurist last year when he was denouncing
       Microsoft chairman Bill Gates as unethical and compared him to a "drug
       trafficker" and Napoleon.
       
       Last June, Time magazine columnist Margaret Carlson proclaimed that
       "the country is fortunate that there are people like Joel Klein and
       Judge Thomas Penfield Jackson willing to take on this icon of the
       dot-com IPO world, these, you know, rich guys who don't think that
       there's any place in America for regulation."
       
       In a Washington Post column, David Ignatius wrote: "Most of the
       plaudits in this case so far have gone to the Justice Department's
       lawyer, David Boies. But the real hero, I think, was Judge Jackson."
       
       By the time the 78-day antitrust trial started, it was clear that
       Jackson was permanently biased toward the Justice Department's view of
       Bill Gates as a recidivist monopolist.
       
       Jackson repeatedly cut Microsoft attorneys short during
       cross-examination, while treating David Boies, who argued the case for
       the government, with visible deference. He appointed Larry Lessig, a
       prominent liberal law professor and Microsoft critic, as a special
       master over objections from defense lawyers.
       
       He ordered a dismemberment of the largest software company in the
       world without holding one hearing on the topic, a move that seemed to
       shock the appeals court. Most antitrust trials of any substance take
       years to prepare: Jackson gave Microsoft six months.
    
       [...]
    
    
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