Thou Hast Offended His Majesty

Sixty minutes were spent today in oral arguments discussing Judge Thomas Penfield Jackson’s “conduct of the trial and extrajudicial statements.” Although the Court of Appeals for the District of Columbia Circuit may not impose any criminal or civil penalty on Jackson, it is clear that he should be given a stern public rebuke and removed from any further proceedings.

If a man’s home is his castle, then his courtroom must be his monarchy. At least that’s what it appears Judge Jackson thought of his courtroom in the Microsoft antitrust trial.

Post-trial leaks revealed that Jackson viewed Microsoft, and its chairman, as “intransigent.” He took personal offense at Microsoft’s denial of wrongdoing and felt slighted by the irritation Gates displayed in his deposition. As Gates and Microsoft soon discovered through the Judge’s finding of facts and break-up order, such insolence toward his majesty would not be tolerated.

Reports during the trial indicated that Jackson was a bit miffed by Microsoft’s unflinching defense, but a January 8th New Yorker interview revealed that Jackson actually harbored a deep-seated distaste, even contempt for the company. He compared Bill Gates to Napoleon, equated Microsoft’s claims of innocence to “the protestations of gangland killers,” and went back and forth from calling Microsoft leaders “children” and “inner-city gangsters.”

Jackson’s polemical commentary was also directed at Microsoft’s attorney, whom Jackson found obtuse, and the Circuit Court of Appeals now reviewing the case, which Jackson described as “filled with supercilious judges who embellish law.”

Needless to say, these comments have not only cast a dark shadow over Jackson’s impartiality, but also placed his findings of fact and proposed remedy in a precarious position. And that was before it was learned that Jackson’s intemperate comments were made not after the trial as originally supposed, but while the case was before his court.

On September 22, 1999, Jackson violated the most basic tenet of legal ethics to sit down for a secret interview with author Ken Auletta to air his grievances against Microsoft. Jackson spent four hours of that day, and several hours of three other days, chronicling his distaste for Microsoft and his disdain for the Court of Appeals. Evidently, Jackson took time out from the trial to make similar comments to reporters from The New York Times and The Wall Street Journal, among others.

The Court of Appeals should take Jackson’s antipathy for the company into account when reviewing the findings of fact. Where Jackson’s opinions supercede a factual account, or when questions about the findings remain-such as the appropriate market for Internet browsers-the Court of Appeals should either reverse the judge or remand the case for clarification to a truly impartial trial court.

America’s legal system is based on laws, not men. Even the most ardent Microsoft antagonist cannot truly believe that Jackson has conducted the trial in a manner befitting this legal tradition. Jackson may fancy himself as the Sovereign of his courtroom, but thankfully he will not have the last word in this case.