Microsoft cites precedent for removing judge

Microsoft Corp.’s lawyers Thursday sent a letter to the U.S. Court of Appeals pointing to a precedent for removing a judge who had commented publicly on a pending court case. The move is part of the software vendor’s ongoing attempts to have the judge who ruled in its antitrust case removed.

In April of last year, U.S. District Court Judge Thomas Penfield Jackson determined that Microsoft had broken U.S. antitrust law. He ordered Microsoft to be broken into two pieces and placed restrictions on the company’s business practices. He eventually stayed his orders pending Microsoft’s appeal. Two days of oral arguments before the U.S. Court of Appeals are due to kick off on Feb. 26.

Earlier this week, the court of appeals said it would dedicate 30 minutes of the oral arguments to reviewing Judge Jackson’s conduct. Judge Jackson granted interviews to a handful of journalists during the antitrust trial, and his comments have appeared in various articles since his verdict was issued.

The letter from Microsoft attorney John Warden to the clerk of the U.S. Court of Appeals, dated Thursday, Feb. 8, can be read at The letter draws the court’s attention to a Feb. 5 decision by the U.S. Court of Appeals for the First Circuit in the case of Boston’s Children First.

Microsoft spokesman Vivek Varma said the company had no comment on the letter.

Under the Federal Rules of Appellate Procedure, parties in a case are allowed to bring to the court’s attention cases that may be related to some of their substantive arguments, if the outcome of those cases appeared after the final filing of briefs. Microsoft filed its last appellate brief on Jan. 29.

In the matter of Boston’s Children First, the plaintiffs sought to remove sitting Boston U.S. District Court Judge Nancy Gertner after she commented publicly on a case she was hearing. The petitioners in the case filed suit in June 1999 alleging that Boston’s elementary school student assignment process was biased and that they had been deprived of preferred school assignments based on their race.

Gertner sent a letter to the Boston Herald newspaper in July 2000 over what she claimed were inaccuracies in an article on the case, and the following month the paper quoted from a phone interview a reporter had had with her. Those reported comments led the petitioners in the case to move that the judge recuse herself because her impartiality might reasonably be questioned.

In his opinion on the matter, First Circuit Chief Judge Juan Torruella del Valle found it was “an abuse of discretion for the judge not to recuse herself based on an appearance of partiality,” and the court granted the “writ of mandamus,” as it’s called. However, Torruella added, “In so doing, we emphasize that such a grant in no way indicates a finding of actual bias or prejudice, nor does it suggest that the trial judge abdicated any of her ethical responsibilities.”

The First Circuit’s Feb. 5 opinion on the Boston’s Children First case can be found on the Web at

Microsoft, based in Redmond, Wash., can be reached at The DOJ, based in Washington, D.C., can be reached via the Internet at