HowardGilbert writes "On Nov. 4 J. Fredrick Motz, US District Judge in Maryland, issued an order allowing the Findings of Fact in the Federal Microsoft antitrust case to be used in certain private antitrust cases.
However, the Circuit Court had ruled that "the District Judge's conduct destroyed the appearance of impartiality." They reversed the Remedy, but let the Findings of Fact stand. In the context of the full decision text, however, there was reason to expect that this would be revisited in subsequent appeals. Given the current settlement, it is not clear how this mess will eventually be cleaned up.
After Judge Jackson announced his Findings of Fact and Findings of Law, a number of reporters disclosed that the Judge had been giving them covert interviews during the trial. This improper behavior became one element in the Microsoft appeal. In its decision, the Circuit Court noted the unusual process involved in deciding this point. Normally, newspaper articles are not admissible, being hearsay. Normally, a Circuit Court does not accept new evidence, having no format to take testimony. Because of the covert nature of the judge's misbehavior, there was nothing in the trial record on this matter. Normally it would have been necessary to assign another District Court judge to hold an evidentiary hearing on Judge Jackson's misconduct in order to have a proper trial record. However, because both sides accepted the content of the newspaper articles submitted, the Circuit Court issued its ruling based on that partial evidence.
After the Circuit Court found that a reasonable person in possession of the facts would conclude that there was a clear appearance of bias by the judge, Microsoft expected that they would overturn all of Judge Jackson's decisions. Microsoft never alleged actual bias because it did not believe that it needed to do so. If proof of actual bias would be required, then the evidentiary hearing would have been required. In its decision, the Circuit Court noted "the Judge spent a total of ten hours giving taped interviews to one reporter." Microsoft has never heard that tape and it would clearly have to be given access to it and to the other notes before the question of actual bias could be decided either way.
Accepting that an appearance of bias had been proven, and relying on the nuance that Microsoft had not alleged actual bias, the Circuit Court decided to reverse the Relief proposed by Judge Jackson but leave the Findings of Fact in place. They then remanded the case for further hearings that ended with last week's decision. In some sense this was a good strategy, because once the most important government claims had been reversed by the Circuit Court, the DOJ was willing to reach the settlement that was approved last week. However, if other courts like Judge Motz are going to rely on the Findings of Fact in other trials, then the unresolved questions left by the Circuit Court are beginning to infect other proceedings.
In his short decision. Judge Motz placed emphasis on one sentence in the Circuit Court's decision: "Although Microsoft challenged very few of the findings as clearly erroneous, we have carefully reviewed the entire record and discern no basis to suppose that actual bias infected his factual findings." In the larger context, however, he seems to be misreading what was said.
First, as everyone points out the level of "clearly erroneous" is a very high hurdle to jump. Microsoft could certainly have pointed out dozens, maybe hundreds of errors of fact in the Judge's findings, but none of them necessarily rose to the level of being "clearly erroneous" even if they are clearly wrong to those with some technical knowlege. Microsoft was entitled in the original trial to a decision free of bias. In the trial, facts are decided only on the basis of "preponderance of the evidence". The legal strategy not to appeal individual facts against the higher standards required did not mean that the facts were not incorrectly decided in the trial due to bias.
Secondly, the failure of the trial record, even under a "careful review" to disclose evidence of actual bias is not particularly significant given that the Circuit Court had noted earlier in the same decision that "By placing an embargo on the interviews, the District Judge ensured that the full extent of his actions would not be revealed until this case was on appeal". In other words, the Circuit Court could also "have carefully reviewed the entire record and discern no basis to suppose" the appearance of bias, yet it ruled that there was a clear appearance of bias based on the hearsay evidence that it accepted that was not in the trial record.
The Circuit Court pointed out that they had wide flexibility to remedy the judicial misconduct they found. Their decision was based on the Liljeberg criteria "in determining whether a judgment should be vacated for a violation of s 455(a), it is appropriate to consider the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public's confidence in the judicial process". They went on to claim of the decision to reverse the Remedy but leave the Findings of Fact in place that "this partially retroactive disqualification minimizes the risk of injustice to the parties and the damage to public confidence in the judicial process".
Note that there were three criteria in Liljeberg, and their decision covered the first and last. In the middle was the part about not messing up other cases that might depend upon the questionable findings. When they made their decsion, such cases were speculation. Now Judge Motz's decision puts that part of Liljeberg on the front burner.
The Supreme Court declined Microsoft's petition to immediately review the Circuit Court's solution to the problem of Judge Jackson's misconduct. Since the case had been remanded, it is reasonable to assume that they agreed with the DOJ that the incomplete case was not at that time "ripe for decision".
How do we get out of this mess? The simplest solution would be for the non-settling states to appeal the current decision. Then Microsoft could allege "actual bias" and the Circuit Court could toss out the Findings before things get any worse. The settlement between DOJ and Microsoft would not be effected, since the Circuit Court would at most overturn and remand and the settlement would preclude any need for a new trial.
If Judge Jackson's decision is not tested on a direct appeal, then can it be challenged indirectly on appeal of the case Motz is now hearing? If so, it may be in Microsoft's best interest to defer any appeal until a few more years have been wasted hearing the private antitrust cases and then raise the issue and get them all reversed."