A decision in an unrelated case has given Microsoft new ammunition as it seeks to remove US District Judge Thomas Penfield Jackson from the historic anti-trust case.
Late Thursday, Microsoft filed a notice with the US Court of Appeals for the District of Columbia Circuit referring to a decision handed down by another court that appears to significantly boost Microsoft's drive to remove Jackson.
In that case, US District Judge Nancy Gertner made a fairly innocuous comment to the media regarding a case involving US public schools. Plaintiff attorneys had accused Gertner of inconsistency handling the case compared with an earlier proceeding.
Gertner simply explained that the case is more complicated than the earlier one.
But the US Court of Appeals for the First Circuit removed Gertner from further handling of the case, even though the court saw no bias inferred by the statement.
"It was a very innocuous statement by the judge in an ongoing case, and the Court of Appeals said, 'It's the appearance of impropriety and you're bounced,' " said Bob Lande, an anti-trust professor with the University of Baltimore School of Law. "It was a really mild statement, nothing like what Jackson has done. The Jackson stuff is 10 times stronger."
Strong precedent?
Microsoft has repeatedly attacked Jackson for comments he made to the press following the trial's close. In legal briefs, the company argued Jackson's comments infer bias and cast doubt on his handling of the entire case.
Hillard Sterling, an antitrust attorney with Chicago-based Gordon & Glickson, sees strong precedent for Jackson stepping down. "This (Boston) case provides Microsoft more ammunition that Judge Jackson should have recused (i.e., disqualified) himself," he said. "Recusal is necessary with just the appearance of bias. It's not necessary to prove bias."
Jackson aimed some of his statements at Microsoft and others at chairman Bill Gates. But he also accused the appeals court of making up "about 90 percent of the facts" in an earlier Microsoft case.
His out-of-court comments have weakened the government's chances of walking away with a clear victory on appeal, Sterling said.
Jackson's role in the case has ended for now. In June 2000, he ordered Microsoft be broken into separate companies - one for operating systems, one for software applications - after he had earlier ruled that the company violated US antitrust law.
But the Court of Appeals is expected to send back, or remand, the remedy portion of the case to the District Court and thus potentially back to Jackson.
Lande said the timing of the Boston decision couldn't be better for Microsoft. "It's a very strong precedent that Jackson should not hear the case on remand," he said.
Bill Kovacic, an antitrust professor at George Washington University, doubts the Court of Appeals would throw out the case based on Jackson's post-trial comments.
"I can't see the court vacating the verdict for Jackson's statements, but I don't see the appellate judges letting him touch this case again, either," Kovacic said. "You can safely assume he will be removed."
Last week, the Court of Appeals handed Microsoft an unexpected gift when setting a schedule for oral arguments. The court allotted 30 minutes each to Microsoft and the government - the Justice Department and 19 states - to discuss Jackson's "conduct of the trial and extrajudicial statements." Neither side had requested time to discuss Jackson. Oral arguments in the case are scheduled for February 26 and February 27, with an appeals court decision expected as early as April or May.
