WASHINGTON -- If you're a lawyer for the Justice Department, the last place you wanted to be Tuesday was anywhere near Courtroom 20 in the federal courthouse on Pennsylvania Avenue.
That's where seven appeals court judges spent over an hour denouncing the conduct of U.S. District Judge Thomas Penfield Jackson, who ordered a breakup of Microsoft and has an unfortunate habit of trash-talking about the company in private meetings with reporters.
In a highly unusual session devoted to exploring the wayward conduct of a judge whose courtroom is four floors below, members of the D.C. Circuit Court of Appeals suggested that Jackson had violated a code of judicial ethics through more out-of-court chatter than any other judge in U.S. history.
Left to defend Jackson -- who did not make an appearance -- was David Frederick, the DOJ's assistant to the solicitor general. Frederick argued that Jackson's comments may have been somewhat "inappropriate," but they did not represent grounds for reversal.
In heart-to-heart chats with selected journalists brought into his chambers, Jackson served up quotable but unflattering comments about Microsoft, at one point likening company executives, including Bill Gates, to "drug traffickers" and "gangland killers."
Ever since the quotes from the interviews with Jackson began to appear in newspapers immediately after his breakup ruling, which is temporarily on hold during the appeal, Microsoft has used their existence as one additional reason that an appeals court should grant the company a new trial.
Probably the most visibly enraged member of the panel during Tuesday's midday session was Harry Edwards, the chief justice.
"We don't run off our mouths in a pejorative way.... The system would be a shambles if all judges did that," Edwards said. "Good heavens, is that what judges do? They take preferred reporters in?"
He said that contrary to the government's claims that Jackson's comments showed no bias, "he's so far from anything that seems benign." Edwards wondered whether Jackson's conduct "violates the whole oath of office."
While no judge defended Jackson's comments, it's not clear what the appeals court will do in response to their apparent outrage. They could grant Microsoft a new trial, or part of a new trial. They may also say that Jackson's conduct is wrong -- but is not grounds by itself to send the case back to a lower court.
In the Code of Conduct for United States Judges, Canon 3A(6) says that "a judge should avoid public comment on the merits of a pending or impending action." Accompanying commentary says: "The admonition against public comment about the merits of a pending or impending action continues until completion of the appellate process."
Judge David Sentelle hinted that he believed that any unethical conduct on the part of Jackson could endanger the "findings of fact," Jackson's initial anti-Microsoft ruling in late 1999 that represents the linchpin to the government's case.
"We believe the findings of fact are exhaustively supported by the record," Sentelle said. But, he said, that's based on an assumption that the judge is neutral.
"Why is the finder of fact entitled to deference anymore?" Sentelle asked.
For the DOJ's Frederick, the harrowing experience appeared to resemble being set upon by a pack of hungry carnivores. He was left with little to say beyond that Jackson's conduct "is improper."
Shot back Edwards: "It's beyond the pale. It's so extraordinary."
The DOJ, which is trying its best not to be denuded of those very favorable rulings from Jackson, argued that federal guidelines suggested that actual bias -- which is much more difficult to prove -- must be present instead of the "appearance" of bias.
Judge A. Raymond Randolph said that because Jackson agreed with reporters to embargo the interviews until after his verdict, he knew that his conduct was wrong and should have recused himself.
"Had he not placed that embargo, he would have been off the case in a minute," Randolph said. Randolph and other judges stressed that Jackson may not actually have been biased, but even the "appearance" of bias creates a serious problem.
"We are not defending the judge's decision," replied a cowed Frederick.
In its legal briefs, Microsoft had accused Jackson of being a stranger to logic, ignorant of technology, a media blabbermouth and preternaturally biased toward the Justice Department's point of view.
This isn't the first time Jackson has been criticized for telling the world how strong he thought the government's case was.
In a 1991 prosecution of former D.C. mayor-for-life Marion Barry, Jackson told a gathering at Harvard Law School that he had never seen a stronger government case and was upset the some jurors would not vote to convict.
A majority of the appeals court at the time decided not to reprimand Jackson, but a sharply worded dissent said: "It is worth noting that the district court judge could have recused himself in this case.... The recusal option was a compelling one."
The First Circuit Court of Appeals recently ruled that a district judge should not have given an interview to a Boston Herald reporter about an ongoing case involving the school district.
According to the appeals court: "The problem, however, is that regardless of (a judge's) actual impartiality, a reasonable person might perceive bias to exist, and this cannot be permitted.... With such public attention to a matter, even ambiguous comments may create the appearance of impropriety that (the rule) is designed to address."
The two-day oral argument before the appeals court ended Tuesday. Now the court will weigh the case and, observers predict, release its ruling in the next few months.
