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

[Declan McCullagh <declan () well com>]

---
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 (declan () wired com)

   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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