Hanging the hanging judge

The appeals court condemned Judge Jackson

By BBC News Online's Kevin Anderson in Washington

On the second day of hearings in the appeal of the Microsoft anti-trust case, the seven-judge panel hanged the hanging judge.

Judge Thomas Penfield Jackson has been referred to as the hanging judge because he issued the equivalent of the death penalty against the software giant in ordering that it be split in two.

The appeals court judges attacked Judge Jackson for comments he made about Microsoft, Bill Gates and the appeals court.

But the controversy could not overshadow that it was a dark day for the government, with a break up of the company seen as highly unlikely by anti-trust experts.

World War 3.0

Before the hearing began, Ken Auletta, a reporter with the New Yorker magazine, stood with the rest of the press.

The book which allegedly proves Judge Jackson's bias

Over two and a half years, Mr Auletta had several interviews with Judge Jackson, which were the basis for a January article in the New Yorker and a book, World War 3.0: Microsoft and its enemies.

As Mr Auletta waited for the hearing to begin, he wondered not only if the court would bring up Judge Jackson's comment in his book that Bill Gates has a Napoleonic concept of himself but also comments he made about the appeals court.

In those comments, Judge Jackson said he took mild offence at being reversed by the appeals court in a previous Microsoft case.

Moreover, Judge Jackson called the appeals court supercilious and said, "they embellish law with unnecessary, and in many cases, superficial scholarship".

Mr Auletta couldn't believe some of Judge Jackson's comments, but he said he had tried to suppress a reaction as the judge made them.

"But he knew it was an interview. I had pen and paper and a tape recorder," Mr Auletta said.

Microsoft cited 22 pages of World War 3.0 in the book as example of the judge's prejudice.

Condemnation

Indeed, Judge Jackson's comments to Mr Auletta came up, as did the journalist himself.

The judges condemned Judge Jackson for his comments about the case.

At one point, chief judge Harry Edwards said that judges have no right to "go run off our mouths" about cases they are hearing.

Clearly, there were a couple of members of the court who would like [Judge Jackson's] head

William Kovacic, anti-trust expert

The judges were deeply concerned about how the public would perceive the justice system if such comments were allowed.

"The system would be a sham if all judges went around doing this," he added.

Courtroom drama

It was dramatic. Anti-trust expert William Kovacic said: "You will never see this again in your lives."

"Clearly, there were a couple of members of the court who would like the judge's head," he said, adding: "Judge Jackson is certainly not going to appear in this case again."

Earlier in the hearing, one judge alluded to his feeling that Judge Jackson be removed from the case.

Questioning one of Judge Jackson's findings of fact, Judge David B Sentelle said: "If this is not a proper finding, we would have to, at least, send this back to some trial judge." He emphasised the word "some".

Break-up unlikely

But if it was not a good day for Judge Jackson, it was also not a good day for the government.

Microsoft's lawyers were successful in weakening the government's case

"The government will not emerge from this unscathed," Mr Kovacic said, pointing out several areas of the government's case that appeared weakened.

It was not a complete vindication for Microsoft, he said, but he added that the likely outcome would most likely be a much lighter conduct-based remedy instead of a break-up.

Many have predicted that the Bush administration will not pursue the case as aggressively as the Clinton administration, but Mr Kovacic said that President Bush and the new Department of Justice would not put its stamp on the case until after the appeals court rules.

He said the ruling would come by June at the latest.