Appeals court reviews Microsoft case
Lawyers claim judge’s comments show bias against software giant

By D. Ian Hopper
Associated Press

WASHINGTON — Abandoning the usual deference shown colleagues, federal appeals judges weighing Microsoft’s fate criticized the trial judge Tuesday for comments outside the courtroom. The chief judge questioned whether Thomas Penfield Jackson’s conduct “violates the whole oath of office.”

Microsoft lawyers relished the attention the appellate judges gave Jackson, wrapping up two days of arguments in their high-stakes appeal by accusing the trial judge of bias and eagerness to punish the software giant.

The seven U.S. Court of Appeals judges considered the bias issue and also raised concerns about technical aspects of Jackson’s ruling. One raised the possibility the case might have to be sent back to a trial court.

“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?” Judge David Sentelle asked.

Jackson issued the historic order splitting Microsoft for antitrust violations, then was quoted in interviews as comparing chairman Bill Gates to Napoleon and the company to a drug-dealing street gang.

“What the statements suggest is actual bias,” Microsoft lawyer Richard Urowsky argued, seeking to reverse Jackson’s order.

Jackson granted some of the interviews on an embargoed basis before the antitrust trial ended last year with the expectation they would be published afterward — a fact singled out by some appeals judges.

“Had he not placed that embargo he would have been off that case in a minute,” Judge A. Raymond Randolph said.

“I’m not sure how you can ask us with a straight face” not to consider the appearance of bias, Sentelle said. “What possible legitimate reason could you assign, unless the judge was biased against them?”

Added Judge David Tatel: “I don’t see how you can get around the fact that the words he chose did convey to the average person bias.”

Harry Edwards, the chief judge of the appeals court in Washington, questioned whether Jackson violated his oath as a jurist.

“There are some who would say that (Jackson’s behavior) violates the whole oath of office,” Edwards said.

“The system would be a sham if all judges went around doing this,” Edwards continued. “The public has something at stake, it’s the integrity of the system.”

Jackson declined comment Tuesday, his office said.

The appeals court must determine if Jackson’s statements warrant removing him from further proceedings, taint his factual findings that Microsoft engaged in anticompetitive practices or are grounds for a retrial with a different judge.

A key question for the court is whether Jackson held his views about Microsoft before he began hearing the case.

Tatel told Urowsky there was no evidence “other than your own speculation that he had these views before the trial started.”

Nonetheless, George Washington University law professor William Kovacic, who has followed the case, said the appeals judges’ criticism of the trial judge was unusual.

“There are clearly some people on the court who would like to behead him,” Kovacic said.

Microsoft lawyer Steven Holley said Jackson was “motivated by a desire to punish” the software giant, and that there was a “rush to judgment” without the opportunity for Microsoft to rebut government witnesses showing how a breakup could work.

The Justice Department’s lawyers sought to keep the focus on what the trial court said was Microsoft’s predatory efforts to hurt Web browser competitors like Netscape by packing its popular Windows operating system with Microsoft’s own Web browser.

“This case is about using two arms to strangle a nascent competitor, using the applications arm to protect the operating system monopoly arm,” government lawyer David Frederick argued.

The appeals judges also raised questions about flaws in Jackson’s ruling. Edwards said “the district court made no finding of the appropriate market” for Internet browsers, which was crucial to whether Netscape was pushed out of the browser market.

That prompted Sentelle to question whether the case would need to be sent back.

Kovacic said the judges’ relentless attacks on Jackson’s work and comments put the government’s case in jeopardy.

“I don’t think we’re going to see a breakup,” Kovacic said. “At the very worst, if there is a remedy, it will be remanded to a district court.”

A decision in the appeal is not expected for several months.

Edwards, a labor law specialist appointed to the court in 1980 by President Carter, underscored the uniqueness of the proceedings just before the hearing ended.

“This case is not like one I’ll see in, what, five years,” he said. “Not even close.”