Microsoft Judge Criticized

By CBSNews.com staff CBSNews.com staff

February 25, 2001 / 4:23 PM EST / CBS

Two days of Microsoft appeal arguments ended with angry comments - from the bench, no less - about the judge who ordered Microsoft's breakup, reports CBS News Correspondent Barry Bagnato.

Judges have no right to "go run off our mouths" about cases they're hearing, said Harry Edwards, chief judge of the U.S. Court of Appeals for the District of Columbia.

"The system would be a sham if all judges went around doing this," he said before the appellate court concluded a hearing for arguments in Microsoft's appeal of Thomas Penfield Jackson's breakup order.

"I'm not sure how you can ask us with a straight face" to not consider possible bias in Jackson's comments, Judge David Sentelle told John Roberts, representing the District of Columbia and 18 states that joined the federal government's antitrust effort.

Judge Thomas Penfield Jackson was criticized in Tuesday's hearing.

"Isn't it likely that it's going to look to a member of the public as if this judge has some other axe to grind, or he wouldn't be doing something that improper?" Sentelle added.

Microsoft argues the judge was so biased, his ruling should be thrown out.

"What the statements suggest is actual bias," Microsoft lawyer Richard Urowsky argued, adding the interviews were given "long before" the judge's final conclusions.

But Judge David Tatel told Urowsky there was no evidence "other than your own speculation that he had these views before the trial started."

Reversal Of Fortune

What one federal judge giveth, other federal judges may be prepared to take away. CBSNews.com Legal Analyst Andrew Cohen says comments by Thomas Penfield Jackson in the Microsoft case may come back to haunt federal prosecutors.

CBSNews.com Legal Consultant Andrew Cohen says it is unusual for appellate judges to criticize a lower court judge in this manner. "The judges were unusuall critical of Jackson and really the only issue is what they feel they ought to do about it. It may not be enough, alone, to ensure a reversal of Jackson's ruling but it certainly doesn't help the government's efforts to defend that ruling."

Earlier, Microsoft lawyer Steven Holley asserted that Jackson was "motivated by a desire to punish" the software giant. The government countered that evidence was "quite clear" that Microsoft acted unlawfully to stifle competition.

But David Frederick, a Justice Department attorney, argued Microsoft was trying to "strangle a nascent competitor" - the rival Netscape browser.

Edwards, in another criticism of Jackson, said "the district court made no finding of the appropriate market" for Internet browsers.

Judge Sentelle added, "If there isn't a proper finding...then we would have to at least send this back for some trial judge to weigh the facts, wouldn't we?" Normally, a case would be sent back to the same trial judge.

Jackson last June ordered Microsoft broken into two competing companies after finding the company acted illegally to stifle competition.

Holley argued, "The district court had no right to presume that the government was acting in the public interest" in seeking to break up the company.

"The most draconian aspect of this decree, the breakup of Microsoft, was motivated by a desire to punish Microsoft."

"The district court's recitation of this event is quite confused," company lawyer Richard Urowsky said in describing a 1995 meeting between Microsoft and Netscape officials.

Frederick acknowledged "there was some lack of clarity" in Jackson's findings about the Microsoft-Netscape meeting. But he insisted the evidence was "quite clear" that Microsoft's purpose was to harm rival Netscape.

Urowsky contended that that once judgment was entered by Jackson, it was too late to seek the judge's recusal. The judge had ordered the company to formulate a breakup plan "which was essentially having a gun pointed" at the company.

Roberts, the states' lawyer, said, "We are not defending the judge's decision (to give interviews). But the question before the court is whether or not that shows bias or a lack of impartiality."

Roberts said the comments were "not a basis" to rule the judge was biased.

Jackson, in the Jan. 8 issue of The New Yorker, said of Microsoft founder Bill Gates:

"I think he has a Napoleonic concept of himself and his company, an arrogance that derives from power and unalloyed success, with no leavening hard experience, no reverses." He said company officials "don't act like grown-ups!"

Microsoft said in its appeal that the comments showed Jackson was prejudiced when he ordered the company to be divided into two parts.

In a book by Ken Auletta, World War 3.0: Microsoft and Its Enemies, Jackson also criticized the appeals courtSpeaking about an earlier case, Jackson said the appellate court "made up about 90 percent of the facts on their own."

Microsoft also told the court a breakup of the company is unwarranted, even if this court agrees that laws were broken.