Jackson recuses himself from Microsoft race case

WASHINGTON - U.S. District Judge Thomas Penfield Jackson recused himself Tuesday from hearing a racial discrimination lawsuit brought against Microsoft (MSFT), the software giant he ordered to be split in an earlier antitrust case.

Microsoft faces a multibillion-dollar racial discrimination lawsuit filed in January on behalf of seven current and former employees who allege that they were treated unfairly because of their African American ancestry. Jackson was assigned the case, in which the plaintiffs are requesting class-action status.

Microsoft asked Jackson to recuse himself from the new case, arguing that the judge's behavior during a landmark government antitrust case against it has created the appearance that Jackson is biased against the company. The Redmond, Wash.-based software company argued that Jackson was incapable of handling the discrimination case in an impartial manner.

Jackson was criticized for commenting to the press during the government case, a breach of commonly accepted behavior for judges. Jackson issued a terse four-page order defending views about Microsoft that he formed during cases pitting federal and state governments against the software giant. A historic combined case pitting Microsoft against the Justice Department, 19 states and the District of Columbia is on appeal after Jackson issued an order in June breaking up the company and imposing a host of business-practice restrictions to remedy multiple violations of antitrust law.

Jackson granted numerous media interviews both before and after issuing a series of rulings in that case beginning in November 1999. But in Tuesday's order, Jackson said his opinion of Microsoft was formed entirely during judicial proceedings, where he heard "inaccurate, misleading, evasive or transparently false" testimony from a host of senior Microsoft executives.

The judge didn't miss the chance to skewer Microsoft yet again, saying the company has "an institutional disdain for both the truth and for rules of law that lesser entities must respect. It is also a company whose 'senior management' is not averse to offering specious testimony to support spurious defenses to claims of its wrongdoing."

Legal ethicists said Jackson's media interviews violate judicial ethical rules, which forbid judges from speaking publicly outside of their courtrooms on the substance of any ongoing case. Several of the judges on the U.S. Court of Appeals for the District of Columbia Circuit, which is hearing Microsoft's appeal, castigated Jackson during oral arguments Feb. 27. Chief Judge Harry Edwards said, "The system would be a sham if all judges went around doing this."

The appeals court is expected to rule within a few months. Many observers don't expect Jackson's breakup order to survive. What remains to be seen is how much of the rest of his work is rolled back, and whether the appellate court will send the case back to the district court - but not to Jackson - for further work.

Microsoft also filed a motion arguing that the racial discrimination case should be transferred to a federal court in Microsoft's home state of Washington, but Jackson didn't rule on that motion Tuesday. Rather, he simply recused himself and returned the case to the court's calendar for reassignment.

"We think the decision to recuse is appropriate," said Microsoft spokesman Jim Cullinan. The lead lawyer for the plaintiffs in the case didn't immediately return a telephone call requesting comment. As for Jackson, he now refuses to speak to the media until the antitrust case is concluded.

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