U.S. DISTRICT COURT Judge Thomas Penfield Jackson does not trust Microsoft and questions why the company's lawyer, William Neukom, did not negotiate a settlement in the landmark antitrust case, according to an article in this week's issue of The New Yorker magazine. He also told the magazine he does not think that Neukom is "very smart."

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The comments made by Jackson to The New Yorker and other news outlets recently raise the question of whether he could remain unbiased if the case again lands back in his Washington courtroom. The case is currently under appeal and centers on the government's contention that Microsoft illegally used a monopoly in PC operating systems to muscle its way into the Internet browser market and quash competition from other software makers.

"I think that it is highly unusual for a judge to talk about a case even after the fact," said Bob Schneider, an intellectual property attorney with Chapman and Cutler in Chicago. "It's O.K. in a court opinion. To go on the record is highly unusual and even improper. It does kind of cloud any kind of remand that goes back to him."

Jackson has also written strongly worded opinions against Microsoft during the two major phases of the antitrust case. But it is hard to find a case where a judge has spoken as freely as Jackson prior to the conclusion of all court proceedings, Schneider said.

"It will certainly provide arguments for Microsoft to say the judge was prejudiced," Schneider said. "I would think the [U.S. Department of Justice] would not want him to talk at all. It is really uncommon when the case is still not decided. I am surprised that he would talk so much."

Under certain circumstances, such as if it finds that Jackson failed to interpret the law correctly, the U.S. Court of Appeals could send the case back to Jackson.

Microsoft already has expressed to the U.S. Court of Appeals its displeasure with Jackson's public comments and questioned his conduct during the case.

"The district judge here deliberately chose to discuss the merits of the case in public, expressing strong personal views about Microsoft and its executives in person, in print, and on the radio, both during and after trial," Microsoft attorneys wrote in a brief to the appellate court in November.

Jackson, who found that Microsoft illegally used a monopoly in PC operating systems to stifle competition and later ruled that the company be split in two, is quoted in the Jan. 15 issue of The New Yorker as saying that Microsoft Chairman and Chief Software Architect Bill Gates and his company should not gain any special consideration during court proceedings.

Jackson also said in the article that he became irritated with what he called Microsoft's "obstinacy," such as was displayed by Gates during his 20-hour videotaped deposition, and with apparent contradictions between the text of some Microsoft e-mails presented as evidence and the testimony of its witnesses.

Microsoft's "crime" was its hubris -- that is, an oversized pride that prevented the company from acknowledging that U.S. antitrust laws applied to it, Jackson told article author Ken Auletta.

Auletta siad, "He was only half joking when he told me, 'If I were able to propose a remedy of my devising, I'd require Mr. Gates to write a book report.' The assignment, Jackson said, would be a recent biography of Napoleon, and he went on, 'Because I think he has a Napoleonic concept of himself and his company, an arrogance that derives from power and unalloyed success, with no leavening hard experience, no reverses.'"

On June 7, 2000, Jackson ruled that Redmond, Wash.-based Microsoft should be split into two separate companies, one focused on operating systems and a second on other software applications. Jackson told the magazine he found it hard to believe that Microsoft allowed the case to reach this point.

Jackson suggests it may have helped if Microsoft had been more honest during the court proceedings.

"It would have dispelled to a large extent any inference of malevolent motive," Jackson said, according to the report. "It would have disclosed that they were genuinely concerned that there might have been some merit to the allegations of improper conduct on their part ... It would have gone largely to the matter of motive. In one sense, you have to give Microsoft credit for consistency. It has maintained, and continues to maintain, that it has done nothing amiss."

Jackson blames Microsoft counsel Neukom for not arranging a settlement before the case rattled the financial markets, according to the article. Jackson said that David Boies, the Justice Department's attorney and one of the lawyers on Vice President Al Gore's team during the disputed U.S. presidential election, is the best attorney ever to appear in his courtroom.

Attorneys for Microsoft and the Justice Department will present oral arguments to the U.S. Court of Appeals on Feb. 26 and Feb. 27.