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For most reporters, covering the 78-day civil trial against Microsoft was an exercise in frustration. U.S. District Judge Thomas Penfield Jackson gave almost nothing away to the press. Those trying to divine his intentions were reduced to studying the way he chewed on ice. But Jackson was doing what judges are supposed to do: keeping his mouth shut. Or so everyone thought. It turns out some journalists didn’t have to wait for Jackson’s decision to find out what he really thought. Almost seven weeks before he issued his ruling against Microsoft, Jackson met with Ken Auletta, a reporter for the New Yorker. They got together in the judge’s book-lined office Sept. 22, 1999 for a four-hour interview — the first of four discussions. In those talks, Jackson compared Microsoft’s leaders to inner-city gangsters and questioned the competency of the appellate court judges who would review his rulings in the case. Auletta knew he was witnessing an extraordinary moment: Jackson’s statements were a breach of the ethical code that bars judges from publicly discussing pending cases. And by opening up to Auletta, Jackson was placing his own decision in jeopardy. “He was talking to me with the bark off,” says Auletta, who agreed not to publish Jackson’s comments until after the judge made his decision. “He was enraged by what he thought was [Microsoft's] false testimony and arrogance.” Auletta wasn’t the only lucky reporter. In the weeks that followed, journalists from the New York Times and the Wall Street Journal, among others, met secretly with Jackson and heard him slam Microsoft Chairman Bill Gates and muse about breaking up the company. As the U.S. Court of Appeals for the D.C. Circuit hears Microsoft’s appeal of Jackson’s breakup order this week, the judge’s astonishing behavior will cast a pall over the proceedings. The question on people’s minds is how such an artful judge could have behaved in such an artless manner, compromising a case that should have been the capstone of his career. “Obviously, people are not too happy,” says an attorney who worked on the government’s case and requested anonymity. “He is jeopardizing the most important thing he’s ever done in his professional career.” Microsoft’s lawyers have seized on Jackson’s indiscretions to argue that the appellate court should, at a minimum, return the case to another judge. “By airing freely with journalists his personal views about Microsoft and its executives,” company attorneys contended in a brief, Jackson “not only violated the code of conduct for U.S. judges, but also raised profound doubts about his impartiality and the fairness of the trial he conducted.” Even if the appeals court agrees with Jackson’s legal findings, his behavior may force the judges to remove him from the case. Regardless, the Bush administration might well decide to drop the suit or settle on terms more favorable to Microsoft. Jackson’s decision to discuss the suit before issuing a final ruling represents a stunning departure from the sphinx-like silence federal judges are required to maintain while a case is being litigated. “It contradicts every conception of sound judicial practice,” says William Kovacic, a George Washington University law professor. “A rational actor would want to preserve the substance of what he has done.” University of Baltimore law professor Bob Lande says that Jackson has almost certainly lost any credibility he might have had with the appeals court. “If you respect the judges, you give them a lot of deference,” adds Lande. “If you think they’re out-of-control clowns, you give them very little deference.” Jackson has now stopped speaking to the press, but in his interviews he hinted at a motive for his actions. “He said that all he was doing was talking for history, for the historical record,” says Auletta. “This is a guy torn between his belief in free enterprise and no government meddling, and his belief in the rules.” This isn’t the first time Jackson’s loose lips have gotten him in trouble with the U.S. Court of Appeals for the D.C. Circuit. In 1990, Jackson, appointed to the bench by President Ronald Reagan in 1982, presided over the drug trial of former Washington mayor Marion Barry Jr. The jury convicted Barry of one misdemeanor possession count and deadlocked on several more serious charges. Jackson bluntly told the jurors that they “will have to answer to themselves and their fellow citizens for the way in which they discharged their duty.” He also criticized the jurors in a speech delivered after the verdict. The appellate court upheld Barry’s conviction, but Judge Harry Edwards, who is sitting on the Microsoft panel, scolded Jackson. What remains to be seen is the extent to which Jackson has torpedoed any chance that Microsoft will suffer significant sanctions. The appeals court has set aside an hour during oral arguments to examine Jackson’s behavior. The judges could not have failed to note, as Microsoft has taken pains to point out, that Jackson told Auletta that the appellate court is filled with “supercilious” judges who “embellish law.” Jackson likely faces no punishment beyond a rebuke from the appeals court and removal from further proceedings. But his reputation will surely suffer. Already, Microsoft has cited Jackson’s alleged bias in asking the judge to recuse himself from a multibillion-dollar racial discrimination case recently filed against the company. “The most precious thing a judge has is good judgment,” says legal expert Kovacic. “You can’t afford to act as if you don’t have any.” Mark Boslet, Dan Goodin and Elizabeth Wasserman contributed to this report. Copyright � 2001 The Industry Standard

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