Microsoft Judge's Comments Get Put on Trial

(Updated from 4:23 p.m. EST)

Microsoft (MSFT) undid its seatbelt and abdicated the hot seat Tuesday, so Judge Thomas Penfield Jackson and government lawyers could sit in it. "To me the day was a 3-0 slam dunk for Microsoft," said Ernest Gellhorn, a law professor at George Mason University. Gellhorn kept a running tally of the judges' questioning over the two-day hearing and declared Microsoft Tuesday's winner with only 19 tough questions to the 112 questions hurled at Justice Department lawyers.

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Let's Go to the Replay: Microsoft, Government Rehash Antitrust Arguments

In the second of two days before the U.S. Court of Appeals for the District of Columbia, Microsoft and Justice Department lawyers argued the issues of breakup remedies and Judge Jackson's behavior during and following the trial. The morning began dutifully with thorough questioning of breakup viability and the connections between the Windows operating system, the Microsoft Office applications suite and the Internet Explorer Web browser software. It ended with the seven-member panel of judges taking their red-hot pokers to whatever parts of Judge Jackson's reputation still showed signs of life.

Jackson presided over the 1999 antitrust case that the government brought against Microsoft in which the software giant was accused of abusing its monopoly position in operating systems to corner the browser market as well. The appellate court won't overturn Jackson's finding that the company did in fact abuse its power, but after Tuesday's hostility toward Jackson, it will likely send the remedy question back to a lower court -- not Jackson's.

"Typically judges are so restrained and respectful of each other," says George Mason's Gellhorn, who interpreted the vehemence of the judge's outbursts as a positive for Microsoft. "The way I would read it is that on any issue where it's a close case for a judge, it'll tip away from the government, because of the judge's misconduct."

The breakup discussion went smoothly. Microsoft lawyers argued that Judge Jackson had little knowledge of the intricacies of Microsoft's many software progeny. Divvying up Microsoft and untangling its software products, therefore, would be harmful to consumers and present an insurmountable task to the separated applications and operating-systems arms of Microsoft.

Justice Department lawyers attacked the Microsoft waterworks, trying to establish a precedent for breaking up a monopoly that has so abused its power. The court tried to figure out if it would make sense to break up a company that hadn't grown to monopoly status through acquisitions, and spent considerable time questioning Microsoft lawyer Steven Holly to gain clarity on where to draw the lines between Microsoft's products. (Our condolences go out to the judges for having to learn what kernels, APIs and middleware are on such short notice.)

After a brief recess, the judges came back into court for a discussion of Judge Jackson's behavior. The judges sat quietly during Microsoft's argument, in which the software giant's lead lawyer, Richard Urowsky, talked about the bias displayed by Jackson in several interviews with the press -- interviews both after and more damningly during the trial, but embargoed for print until Jackson released his findings of fact. He described some 10 hours of recorded conversations with New Yorker writer Ken Auletta for his book on the trial, World War 3.0: Microsoft and Its Enemies. Urowsky continued with little interruption.

Then Justice Department lawyer John Roberts embarked on the thankless task of showing that Judge Jackson wasn't biased against Microsoft. This was despite the judge's own statements, among them, that Bill Gates lacks business ethics, that Microsoft resembled a gang of drug dealers and that he, the judge, did not believe in software integration. The Justice Department was trying to dissuade the judges from rendering Jackson's ruling void because of perceived or actual bias.

All at once, the awkwardly silent bunch of appellate judges spewed forth a river of venom castigating Judge Jackson. Apparently the judges didn't take Jackson's interviews with the press lightly. Judge David Sentelle hypothesized that "the judge must have some other ax to grind or he wouldn't be doing something so improper" and wondered, "What is the unbiased reason for judge to have secret conferences with reporters about a litigant?"

Chief Judge Harry Edwards lamented that Jackson's actions were "beyond the pale," that his interviews make the "system look like a sham."

Additionally, the appellate court's repugnance signals that it'll be highly unlikely to send this case back to Judge Jackson if it decides to examine different potential remedies. Still, it doesn't totally rule out those remedies. "Put this in context: Judge Jackson's statements probably don't change the conclusions of liability," Gellhorn says

With Jackson's reputation fried and time run out, Edwards thanked everyone for coming and emphasized the hard work the legal teams and judges put into the case. He concluded two days of landmark hearings, and started the clock on what should be at least two months of waiting for a landmark decision.

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