U.S. Judges Deny Freedom for U.S. Human Rights Attorney Steven Donziger After 10 Months of Record-breaking House Arrest on Questionable Misdemeanor Charges
Judges Also Bar Jury After Donziger Won Historic Pollution Case Against Chevron; Attorneys Say Prosecutor at Private Law Firm Tainted by Conflicts
New York – A New York trial judge this week refused to release human rights attorney Steven Donziger from his record-breaking pre-trial home detention on a contested misdemeanor contempt charge, prompting outrage by prominent lawyers who have rallied to the lawyer’s defense and accused the judge of retaliation after Donziger won a historic $9.5 billion pollution judgment against Chevron on behalf of Indigenous peoples in Ecuador.
Donziger’s ten months in house arrest in Manhattan is already four months longer than the harshest sentence that could be imposed if he were to be convicted. His lawyers called the decision “cruel and unjustified.”
Donziger’s legal team today vowed to file an emergency appeal of the detention decision and to try to throw out the entire case in part because of “egregious misconduct” by Seward & Kissel, the oil industry law firm appointed to prosecute Donziger after the charges were rejected by the U.S. Attorney. Seward recently disclosed Chevron is a private client of the firm after hiding the fact for months.
After judge Loretta Preska this week put off Donziger’s planned trial until September because of the COVID pandemic, she denied his release claiming he is a risk of flight even though he has never missed any of hundreds of court appearances. Donziger is now likely to spend 13 months in pre-trial detention before any evidence will be presented assuming courtroom trials are allowed in September.
Preska -- a member of the Trump-affiliated Federalist Society -- also denied Donziger a jury of impartial fact finders. She said she would decide the case herself even though her appointment by pro-business judge Lewis Kaplan bypassed local rules requiring random assignment of cases. Several lawyers, who include former federal prosecutor Andy Frisch, have said Donziger cannot possibly get a fair trial under the circumstances given that he is being prosecuted in the name of the public by a conflicted Chevron law firm.
Kaplan filed the contempt charges last July and then appointed both Preska and private prosecutor Rita Glavin from the Seward firm, which later admitted to having financial ties to Chevron and to several Chevron-related businesses, including one with two executives on Chevron’s Board of Directors. (See this affidavit from ethics expert Ellen Yaroshefsky.) By appointing both the prosecutor and judge and orchestrating decisions from behind the scenes, Kaplan in effect is acting as the grand jury, prosecutor, judge, and jury in the same case, Donziger’s attorneys have alleged.
Preska’s decision to keep Donziger under his extraordinary long house arrest came the same day that 475 bar associations and lawyers from around the world, including the President of the Paris Bar and two professors from Harvard Law School, released a stirring letter calling Donziger’s detention a violation of international law and a product of prosecutorial and judicial misconduct. Donziger’s U.S. trial lawyer, Andrew Frisch, outlined the disturbing facts behind the accusations in a recent legal filing.
Marty Garbus, a New York lawyer who also represents Donziger, accused Judges Kaplan and Preska of trying to punish the lawyer to help Chevron escape the pollution judgment obtained in Ecuador. Donziger is the only lawyer in U.S. history ever detained on a contempt charge prior to trial; over the last ten years, Chevron has used at least 60 law firms and 2,000 lawyers (see here) to attack and threaten him and his clients, who are mostly Indigenous peoples and local farming communities in the rainforest.
Six appellate courts in Ecuador and Canada, including 29 appellate judges and the entire Supreme Courts of both countries, have affirmed in whole or in part findings that Chevron deliberately dumped billions of gallons of cancer-causing oil waste onto Indigenous ancestral lands from 1964 to 1992. Known as the “Amazon Chernobyl”, the pollution has led to skyrocketing cancer rates and has decimated five Indigenous peoples. (A summary of the evidence is here.)
A former tobacco industry defense lawyer, Kaplan is the only judge to find the Ecuador judgment was obtained by fraud. He relied on false testimony from an admittedly corrupt witness paid $2 million by Chevron who later admitted lying in court after being coached for 53 days by company lawyers. (See here.) Kaplan also refused to seat a jury or hear any of the environmental evidence used to convict the company in Ecuador.
“The abuse Steven Donziger and his family are suffering at the hands of two American judges and a conflicted private law firm that works for Chevron is jaw-dropping to anybody who believes in the rule of law,” said Garbus, who has represented Nelson Mandela, Cesar Chavez and Andrei Sakharov in a career spanning six decades. “It is something one would typically see in a country like Saudi Arabia, not the United States.”
Garbus, Frisch and a team of trial lawyers representing Donziger have argued the contempt case is tainted with misconduct, as follows:
Kaplan charged Donziger with contempt after the lawyer filed an appeal challenging an unprecedented order by the judge that he turn over his computer and cell phone to Chevron -- a brazen intrusion into the normally sacrosanct attorney-client privilege. It is considered highly unusual for a judge to charge a lawyer with criminal contempt over a constitutional issue that is pending appeal.
Even more odd is that Kaplan’s charges that resulted in Donziger’s detention originally were rejected by the New York federal prosecutor. In an apparently unprecedented maneuver, Kaplan then appointed the Seward firm to “prosecute” in the name of the government without disclosing the law firm had Chevron and several Chevron-related entities as clients -- posing an egregious conflict of interest and violating Department of Justice policy that requires prosecutors to maintain strict neutrality.
The Seward firm also failed to disclose on repeated occasions to Donziger in open court that Chevron was a client. The Seward firm is so close to Chevron that it is even asserting privilege for the company today over critical documents Donziger needs to defend himself in the contempt case.
In February, during argument before a federal appellate court over Donziger’s detention, Seward partner Glavin never disclosed that her firm had financial ties to Chevron. In 2008, Glavin was found by an independent special prosecutor to have committed misconduct when she helped hide critical evidence from the defense in the high-profile case against then Alaska Senator Ted Stevens. The case eventually was dismissed as a result. (See here.)
Preska has not denied that she and Kaplan communicate regularly about the case and that Kaplan has refused to disqualify himself, a customary practice by judges who file contempt charges to ensure impartiality. As a result, for all practical purposes, Donziger has a “two-headed judge” presiding over his case, said Garbus.
“Kaplan seems to be trying to pre-ordain the outcome by appointing his best friend and ideological ally to preside without a jury,” said Garbus. “It is clear Steven cannot get a fair trial. His detention is a reflection of what appears to be an egregious lack of fairness. The charges seem to be about retaliation from a corporate polluter and its judicial allies, not about justice or law.”
Preska scheduled Donziger’s trial for September 9. That means he could be in home detention for more than one year by the time it begins, assuming the pandemic has waned enough to permit courthouse gatherings.
Donziger has a wife and 13-year-old son who are “suffering and hurting” because of his detention and inability to earn an income, the lawyer said in a recent interview on the Chapo Trap House podcast that has received 165,000 downloads. “It’s tough, but we are resilient and we have received support from literally tens of thousands of people around the world, which is heartening,” he said.
In the meantime, Donziger announced this week that several national trial lawyers are joining his team on a pro bono basis to assist Frisch in fighting what hundreds of people around the world have called a “massive human rights violation on U.S. soil”. (See letter of support.) They include Rick Friedman and Zoe Littlepage, both members of the prestigious Inner Circle of Advocates; Lauren Regan of the Civil Liberties Defense Center in Oregon, which defends lawyers attacked by corporations; and Aaron Marr Page, a human rights lawyer and professor at the University of Iowa School of Law.
Regan said Donziger’s battle over the Chevron pollution in Ecuador is the “most important corporate accountability case” in the world. Chevron’s relentless pursuit of Donziger “scares the crap out of lawyers and litigants,” she told The Intercept in an article published today. “People are beginning to realize that, if you don’t stand up for people like Steven Donziger, when they come for you, there will be no one left to stand up for you.”
“This case is not just about Steven,” Regan said on the website of Protect the Protest, a coalition of civil rights and environmental groups. “This is clearly a test case put forth by one of the largest multinational fossil fuel corporations in the world to intimidate and chill other lawyers from bringing environmental lawsuits against the industry responsible for exacerbating catastrophic global climate change. This is the fossil fuel industry again using its obscene monetary power to try and prevent litigants from accessing skilled lawyers to seek justice from the Courts and legal system.
“An attack on one is an attack on all,” she added. “Public interest lawyers and allies around the world are paying close attention to this extremely perverse miscarriage of justice and will stand in solidarity with Attorney Donziger. You can bet the fossil fuel industry is watching as well, and if this is a tactic that they see working to their benefit, you will see more public interest lawyers targeted in this way.”