The federal judge whose name will reside in the nation’s legal and business annals as the jurist who ordered a breakup of Microsoft Corp. is no stranger to throwing the book at defendants.
Thomas Penfield Jackson, after all, was the judge who sentenced former Washington, D.C., Mayor Marion Barry in 1990 to six months in prison after a jury convicted him of cocaine possession following an infamous, videotaped session in a hotel room.
In another case, Jackson handed out severe sentences to the members of a notorious Washington street gang, the Newton Street Crew, giving one member life plus 85 years for drug running.
While being considered tough on drug crimes, Jackson, 63, had a reputation in some circles as being more lenient on white-collar criminals, like ex-Reagan White House aide Michael Deaver, who was convicted of perjury only to be sentenced by Jackson to probation.
But that reputation is likely to come in for reassessment now that Jackson has rendered such a severe decision in perhaps the most prominent case of white-collar violations of federal law ever to come before him–and in the process labeled Microsoft “untrustworthy” and “unwilling to accept the notion that it broke the law” or amend its behavior.
A conservative Republican appointee of President Reagan’s, Jackson was not pegged by some observers before the trial–nor even as the two-year trial proceeded–as the likeliest judge to break up one of the great success stories of American capitalism.
But his findings and conclusions in the trial underscore, according to experts, the folly of trying to predict what federal judges will do based on their personal histories. They also are a measure of the overwhelming strength of the case made by the Justice Department and 19 states that joined its lawsuit against the giant Redmond, Wash.-based software company.
Those who know Jackson well describe a very smart, hardworking lawyer who took great pains to prepare for court.
“He’s got a very quick mind with a very intellectual bent and is obviously a very articulate writer,” said Nicholas McConnell, a former law partner who until recently owned a share in a sailboat named Nisi Prius, a Latin expression for a trial court, with Jackson.
Jackson also has a robust and wry sense of humor that flashed occasionally during the Microsoft trial. At one point, a company attorney complained about a team of Justice Department lawyers and economists who were gathering evidence at company headquarters. The lawyer wanted Jackson to order them out.
“Well, I can’t tell them to leave Redmond,” Jackson said.
“Can we get them out of our buildings, your honor?” the Microsoft lawyer asked.
“They may, indeed, like Redmond,” Jackson said, leading to chortles from the gallery.
When another Microsoft lawyer expressed frustration with a witness who didn’t understand the lawyer’s questions, Jackson delivered a one liner: “Sometimes I don’t understand them, either.”
Jackson can also be brusque and no-nonsense, as when he snapped at a Microsoft lawyer who complained that the judge had ended the trial too quickly: “You’ve had two years” to defend the company.
Jackson was born to the legal profession. His father, Thomas Searing Jackson, was a name partner at a Washington firm, Jackson & Campbell. He attended one of the capital’s exclusive grooming academies for the sons of the rich and powerful, St. Albans School, whose alumni include Vice President Al Gore and Democratic Rep. Jesse Jackson Jr. of Illinois.
The judge graduated from Dartmouth in 1958. After a three-year Navy stint, he graduated from Harvard Law School in 1964 and joined his father’s firm.
McConnell recalls Jackson being very quick on his feet and exceedingly well prepared for his trials. Although Microsoft has questioned Jackson’s understanding of how rapidly changing technology has altered the marketplace, McConnell also remembers Jackson not being intimidated by cases rich in technological and scientific details. Some of the first clients he defended were medical providers who had been sued after new treatments using cutting-edge medical technologies provided results that disappointed patients.
“Some of the very early cases he tried were some of the first open-heart surgeries on very young pediatric patients,” McConnell said. “One of the cases done years ago by a surgeon was done here, and the result was not good. He defended cases like that. He was involved in cutting-edge, scientific technology largely in the medical field. He’s not afraid of technology.”
In 1972, one of Jackson’s clients was the Committee to Re-elect the President, or CREEP, which helped finance President Nixon’s re-election and was implicated in the Watergate break-in.
Jackson has kept some perspective on his place in history created by the epic struggle between Microsoft and the Justice Department, McConnell said.
“Tom is actually self-effacing about his ultimate role in this case,” McConnell said. “He understands that what he’s doing is setting the table, and these parties are on a rush to another forum”–a federal appeals court or the Supreme Court.
“He knows this case isn’t going to end in his courtroom,” McConnell said. “He’s known all along that his decision is not the end of the case. He wants to take pride in the fact of having established an appropriate record.”
