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  The Judge Has Microsoft in a Hard Place

By Linton Weeks
and Rajiv Chandrasekaran
Washington Post Staff Writers
Thursday, December 10, 1998; Page D1

A law professor, an appellate judge and a criminal trial judge are duck hunting. In the blind, the three place a friendly wager on who will bag the first mallard. When a bird finally flies by, the law professor turns to a textbook, matches one source against another and finds a helpful illustration, but by the time he makes his decision, the bird has flown away.

Another bird comes into view and the appellate judge steps forward. After checking pertinent cases, decisions and precedents, the appellate judge takes aim, but again the bird is gone.

When a third bird crosses overhead, the criminal trial judge slides between the other two, raises his shotgun and blows the winged creature clear out of the sky. "I hope to hell that was a duck," he says.

Thomas Penfield Jackson likes to tell this joke. He told it when he presided over the drug trial of Mayor Marion Barry, to explain what a U.S. district judge like him is up against.

Now Jackson is the judge ruling on the fate of Microsoft. Is this the kind of quick-trigger jurist who should be deciding the direction of our high-tech future? You be the judge.

If you called Central Casting and asked for a white-haired, black-robed, avuncular, well-fed judge who looks like the guy in "Miracle on 34th Street," who gives leash to lawyers and allows them to argue their cases, who can probably make sense of the tough technological and legal questions in the landmark antitrust case called United States v. Microsoft, but will shoot from the hip when necessary, chances are they'd send Jackson.

And he tells jokes. Recently at the Microsoft trial which began Oct. 19 and could last well into spring he read from a politically incorrect e-mail message he'd stumbled on. Here's a short version: A group of men and women were asked what gender would be most appropriate for computers. The women, Jackson said, agreed that computers should be masculine, because "they have a lot of data, but they are still clueless" and "most of the time, they are the problem." The men decided computers should be feminine because "even your smallest mistakes are stored in long-term memory for later retrieval" and "as soon as you make a commitment to one, you find yourself spending half your paycheck on accessories."

Judith Retchin was there for the duck-hunting tale in 1990. At the time she was the assistant U.S. district attorney prosecuting the mayor. Today she is a superior court judge. By listening to Retchin and other longtime observers of Judge Jackson who doesn't believe it's proper to be interviewed by the media during a trial one can get a higher-resolution picture of the judge conducting the highest-profile antitrust case in a generation.

"I had him in a jury trial," Retchin recalled. During the Barry case, Jackson was somber and stone-faced. "In a jury trial, a judge minimizes facial expressions. He did not cue the jury."

In a civil case, however, like the Microsoft trial, Jackson doesn't hold back much.

During an hour-long segment of Microsoft Chairman Bill Gates's videotaped deposition played last month, in which Gates quibbled with the government questioner over words such as "concerned" and "compete," Jackson shed the typical courtroom reserve. He laughed, he chortled, he shook his head in disbelief and wonder.

The government's frequent use of the Gates tape has infuriated Microsoft's lawyers. But Jackson has deemed it a show too good to be stopped.

In fact, Jackson has showed so many of his cards that Microsoft's lawyers are focusing their legal strategy less on persuading him than on introducing evidence they feel will help sway an appeals court. "I wouldn't say we've given up on Jackson, but there's a definite focus on building a record that will help us before the appeals court," said one Microsoft insider involved in the case.

Microsoft's lengthy cross-examinations of government witnesses they spent four days probing an economist earlier this month appear to bore Jackson, who wants points made quickly and succinctly. On several occasions, he's chastised Microsoft lawyers for their longish questioning, telling them at one point that "brevity is appreciated." By limiting the number of witnesses in the case and requiring them to submit testimony in writing ahead of time, Jackson has tried to accelerate the wheels of justice this time around.

Perhaps he has made up his mind about the smirking Gates, perhaps he's combating ennui or maybe he's dreaming of taking his little sailboat for a spin. He glances often at the clock.

In the past he has been known for a notoriously slow docket and a fondness for recesses. In June 1996, a story on judges in Washingtonian magazine called Jackson "one of the least-respected judges on the federal bench." He was criticized for his lackadaisical attitude and inconsistent sentencing. The next month, the magazine's letters column printed a spirited defense of Jackson signed by 26 of his past and present law clerks. Jackson, friends say, is still smarting from the article.

Most lawyers interviewed for this story praised Jackson. Renowned for a quick and nimble noggin and occasionally a short temper Jackson does not always suffer fools gladly. "He can be impatient with people who don't bring the same naked ability to the law that he does," said attorney Nicholas McConnell. "That's a lot of people. It's a frustration. He was always five steps ahead of me and curious why I couldn't catch up."

After all, Jackson cut his teeth on the law.

Judge Jackson, 61, is the son of a Washington lawyer. He attended St. Albans boys school on a choir scholarship, but, he has said, when his voice changed the tuition subsidy was taken away. He transferred to Bethesda-Chevy Chase High School, where he played football and was editor in chief of the newspaper. He worked his way through Dartmouth and graduated in 1958. He served in the Navy for three years and received a law degree from Harvard University in 1964. He joined his dad's firm, Jackson & Campbell, and became a Republican precinct official in overwhelmingly Democratic Montgomery County.

He was a tenacious trial lawyer. "When he was in the well," recalled McConnell, who was a protege of Jackson's at Jackson & Campbell, "Tom was a compulsive preparer. He mastered the facts in a case and was incredibly quick on his feet."

In 1972 Jackson was an attorney for CREEP the Committee to Re-Elect the President bankrollers of President Richard M. Nixon's second bid in 1972 and supporters of the break-in of the Democratic National Headquarters in the Watergate.

Besides its political wheelings, Jackson & Campbell specialized in medical malpractice suits. According to McConnell, one of Jackson's "severest blows" was the loss of a significant malpractice case in 1976. Jackson was representing the Washington Hospital Center. The plaintiff, suing for several million dollars, claimed the hospital's inappropriate management at birth had resulted in a baby's profound neurological injury. Jackson lost and the judgment produced a verdict of $2.5 million, the first verdict in the District of Columbia in excess of $1 million in a medical case. "Tom took that personally," McConnell said.

A couple of years later, however, Jackson prevailed in another malpractice suit, McConnell recalled. Jackson was hired to defend Georgetown University Hospital. The plaintiffs were asking for tens of millions of dollars in a similar case of profound neurological damage to a newborn. The insurance company "was so worried that the case would produce a bad result," recalled McConnell, "they were daily pressing on him to settle the case. Tom and the client refused to do it." The jury decided in favor of the hospital.

Jackson is extremely competitive, said McConnell, and he is angry "any time he loses a point on anything. He hates to lose."

In 1980, Jackson's name came up as a possible candidate for D.C. Superior Court and the D.C. Court of Appeals, but he did not receive a nomination. Some lawyers at the time suspected that Jackson was passed over because he was a member of the then whites-only Chevy Chase Club. Asked if the club has black members today, general manager Kirk Reese said he could not discuss the club's membership policies. In 1982, Jackson was the first judge appointed to the U.S. District Court here by Ronald Reagan.

"I don't think of him as a political person," said attorney Brendan Sullivan, who has known Jackson professionally for about 30 years.

McConnell and Jackson own a sailboat named the Nisi Prius (Latin for "trial court") that is docked at a Patuxent River marina. Jackson loves to sail on the Chesapeake Bay. He is a voracious reader of fiction and nonfiction especially history and has read many biographies of Teddy Roosevelt and Winston Churchill. At the moment he is making his way through the sea stories of Patrick O'Brian.

"He loves the English language," McConnell said.

Jackson's present wife, Pat, is his third. She is director of development at Sidwell Friends school. The couple live in an apartment on Pennsylvania Avenue, minutes from the federal courthouse. The judge enjoys listening to classical music, watching football on TV and eating sausage tarts dipped in mustard. The couple steps out to Shakespeare plays and occasionally will take an exotic trip to Hong Kong or Russia.

He has two adult daughters. Leila Kochis, 33, works for the Social Security Administration in Texas and Sarah Jackson-Hahn, 31, is a reporter covering Asian affairs for Agence France-Presse. She is based in Washington. Each daughter has a daughter and Jackson is said to be a doting grandfather. He has lots of family pictures in his office. He has a soft spot in his heart for kids. Attorney Joseph Conte said Jackson once invited him to bring his 10-year-old daughter into chambers. "He was very relaxed, very friendly," Conte said. "He spoke to her for 10 minutes or so."

In addition to the Microsoft trial, Jackson is juggling about 150 other cases. Asked repeatedly to be interviewed for this story, Jackson faxed a copy of his commentary "A Judicial Cynic's View of Why This Topic Is Always Presented as Fair Trial Versus Free Press" presented at a judicial conference last year and reprinted in a recent issue of the Federal Lawyer. In the article, the judge ponders the perils of presiding over "newsworthy cases."

"I have a visceral sense that the relationship between a potentially newsworthy case and the press is roughly comparable to the relationship between a healthy organism and an infectious disease," he wrote. "Lessons I have learned the hard way have taught me that if I regard the case in just that way, and activate my immune system early on, both I and the case are less likely to suffer adverse consequences."

After passing along his "personal rules" for dealing with the press so that one's dignity and reputation will remain "more or less intact" he ended by writing, " ... be philosophical about the press and its coverage of your case. Remember the nature of the beast. The press, like all infectious diseases, is a predator. It will feed on whatever it can find, including the host, if its appetite is not sated."

In court, he chugs glass after glass of water and chews the ice. And he's a quick study. Viewed by many at the outset of the Microsoft trial as a technological neophyte, Jackson has tried to show off his growing grasp of the computer world. One day he asked a witness whether a certain piece of software might be used for an "intranet" an internal corporate computer network. When the witness replied affirmatively, the judge just grinned.

His son-in-law Craig Kochis recently graduated from the University of Texas with a degree in electrical engineering. Jackson flew down for the ceremony. Kochis, in fact, gave Jackson his old computer, with a few refurbished parts.

The judge's Dartmouth connection, friends said, runs deep. He was president of the local alumni group for years. Ironically, Microsoft's general counsel, William Neukom, is also a graduate of the college and a member of its board of trustees.

During the Barry trial, Jackson caused a stir by trying to bar controversial ministers Louis Farrakhan and George A. Stallings Jr. from the courtroom. Jackson's ruling was reversed by a federal appeals court. At the end of the proceedings, Jackson let it be known that he was displeased when jurors could not reach a verdict on 13 of 14 counts. He said he had never seen the government mount a stronger case.

He ruled in 1994 that then-Sen. Bob Packwood (R-Ore.) had to fork over his diaries to the Senate ethics committee. The contents of the diaries proved to be Packwood's undoing.

Last December, in another skirmish between Microsoft and Justice, Jackson ruled in favor of the government and ordered Microsoft to stop requiring computer manufacturers to install the Microsoft Internet browser with Windows 95. The decision was overturned by an appeals court in June.

Historically, Jackson has been overturned many times, as have many D.C. district court judges. When he opted to conduct interviews of potential jurors in private during the 1987 perjury trial of Michael Deaver, a former White House aide, newspapers took exception to the closed-door policy and a federal appeals court ruled in favor of the newspapers.

Today Deaver works for Edelman Worldwide public relations; one of his clients is Microsoft.

By most accounts, Jackson has been favoring the government so far in this trial. But the jury's still out. "Do I think he's pro-government or pro-defense?" said attorney Thomas Abbenante, who's been defending folks in Jackson's court since the judge took the bench. "No, I think he can be convinced by either side."

© Copyright 1998 The Washington Post Company

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