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Will Gates take the stand?

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Gates' interview with Associated Press (Earlier Story), and his comments at Microsoft's annual meeting of shareholders recently, has increased speculation that Microsoft may yet use its chairman as a rebuttal witness. Each side is allowed two such witnesses that do not have to be named in advance. It is less likely that the DoJ would exercise its option to call Gates as it is already doing rather well with the Gates videotape extracts. But David Boies, the DoJ special trial counsel, certainly seems to be trying to entice Gates to come to the court, saying that Gates was "indicating more and more that he'd like to come and testify. I'm sure his lawyers would listen to him." Of course they would: he pays their bills. Boies suggested that the case was not going as well for Microsoft as it hoped, so a change in strategy was possible. This presents a dilemma for Microsoft: to call Gates would indeed be a tacit admission that things were not going well. But Gates' comment to Associated Press "if the government wanted me as a witness they could have called me as a witness" is, if anything, likely to result in increased public clamour for Gates to give live evidence and be subjected to a live cross-examination. Judge Jackson has also indicated that he regards Gates' evidence as extremely important. The result is that Gates, abetted by Boies, may have started a movement that will have to result in his appearance, lest he be called chicken. The Microsoft legal team is currently saying that Gates would appear if called by the DoJ, which is big of them since to refuse would be a serious contempt of court. Gates' last appearance as a witness was before the Senate Judiciary Committee when Senator Hatch gave him a rough time. He is emotionally unsuited for the courtroom and rather unlikely to help the case. A personal appearance by Gates could be a way to overcome the negative impact of the videotapes. If Microsoft is going to lose this round, then at least the legal and PR groups would have someone to blame. ® Complete Register trial coverage

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