U.S. Judge Preska’s Denial of Donziger’s Right to Counsel Called “Indefensible” By Trial Monitors
Civil Rights Lawyer Kuby Says Preska Is Refusing to Let Him Try Case Out of “Spite”
New York, NY -- A team of prominent international lawyers has called Judge Loretta Preska’s decision to deny human rights lawyer Steven Donziger’s right to counsel "indefensible" as his contempt trial is scheduled to begin Monday without a lawyer in court and most witnesses unable to attend because of the COVID pandemic.
Donziger helped Indigenous peoples in Ecuador win a $9.5 billion pollution judgment against Chevron in 2011, prompting the company to use 60 law firms and 2,000 lawyers to retaliate. A U.S. judge, Lewis Kaplan, charged Donziger with criminal contempt after the lawyer appealed an apparently illegal order than he turn over his computer and cell phone to Chevron lawyers.
That case is still on appeal, but Kaplan – a former tobacco industry lawyer – is pursuing Donzgier with a vengeance that observers say borders on obsessive. Kaplan’s targeting of Donziger led to a 40-page misconduct complaint being filed against the judge by hundreds of lawyers and bar associations.
“This trial orchestrated by Chevron and Judge Kaplan is going to be a corporate and judicial railroading of a respected human rights lawyer and it will put lives at risk unless it is postponed,” said Martin Garbus, 87, the legendary civil rights lawyer who represents Mr. Donziger but cannot attend because of the pandemic, which today broke the U.S. record for daily cases.
Donziger’s lead lawyer in the contempt case, civil rights attorney Ron Kuby, also wrote a letter to Preska urging postponment of the trial on Constitutional grounds. “I implore this Court, even at this late date, to put aside the sense of grievance against Mr. Donziger that I have gleaned from this Court’s orders, and adjourn the trial,” he wrote.
Preska, who has refused to step down from the case even though she is a leader of the Chevron-funded Federalist Society, has denied Mr. Donziger’s request to schedule the trial when Kuby can attend. Instead, she has ordered Oregon-based lawyer Lauren Regan to represent Mr. Donziger remotely via a computer hook-up.
No U.S. criminal trial ever has been held without a defense lawyer in court, according to academics and observers.
Chevron has been targeting Donziger with an avowed “demonization” campaign for the last decade in an effort to get him and his clients to give up their battle to force the company to comply with court orders that it pay the $9.5 billion pollution judgment.
The Donziger Case Monitoring Committee is composed of Professor Charles Nesson of Harvard Law School; Jeannie Mirer of the International Association of Democratic Lawyers; Michael Tigar of Duke Law School; Nadine Strossen, past President of the American Civil Liberties Union; Simon Taylor, founder of London-based Global Witness; and Kip Hale, an American war crimes prosecutor based in Europe and a leading due process expert.
Here is the latest statement of the monitoring committee in full:
Judge Preska's repeated denial of a postponement of Steven Donziger’s trial scheduled for Nov. 9 so that his counsel can represent him physically in court is unduly prejudicial and potentially in violation of his constitutional rights. Judge Preska pushes forward despite the inherent health risks from COVID-19 facing all the lawyers, court personnel, and witnesses, knowing courts have not been operating for most of the year as a result. At the same time, she and the private prosecutors acknowledge that the charges against Mr. Donziger are not serious in nature and that he never had criminal intent.
The deliberate scheduling of Mr. Donziger's trial on a day the court knows Mr. Donziger's counsel cannot appear is even more disturbing. The schedule certainly has the effect of denying Mr. Donziger’s right to counsel of his choice. The notion that a criminal trial can take place in a constitutionally sound manner when the defendant is represented by counsel thousands of miles away, only “present” within a computer monitor beaming digital pixels via the internet is indefensible. This ruling interferes with Mr. Donziger’s right to adequate counsel.
In lieu of the many problems with this type of remote legal representation, Mr. Donziger requested the Court to permit a New York-based criminal defense lawyer, Ron Kuby, to represent him in December when Mr. Kuby was available for a trial. Without giving any reason, Judge Preska denied this request. Accordingly, Mr. Donziger had to choose between digital representation or representing himself pro se despite not having any training in criminal defense law. Making Mr. Donziger’s decision all the more difficult, it is well known that this case spans decades with vast volumes of relevant documents, making it the type of case that requires multiple attorneys. The Seward & Kissel private prosecutors are three in number, have worked on the case for over a year, and are backed by a large corporate law firm.
This predicament is the definition of an inequality of arms, a noteworthy characteristic of this case throughout. Mr. Donziger deserves and requires counsel to be present in court with adequate time to prepare, as all defendants do. Judge Preska should work with Mr. Kuby to find a date that is mutually agreeable so Mr. Donziger's right to counsel can be respected.
Moreover, Judge Preska already has denied Mr. Donziger a jury of his peers making her the sole fact finder. She is also the judge who put Mr. Donziger under house arrest. It is also troubling that in the course of the pre-trial proceedings, Judge Preska has made comments of dubious relevance at best and disqualifying at worse, in which she disparages and negatively characterizes Mr. Donziger and his attorneys for doing their job to defend him. Together, these features create the appearance of bias and impropriety. The international legal monitors, IMPETUS, recently published a report outlining numerous due process issues, all of which point to the need for a different judge to hear this case.
It is clear what should occur if Mr. Donziger’s constitutional rights are to be respected and the court’s integrity and professionalism is maintained: the postponement of the trial to a day when Mr. Kuby and Ms. Regan can represent Mr. Donziger physically in court and it is safe for all participants to travel to New York and attend the proceedings.