Thomas Penfield Jackson went so far over the line in harsh comments to journalists about Microsoft that the federal judge deserves the severe criticism he received on Thursday from an appeals court, say a wide array of legal scholars.
The U.S. Court of Appeals for the District of Columbia Circuit issued a stinging rebuke of Jackson for "deliberate, repeated, egregious and flagrant" violations of judicial ethics for remarks he made to journalists throughout the landmark antitrust trial.
"This was an astonishing blunder by a trial judge," said Northwestern University law professor Stephen Lubet, an expert on judicial behavior. "No other judge has ever had such extensive contact with journalists while presiding over a case and it is likely no one will ever do it again."
The 7-0 opinion characterizes Jackson, 64, as a jurist "posturing for posterity." The ruling is laced with detailed references to comments the judge made to reporters forecasting his rulings.
The appellate judges said that Jackson's practice of forbidding journalists to use the information until he ruled made the situation even worse because it gave Microsoft no chance to respond.
"Concealment of the interviews suggests knowledge of their impropriety," the appeals court said.
Jackson agreed to interviews with several journalists, including New Yorker writer Ken Auletta, who wrote a book about the case. While the trial was pending, Jackson told reporters he thought Microsoft Chairman Bill Gates "has a Napoleonic concept of himself and his company." He chastised Gates for delivering testimony that was "inherently without credibility."
Jackson, who was appointed to the federal bench by President Reagan in 1982, compared Microsoft's protest of innocence to the attitudes of gang members in a racketeering case he presided over. Just a month before he issued his order calling for the break up of Microsoft, Jackson told reporters that judges on the appellate court that would review the case are "supercilious," lacking in practical trial experience and utilizing "superficial scholarship."
In Thursday's ruling, the court of appeals acknowledged that it had found "no evidence of actual bias" by Jackson.
However, the appeals court ruled that Jackson's actions had "seriously tainted the proceedings . . . and called into question the integrity of the judicial process. The public cannot be expected to maintain confidence in the integrity and impartiality of the federal judiciary in the face of such conduct."
The court lamented that Jackson had failed to heed the cautionary words of Judge Learned Hand, who wrote in 1953 of "this America of ours where the passion for publicity is a disease, and where swarms of foolish, tawdry moths dash with rapture into its consuming fire."
More specifically, the appellate court said that Jackson had violated three critical ethical precepts embodied in the Code of Conduct for United States Judges: Refrain from comment on the merits of pending cases; "avoid impropriety and the appearance of impropriety in all activities," and do not initiate or consider out-of-court communications on the merits of pending cases.
Additionally, the U.S. Judicial Code provides that judges must recuse themselves when their "impartiality might reasonably be questioned." The appellate court said that Jackson's conduct certainly crossed that line.
USC law professor Erwin Chemerinsky applauded the ruling, saying the appellate court had followed both the letter of a federal law governing such situations and prior precedents. Chemerinsky said it is rare but not unprecedented for a federal judge to be taken off a case because of comments to the media.
New York University law professor Eleanor Fox said the appeals court's comments on Jackson were "harsh but necessary," because his statements to reporters were "integral to the case."
As a trial judge, Jackson has had a reputation for becoming an expert on issues that his cases revolved around. During the Microsoft trial, he was seen lugging home thick binders on the weekends. At one point, with the help of an aide, he showed that Microsoft's Internet Explorer Web browser could be removed from the Windows operating system--a key point in the case.
This hardly was the first high profile case handled by Jackson. In 1988, he fined former Reagan aide Michael Deaver $100,000 for lying about his lobbying activities. In 1990, he sentenced Washington Mayor Marion S. Barry Jr. to six months in prison for cocaine possession. In 1994, he ordered Sen. Bob Packwood (R-Ore.) to surrender salacious diaries whose details drove him from office.
Experts said it is unclear whether the appellate court would formally reprimand Jackson. The judge has lifetime tenure and can be removed only by impeachment for "high crimes and misdemeanors."
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Judge Jackson, In His Own Words
'I think he [Microsoft Chairman Bill Gates] has a Napoleonic concept of himself and his company, an arrogance that derives from power and unalloyed success, with no leavening hard experience, no reverses.'
The New Yorker, Jan. 15, 2001
'It's procedurally unusual to do what Microsoft is proposing--are you aware of very many cases in which the defendant can argue with the jury about what an appropriate sanction should be? Were the Japanese allowed to propose the terms of their surrender? The government won the case.'
The Wall Street Journal, June 8, 2000
'They [Microsoft's executives] don't act like grownups. . . To this day they continue to deny they did anything wrong.]'
The New Yorker, Jan. 15, 2001
"I am not aware of any case authority that says I have to give them any due process at all. The case is over. They lost. .. I'm suspicious that they are just playing for time, hoping they will get to deal with a new administration."
New York Times, June 9, 2000
Weinstein reported from Los Angeles, Cimons from Washington.