Thomas Penfield Jackson, Outspoken Judge, Dies at 76
Paul Hosefros/The New York Times
Published: June 15, 2013
Thomas Penfield Jackson, a federal judge who ruled in 2000 that Microsoft was a predatory monopoly and must be split in half, only to see an appeals court reverse his order because he had improperly discussed it with journalists, died at his home in Compton, Md., on Saturday. He was 76.
Times Topic:Thomas Penfield Jackson
The cause was complications of transitional cell cancer, according to his wife, Patricia King Jackson.
The career of Judge Jackson, who served in the District of Columbia, was studded with big moments. In 1988, he fined a former Reagan aide, Michael K. Deaver, $100,000 for lying under oath about his lobbying activities. In 1990 he conducted the trial that convicted former Mayor Marion S. Barry Jr. of Washington of cocaine possession. In 1994, he ordered Senator Bob Packwood of Oregon to give the Senate Ethics Committee his personal diary, which contained details of his sexually harassing his staff and others, resulting in his resignation.
But the burly, silver-haired judge — known for chewing on ice cubes, gruff candor and a rich baritone — attracted the most attention presiding over the trial of the Microsoft Corporation on charges of antitrust violations in 1998-99 — one of history’s largest antitrust cases.
Mindful that the government’s antitrust offensive against I.B.M. lasted 13 years and its action against AT& T involved a million documents, he limited each side to 12 witnesses and forced lawyers to submit testimony in writing. The main court proceedings took 76 trial days.
A technological novice who wrote his opinions in longhand and used his computer mainly to e-mail jokes, Judge Jackson refuted Microsoft’s assertion that it was impossible to remove the company’s Internet Explorer Web browser from its operating system by doing it himself. Because there was no jury, he said he felt free to show his emotions and occasionally rolled his eyes and laughed at testimony.
When a Microsoft lawyer complained that too many excerpts from Bill Gates’s videotaped deposition — liberally punctuated with the phrase “I don’t remember” — were shown in the courtroom, Judge Jackson said, “I think the problem is with your witness, not the way his testimony is being presented.”
But, in the end, the judge’s outspokenness came back to bite him.
He granted interviews with journalists during the trial and, after it ended, in the period before he delivered his verdict. He said he wanted the journalists to be able to explain his thinking after he had ruled, and all followed his stipulation that nothing be printed beforehand.
The comments were worth waiting for. He told reporters that Bill Gates had “a Napoleonic concept of himself,” and compared Microsoft’s declaration of innocence to the protestations of gangland killers. Explaining how he got the company’s attention during the trial, he compared himself to a mule trainer who handled the animal by taking a two-by-four and “whopping him upside the head.”
On June 7, 2000, Judge Jackson ordered that Microsoft be split into two companies, one owning the Windows operating system and the other owning Microsoft’s many software products.
A year later, the Court of Appeals in Washington said Judge Jackson’s pithy comments gave the impression of bias, removed him from the case and vacated his order to divide Microsoft. It let stand much of his April 2000 ruling that Microsoft was a monopoly because he had written that before most of the interviews.
The appeals court sent the case to another federal district judge, Colleen Kollar-Kotelly, to sort things out. Then the new presidential administration of George W. Bush decided not to seek Microsoft’s breakup and negotiated a settlement. Judge Kollar-Kotelly approved the deal in November 2002.
Thomas Penfield Jackson was born in Washington on Jan. 10, 1937, and grew up in nearby Kensington, Md. His father, Thomas Searing Jackson, was a prominent Washington lawyer.
He attended the exclusive St. Albans School in Washington on a choir scholarship. When his voice changed, he lost the scholarship and transferred to Bethesda-Chevy Chase High School, where he played football and edited the school paper.
He graduated from Dartmouth with a degree in government; spent three years in the Navy, mostly on a destroyer in the Mediterranean; and graduated from Harvard Law School. He joined his father’s law firm, where he litigated malpractice cases. The Baltimore Sun in 1999 quoted him as saying his favorite thing about litigation was “destroying a witness.”
He became a Republican precinct official in overwhelmingly Democratic Montgomery County. He came to the attention of President Richard M. Nixon’s re-election campaign, which hired him as a junior lawyer in 1972. In 1982, President Ronald Reagan chose him as his first nominee to the Washington federal court.
One of his biggest cases was ruling in 1997 that a law passed by Congress to allow the president to veto parts of a bill — a process called “line-item veto” — was unconstitutional. The Supreme Court upheld him.
Until the Microsoft ruling, Judge Jackson had been considered strongly pro-business. In 1987, he sided with General Motors when the federal government sued the company for dangerous brake defects. He dismissed the government’s evidence as “anecdotal accounts of skidding events.”
He became involved with Microsoft when the Justice Department in 1997 accused Microsoft of violating a 1994 consent agreement not to force customers to buy its browser, Internet Explorer, when they purchased its Windows operating system. Judge Jackson ruled against Microsoft, but the Court of Appeals in Washington reversed his injunction in 1998.
In May 1988, the Justice Department and 20 states had decided Microsoft’s monopolistic behavior transcended the browser issue, and filed the big antitrust case. Judge Jackson was assigned to it because he had handled the earlier proceeding.
In 2004, Judge John G. Roberts, the future chief justice of the United States who was then an appeals court judge, castigated him for veering from sentencing guidelines that Judge Jackson had unilaterally declared unjust. Judge Jackson retired in 2004 and returned to private practice.
Judge Jackson, who had homes in Washington and Compton, is survived by his wife; his daughters Leila Kochis and Sarah Jackson-Han; and three granddaughters as well as a brother, Jeffrey Jackson.
The judge had a lively sense of humor. The Washington Post reported that he once told of a law professor, an appellate judge and a trial judge who went duck hunting. When a bird flew over, the law professor referred to a textbook. By the time he looked up, the duck was gone. When a second bird appeared, the appellate judge studied relevant precedents, and the same thing happened.
The trial judge had no scholarly compunctions when a third bird flew into range. He pushed the other two aside, raised his shotgun and blew the bird from the sky.
“I hope to hell that was a duck,” he said.