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Signaling serious reservations about several aspects of the Microsoft antitrust trial, seven judges on the U.S. Court of Appeals for the D.C. Circuit hammered hard at government attorneys Tuesday while going relatively easy on Microsoft lawyers. In the final day of an unprecedented two-day oral argument, the appeals court tackled three issues — Microsoft’s attempt to monopolize the Internet browser market, the company breakup ordered by U.S. District Judge Thomas Penfield Jackson, and Judge Jackson’s anti-Microsoft comments in speeches and press interviews. On each issue, the court seemed highly dubious of the contentions made by David Frederick of the U.S. solicitor general’s office and John Roberts Jr. of Washington, D.C.’s Hogan & Hartson, the two lawyers arguing on behalf of the government. At times, some of the judges even seemed to be grappling with the specifics of a possible remand to the District Court for more hearings. After 78 days of trial, Jackson ruled last June that Microsoft violated federal antitrust laws, and ordered it split into a computer operating systems company and an applications company. Though the details of the antitrust laws and the software industry dominated Monday’s arguments, Tuesday was largely devoted to Jackson’s conduct in and around the historic trial. Microsoft’s appeal argues that it was prejudiced by Jackson’s public comments following the trial. Roberts began his presentation with a blunt concession that was clearly intended to take the sting out of an anticipated attack on Jackson’s extensive speeches and press interviews. “I have no brief to defend the judge’s decision to discuss the cases publicly while it was on appeal, and I have no brief to defend the judge’s discussing the case with reporters,” Roberts said. But Roberts insisted that under Supreme Court case law, even a violation of a judicial canon — something Roberts said had occurred — did not require that Jackson’s conclusions of law be rejected or that the trial judge be recused from the case. The lawyer’s concessions appeared not to deter the appeals judges from setting out after Roberts en masse. Judge A. Raymond Randolph noted that Jackson had spoken extensively about the merits of the case with author Ken Auletta during the trial, with the understanding that the interviews could be published after Jackson had ruled. This “embargo,” Randolph said, “makes it worse,” since it concealed from the appeals judges for the entire length of the trial that the interviews had gone on. “Had we known, we surely would have taken [Jackson] off the case,” an exasperated Randolph said. Judge David Tatel noted that Jackson had publicly compared Microsoft executives to the Newton Street Crew, a violent D.C. street gang whose members had been prosecuted before Jackson, because in his view neither group was willing to acknowledge its wrongdoing. “Let’s assume he’s not biased and was simply trying to articulate a point,” said Tatel. “But what would a reasonable member of the public think about whether this judge was biased against this defendant? This is an appearance standard.” Roberts replied that the statement was based on what Jackson concluded about Microsoft during the trial, so it didn’t reflect any prejudgment, and that was merely a metaphor for Microsoft being reluctant to learn from its mistakes. Chief Judge Harry Edwards, speaking rapidly and sternly, did not hold back his views. “There are a lot of things that we as judges conclude about advocates and parties. That doesn’t mean we should run off our mouths. The integrity of the system is at stake. … This is beyond the pale. How can anyone assume anything but the worst?” Edwards said. Roberts, addressing the appearance of impropriety issue, responded, “I don’t think that a reasonable observer believes that these people are drug dealers.” Earlier, Frederick ran into the same difficulty with Edwards that his colleague, Jeffrey Minear, had on Monday. It related to the nature of the market that Microsoft had allegedly attempted to monopolize. Edwards said, “Sleights of hand are going on as to whether we are talking about a browser market or a platform market. The District Court made no finding on the relevant market.” Frederick replied, “I would concede that, but the court can still affirm if it finds facts in the record to support a market. There is support in the record.” Judge David Sentelle picked up the theme: “If there isn’t a proper finding on this, then we’d at least have to send this back for some trial judge to weigh in.” Frederick repeated, “There is enough evidence in the record.” Edwards retorted, “You’re still going back and forth between the browser and the platform markets. They are distinct. We really have studied this record, and we understand this.” On the issue of the remedy for Microsoft’s alleged antitrust violation, the judges hardly interrupted Microsoft’s lawyer, Steven Holley of New York’s Sullivan & Cromwell. “The District Court put in sweeping relief without a hearing. It was a rush to judgment. … No account was taken of grievous harm to Microsoft and to third parties. The trial judge cited newspaper articles and factually incorrect assertions by government experts,” Holley said. Frederick countered that the government and the trial judge gave Microsoft plenty of advance notice that there might be a breakup order. Tatel asked him, “If the defendant has a right to a hearing [on the remedy], what difference does it make that they were made aware of the possibility of a breakup?” Frederick said there were “no contested issues of fact” on the remedy issue and that Microsoft hadn’t come forward with objections to a breakup. But Judge Randolph reminded Frederick that Microsoft had made a proffer of evidence, including testimony by its then-chairman, Bill Gates, about the harmful effects of a breakup, and Jackson had said it was not needed. “Are you suggesting that they waived a hearing?” Randolph asked. “No, I wouldn’t use the word ‘waiver,’ ” Frederick responded. Should the court send the case back to a trial judge, whether or not it is Jackson, observers believe it would spur immediate settlement negotiations, especially as the Bush administration is thought to be more sympathetic to Microsoft than the Clinton-era Justice Department. The D.C. Circuit is expected to rule sometime this spring, though there is no firm deadline for an opinion from the court.

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