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When Judge Thomas Penfield Jackson sat down for off-the-bench interviews following Wednesday’s landmark decision in the Microsoft antitrust case, he said his was a reluctant ruling. But the Washington, D.C.-based federal judge is apparently not reluctant to speak out about a case that is headed for appeal and may come back to him. In doing so, experts say, he comes close to overstepping the boundaries of judicial ethics — a situation he’s been in once before. In interviews with the Washington Post and The Wall Street Journal, Jackson puffed a pipe while sharing his thoughts about Microsoft, CEO Bill Gates, his reasoning behind the order splitting the company in two and even the pending appeal. While Jackson was careful about what he said, the fact that he even gave the interviews left some legal ethics scholars puzzled. “The decision to give an off-the-bench interview in a case that is still pending was ill-advised,” said Stephen Gillers, a legal ethics expert at New York University School of Law. But it’s doubtful that Jackson overstepped his bounds, said Jonathan Arons, a San Francisco legal ethics expert. “If he repeats the same things said in open court, there’s not a problem,” Arons said. … I think he’s fine.” A representative in Jackson’s chambers said the judge would give no more interviews Thursday and would be out of the office today. It has been clear for some time that Microsoft would appeal Jackson’s ruling. On Thursday, it filed for a stay of Jackson’s order pending appeal, claiming the decision will cause “grievous and irreparable harm” to Microsoft and its employees, shareholders and business partners. A Microsoft spokesman would not say if the interviews themselves would be fodder in the appeal. “We won’t comment on that directly, but there are a number of issues raised by what he actually said,” spokesman Jim Cullinan said. According to judicial canon 3A(6), a “judge should abstain from public comment about a pending or impending proceeding in any court.” Most judges are conservative when observing the rule. Jackson is not. In 1990, four days after sentencing former Washington, D.C., mayor Marion Barry to six months in jail after he was caught smoking crack cocaine, Jackson told an assembly at Harvard Law School that several jurors in the case were biased and the evidence against Barry was “overwhelming.” In 1991, the case was sent back for resentencing on a technicality. Jackson imposed the same sentence. Barry appealed to the U.S. Court of Appeals for the D.C. Circuit, claiming Jackson was biased based on the comments he made at Harvard. In U.S. v. Barry, 961 F.2d 260, a three-judge panel held that Jackson’s comments were not out of bounds, ruling that the gist of Jackson’s Harvard speech was similar to what he’d said in court. “Remarks reflecting even strong views about a defendant will not call for a judge’s recusal so long as those views are based on his own observations during the performance of his judicial duties,” wrote Senior Judge James Buckley. In Wednesday’s interviews, Jackson said he grew not to trust Microsoft. “If someone lies to you once, how much else can you credit as the truth?” he told the Journal. Jackson also commented to the Post about the government’s request to send Microsoft’s appeal directly to the U.S. Supreme Court. “I’m favorably inclined towards it. I’ll look at whatever is presented to me,” he said. In the end, it may be the precedent set by his comments in Barry that shield Jackson from reprimand in U.S. v. Microsoft, 98-1232. Jackson had been critical of Microsoft during the trial, especially the latter stages. In his final memorandum and order issued Wednesday, Jackson wrote that Microsoft was “untrustworthy” and painted a picture of an arrogant company still refusing to accept wrongdoing. Arons acknowledges press interviews are “an odd thing to do if the case is coming back to him.” Perhaps given the strong wording of the order, Gillers said the content of the articles was unremarkable. But Jackson’s acquiescence to them was. “The decision to give them these interviews was ill-advised, because it’s quite clear that Microsoft is going to be raising issues of Judge Jackson’s impartiality on appeal,” Gillers said.

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