Microsoft Appeals Breakup Ruling

Feb. 27 -- A panel of appeals court judges ripped into the judge who ordered that Microsoft be split apart today, saying his anti-Microsoft comments to journalists were "beyond the pale."

"The system would be a sham if all judges went around doing this," Judge Harry Edwards told government lawyer John Roberts in the final phase of the two-day appeal of Judge Thomas Penfield Jackson's June 2000 ruling that Microsoft is an abusive monopoly.

Jackson made out-of-court statements disparaging Microsoft to a journalist, Ken Auletta, who published them in a book, World War 3.0.

"What the statements suggest is actual bias" against Microsoft, company lawyer Richard Urowsky said.

The judges of the U.S. Circuit Court for the District of Columbia are unlikely to throw the case out entirely because of Jackson's out-of-court statements, ABCNEWS legal adviser Jeffrey Toobin said. But if and when they send it back to a lower court for reconsideration, Jackson probably won't be the judge to reexamine it.

"The court will remove him" from the case, said Donald Falk, an antitrust lawyer with Meyer, Brown & Platt in Washington D.C. who was watching the appeals proceedings.

"Given the magnitude of this case, it's hard to imagine overturning the entire complex judgment just because a trial judge was shooting his mouth off," Toobin said. "But I wouldn't be surprised if an opinion from the court said, 'We don't think it was a good idea for him to be talking this way.'"

Actual Bias?

Over and over again, the judges attacked Jackson for giving interviews to outside journalists during the course of the trial, actions which they said violated the canons of judicial ethics.

"I don't discuss cases with my best friends. That's the way we operate. We're not supposed to do that," Edwards said.

But the judges took a harsh view of Microsoft's position that the whole case should be thrown out based on Jackson's statements. Their questions to Microsoft lawyer Richard Urowsky focused on when Jackson would have come up with his anti-Microsoft opinions, and whether it could be proved that he was actually biased against the company.