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Microsoft Judge Takes His Case to the Public 173

Posted by Hemos
from the takin'-it-to-the-street dept.
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.""
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Microsoft Judge Takes His Case to the Public

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  • Here's a (Score:5, Informative)

    by oever (233119) on Monday October 14, 2002 @08:06AM (#4444763) Homepage
    more convenient link [washingtonpost.com]
  • by z_gringo (452163) <z_gringo AT hotmail DOT com> on Monday October 14, 2002 @08:07AM (#4444768)
    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...

    • by mccalli (323026) on Monday October 14, 2002 @08:20AM (#4444810) Homepage
      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

      • by Anonymous Coward
        I've always thought this about columnist George Will, only it seems to vary with the strength of his argument. When he has a strong argument, he sticks to a vocabulary that is familiar to most people (at least those that read newspapers.) When his argument is not as strong, he trots out the thesaurus.
      • by BWJones (18351) on Monday October 14, 2002 @03:10PM (#4447508) Homepage Journal
        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.

        • Actually, in any field where you have enough specialization, there is a considerable amount of "targeted" speech.

          Oh, I entirely agree. Interesting that you use an opthalmic example - my fiancee has been studying to be an optician for the past four years, and I've been learning some of the course along the way (in order to help with homework). Yes - the jargon can be quite dense, but it is used to describe information that cannot be put in an everyday sense.

          Now, the language of Mr Jackson quite definitely can be phrased in standard English. He chooses not to do so - ex cathedra indeed, he's just talking about telling tales out of school.

          So I agree that jargon has its uses. However, I would submit that plain English also has its uses, and that these have been sadly neglected by Jackson.

          Cheers,
          Ian

    • by gi-tux (309771) on Monday October 14, 2002 @08:25AM (#4444822) Homepage
      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.

      • No rights should be broad, powers should be narrow, and laws should be narrow, and allow for jury nulification if they don't make sense anymore.
        • by gi-tux (309771)
          No when laws get too narrow, they become nit-picky and hard to enforce. A law that can't be enforced should be taken from the books and I believe that laws should be reviewed periodically to verify their need for existance. If a law can't be enforced or has no need for existance any longer, it should be revoked and removed. This doesn't mean that someone convicted of it should be freed, but only that it is no longer necessary.

          Laws should be created only where necessary for the benefit of society. Laws should be kept to a very basic level and should include the enforcement and punishment within the law itself. Obviously, the jury (in the USA or whatever in other countries) should always have the right to say that a particular law doesn't apply in this case for some reason (or to find the person not guilty due to unusual circumstances).

          While talking about laws, politician should be removed as an occupation from the world. Laws would better reflect society, if the folks that were making the laws spent more time in the real world. The folks that are in those positions seem to often lose sight of the real world, they are too highly focused on the few things that will keep them employed, instead of serving the people that they supposedly represent. There is a reason that they are called public servants.

          Now this applies to this because rules of conduct should be done the same way. As a matter of fact, if everything worked like this, even rules in the work-place should work like that and maybe employers wouldn't be spending all of their time figuring out how to rip off their employees and the employees wouldn't spend so much time having to think about how to get around the rules of the work-place to improve themselves.

          Did you realize that much of the time that Henry Ford was working on the engine used in the Model T Ford car, he was working for Edison in the power generation field? Did you realize that the Dodge brothers sold their stock in Ford Motor Company (given to them while employed by Ford) to start the Dodge Motor Company? This happened in many other areas as well, but these are famous and related so I use them as an example. It seems that in times of old when invention ran rampant in the world that businessmen were not so wrapped up in controlling employees quite to tightly.

      • by PainKilleR-CE (597083) on Monday October 14, 2002 @09:17AM (#4444994)
        I do however agree with him on the fact that the people have a right to know.

        The right to know what? The transcripts for the trial are freely available, but his comments outside of court made him appear biased, whether he actually was or not.

        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.

        The comments he made simply got him removed from the trial. They had little weight in the other portions of the case the appeals court overturned or sent back to the court for review. It seems that this isn't the only rule that Judge Jackson had a problem with, as he ignored quite a few others during the trial, all of which are cited in the appeals court's ruling.
        • by arthurs_sidekick (41708) on Monday October 14, 2002 @12:09PM (#4446052) Homepage
          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.

    • by vonWoland (615992) <dmitri@ m o mus.net> on Monday October 14, 2002 @08:32AM (#4444847)
      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.
      • by Anonymous Coward on Monday October 14, 2002 @08:40AM (#4444874)
        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.

    • As far as I understand things, he says he didn't break the official rules. He says that the interpretation is currenlty very strict, so that what he did was "uncommon".

      Roger.
    • 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.
    • by Citizen of Earth (569446) on Monday October 14, 2002 @11:36AM (#4445850)
      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.)
    • 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.
    • He says that the rules are not written, they are implied, and also that they are bad.

      And while I agree with him that off-the-record speech does not equate unequivocally with bias, I really wish he had chosen another case to make his point. His actions gave the opposition (from my point of view) an opening to oust him, and they didn't hesitate - they never do.
    • And what is he, a scrabble champion or something? Do Judges REALLY talk like that?

      Educated people do, yes.

      I lament the state of education today if you're intimidated by any text written above a tenth-grade reading level.
      • Yeah, I can understand what you are saying, however, if you read the article, he has clearly exceeded the vocabulary that would be found in normal conversation, and is using words that do not contribute to understand what he is saying, but rather the opposite.

        Besides, Ive never been a fan of those vocabulary courses, who run adverts saying things like: "impress your friends with words they dont know", etc... I prefer to divert my language skills to expanding my vocabulary in the other languages that I speak. But to be sure, Mr. Jackson could communicate far more clearly with a little less effort...

        I liked one of the previous posts... [slashdot.org]

  • by mseeger (40923) on Monday October 14, 2002 @08:08AM (#4444770)
    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

    • Yeah, well he's only human. Let's face it, the job he had, he could have screwed up a trillion different ways- and he mostly succeeded at this one- the monopoly charges still stick, and there's still big issues for Microsoft from this.

      Bearing in mind the administration change in the whitehouse, that's probably the best he could have expected.

    • 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.

      The whole problem was that he had a "cause". As a judge, he should be upholding the law, whether he agress with it or not. His "causes" shouldn't enter into it at all. By virtue of being a banner waver for his "cause" he showed that he could have possibly been tainted in his decision. He shouldn't worry about his "cause", or the appeal, or anything other than making the correct legal decision.
      • by jimhill (7277) on Monday October 14, 2002 @11:58AM (#4445985) Homepage
        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.
  • Mis-judged (Score:4, Insightful)

    by sfled (231432) <<sfled> <at> <yahoo.com>> on Monday October 14, 2002 @08:10AM (#4444772) Journal


    The article [washingtonpost.com] 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...

    • Re:Mis-judged (Score:5, Insightful)

      by capt.Hij (318203) on Monday October 14, 2002 @08:23AM (#4444814) Homepage Journal
      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:Mis-judged (Score:5, Interesting)

        by sfled (231432) <<sfled> <at> <yahoo.com>> on Monday October 14, 2002 @08:39AM (#4444869) Journal
        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 (Score:2, Insightful)

          by ClosedSource (238333)
          "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."

          Oh, come on. Jackson's more proabable reason was that he was pissed off that MS managed to get the court of appeals to overturn his previous ruling.
          • Re:Mis-judged (Score:3, Insightful)

            by ch-chuck (9622)
            Far from 'insightful' - they are discussing the judge's reactions and comments DURING the trial (like during the vidtape of 'why you cannot remove IE w/o breaking Windows', which turned out to be a faked, contrived, presentation), not after appeal, plus, appeals overturned his remedy, but, as the article states:

            "Ironically, the appeals court reaffirmed the core of Jackson's work, which found in United States of America v. Microsoft Corp. that the software giant had illegally abused its monopoly position to undermine competition in the software marketplace."

            We're just waiting for another 'remedy'.

          • Re:Mis-judged (Score:3, Interesting)

            by cleetus (123553)
            "Oh, come on. Jackson's more proabable reason was that he was pissed off that MS managed to get the court of appeals to overturn his previous ruling."

            The appeals court affirmed almost all of Judge Jackson's findings. The fact that there would be an appeal was a foregone conclusion before the trial even started. Jackson was lucky to do such a disservice to his judicial opinion and still have so much of it upheld on appeal.

            cleetus
      • by Gerry Gleason (609985) <gerry@NoSpam.geraldgleason.com> on Monday October 14, 2002 @09:52AM (#4445160)
        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.

        • by 5KVGhost (208137) on Monday October 14, 2002 @12:48PM (#4446346)
          "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."

          Ok, let's say you're on trial for insurance fraud. In the middle of the case, while the trail is underway, the judge makes a statement to the media where he expresses his personal dislike for you, strongly implies that you're guilty as sin, and states that you should be severely punished for your crimes. That's his "honest reaction", so it's ok with you?

          Of course it isn't. Judges have no business publically expressing their personal opinions on or being political pundits while in the middle of a legal proceeding. Their job is to be impartial, and anything less is unfair to everyone involved.
          • You should read the original article (link thoughfully supplied by another slashdotter in a comment). The judge addresses this point directly. The example statements you make amount to deciding the case before the evidence is in. This is clearly bad, and JPJ sees it as such.

            Like I said, read the article, he presents a well reasoned case for judges being more forthcoming in some cases. He even addresses the concern that public comment could be made to gather media fame, but that should not stop him from commenting in all cases.

            The tenor of the argument is addressed directly to his fellow judges, and in particular to the appelate court that saw fit to rebuke him in a most public way and with direct terms calling into question his judgement. He is right, and they are wrong (in my opinion).

    • Re:Mis-judged (Score:5, Insightful)

      by rcs1000 (462363) <rcs1000@@@gmail...com> on Monday October 14, 2002 @08:28AM (#4444830)
      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:Mis-judged (Score:5, Interesting)

        by NoOneInParticular (221808) on Monday October 14, 2002 @09:03AM (#4444953)
        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:Mis-judged (Score:3, Interesting)

          by rcs1000 (462363)
          Now it's my turn to temporise. About two years ago I read in Wired a story of the Microsoft trial; this was published after the trial came to an end.

          However, I think it did contain interviews with Jackson from *before* the trial, where he was very uncomplimentary about Microsoft.

          Now, this Wired article was written by someone (I think) who went on to write a book about the trial. Again I think, this contained interviews from before and at the beginning of the trial.

        • Re:Mis-judged (Score:2, Insightful)

          by PainKilleR-CE (597083)
          The Washington Post article specifically talks about interviews given during the trial. Considering the nature of the statements cited in the article, it should be fairly easy to see how at least an appearance of bias could be found, if not bias itself, and this was enough for him to be removed from the remainder of the case. Adding in the number of legal procedures that the judge bypassed in the trial gave more weight to the appearance of bias created by his interviews.

          If I remember correctly, MS tried to have him removed fairly early on because they believed he would be biased by earlier cases related to MS which he oversaw (previous antitrust case?), but that didn't happen. It's only natural that they'd go on to bring up an appearance of bias in the appeal, and Jackson should've been aware of that possibility.
        • Re:Mis-judged (Score:2, Informative)

          by toopc (32927)
          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.

          He gave interviews during the trial. Actually the trial is ongoing, so even if he gave a interview today he would be giving an interview during the trial. What he did was even worse, Jackson gave an interview while he was still hearing the case - that is the reason his impartiality is suspect.

          Microsoft Appeal Panel Blasts Judge Jackson [newsfactor.com]

          In speeches and interviews with reporters after his historic ruling, Jackson made a number of remarks directed at Gates and Microsoft, but the interviews he granted during the trial left government lawyers scrambling to counteract the charge that Jackson was biased against the company and over-eager to punish it.

          The interviews Jackson gave during the trial were embargoed, meaning they were not to be published until the trial's conclusion.

          "The system would be a sham if all judges went around doing this," Edwards said. "The public has something at stake, it's the integrity of the system."

    • A judge that would make statements of any kind deteriment to the position of either the plantiff or the defendent during a trial either on or off the bench shows an utter lack of regard for the judical process. To prejudge before the evidence is presented is nothing more than a kangaroo court. Sadly, it took him 15 months to make this inane reply. He should have left whatever thoughts he had unsaid. No matter how much you despise Microsoft and the Blue Screen of Death, they deserved a fair and impartial trial. This judge is a mockery to that process.
  • I'm Torn... (Score:4, Insightful)

    by pridefinger (549632) <{moc.liamg} {ta} {niugnepdelkcerf}> on Monday October 14, 2002 @08:10AM (#4444773)
    ...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?
    • Re:I'm Torn... (Score:5, Interesting)

      by capt.Hij (318203) on Monday October 14, 2002 @08:38AM (#4444867) Homepage Journal
      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:I'm Torn... (Score:5, Insightful)

      by MercuryWings (615234) on Monday October 14, 2002 @09:04AM (#4444961) Journal
      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... (Score:2, Insightful)

        by PW2 (410411)
        I believe it is better when people 'keep it real' and not put up false facades as that is a level of deceit not worthy of judges. The people should be able to discern that he is doing an impartial job and also has his own opinions which is easier to see when the judge is more open with his opinions at certain times. A review of the procedings and final judgement (instant-replay like) can be used to guarantee that the man is doing his job.
        • Re:I'm Torn... (Score:2, Insightful)

          by MercuryWings (615234)
          Expecting a judge to maintain an image of impartiality places no expectation on them to put up any false facades - it merely put underscore the importance that their own opinions and beliefs are not (and should not be) relevant to the case. Every court decision that is made (excepting IIRC civil court) is filed with the judge's explanation of why they came to the decision they did, frequently tied to previous cases or interpretations of law. Anybody should be able to read these judgements and see exactly how and why the decision was made. If the judgement is made based on the judge's personal opinions or a misinterpreted fact of law, there is a very good likelihood it will be go to the appeals courts.

          If any judge were free to express without hesitation their opinion on a matter before them, the lawyers would have a field day appealing the cases. All it would take is a single comment by the judge against a defendant and, in no time flat, the lawyers have an appeal ready, claiming the judge was prejudiced and was going to convict no matter what the evidence.

          The image of impartiality is critical for a function legal system. It has nothing to do with putting on a false facade, or deceit, but to do with an imperfect system that has enough issues these days trying to determine justice without being made to look biased and prejudiced (note the word: pre + judged) by judges who should know the damage caused by their words far outweighs their urge to speak them.

          Personally...I think that's a small price to pay when given the responsibility of deciding another person's fate.


          • The image of impartiality is critical for a function legal system. It has nothing to do with putting on a false facade, or deceit, [snip]

            Then why praise the ousting of this judge from the case? All he did was have the honesty not to put on that facade. He was impartial, but impariality is not the same as being brain-dead. There is nothing PRE-judgemental about pointing out how badly the Micorosoft side conducted themselves DURING the trial. If he'd said so BEFORE he saw them acting as such, then THAT would have been prejudiced.

    • Re:I'm Torn... (Score:5, Insightful)

      by Gerry Gleason (609985) <gerry@NoSpam.geraldgleason.com> on Monday October 14, 2002 @09:21AM (#4445002)
      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.

      • 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.

        The primary result of the 'appearance of bias' as cited in the appeals court ruling, was the removal of him as judge on the case. It was not part of the ruling to strike down his decision.

        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.

        The court didn't leave everything in place. They threw out or remanded for re-hearing almost 2/3rds of the case. They threw out the penalty that Jackson came up with because he didn't go through the proper (and normal) steps to come to that ruling, and didn't include the proper justification for that ruling. They upheld his 'findings of fact' because they believed that there was nothing wrong with them, and that bias, whether real or simply in appearance, did not have any affect on that portion. However, as the appeals court ruling and many other transcripts from the case can show, the findings of fact are not even the largest part of the case.
    • Because they have _ZERO_ scruples. As far as I am concerned, the Judge is right on in his analogies of M$

      Hmm, a choice between Microsoft and lawyer as to who has the fewer scruples.

      Sorry, but history suggests that the lawyers do.
      • You cannot separate the two. After all, what kind of profession were the people arguing the case FOR Microsoft? Why - big surprise- they were lawyers too. So it's not a comparasin of Microsoft vs a lawyer. It's a comparasin of Microsoft PLUS a laywer, vs a lawyer.
    • Re:I'm Torn... (Score:2, Interesting)

      by dlkinney (133782)
      My uncle is a judge, and from long discussions with him while fishing, I can tell you that no judge is impartial throughout a trial. Judges who have been around the block know what's-what and quickly size-up who is guilty, what hte merits of the case are, and what the appeals will be founded on. In fact, shared with me advise from a collegue of his: after you have determined in the first few minutes who is going to win the case, rule all objections in favor of the other side, so that they have no grounds for appeal. Of course, a judge can't quite follow that logic, as he/she is bound by precedent, but it demonstrates the realities of being a judge.
  • I'd rather read JPJ's comments from the Legal Times where he published them. Anyone have a link?
  • by Troy H Parker (600654) on Monday October 14, 2002 @08:14AM (#4444791)
    to have had Judge Judy try the case. I'd bust a nut watching her snap out a "SHUSH!" to Bill Gates!
  • by the_real_tigga (568488) <nephros@users.so ... t ['efo' in gap]> on Monday October 14, 2002 @08:15AM (#4444795) Journal
    ...to get the picture of what the article is all about:

    1 [uscourts.gov]
    2 [bbc.co.uk]
    3 [harvard.edu]
  • by greenrom (576281) on Monday October 14, 2002 @08:28AM (#4444831)
    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.
    • by fw3 (523647) on Monday October 14, 2002 @09:09AM (#4444975) Homepage Journal
      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.

    • IMHO there's no such thing as unbiased court verdict. Assuming that judges are better people then we is simply stupid. They do have strong opinnions on various thnigs just as we common mortals do.

      And yes, Microsoft needs slapping just like mentioned mule, but he should say it ex cathedra not in a interview.
    • by budgenator (254554) on Monday October 14, 2002 @10:48AM (#4445543) Journal
      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)
  • by doug renfrew (518805) <prenfrew@zoo.uvm.edu> on Monday October 14, 2002 @08:32AM (#4444844) Homepage
    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...
  • 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?
    • Re:Microsoft case? (Score:2, Informative)

      by jacquesm (154384)
      In theory, no.
      In practice: YES
      check out google on the myth of the good corporate citizen [google.com]
      basically what it boils down to is that corporations in theory have less rights than a 'regular' citizen, but that in practice with all the legal power that they can buy they enjoy considerably more rights than ordinary people and that they are not ashamed (because of a lack of personal ethics) to abuse these rights
  • by Get Behind the Mule (61986) on Monday October 14, 2002 @08:53AM (#4444918)
    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.
    • Ruthless corporate crooks have been around for as long as big business of any sort. There were complaints against large civic contractors for monopolistic practices clear back in the Roman era.

    • by ArtDent (83554) on Monday October 14, 2002 @11:30AM (#4445814)

      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.

      Why weren't any of these shenanigans rewarded with chanrges of Perjury or Contempt? That would seem a more appropriate (and satisfying) consequence.

  • Free Speech Issue? (Score:5, Insightful)

    by no soup for you (607826) <jesse.wolgamottNO@SPAMgmail.com> on Monday October 14, 2002 @08:53AM (#4444920) Homepage
    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 [washingtonpost.com] 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?
    • by Nomad37 (582970)
      Free Speech in the US as in many other places always has its limits, and it's a matter of how things are phrased. If you sign an NDA, then you forfeit your right to speak about topic "X".

      If you're sitting in judgment over people's actions (or corporations'), as the Appellate Court points out, you must express your views in the court room! so that the defendant has a chance to answer your criticisms either in that courtroom or in an appellate court.

      Jackson defends himself with the argument that people have a right to know what's going on in the courtroom. The parties to a case, however: those most directly affected by the judgment have a much stronger claim - one that Jackson totally ignored.

      While totally in favour of Jackson's ruling and findings of fact, I strongly believe that his was one of the worst displays of judicial irresponsibility we have recently seen.

    • by Catbeller (118204)
      The interviews were held during the trials, yes, but not printed until after the trial was over, per Jackson's demand. So, no ethical rule was violated.

      Jackson gave that interview because he knew he was going to be overturned by his political enemies on appeal. He was trying to get the record straight before the shit hit the fan.

      AFAIAC, noticing that Microsoft was acting like a pack of lying, entitled weasels who didn't think the law applied to them is an act of intelligence, and not a biased one.

      Bias is the presence of unwarranted onus -- Jackson was just noting the obvious.
  • by Anonymous Coward on Monday October 14, 2002 @09:00AM (#4444943)
    here [law.com]
    • by Spock the Baptist (455355) on Monday October 14, 2002 @10:22AM (#4445321) Journal
      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.
  • by TheLoneCabbage (323135) on Monday October 14, 2002 @09:05AM (#4444966) Homepage

    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.

    • 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 can just see it now, a judge instructing the jury: 'its ok to develop bias, as long as its during the trial rather than before'. No, even though we all know there's no way to stop people from having some bias, they should at least try to be impartial, and those instructions will always be to hear the entire case before making any decision.

      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

      No, the case was taken away from him because he decided to talk to the press during the trial instead of holding his tongue until it was over. His ruling was taken away from him because he didn't follow the correct procedures in the court, such as having a penalty phase in the trial before determining a penalty.
      • Let's say that hypothetically you are in attendance at a trial (not this one) and during the questioning a witness swore at the judge, made threats to the jury, and screamed at the top of his lungs. Then afterward you are asked by others waiting outside what the witness was like. Which answer would be the biased one:
        1. Nothing unusual happened. I have nothing to say.
        2. The witness made an ass of himself.

        Now, if you are sane, you say the second is unbiased and the first IS biased. If you think like the review court that decided to pull Jackson from the case, you say the opposite.

        It is not biased to report the truth about what was said during the trial, and that's all Jackson did.

  • by frozenray (308282) on Monday October 14, 2002 @09:20AM (#4445000)
    October 19, 2002 marks the 4th anniversary of the beginning of the United States vs. Microsoft case.

    Happy anniversary.
  • by Anonymous Coward on Monday October 14, 2002 @09:27AM (#4445028)
    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...

  • Web Special (Score:3, Interesting)

    by blazerw11 (68928) <blazerw.bigfoot@com> on Monday October 14, 2002 @09:38AM (#4445066) Homepage
    Did anybody else get the Forbes Web Special: Take a Tour of Windows XP on this articles page also.

    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 /. reader reply: So now online rags gotta check the article's subject matter before placing ads?
    My reply: Yes. Or, maybe just put a link to the document on which you based your article.

  • 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.
  • by Catbeller (118204) on Monday October 14, 2002 @10:42AM (#4445486) Homepage
    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 (Score:5, Informative)

    by edward.virtually@pob (6854) on Monday October 14, 2002 @10:49AM (#4445544)
    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.
  • The Rules Are Good (Score:2, Insightful)

    by Josh (2625)
    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.
  • by ianscot (591483) on Monday October 14, 2002 @03:05PM (#4447434)
    Brzzzt! -- does not compute. From the Times article:

    Jackson acknowledges that "many judges -- perhaps most -- believe the canon imposes a virtual code of omerta [silence] forbidding any public commentary while a case remains unfinished in any respect, quite possibly forever. . . . The ostensible reason is that anything said informally, but publicly, about a case must perforce detract from the court's 'appearance of impartiality.' "

    "So interpreted, the canon represents a variant of that dubious maxim of leadership: Never apologize; never explain," Jackson said. "It also suggests that the judiciary is more concerned with appearances than with actuality."

    Wow! Justice Jackson strikes a grand blow against the supposedly tactful silence that's intended to shield justices from the world!... But later:

    "As a rule, judges should not speak ill of other judges personally, whether on or off the bench," Jackson concluded his essay. "Personal attacks on judges by other judges also undermine respect for and confidence in the judiciary."

    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.

  • 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.

I don't want to achieve immortality through my work. I want to achieve immortality through not dying. -- Woody Allen

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