Statement of Steven Donziger on Support from 29 Nobel Laureates on Day 255 of His House Arrest
(These are comments made by Steven Donziger at a press event on 16 April with Nobel peace laureate Jody Williams, legendary musician Roger Waters, and actor Alec Baldwin, lightly edited for clarity)
I want to express my deep gratitude to Jody Williams and the 29 other Nobel Laureates for the support for me and my family, as well as to Roger Waters, Alec Baldwin, Paul Paz y Miño and Leila Salazar and the entire team at Amazon Watch, Bill and Lynne Twist of Pachamama Alliance, Rex Weyler from Greenpeace, John Perkins, Ginger Cassady of RAN, my law colleagues including Aaron Page, Andy Frisch, Rick Friedman, Professors Charles Nesson and David Rosenberg of Harvard Law School, Marty Garbus, Jason Adkins, Deepak Gupta, Jon Taylor, John Campbell, Justin Marceau, my longtime colleague Karen Hinton, Simon Taylor of the anti-corruption group Global Witness, my longtime friends in Northeast Florida, and to so many others around the world who have stood by me and the Ecuadorian people during this challenging time. And my gratitude of course also goes to my family, including my wife Laura and son Matthew, for standing by me along with other family members including my sister Susan and her family.
This issue today concerns both my personal freedom but also the world’s largest oil-related contamination, created deliberately by Texaco from 1964 to 1992 in one of the most delicate ecosystems on the planet in the Amazon rainforest of Ecuador. This contamination continues to this day, decimating Indigenous peoples and local communities and causing an untold number of deaths and health problems from cancer and other oil-related illnesses. I believe my historically unprecedented pre-trial detention, now 255 days and counting, is intimately connected to my effective and successful advocacy for the affected communities that resulted in a $9.5 billion environmental judgment against Chevron that has been affirmed in whole or validated for enforcement purposes by at least six appellate courts in the countries of Ecuador, Canada, and the United States. To be clear, and as I explain in detail below, I consider my detention to be arbitrary and not justified by the law.
I know that I will never be able to adequately express just how much this support and solidarity from both close and afar means to me during this long period of house arrest -- a house arrest that in my view serves no legitimate purpose. This support has been essential to keeping me healthy so I can continue to advocate for my freedom and also for the affected communities in Ecuador.
Some quick points about this situation:
**First, I believe this situation is profoundly unfair not just to me but that it also constitutes a major threat to Free Speech to advocates everywhere in our society. As far as we can tell, I am the only lawyer in U.S. history ever to be detained pre-trial for a contempt charge. The longest sentence for a lawyer convicted of criminal contempt in New York is 90 days of home confinement; I have been in home confinement for almost nine months. This appears to be part of a new playbook used by corporations to try to undermine successful human rights and environmental advocacy. The strategy of this new corporate playbook is to turn the law into a weapon to attack the vulnerable, rather than be used as a shield to protect the vulnerable from abuse by the powerful.
**Second, the way this is happening is deeply disturbing. In a normal criminal case in the federal system in the United States, a person is charged by a grand jury comprised of citizens and then prosecuted by professional lawyers in the U.S. Attorney’s office who are obligated to adhere to the highest of ethical standards. In this case, none of this has happened. Instead, a single judge with a long history of animus toward me and my clients charged me with criminal contempt after his charges were rejected by the professional U.S. Attorney’s office. The same judge handpicked a longtime colleague to preside over the case; he hand-selected a private law firm to prosecute me; and he ignored the fact the private law firm suffers from a major ethics conflict as it has Chevron as a private client. The law firm acting as private prosecutor, Seward & Kissel, only disclosed Chevron is a client two weeks ago after it orchestrated by detention for the last eight months. Make no mistake about it, but the judge who created the criminal contempt charges – Lewis A. Kaplan -- is for all practical purposes acting simultaneously as the grand jury, prosecutor, judge, and jury in the same case. Never before has this happened in the history of our judicial system or in that of any judicial system that adheres to the rule of law, according to our research. In my opinion, this is an egregious abuse of power. I believe my home detention is a direct result of these factors. I also believe Chevron’s large legal team is exercising enormous influence with the Seward law firm prosecutors behind the scenes – even suggesting and drafting submissions to be used against me -- to push this extraordinary rare prosecution and pre-trial detention. With the pandemic closing down most business in our courts, if nothing changes my house arrest could last for many more months or even a year or more before I get a trial, when the maximum sentence is six months given that the prosecutor is treating the case as a misdemeanor.
**Third, I want to be clear that the criminal contempt charges never should have been brought. They derive largely from personal spite from a court whose many problematic decisions in favor of Chevron I have challenged for years. (I am not alone in these challenges. At least 29 appellate judges in Ecuador and Canada have ruled to validate the Ecuador judgment while Judge Kaplan stands alone in finding the judgment is unenforceable.) Three of the contempt counts are based on issues that were pending in an appeal filed by me before the federal appellate court in New York. This appeal, which is still pending, implicates serious constitutional questions relating to Free Speech and privacy that derive from highly unusual actions by Chevron or Judge Kaplan that appear to be wrongful. Again, these three charges are based on issues that were under civil appeal at the time they were filed -- including the order that I turn over my computer, cell phone, and indeed virtually all my confidential information for review by Chevron, which is virtually unheard of given the need to protect client confidentiality and other privileges. The other three contempt counts concern orders by Judge Kaplan with which I already had complied to Chevron’s satisfaction in the civil RICO case -- yet he filed them anyway as criminal charges, apparently to vindicate no valid interest other than a personal desire to crush me or get me to “surrender” to Chevron. No lawyer on our team, nor any of the many fine lawyers with whom we have consulted around the country, ever has heard of a judge charging a lawyer with criminal contempt based on orders that were a) either pending appeal based on serious constitutional issues, or b) after the lawyer already had complied with the orders on the civil side, as is the case here. Anger or revenge is never an appropriate motivation for a judicial officer.
**Fourth, given what I believe to be the weakness of the contempt charges and the strength of my defense, the pre-trial detention orchestrated by a private law firm seems highly inappropriate. It looks and feels like punishment without a crime. It clearly is designed to break my will and crush my spirit. It also appears to be the result, based on facts recently adduced, of prosecutorial misconduct given the failure by the private prosecutors at Seward & Kissel to disclose what appears to be a flagrant conflict of interest involving their financial ties to Chevron and to Chevron-related entities, including to Oaktree Capital which has two executives on Chevron’s Board of Directors. We are now seeking dismissal of the case with prejudice as a result of this apparently egregious misconduct as happened in similar fashion in the 2008 prosecution of Alaska Senator Ted Stevens, whose case also was dismissed based on highly unethical misconduct by the prosecutors, including one prosecutor who now works at Seward and is taking the lead against me in this very case. We also are insisting that the trial and appellate judges in this district take seriously what appears to be an abuse of power by a private law firm working closely with Chevron, rather than complying with its obligations to act ethically as a disinterested prosecutor as required by law and Department of Justice guidance. It is particularly important that these laws and DOJ guidance be applied neutrally in this case where there is a history of abuse of power by a large oil company and its law firms to try to destroy its main litigation adversary and vulnerable peoples in Ecuador.
**Fifth, the justification for my house arrest advanced by the private law firm prosecuting me is that I am a “risk of flight” to flee to Ecuador. Their theory is that I would just run away from a lifetime of work on this litigation; abandon my wife of 14 years; and abandon my adolescent son. That I would do this even though I don’t have a passport. Even though I returned from overseas to confront the charges. Even though I have never missed any of hundreds of court appearances. If this argument is to be believed, I would have to cross eight borders overland without a passport to get to Ecuador -- in the middle of a pandemic, no less. The “risk of flight” argument advanced by the Seward firm clearly is based on false pretenses that allows Chevron to exact revenge and prevents me from advocating for my clients in enforcing their judgment. This fits exactly with Chevron’s private interests, but it is happening in the name of the U.S. government. And it is happening in ways that are inconsistent with the disinterested way prosecutions are supposed to work in any country governed by the rule of law.
**Sixth, Chevron's management needs to stop using misdirection to confuse the public and the financial markets about the validity of the environmental case. Chevron needs to stop hiding that its evidence before Judge Kaplan was based largely on paid testimony from an admittedly corrupt witness who was coached for 53 days by company lawyers, and paid $2 million (the witness later admitted lying); it needs to stop claiming it won an arbitration in the “Hague” where in reality that arbitration was a private action convened under an obscure bilateral investor treaty, held in secret in conference rooms located in hotels or law firms, and had nothing to do with any public court in the Hague or anywhere else. The arbitration proceeding excluded the Ecuadorian communities and their lawyers as parties and denied their right to present evidence. The arbitration recycled much of the same false or distorted evidence Chevron presented before Judge Kaplan. The proceeding lacks fundamental legitimacy in terms of the affected communities in Ecuador, and most importantly, does not bind any public court in the world as regards enforcement of the Ecuador judgment by those communities.
**Seventh, one final and critical point that often gets lost: the affected communities in the Amazon won the underlying environmental case after an eight-year trial in Chevron’s preferred jurisdiction of Ecuador. That victory still stands as an important and even historic accomplishment for Indigenous peoples, for the climate change movement, for the corporate accountable movement, and for the access to justice movement. For Chevron, a company that refuses to comply with the law, that judgment still poses enormous risk. It was affirmed on appeal three times in Ecuador including by the country’s Supreme Court. It was affirmed in Canada unanimously by both the Ontario Court of Appeal and the country’s Supreme Court for enforcement purposes. The highest courts in Ecuador and Canada have validated the Ecuador judgment for enforcement purposes, as has the highest appellate court in New York. The Ecuadorian communities have a robust and capable international legal team exploring all options to enforce the judgment. The case is continuing and I believe there is little doubt that in due course Chevron will be forced to comply with its legal obligations to the people of Ecuador.
New York, New York
16 April 2020/Day 255 of House Arrest