Microsoft Judge Takes His Case to the Public 173
An anonymous reader writes "The Washington Post reports: "About 15 months after the Appeals Court for the D.C. Circuit rebuked U.S. District Judge Thomas Penfield Jackson for talking to the media in the Microsoft antitrust case, Jackson has formally filed his rebuttal.""
Not talking so much would have helped the cause (Score:5, Insightful)
i think Jackson did a good work inside the court room and a bad one outside. It was quite clear from the beginning, that there would be an appeal. In that case he should have tried everything to make it waterproof. But with the interviews he served a broadside of grapeshot to his own cause.
It may be a pitty that you may be right but saying so can put you wrong. But that's life.
Yours, Martin
Mis-judged (Score:4, Insightful)
The article [washingtonpost.com] states that "(The appeals court)...sent the case to a new judge and sternly chastised Jackson for 'deliberate, repeated, egregious, and flagrant' violations of ethical canons... ". Seems to me they were chastising the wrong party. Unless, of course, MS's use of less-than-ethical tactics were just an oversight on the part of Gates, Ballmer, et al...
I'm Torn... (Score:4, Insightful)
So I'm torn because I see both sides. I think he was out of line, but I think he was absolutely correct.
- Pride
Isn't life delicious?
Re:No one give a flying f**k (Score:5, Insightful)
Strongly suggest you check out the book "US Vs Microsoft (The Inside Story Of The Landmark Case)" at http://www.amazon.com/exec/obidos/tg/detail/-/B00
Reading that, you get one very good idea of incompetence: specifically, Microsoft's inept performance; ineptness that refers to Microsoft's lawyers, the performance of the "expert witnesses" they brought to the stand (who's going to forget Richard Schmalensee slamming down his old student in an economic analysis), or the "IE Removal Tool"... or even Gates's own performance.
Like the old Tim O'Reilly quote: "When people understand what Microsoft is up to, they're outraged". I'm not suggesting getting mad at Microsoft because they're Microsoft, I'm suggesting getting mad at them because of what they do, what they try to do, what they try to FUD.
Don't slam Jackson for doing what many people here would love to do. Slam the system that's letting Microsoft get away with what they're doing. "Yah, you say we're guilty. So you define the crime. Well, we don't like your punishment, so we'll impotently threaten to take our ball and go home, so NYAH!".
And OT, I find it really weird to see ANY Microsoft ad on
Re:Mis-judged (Score:5, Insightful)
It is silly to think that they do not have biases, but they should at least demonstrate that they can take an even handed approach despite their views. When Penfield went on record and sharply rebuked the conduct of Microsoft before hearing all of the arguments then his decisions became suspect. No matter which side of the fence you are on with respect to Microsoft all parties should be unhappy with Penfield's conduct. It hurt the cause of everybody involved in the case.
Re:So, the rules are bad? (Score:5, Insightful)
Now I don't necessarily agree with him on this point. I believe that the more narrow and specific you make the laws, the worse they are in the long run. Laws should be relatively broad because you can't see the future when you make them. I do however agree with him on the fact that the people have a right to know.
Maybe this will help free some information to the people in this process. It is a shame that a company is getting away with such a miscarriage of justice in this case simply because the judge made a few comments.
Re:Mis-judged (Score:5, Insightful)
Microsoft bribed and bullied witnesses (such as AMD's CEO) to give evidence. They lied about how easy it was to take IE out of Windows, and they played a FUD game like the best of them.
By these standards, Jackson behaved admirably. The only problem is: he's the Judge, he's supposed to be impartial. If, prior to the trial beginning, he has expressed in interviews (albeit unpublished ones) a strong view about one of the parties then he is not going into the trial as an unbiased Judge.
This perception of bias, rather than the speaking to journalists per se, is why Jackson was struck down so.
And, for all Jackson's arguments about the right of Judges to speak out, I have to agree with the appeals court.
Re:So, the rules are bad? (Score:5, Insightful)
Second, there are rule breakings and rule breakings. The judge violated no law, and the appeals court took him to task only for "'deliberate, repeated, egregious, and flagrant' violations of ethical canons"
One can ask whether if one considers an action to be perfectly ethical, one should still refrain form acting in such a manner because the long standing tradition of one's profession says that an action is unethical. In this light, to not act muight be considered cowardly, and ispo fact unethical, which I think is the judge's point.
One could wish, however, that the judge was a bit more circumspect in his statements. Shure, it was good that he was vocal, but perhaps the stridency and the timleness of his speech did more to hurt the cause than help it.
Re:Look at these... (Score:0, Insightful)
Re:Mis-judged (Score:2, Insightful)
Oh, come on. Jackson's more proabable reason was that he was pissed off that MS managed to get the court of appeals to overturn his previous ruling.
He should have kept quiet (Score:5, Insightful)
I'm still amazed by his Findings of Fact. Until they were published, I just couldn't believe that any judge could understand the technical and business issues related to MS's anti-competitive practices. But he Got It, right on the money, better than my wildest dreams. The Findings of Fact are still the best statement of MS's wrongdoing, and as everybody always mentions, the Appeals Court did not overrule any part of those conclusions.
I also frankly can't blame him for his dim view of Microsoft. They behaved like the worst kind of gangsters in his courtroom, lying under oath, intimidating witness, and manufacturing evidence, all of it shockingly brazen. To this day, they have not shown the slightest sign of insight, remorse or willingness to compromise, even after being convicted in the Federal courts. Judges do not look kindly on attempts to deceive them, for understandable reasons.
Jackson probably just couldn't stop himself from saying what he thought of the defendant, and many of us might have succumbed to the same temptation. If he had given his interviews after the conclusion of the case (including all of the appeals and settlement negotiations), it might have gone a long way toward educating the public about this company -- ruthless corporate crooks long before Enron and WorldCom came along and made it fashionable.
But by coming out with that kind of criticism during the trial, he undermined the message. It leaves the public (not to mention the appeals courts) wondering whether the conviction and punishment were the work of an overzealous judge. Certainly MS can dismiss his Findings of Fact that way. Despite what Jackson says in his rebuttal, the "appearance of impartiality" is essential and indispensible. Otherwise, a public that, for the most part, isn't familiar with the technical and economic issues cannot be sure whether a company like MS is really as bad as they say, and really got what they deserve.
Free Speech Issue? (Score:5, Insightful)
Re:So, the rules are bad? (Score:3, Insightful)
Re:I'm Torn... (Score:5, Insightful)
This is where the problem lies. In order to ensure that both parties get an equal shake at stating their case, the judge must be considered a neutral party from the get-go. The judge's role is not to impose his own opinions on a case, but to impose the correct interpretation of law that is applicable. His opinions and cbeliefs on the matter should have no reflection on the outcome of the case.
Judges, however, are as human (and imperfect) as the rest of us. We all have our biases and beliefs, and we should not expect a judge to be any different. It is (at least in my opinion) impossible to expect a judge to be truly neutral in their own mind. But at the very least the judge should present the image or impartiality when it comes to cases they are residing on. A judicial system cannot function successfully at providing justice if it is not perceived as providing that justice to all people equally.
If 'judge' Jackson does not like the responsibility and duties of passing himself off as a truly neutral party in a court case, then he should resign from the bench and return to practicing law privately. At least then if he was to shoot off his mouth prematurely it would be normal and considered (unfortunately) part of the normal politics of law.
Why would a Judges Bias be wrong? (Score:4, Insightful)
First off, the appeals never showed that J. Penfield demonstrated bias BEFORE the trial began. The apeals point out that interviews "early" in the trial show that he as already siding with the prosecution. FOR SHAME!!!
Keep in mind that was AFTER those MS monkeys rigged a demonstration of their software, bribed witnesses, and been caught purgering themselves more than once. I'd be bias too!!
And as long as the bias developed durring the case, what difference should it make? Isn't that what Judges are supposed to do?
Granted, talking to the media was unecesary, and maybe Penfiled had some "Edo" envy, but I don't see how it is wrong. It's not as though national secrets were at issue, or MS was being slandered (no one trusts them anyway).
I'm not looking for a witch hunt (is Bill heavier than a duck?), but Penfiled was right. His rulling was taken away from him on the basis of politics and bribes.
Re:The judge was incompetent (Score:2, Insightful)
And yes, Microsoft needs slapping just like mentioned mule, but he should say it ex cathedra not in a interview.
Re:So, the rules are bad? (Score:4, Insightful)
The right to know what? The transcripts for the trial are freely available, but his comments outside of court made him appear biased, whether he actually was or not.
Maybe this will help free some information to the people in this process. It is a shame that a company is getting away with such a miscarriage of justice in this case simply because the judge made a few comments.
The comments he made simply got him removed from the trial. They had little weight in the other portions of the case the appeals court overturned or sent back to the court for review. It seems that this isn't the only rule that Judge Jackson had a problem with, as he ignored quite a few others during the trial, all of which are cited in the appeals court's ruling.
Re:I'm Torn... (Score:5, Insightful)
I certainly would like to know if the remedy would have stood on the merrits, and I think it is pretty weak for them to use this as the only or primary reason to strike his ruling. We all understand the tactical reasons to err on the side of silence in this situation, but the Judge Jackson also raises an important point. Is it really necessary to have complete silence in this situation, and it particular, does it serve the public interest. For MS lawyers they were engaged in the battles of an extended war, and they would spare no tactic no matter how damaging to the process.
If he had waited to comment on MS tactics it might have been better, but I'm not sure. The fact is that MS might win in court anyway with their take no prisoners approach, or a least delay until it no longer matters. After all this worked for IBM in the past. Given this, it is better for the public to know more about what is going on at the time it is happenning.
To change the example ... In Illinois there is a criminal case that is still lingering in the public attention because some of the players are current candidates. A man was convicted of murder and later overturned when the DNA evidence cleared him. The prossecuters kept going to court and apposing any reversal, even though evidence was gathering of misconduct on the government side. At some point it is appropriate for a judge to publicly condemn legal manuvering that continues to delay justice. Justice delayed is justice denied.
Re:Mis-judged (Score:2, Insightful)
If I remember correctly, MS tried to have him removed fairly early on because they believed he would be biased by earlier cases related to MS which he oversaw (previous antitrust case?), but that didn't happen. It's only natural that they'd go on to bring up an appearance of bias in the appeal, and Jackson should've been aware of that possibility.
Re:Free Speech Issue? (Score:2, Insightful)
If you're sitting in judgment over people's actions (or corporations'), as the Appellate Court points out, you must express your views in the court room! so that the defendant has a chance to answer your criticisms either in that courtroom or in an appellate court.
Jackson defends himself with the argument that people have a right to know what's going on in the courtroom. The parties to a case, however: those most directly affected by the judgment have a much stronger claim - one that Jackson totally ignored.
While totally in favour of Jackson's ruling and findings of fact, I strongly believe that his was one of the worst displays of judicial irresponsibility we have recently seen.
Re:Mis-judged (Score:3, Insightful)
"Ironically, the appeals court reaffirmed the core of Jackson's work, which found in United States of America v. Microsoft Corp. that the software giant had illegally abused its monopoly position to undermine competition in the software marketplace."
We're just waiting for another 'remedy'.
Re:The Island of Doctor Moureau (Score:1, Insightful)
Re:Not talking so much would have helped the cause (Score:3, Insightful)
Bearing in mind the administration change in the whitehouse, that's probably the best he could have expected.
Re:No one give a flying f**k (Score:4, Insightful)
Merely posting on /. saying "Someone against Microsoft is not necessarily correct" is not flamebait.
You just have to read the appeal ruling to see the incompentence and/or bias (hard to tell which it is). The fact that 1/3 of his rulings were overturned, and another third remanded back for retrial should be evidence enough.
Unless of course, failing to rule against Microsoft purely on the basis that, well, they're M$, the Beast of Redmond, dude, is conclusive proof that the appeals judges are biased. See the appeal ruling [microsoft.com] (or here [com.com] if you can't bear to surf to microsoft.com).
Of course on the other hand, the fact that 1/3 weren't either overturned or remanded indicates that Microsoft were in the wrong and/or incompetent. In my opinion, the indications are that the J++ ruling at least was MS incompetence, though others are clearly MS bad.
He's right, and here's why (Score:5, Insightful)
Keep in mind that the judges were Chicago School adherents -- believers in the notion, heavily relied on in the business community, that monopolies are natural beasts and should not be controlled, and that past rulings on such were errroneous and should be ignored. Judge Jackson had in this regard and others offended these extremely opinionated judges. After he heard they had taken the appeal, he knew he was a dead man. The virulence of the personal attack, rare in such circumstances, as well as the fact that they agreed with his assessment of Microsoft's behavior, and nuked his decision anyway, shows that Jackson had once again judged correctly.
If Jackson had appeared on a throne with cherubs and a personal reference from God, these judges would have slashed him anyway. It was an economic/political act against a judge they considered a monopoly regulator, as well as other liberal crimes -- amazing since he is considered a rather conservative judge.
The "rule" against judges talking Jackson dissects with skill, showing the essential stupidity of it. Why in the world can't a judge answer questions about his thinking process? I wish to God Scalia and Thomas would answer some really tough questions about their Bush v Gore decision. They stand alone against almost all Constitutional scholars with their logic; I'd like them to answer to the people for what they have done.
I don't think the judges would have savaged Jackson had he not been Jackson. It was an attempt by vicious men with a political and economic axe to grind to destroy a fellow judge, and nothing more. Oh, perhaps more: to save Microsoft from their economic enemies, regulators.
Those judges destroyed the judgement against Microsoft almost as effectively as Bush's actions with the DOJ. A shame, since Microsoft lost.
If you are rich enough, you can't be touched.
Re:Not talking so much would have helped the cause (Score:3, Insightful)
The whole problem was that he had a "cause". As a judge, he should be upholding the law, whether he agress with it or not. His "causes" shouldn't enter into it at all. By virtue of being a banner waver for his "cause" he showed that he could have possibly been tainted in his decision. He shouldn't worry about his "cause", or the appeal, or anything other than making the correct legal decision.
Re:He should have kept quiet (Score:4, Insightful)
I also frankly can't blame him for his dim view of Microsoft. They behaved like the worst kind of gangsters in his courtroom, lying under oath, intimidating witness, and manufacturing evidence, all of it shockingly brazen.
Why weren't any of these shenanigans rewarded with chanrges of Perjury or Contempt? That would seem a more appropriate (and satisfying) consequence.
Re:So, the rules are bad? (Score:5, Insightful)
Well, despite any notions of 'judicial disobedience', if Judge Jackson had have kept his yap shut, Microsoft could be split in two right now. (Though I'm not sure whether this would have been a good or a bad thing.)
They had some disadventages (Score:3, Insightful)
Re:Not talking so much would have helped the cause (Score:5, Insightful)
In some cases he did that. His Findings of Fact were so well-written and thorough that the only possible conclusion was that Microsoft had violated the Sherman Act. In other cases, he did not. One of Microsoft's eternal strategies when they're in court is to goad and provoke judges into saying something intemperate -- voila! Instant grounds for appeal when/if they lose.
Jackson is smart enough to know that and should have had sense enough to keep his tongue in check. Plenty of time _after_ the trial to become known as The Judge Who Broke Up Microsoft and possibly get on a short list for an Appellate Court position.
On a related note, I have to wonder what's taking Judge Kollar-Kotelly so long to issue her ruling. The facts are clear, the public comment is long over, and justice delayed remains justice denied.
Re:So, the rules are bad? (Score:5, Insightful)
He said disparaging things about Microsoft's witnesses after he had heard their testimony and read their depositions. This makes him "sound biased?"
A bias, in the pejorative sense, is a propensity to make a certain kind of judgment independently of the evidence. However, these guys LIED TO HIS FACE, repeatedly. So if he comes to the opinion that they are not trustworthy folks, he's not biased, he's making a judgment on the basis of the evidence.
Or, go ahead and call that "bias" if you like. But then it's no sin to be biased.
The Rules Are Good (Score:2, Insightful)
Re:I'm Torn... (Score:2, Insightful)
Re:More plain speaking judges (Score:4, Insightful)
Ok, let's say you're on trial for insurance fraud. In the middle of the case, while the trail is underway, the judge makes a statement to the media where he expresses his personal dislike for you, strongly implies that you're guilty as sin, and states that you should be severely punished for your crimes. That's his "honest reaction", so it's ok with you?
Of course it isn't. Judges have no business publically expressing their personal opinions on or being political pundits while in the middle of a legal proceeding. Their job is to be impartial, and anything less is unfair to everyone involved.
Re:More plain speaking judges (Score:3, Insightful)
Like I said, read the article, he presents a well reasoned case for judges being more forthcoming in some cases. He even addresses the concern that public comment could be made to gather media fame, but that should not stop him from commenting in all cases.
The tenor of the argument is addressed directly to his fellow judges, and in particular to the appelate court that saw fit to rebuke him in a most public way and with direct terms calling into question his judgement. He is right, and they are wrong (in my opinion).
Re:I'm Torn... (Score:2, Insightful)
If any judge were free to express without hesitation their opinion on a matter before them, the lawyers would have a field day appealing the cases. All it would take is a single comment by the judge against a defendant and, in no time flat, the lawyers have an appeal ready, claiming the judge was prejudiced and was going to convict no matter what the evidence.
The image of impartiality is critical for a function legal system. It has nothing to do with putting on a false facade, or deceit, but to do with an imperfect system that has enough issues these days trying to determine justice without being made to look biased and prejudiced (note the word: pre + judged) by judges who should know the damage caused by their words far outweighs their urge to speak them.
Personally...I think that's a small price to pay when given the responsibility of deciding another person's fate.
Cognitive Dissonance -- big time (Score:3, Insightful)
Wow! Justice Jackson strikes a grand blow against the supposedly tactful silence that's intended to shield justices from the world!... But later:
Er, Justice Jackson strikes a blow in favor of politic silence, because criticism undermines the respect people have toward the judiciary?
I'm a reasonable person. Jackson's constant interviews during the MS process sure struck me as biased. He spoke much too often, and much too candidly, to the media for any semblance of impartiality to be left. Maybe MS's conduct deserved contempt from the presiding judge, okay, but he couldn't direct that reaction appropriately. Now he feels personally attacked by the appeals court. In self-justification he's started sliding over obvious distinctions: that "quite possibly forever" in the first quote is a fudge meant to blur the stark rule not to talk about pending cases in particular.
He should've written this article, if he wanted to write it, before the case. If he wanted to float this trial balloon about judicial conduct, was a case of this importance the place to do it? No way.
Re:The Island of Doctor Moureau (Score:5, Insightful)
Actually, in any field where you have enough specialization, there is a considerable amount of "targeted" speech. To put it another way, words can have very specific meanings and often their use is carefully chosen to reflect those meanings. It has nothing to do with using big words for their impressive size or their occult nature.
For instance, I have a good 18 years of post high-school education in biomedical sciences including a not insignificant amount of mathematics. A couple of months ago I went to a presentation of a friend of mine in computational sciences concerning the description of hyperdimensional spaces and how to represent them. (I am using variants of these methods in my research, thus my interest) And here is the deal.....the talk sounded like a foreign language to me. Very esoteric mathematical proofs etc... and I was totally out of my element. However, the audience (members of comp sci, companies like Evans and Sutherland, SGI, Adobe and yes...Nvidia gave him a standing ovation and were obviously impressed and knew exactly what he was talking about. Last week he attended a biomedical/ophthalmology grand rounds presentation I made and he described the same experience to me.
Moral of this story.....don't be so harsh on Judge Jackson simply because you don't understand him. There is an audience that knows exactly what he is talking about including your "Big Thinks" and appreciates it.