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With one significant exception, the Microsoft Corp.’s brief in the U.S. Circuit Court of Appeals for the D.C. Circuit sticks to typical antitrust matters and technology talk, such as the code used in Internet browsers, competition in the software industry, and the U.S. Supreme Court’s approach to monopolization. Microsoft argues in its Nov. 27 filing, for example, that it competed aggressively but fairly and that computer users will suffer if the appeals court affirms U.S. District Judge Thomas Penfield Jackson’s June 2000 breakup order. But one extraordinary portion of the brief amounts to a direct challenge to the conduct of the trial judge. Placing Jackson squarely in its sights, Microsoft blasts him for relying on hearsay, for not giving it enough time to put on its case, and for imposing the breakup without a hearing on the remedy issue. Most notably, Microsoft assails the judge for things he did outside the courtroom. The company’s lawyers point out that Jackson granted a series of media interviews on June 8, the day after he entered his final judgment but before he dealt with post-trial motions. They claim that the appeals court should vacate Jackson’s order on this basis — and if the case has to be retried, that it be assigned to another judge. Microsoft says that Jackson violated Canon 3A(6) of the Code of Conduct for United States Judges, which says that federal judges “should avoid public comment on the merits of a pending or impending action.” The remedy for such misbehavior, Microsoft argues, is to disqualify Jackson from the case — especially since, in Microsoft’s view, the comments he made to reporters showed he had a bias against the company. For example, Jackson told two New York Times reporters that company executives were similar to “drug traffickers” caught on telephone wiretaps. He told a Financial Times reporter that Bill Gates “is an ingenious engineer, but I don’t think he is that adept at business ethics.” BARRY DRUG CASE CITED The case law about recusing trial judges for their out-of-court statements is relatively sparse and includes rulings and language from which both sides can take comfort. The leading recent D.C. Circuit case, one that Microsoft cites, actually went against Microsoft’s position — and involved none other than Judge Jackson. In 1991, lawyers for then-D.C. Mayor Marion Barry Jr., who had been convicted in Jackson’s court on a drug charge, asked the D.C. Circuit to issue an emergency writ of mandamus to disqualify Jackson from any further involvement in the case. Barry’s lawyers claimed that Jackson had shown “an appearance of partiality” in his statements outside the courtroom. They pointed out that Jackson, in a speech at Harvard Law School after Barry’s original sentencing, opined that although the jury had failed to convict Barry on most of the charges, the judge had never seen a stronger government case and that some jurors apparently had their own agendas and would not convict under any circumstances. As it happened, the case later ended up before Jackson again for resentencing. The circuit, however, voted 2-1 to deny Barry’s motion. “A judge’s candid reflections of what he has inferred from the trial about the defendant’s character and conduct simply do not establish bias or prejudice,” wrote Judges Laurence Silberman and Stephen Williams in a per curiam ruling. Judge Harry Edwards, in a strong dissent, wrote that “the integrity of the judicial process would be seriously doubted if judges were free to air their views on pending cases outside of the appropriate judicial forum. Whenever such an occurrence arises, a judge should recuse himself to protect the sanctity of the judicial process.” Microsoft cited that language in its appeal brief. Edwards, now chief judge, and Williams are among the seven judges who will hear the Microsoft appeal. Silberman, now a senior judge, recused himself long ago from Microsoft matters. Another key decision that Microsoft is relying on is United States v. Cooley, from the 10th Circuit. In that case, U.S. District Judge Patrick Kelly of Kansas had appeared on ABC’s “Nightline” to warn abortion protesters that they were “breaking the law” after he had issued an injunction against them. The circuit vacated the protesters’ convictions and sent the case back to the trial court, ordering that Kelly be removed from the case and a different judge assigned. In language that resonates in the Microsoft case, the 10th Circuit took note of “the judge’s expressive conduct in deliberately making the choice to appear in such a forum at a sensitive time to deliver strong views on matters which were likely to be ongoing before him.” “These messages unmistakably conveyed an uncommon interest and degree of personal involvement in the subject matter,” the court wrote. “It was an unusual thing for a judge to do, and it unavoidably created the appearance that the judge had become an active participant in bringing law and order to bear on the protesters, rather than remaining as a detached adjudicator.” And in 1995, then-U.S. District Judge David Edelstein of New York, who had been presiding for decades over various antitrust cases and hearings against IBM, was removed from an IBM case by the 2nd Circuit. The circuit cited comments that Edelstein made in court that were critical of the government’s decision to dismiss a landmark antitrust suit against the computer company. It also cited newspaper interviews that the judge had given to The Wall Street Journal and The New York Times. “We think it manifestly clear that a reasonable observer would question the Judge’s impartiality on the pending issue,” the court wrote. Microsoft’s Nov. 27 brief was written jointly by four groups of lawyers: a team at New York’s Sullivan & Cromwell, the company’s lead trial counsel, headed by John Warden; a team at Washington, D.C.’s Covington & Burling headed by Charles Rule; a team at the Washington, D.C. office of Chicago’s Sidley & Austin, led by Carter Phillips; and an in-house team directed by Microsoft’s top in-house lawyer, William Neukom. The government’s reply brief is due Jan. 12.

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