Source: Truthout

In a move calculated to shield Chevron and deter other lawyers from suing giant corporate polluters, U.S. human rights attorney Steven Donziger was sentenced on October 1 to the maximum of six months in prison for criminal contempt. Donziger, who had won a $9.5 billion judgement for his Indigenous clients against the oil giant for polluting the Amazon rainforest in Ecuador, refused to provide Chevron with his confidential client communications. Before his sentencing, Donziger spent two years on house arrest wearing an ankle bracelet and confined to his home.

“When the next book is written touting the American judicial system as one built on the rule of law, that shows the ways in which the rule of law prevailed over powerful and moneyed interests,” Donziger attorney Ron Kuby told Truthout after the sentencing, “I can assure you the Donziger case will not be included.”

U.S. District Judge Loretta Preska — a leader of the Federalist Society, a group dedicated to getting conservatives on the bench and promoting a radical right-wing ideology (and which is financially backed by Chevron) — was hand-picked to try the contempt case. She found Donziger guilty of six counts of criminal contempt. As Preska sentenced Donziger, she stated, “It seems that only the proverbial two-by-four between the eyes will instill in him any respect for the law.”

When Truthout asked attorney Martin Garbus, who also represents Donziger, for his reaction to the judge’s six-month sentence and threatening words, he replied: “Outrageous. Predictable. Very sad.”

Donziger is the only lawyer who has been held in criminal contempt for trying to appeal orders which he believed violated the rights of his clients to enforce the judgment.

Chevron Responsible for Pouring of Billions of Gallons of Oil Waste Onto Indigenous Ancestral Lands

Donziger has spent over two decades trying to hold Chevron accountable for pollution of the Ecuadorian rainforest. In 2000, Chevron acquired Texaco, which had contaminated the water and soil in Ecuador’s Lago Agrio region between 1964 and 1992. Lago Agrio is the ancestral homeland of more 30,000 people. Texaco deliberately drained its toxic waste into rivers and streams whose water was critical to the survival of five Indigenous groups and dozens of farm communities. Texaco created what is known as the “Amazon Chernobyl.”

In 2011, an Ecuadorian court found Chevron liable for serious environmental and health damage to the Amazon rainforest and the communities in the region. The court concluded that Chevron deliberately discharged billions of gallons of oil waste onto Indigenous ancestral lands.

Chevron was ordered to pay $19 billion to remediate the damages but an appellate court reduced the judgement to $9.5 billion, which was affirmed by the Ecuadorian Supreme Court

“I, with other lawyers, helped Indigenous peoples in Ecuador win a historic $9.5bn pollution judgement against Chevron for the deliberate dumping of billions of gallons of cancer-causing waste into the Amazon,” Donziger told Al Jazeera before his sentencing. “That’s an historical fact. That case has been affirmed on appeal by 28 appellate judges, including the highest courts of Ecuador and Canada for enforcement purposes. So why am I the one being locked up? I helped hold them accountable.”

Judge Lewis Kaplan Manipulates Case to Benefit Chevron

“Judge Kaplan picked the charges, picked the private prosecutors, picked the judge, and remained a judge on the case,” Kuby and Garbus wrote in their sentencing memorandum.

“Our L[ong] T[erm] strategy is to demonize Donziger,” Chevron stated in 2009. Aided and abetted by Judge Lewis Kaplan, Chevron made good on its promise.

In 2011, at Kaplan’s suggestion, Chevron sued the Indigenous plaintiffs and their lawyers, including Donziger, in the U.S. District Court for the Southern District of New York under the Racketeering and Corrupt Organizations Act (RICO), a law designed to target the mafia. Two weeks before trial in 2014, Chevron dropped its demand for $60 billion damages to prevent Donziger from receiving a jury trial.

Kaplan, who did nothing to hide his explicit bias in favor of Chevron throughout the proceedings, presided over the RICO case. Kaplan ruled that the $9.5 billion judgment the Indigenous plaintiffs had won against Chevron could not be enforced in the United States.

In 2018, Chevron initiated a civil contempt proceeding against Donziger. Kaplan held Donziger in civil contempt in 2019 for refusing to turn over all of his electronic devices and passwords to online accounts for Chevron’s review. Donziger was disbarred from practicing law by the New York Bar Association in 2019.

After Donziger appealed Kaplan’s finding of civil contempt, Kaplan drafted criminal contempt charges and asked the U.S. Attorney for the Southern District of New York to prosecute Donziger. When the government prosecutor declined, Kaplan appointed the private law firm of Seward & Kissel (with ties to Chevron) to prosecute the criminal contempt case against Donziger. Kaplan then appointed Preska to preside over the case, circumventing the court rules which require that assignments be random.

Preska ordered Donziger to surrender his passport and wear a GPS ankle bracelet and placed him on home confinement. After denying Donziger a jury trial, Preska convicted him of criminal contempt for “willfully” disobeying court orders and sentenced him to six months in prison, in addition to the two years he spent on house arrest. In the sentencing memo, Kuby and Garbus wrote that the 787 days of home confinement Donziger had already served was “more than eight times the longest sentence given to an attorney-contemnor for the same level of offense.”

UN Human Rights Council Panel Calls Donziger’s Detention “Arbitrary,” Recommends Immediate Release

In a stunning opinion issued two weeks before Donziger’s sentencing, the UN Human Rights Council’s Working Group on Arbitrary Detention found that Donziger’s two-year house arrest constituted unlawful arbitrary detention and recommended his immediate release with compensation and reparations.

The panel of five prominent jurists noted that the “extraordinary” criminal contempt charges that led to Donziger’s detention stemmed from “his refusal to surrender devices that would give Chevron near wholesale access to confidential, privileged and protected documents in a way that would have compromised his ability to provide legal assistance to the people he was defending, which would have posed a great risk to their lives.”

They wrote that they were “appalled by uncontested allegations in this case,” adding that “the charges against and detention of Mr. Donziger appears to be retaliation for his work as a legal representative of indigenous communities, as he refused to disclose confidential correspondence with his clients in a very high-profile case against multi-national business enterprise.” Donziger, the panel concluded, was unlawfully targeted because he is a human rights defender.

“The decision to deprive Mr. Donziger from his liberty allegedly appears to be a rather punitive measure intended to force him to reveal the privileged communications between an attorney and his clients, and a punishment for upholding his professional duty,” the expert panel wrote.

They said that the protocol created by the judge to collect, copy and examine Donziger’s electronic devices didn’t provide safeguards to protect confidential information about his Indigenous clients, including core litigation strategies to collect their $9.5 billion judgement against Chevron around the world. The judge’s protocol “provides a backdoor for Chevron to virtually access all of the confidential information and attorney/client communications related to the case, allowing the corporation to have access to information that they could not otherwise obtain legally.”

Moreover, Kaplan demonstrated “a staggering display of lack of objectivity and impartiality,” resulting in denial of Donziger’s right to a fair trial under the International Covenant on Civil and Political Rights, the panel found.

68 Nobel Laureates Decry Shameful Attempt by Chevron to Manipulate, Abuse and Intimidate

On May 4, 2021, 68 Nobel laureates wrote to Attorney General Merrick Garland that they thought the facts of the case clearly demonstrate “a violation of Mr. Donziger’s rights and those of the affected communities in Ecuador when a U.S. corporation is able to wrest the power from the government to prosecute the lawyer who helped to hold it accountable for human rights abuses, abetted by judges with their own conflicts of interest.” The laureates also affirmed the assertion of members of Congress that it was a “shameful attempt by Chevron, a multinational fossil fuel polluter, to manipulate and abuse the federal courts to silence, punish and intimidate the defendant.”

37 Organizations Representing 500,000 Lawyers File Judicial Complaint Against Kaplan for Violating Duty of Impartiality

In September 2020, 37 organizations collectively representing 500,000 lawyers worldwide, including this writer, filed a judicial complaint against Kaplan for unethically targeting Donziger for the benefit of Chevron.

Formally filed by the National Lawyers Guild and the International Association of Democratic Lawyers, the complaint alleges that the “statements and actions of Judge Kaplan over the last ten years show him to have taken on the role of counsel for Chevron … rather than that of a judge adjudicating a live controversy before him.” It added, “By these standards, he has violated his duty of impartiality under the canons of judicial conduct.” The complainants were concerned that the “persecution” of Donziger by Kaplan and Chevron “will have a chilling effect on the work of other human rights lawyers” and will act “as a warning of the consequences they will suffer” if “they try to hold major corporations accountable for their human rights violations.”

Donziger is appealing his six-month sentence, but he remains under house arrest since Preska denied his request for bail. “Chevron is now using me as a foil to distract from the plight of Indigenous peoples in Ecuador who are suffering massive health problems because of the company’s planet and people-destroying practices,” Donziger wrote in a group email I received. “I am the most convenient target to try to scare future environmental lawyers from seeking accountability for the industry’s destructive operational practices. If I didn’t exist, Chevron probably would have invented me.”

Copyright Truthout. Reprinted with permission.

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the bureau of the International Association of Democratic Lawyers and the advisory board of Veterans for Peace. Her books include Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. 

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