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As a law school professor with a special interest in the federal courts, I followed the landmark Microsoft antitrust case with concern over what I viewed as Judge Thomas Penfield Jackson’s casual approach to procedure during the trial. My concern turned to real dismay when the judge abruptly cut short the proceedings, decreeing that the world’s largest and indisputably most important software company be broken in two (as the government requested) without even holding hearings on the remedy. And my dismay turned to outrage when it was revealed that Judge Jackson had been holding secret briefings for selected reporters during the trial — briefings that disclosed both his prejudices about the case and his lack of concern for legal due process. It was thus a considerable relief to find that the U.S. Court of Appeals for the District of Columbia, which earlier this month held two days of oral argument in the Microsoft antitrust case, shared my concerns. For while the bulk of the hearings before the seven-member panel of the D.C. Circuit was spent on the standard meat-and-potatoes issues of appellate proceedings, the court specifically set aside time to consider a question that was anything but standard fare: misconduct by the trial court judge. OFF THE RECORD? At issue before the panel were the conversations Judge Jackson had with members of the press. Along with granting time to reporters from The New York Times and The Wall Street Journal, Judge Jackson also gave 10 hours of taped interviews to the writer Ken Auletta of The New Yorker. In the interviews, the judge compared Microsoft to depraved felons, equating Microsoft’s “obstinacy” to the proclamations of innocence of four members of the Newton Street Crew, who were convicted of racketeering, drug dealing, torture and murder during a trial in Jackson’s court five years before. The D.C. Circuit panel hearing the appeal remained polite in pressing government attorneys for an explanation, but they nonetheless were straightforward in their criticism. One judge suggested that such conduct “violates the oath of office.” Another noted: “We [as judges] do not have ex parte communications. I don’t discuss cases with my best friends.” The chief judge of the D.C. Circuit, Harry T. Edwards, underscored the point: “There are lots of things we think and feel about advocates and parties during the course of a proceeding. It doesn’t mean that we are entitled to run off our mouths in a pejorative way. The system would be in shambles if all judges went around doing this.” And another appellate judge declared that Jackson’s seeming discretion in embargoing his inflammatory comments until the trial was over only made his conduct more culpable: “If he had not placed that embargo, he would have been off the case in a minute.” START FROM SCRATCH? It is always hazardous to predict the outcome of an appeal from the questions raised at oral argument. But here the well-earned condemnation of Jackson voiced by the circuit judges makes it fair to surmise that the D.C. Circuit will find judicial misconduct and remove him from the case. And at least one appellate judge raised the issue of whether Jackson’s conduct would force the courts to start from scratch in drawing any conclusions about the legality of Microsoft’s conduct: Why, he asked, should Jackson’s findings of fact and law be given any weight at all in light of what, at minimum, was the appearance of bias? Legal due process should be precious to every American. But the fact that an experienced federal judge chose to ignore principles of judicial conduct is as reprehensible as it is shocking. Fortunately, the D.C. Circuit seems determined to correct the record in the case. Leonard Orland is a professor at the University of Connecticut School of Law and was a consultant to the Federal Courts Study Committee.

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