Govt Brief to Defend Judge's Microsoft Breakup Decision

Article excerpt

WASHINGTON, D.C., U.S.A., 2001 JAN 11 (NB) -- By Brian Krebs, Newsbytes. In their reply brief expected on Friday, attorneys for the Justice Department are likely to argue that US District Judge Thomas Penfield Jackson's extrajudicial comments about Microsoft Corp. are not enough to overturn Jackson's decision to split the software giant into two separate companies, legal experts say.

In a 150-page brief filed with the US Court of Appeal for the D.C. Circuit last November, Microsoft attacked Jackson for comments he made during and after the trial - both in and out of the courtroom - saying such utterances "would leave a reasonable observer to question his impartiality" in hearing and ruling on the landmark antitrust case.

The government's case has become tougher since the New Yorker magazine last week excerpted portions of an upcoming book by author Ken Auletta on the ups and downs of the trial, quoting Jackson calling Microsoft attorneys a bunch of "liars." According to Auletta, Jackson also jabbed at the appeals court's 1998 decision in a separate Microsoft appeal, saying the appeals court justices "made up 90 percent of the facts on their own."

Robert Lande, a professor of law at University of Baltimore, said the government cannot afford to brush over the accusations of Jackson's misconduct in its filing, due to the appeals court on Friday.

"It's fine for Jackson to say he listened to (Microsoft lawyers) for a year and they're a bunch of liars, because - while we may not be used to hearing it in such strong terms - those are the sorts of decisions judges are called on to make," Lande said. "But to my mind, for him to have said 'I want to put the court of appeals in a box' because they got it wrong the last time,' is very risky. Can't you just see the appeals court turning around and saying, 'Hey, we'll put you in a box?'"

In 1998, the D.C. Court of Appeals overturned an earlier judgment Jackson issued against Microsoft, one that would have forced the company to produce and sell versions of its operating system that did not include its Internet Explorer browser. …