- The Washington Times - Friday, June 29, 2001

U.S. District Judge Thomas Penfield Jackson, who made derogatory comments about Microsoft while hearing the firm's antitrust trial, has been viewed by lawyers as a "straight shooter" in his handling of cases, but many believe he got too personally involved in the case against the software giant.

"His conduct in this case was surprising to many of us," said one longtime Washington lawyer and former Justice Department official. "He's always been careful about his rulings, precise in following the law so much so that we knew him as the ultimate straight shooter.

"But he got too personally involved in this case and took sides rather than simply adjudicate the law," said the lawyer, who asked not to be identified.

Another Washington lawyer and former prosecutor said Judge Jackson never before had allowed himself to become so personally involved in a case, calling his actions in the Microsoft suit including public comments he made about the still-pending case "inexcusable."

"No judge is suppose to talk publicly about a pending case, as Judge Jackson did in the Microsoft suit," said the lawyer, who also requested anonymity. "The judge's conduct was inexcusable. Parties involved in pending case have every reason to think that their rights have been infringed upon when a judge speaks publicly about the case."

A federal appeals court yesterday upheld Judge Jackson's controversial ruling last year that Microsoft violated antitrust laws, but in a unanimous 7-0 vote reversed his ordered breakup of the software firm and ruled that a new judge be named to decide what penalty it should face.

The U.S. Circuit Court of Appeals for the District of Colombia said Judge Jackson had committed "serious judicial misconduct" in giving the appearance in public statements that he was biased against Microsoft.

The court said the judge had granted "secret interviews" during the trial that gave a "select few" inside information about the case.

It said the public "cannot be expected to maintain confidence in the integrity and impartiality of the federal judiciary in the face of such conduct."

A Virginia lawyer familiar with Judge Jackson and his courtroom decisions said several of his colleagues openly questioned the judge's public comments about the Microsoft case to the news media, particularly an interview with The Washington Post within hours of his ruling in the case.

"Referring to Microsoft owner Bill Gates as Napoleon and comparing the firm to a murderous street gang, as Judge Jackson did in his public statements just, can't be allowed to stand," said the lawyer, who also asked not to be named. "I would have never expected this judge to do that."

A former Justice Department lawyer now in private legal practice said Judge Jackson's public discussion of a possible settlement in the case was "inappropriate."

Some federal law enforcement authorities and other lawyers close to the case said Judge Jackson allowed himself to be used as a "patsy" by the Clinton Justice Department.

They said it gave President Clinton an opportunity to use the case as payback to the class-action lawyers who helped bankroll his presidential campaigns.

Judge Jackson, 64, was appointed to the bench in 1982 by President Reagan. A graduate of Dartmouth, where he earned a bachelor's degree, he received his law degree at Harvard University. In private law practice in Washington from 1964 until 1982, he served as Republican precinct chairman for Montgomery County from 1966 to 1972.

His caseload lately has been relatively light since he was assigned in 1997 to hear the Microsoft antitrust lawsuit. But he already had made several noteworthy rulings, including:

•An April 1997 order striking down as unconstitutional the line-item veto giving presidents authority to veto individual items in tax and spending bills. He ruled Congress had given veto power to the president it could not legally delegate.

•Refused in 1991 to block the District from closing homeless shelters, rejecting arguments the closures discriminated against handicapped homeless persons. He said D.C. officials were free to assign the homeless "a lesser priority than they have had in the past."

•His assignment in 1990 and 1991 to preside over the perjury and cocaine possession trial of former D.C. Mayor Marion Barry, who was convicted on a misdemeanor count of possession and acquitted on 13 other charges. Judge Jackson sentenced Mr. Barry to six months in prison, the maximum allowed under the law.

•A 1987 decision naming him to preside over the trial of former White House aide Michael Deaver, charged with perjuring himself in testimony before a House subcommittee and a federal grand jury. Mr. Deaver was convicted on three of five counts after a six-week trial.

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