Citing COVID Threat, Defense Counsel for Steven Donziger Demand Judge Postpone Misdemeanor Trial to Prevent Constitutional Violations
Fair Trial Impossible Where Witnesses Appear Through a Computer, Say Lawyers; Ron Kuby Joins Team and Files Stay Motion
New York, NY – Four prominent national trial attorneys who represent human rights advocate Steven Donziger in his misdemeanor contempt case in New York say he cannot receive a fair trial in September given the threat COVID poses to the lives of counsel, the prosecutorial misconduct tainting the case, and potential restrictions on Mr. Donziger’s Constitutional right to confront witnesses and defend himself.
The Donziger team has asked Judge Loretta Preska to postpone the trial scheduled for Sept. 9 until at least December consistent with the policies of other federal courts around the country dealing with the COVID threat, such that the lawyers can travel to New York safely to be present in the courtroom. There has not been a single federal criminal trial in New York since March because of the pandemic; because of COVID risks, the private prosecutor in Donziger’s case is trying to hold significant parts of the trial via Zoom where witnesses and lawyers would appear through computers.
“We simply cannot have a criminal trial through a computer screen that meets Constitutional standards, and we cannot make Steven Donziger the guinea pig to try to do so,” said Martin Garbus, the legendary civil rights lawyer who represents Donziger.
Separately, New York civil rights attorney Ron Kuby has joined Donziger’s legal team to argue a mandamus petition seeking dismissal of the case by the federal appellate court because of apparent egregious misconduct by private prosecutor Rita Glavin.
After being appointed by the judge who charged Donziger, Glavin for months hid the fact her law firm Seward & Kissel represented Chevron while she sought and obtained Donziger’s house arrest after Donziger won a $9.5 billion pollution judgment against the company. Glavin and the Seward firm must be disqualified from the case because of their financial ties to Chevron given Donziger’s role in winning the pollution judgment against their client, say Donziger’s attorneys and Professor Ellen Yaroshefsky, a prominent ethics expert. (See Yaroshefsky affidavit.)
In an extraordinarily rare move (see here), Glavin was appointed private prosecutor in 2019 by pro-industry Judge Lewis A. Kaplan after the regular federal prosecutor rejected the judge’s proposed charges. Kaplan’s appointment of a private prosecutor from a Chevron law firm as well as his selection of presiding judge Preska without using the random case assignment process has been called an attack on the Constitution and the rule of law.
Glavin has all but conceded she is talking to Judge Kaplan about the case in what appears to be a major violation of ethics rules given that judges generally are barred from being involved in contempt prosecutions they initiate. Judges also are prohibited from engaging in ex parte communications with a party. Glavin and the Seward firm have stonewalled requests she disclose her communications with Kaplan, who has refused to recuse himself from the case. (See here.)
“This is the first case I have seen where a judge let a private corporation take over the prosecutorial power of the U.S. government to silence a critic,” said Garbus, who represents Donziger. “In my view, this is an appalling attack on the rule of law facilitated by Judges Kaplan, Preska, and Ms. Glavin.”
Kuby last week filed a motion to stay the trial before the Second Circuit appellate court until the issues surrounding Glavin’s conflict of interest can be resolved. “The Petition raises a rare but significant challenge to conduct that threatens the fair administration of justice,” he wrote. “A private, for-profit prosecution firm, appointed by the district judge who drafted the charges, deliberately concealed its prior attorney-client relationship with the Chevron Corporation...This falls risibly short of the “rigorously disinterested” standard required of private prosecutors.”
While the stay motion is pending, the four trial lawyers for Donziger – led by Seattle-based Richard Friedman – are demanding the trial be put off until the pandemic no longer poses a threat to their lives or those of their families. They also criticized Preska for being appointed by Kaplan in violation of the random case assignment process normally used for criminal cases in the federal courts.
Preska put Donziger under house arrest on his first appearance on August 6 of last year, where he has remained for the last 13 months even though the longest sentence ever imposed on a lawyer convicted of contempt is three months of home confinement. Preska also denied Donziger a jury. He was charged by Kaplan as he was working in other jurisdictions such as Canada to help enforce the Ecuador judgment, which has been affirmed by six appellate courts and 29 appellate judges in Ecuador and Canada, including the highest courts of both countries.
The handling of the Donziger contempt case has been sharply criticized by two retired federal judges, Nancy Gertner and Mark Bennett. In an unusual public critique, they described Kaplan’s charges as “excessive” and backed a call for Donziger’s immediate release. In April, 29 Nobel laureates signed a statement demanding Donziger’s release. International human rights groups, including Amnesty International and Global Witness, also have criticized Donziger’s detention without trial as “arbitrary” and a violation of international law.
(See this letter from 475 lawyers and bar associations, this briefing document from a Canadian group, and this letter from the European Parliament to the U.S. Congress.)
Donziger led an international team that in 2011 won a historic $9.5 billion pollution judgment against Chevron after the company was found to have deliberately dumped billions of gallons of oil waste onto ancestral lands in Ecuador’s Amazon, creating an environmental catastrophe known as the “Amazon Chernobyl”. The dumping decimated Indigenous groups and caused numerous cancer deaths. (See this summary of the evidence.)
Donziger’s lawyers also criticized Preska’s design of the planned trial, which includes testimony by video (which would violate the Constitution) and lawyers who do not appear in court because of the COVID threat.
“This trial as currently conceived represents a grave threat to Mr. Donziger’s Constitutional rights, his legal right to a fair trial with an unbiased prosecutor and neutral judge, our own health as defense counsel, and indeed to the rule of law that is the very foundation of freedom in a democratic society,” said the lawyers in a statement. “This trial cannot go forward without putting our lives and those of our families in danger.”
Other than Friedman, who is 63, Mr. Donziger’s legal team includes Garbus, who is 87 and said he cannot attend the trial during the pandemic without risking his life; Zoe Littlepage, who is based in Houston in one of the world’s COVID hotspots and who cannot travel to New York without quarantining for 14 days (although she is currently in Barbados due to a family emergency); and Lauren Regan, the director of the Civil Liberties Defense Center in Eugene, Oregon who believes she is a COVID carrier and whose doctor has told her not to travel to New York unless it is a “life and death” emergency.
Even Mr. Donziger, 58, has health ailments that make him particularly susceptible if he were to contract the virus, said Friedman.
Given the dangers posed by the pandemic, Glavin has asked that Donziger’s lawyers not cross-examine the government’s key witness in person – something that has never happened before in a regular U.S. criminal trial and a step that would brazenly violate Mr. Donziger’s right to a fair trial with no justification except to further Chevron’s retaliation campaign, said Friedman.
In separate letters to the court, Regan and Friedman said the September 9 trial date was forcing them to choose between their ethical duty to represent Mr. Donziger properly and their own health and that of their families. Friedman asked that the trial be postponed until December with the risks reassessed monthly to see when it is safe to hold the trial. “I can’t properly represent Steven properly and ethically unless we are physically together to prepare and do the case in person,” he said.
While COVID is relatively contained in New York compared to other states, several universities and private schools in Manhattan have closed in recent days due to the pandemic and the lack of testing capacity. The federal courthouse is a virtual ghost town.
The planned misdemeanor trial would be the first criminal trial in New York since the pandemic emerged in March even though hundreds of defendants are currently incarcerated in COVID-afflicted jails awaiting trial on far more serious felony charges. Garbus called the decision to make Mr. Donziger the first defendant tried during the pandemic evidence of a malicious prosecution.
Kaplan, a former tobacco industry lawyer, charged Mr. Donziger after he appealed an unprecedented order from the judge that he turn over his computer and cell phone to Chevron. Kaplan charged Mr. Donziger criminally while the lawyer’s civil appeal over his orders was pending, an aggressive move virtually unheard of in the annals of American jurisprudence.
Donziger’s civil appeal, which challenges the entire basis of Kaplan’s contempt findings, is being argued September 15 which is another reason why Kaplan and Preska appear to be trying to rush the trial to ensure a quick conviction without a jury, said Garbus.
In her letter to Preska, Regan said, “I feel I am being forced into a conflict with my client. I can either protect my health and that of my family and community, or go to Manhattan to defend Mr. Donziger on a misdemeanor contempt charge right now.” Regan asked Preska to “please do the reasonable thing” and postpone the trial “so that we do not have to address the conflict issue that will arise if defense counsel is forced to choose between our client and our health.”
In the meantime, the international human rights community has formed a monitoring committee to document due process violations in the case. “The campaign of judicial and corporate harassment being waged against Steven Donziger is chilling in scope and intensity,” said Jeanne Mirer, a member of the committee and president of the International Association of Democratic Lawyers. “We want all parties involved to know that from this moment forward, we will be watching.”
The committee, a collection of seven well-regarded lawyers and advocates, includes Michael Tigar, chair of the American Bar Association’s Section of Litigation and a Duke University law professor; Nadine Strossen, a former president of the American Civil Liberties Union and a New York Law School professor; and Stephen Rapp, a former U.S. Department of State ambassador-at-large for the Office of Global Criminal Justice.
Donziger’s attorneys have pointed out that both Kaplan and Preska also have financial ties to Chevron. Kaplan failed to disclose his investments in Chevron when he became involved in the case. Preska is a member of the pro-corporate Federalist Society, a legal organization that relies on Chevron as a major funder, according to Pulitzer Prize-winning journalist Chris Hedges in his recent article about the case.