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Technology Stocks : How high will Microsoft fly? -- Ignore unavailable to you. Want to Upgrade?

To: t2 who wrote (60425)	8/8/2001 1:13:42 AM
From: margie	Read Replies (1) \| Respond to of 74651

This should be a no brainer, for those who use their brain, unfortunately ....few of the so called legal experts do. John Roberts is not the only one confused and ignorant or claiming ignorance of the law. It doesn't say much for the legal system that John Roberts is about to become a judge in this Appeals Court, nor does it say much for the integrity of the legal system, nor for the Appeals Court judges who knew the law and even quoted Justice Scalia but then proceeded to issue a decison which contradicted themselves and the Supreme Court cases they cited. Microsoft's whole argument in this Supreme Court Appeal is that the Appeals Court judges erred because they claimed that it was necessary to show actual bias to allow them to vacate Jackson's Findings of Fact and Conclusions of Law. Microsoft argues that the Appeals Court decision is contrary to the legal precedent set by the Supreme Court in Liteky and Liljeberg. The SC ruled in those cases that recusal is required when there is a QUESTION of bias, or an APPEARANCE of BIAS that would lead the public to question the integrity of the judge and the legal system. And that ex parte or extrajudicial comments are a violation of Section 455(a) and require recusal. There is no need to document bias for recusal under Section 455. It is only Section 144 that requires proof of actual bias. There was no "documented" judicial bias produced at trial nor was it required for recusal under 455. Microsoft is also arguing that these judges erroneously drew the line long after the first publicly reported dates of when this misconduct began. The New York Times reported the interviews began in September 1999, months before the Findings of Fact were issued. Therefore the Appeals Court should have vacated the Findings of Fact and the Conclusions of Law, and not arbitrarily vacate from the remedy onwards. In a previous post I said too that I believed the judges were wrong in not vacating the entire decision when they themselves admitted that there reports of ex parte interviews in september 1999, months before the Findings of Fact. siliconinvestor.com. Here's a brief law lesson Judge Randolph gave John Roberts during the Oral Arguments, Day II. JUDGE RANDOLPH: "It seems to me you are confusing two things, Mr. Roberts, with all respect. We have a statute. It's 28 U.S.C., 144, that requires judges to step down for bias or prejudice. And it can serve as a basis for an action. That's one type of disqualification. We are not talking about that here. What we are talking about is Section 455, .... So we are talking about a violation of Canon 3, and necessarily we are also talking about a violation of 455 because if it doesn't violate 455, there's no remedy." "Justice Scalia wrote Liteky, and he said, "RECUSAL IS REQUIRED WHENEVER THERE IS A GENUINE QUESTION CONCERNING A JUDGE'S IMPARTIALITY. A GENUINE QUESTION. YOU DON'T HAVE TO SHOW BIAS. IS THERE A QUESTION WHETHER JUDGE JACKSON WAS IMPARTIAL? And these comments to reporters, and my colleagues are suggesting to you, raise a question about his impartiality. And if they do, then recusal was required." Section 28 -455 (a) of the United States Code states: "Any justice, judge, or magistrate of the United states shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” JUDGE EDWARDS: "His embargo makes it worse. It makes his conduct worse. And the reason is exactly what Mr. Urowsky said: that had he not placed that embargo, he would have been off that case in a minute. "DO YOU REALLY THINK THAT A JUDGE ENGAGING IN EX PARTE CONTACTS AND THAT COMES TO THE ATTENTION OF A MANDAMUS (REQUEST FOR DISQUALIFICATION), DO YOU REALLY THINK THAT THE COURT WOULD HESITATE LONG? Judge Edwards: "A District Court judge is violating the code and the integrity of a decision by bringing in ex parte communication during the process of the case. ...He went on for hours and hours and hours in an ex parte contact with employers who were given access to chambers to hear his views and apparently to take some of their views on an ongoing case. ...He's so far from anything that seems benign, that that's what we are concerned about. You don't think that the public at large watching the system doesn't look at that and say good heavens, is that what judges do?" JUDGE EDWARDS: "You say a discrete number of statements. Do you recall any case ever in which a trial judge made as many statements about ongoing litigation to reporters as Judge Jackson made? It may be a discrete number, but it's the biggest number that has ever occurred." Judge Edwards: "We can slip some in court because you are there to slap us back, question us or say you respectfully disagree. But when we do it in these other settings, the public has something at stake. It's the integrity of the system." .... "IT'S BEYOND THE PALE. I mean that's what we are saying to you. It is so extraordinary. The ex parte contacts? It's so high is what Judge Sentelle is saying, how can anyone assume anything other than the worst?" .... "BECAUSE THERE IS AN APPEARANCE PROBLEM. AND THE SYSTEM WOULD BE A SHAM IF ALL JUDGES WENT AROUND DOING THIS." JUDGE EDWARDS: "What we said in Microsoft 1 was the facts might reasonably cause an objective observer to question the judge's impartiality. ..... we made it very clear in that decision it didn't matter whether the judge considered them. We said it was the fact of the ex parte contact that was so troublesome. That's the point that I'm so distressed about. You're not dealing with .. it was the fact; that's exactly what we said in Microsoft 1. And gave an appearance, reached the appearance problem that we are concerned about. I think Microsoft I was this Appeals Courts recusal of Judge Sporkin. JUDGE TATEL: The problem I see here is the way in which he characterized his views about the defendants. When we are applying an appearance of impropriety standard, that's where I'm stuck. And that brings me back to phrases like the analogy to the Newton Street Crew and to the drug traffickers and to Bill Gate's ethics. They may all have been ways of expressing .. his way of expressing his views gained at trial. And had they been stated in other terms, they might have been fine. But the words he chose, I just don't see how you get around the fact that the words he chose convey to the average member of the public bias. That's the problem. JUDGE SENTELLE: "If we do not indulge in a presumption of impartiality on the basis .. on the part of the finder of fact, then it's no longer rational to subject it to that painstaking review. If there are disputed questions of fact, why is the one chosen by the trier of fact entitled to deference anymore (since) he's not an unbiased finder of fact?" JUDGE SENTELLE: "There's no appearance of partiality or bias against me by a judge who questioned my ethics? JUDGE SENTELLE: Would the government take a position on whether we should put a different judge in charge if we remand this case? MR. ROBERTS: Our position is that you should not remand it to a different judge for the reasons we have said. We don't think that there was actual bias.... JUDGE SENTELLE: "Even forward looking, you would still go with this judge having these comments. I don't know how you can say with a straight face that we should remand to the same judge?" How can these judges worry about 'a risk of injustice" to the Plaintiffs when this lawyer-about-to-become a-judge keeps defending Jackson's unethical behaviour? Even if the Plaintiff's were unaware of it, they clearly were not bothered by it. I hope the Supreme Court does the right thing and doesn't "hesitate long" to vacate the case in its entirety, using their own precedents. Microsoft is right, the judges are wrong. imo. Well, the AC judges were right in their Oral Arguments but wrong in their Final Decision. Too bad Microsoft didn't petition the Appeals Court on this issue and at least give them a chance to reconsider their action on Judge Jackson's judicial misconduct.