On March 28, the environmentalist lawyer Steven Donziger spent his 600th day under house arrest in his New York City apartment – and Martin Garbus, the legendary attorney who is part of his defense team, warns that he could end up being confined for an astonishing five years. Donziger says that Chevron, with the help of two federal judges, is persecuting him, because in 2013 he helped win a $9.5 billion case in Ecuador against the oil giant for contaminating a stretch of the Amazon rain forest.
On March 29, the US Appeals Court of Appeals for the Second Circuit turned down Donziger’s motion to be released on bail while awaiting trial for contempt. Donziger’s attorneys argued before the court earlier in the month that he was not a flight risk, but the three-judge panel rejected their plea, keeping Donziger at home, monitored by an ankle bracelet. Donziger’s contempt trial before federal judge Loretta Preska is due to start on May 10.
Garbus, an 86-year-old veteran of the US courtrooms, is no alarmist, but he explained to me how such a minor charge could keep Donziger captive for so long: “Steven Donziger is being prosecuted for a misdemeanor, a petty charge with a maximum sentence of six months in prison. But he could eventually end up confined to his home for more than five years. By the time of the trial, he will have served 630 days under house arrest. Add to that the six months prison time he could get if convicted. And then, afterward, he could be sentenced to two years of probation, which he might also have to serve under house arrest.”
This would be unprecedented. No lawyer convicted of contempt in New York has ever been held for more than 90 days in home confinement.
Garbus continued: “I can imagine further drawn-out scenarios if Steven continues to appeal along the way. More years of litigation. More years of house arrest. Neither Charles Dickens nor Emile Zola could have imagined such a horrible scenario.”
Donziger’s contempt case is an irregular proceeding in which a private law firm with ties to Chevron is prosecuting him after the US Attorney’s Office for the Southern District of New York refused to take up the case. There is no jury. Judge Preska alone will decide his fate – continuing the unjust, decade-long pattern in which Donziger has never gotten the chance to face a jury of his peers.
In 2011, the Ecuadorean courts awarded 30,000 plaintiffs, mostly farmers and Indigenous people, billions of dollars to clean up the polluted soil and to improve the region’s rudimentary health facilities. But Chevron has refused to pay, claiming that Donziger committed fraud to win the case. Meanwhile, his clients in eastern Ecuador live on poisoned land and struggle to find safe water. Five peer-reviewed scientific studies show an increased risk of cancer and other threats to health in the area. (Chevron funded its own peer-reviewed study, which claims there is no such increased risk.)
Luis Yanza, the elected head of the Amazon Defense Coalition (ADF) and Donziger’s close friend, explained by telephone: “We know where Chevron contaminated the soil so we try to avoid water from rivers and streams in those areas, but that’s not always possible. Even deep wells can’t guarantee safe water, because the toxins may have infiltrated the subterranean water supply. In some places, the ADF, with international help, is building systems to capture rainwater. Bottled water is not available in remote areas, and even where you can get it the cost is $50 a month per family, which very few of our people can afford. Boiling water is not a solution, because it will kill biological but not chemical contamination.”
He further explained that the region has only two small hospitals, neither of which is equipped to treat cancer: “To see the cancer specialists, you have to catch the bus to Quito, which takes from seven to eight hours, or go to Guayaquil, which is a 12- to 14-hour trip. And that’s only if you have the financial resources.”
The mainstream US press inexplicably continues to ignore Chevron’s campaign against Donziger. The news blackout by the The New York Timesand others contrasts with their detailed reports back from 2011 to 2014, when the oil giant prosecuted Donziger and a few of his Ecuadorean allies for racketeering, using the Racketeer Influenced and Corrupt Organizations Act, originally designed to pursue the mafia. Chevron, which had participated in every phase of the legal process in Ecuador up to and including an appeal to that nation’s highest court, brought an entirely new case in a New York federal district court to try to discredit Donziger and his clients. Chevron’s star witness was an ex-judge from Ecuador, Alberto Guerra, who testified that Donziger and others had bribed him to ghostwrite the decision. Guerra’s evidence was highly questionable: Chevron admitted in court that it had paid to move him and his family to the United States and rehearsed his testimony before the trial 53 times.
A Chevron legal maneuver had deprived Donziger of the right to a jury, so it was Judge Lewis A. Kaplan, a corporate lawyer-turned-federal judge, who in 2014 decided to accept Guerra’s testimony, disregard contrary statements from other witnesses, and find Donziger and his Ecuadorean codefendants guilty. The ample mainstream media coverage included a nasty opinion article by the then-New York Times columnist Joe Nocera, who gloated over the verdict. But once the trial was over, the reports stopped.
(Sean Comey, a spokesman at Chevron’s global headquarters in California, was asked via e-mail if Chevron is still paying ex-judge Guerra. Comey declined to answer, but did issue a statement that said, in part: “The U.S. District Court for the Southern District of New York held that the judgment against Chevron [in Ecuador] was product of fraud and racketeering.”)
Donziger’s upcoming trial for contempt is a direct outcome of that dubious racketeering conviction. After the verdict, Kaplan ordered him to turn over his electronic devices to Chevron; he declined, arguing that the information would give the oil giant insights into how he and the plaintiffs are continuing their global legal efforts to collect the judgment in other jurisdictions, such as Canada.
That contempt charge is unconvincing for several reasons. First, after the US attorney for New York’s Southern District turned down Kaplan’s request that it prosecute Donziger, the judge selected a private law firm to bring the case. The firm, Sewell & Kissel, which has already charged the government at least $464,000for its services, revealed after its prosecution was already underway that Chevron has been one of its clients. (Comey, the Chevron spokesman, declined to say whether Sewell & Kissel had previously worked on any aspect of the Donziger/Ecuador case.)
Garbus, who has appeared at hundreds of trials, including in the Deep South during the segregation era, has said, “This is the first case I have seen where a judge let a private corporation take over the prosecutorial power of the US government to silence a critic.”
Preska, who will preside, has denied Donziger’s repeated efforts to have his pretrial house arrest relaxed, insinuating that he might flee, even though he has family in New York, has fought this case since 1993, and has already surrendered his passport.
But Chevron’s strategy could be backfiring. Over the past few months, a global movement has grown to defend Donziger and his Ecuadorean clients. Some 55 Nobel Prize winners signed a letter defending Donziger; 475 lawyers and human rights defenders released a similar appeal. A blue-ribbon legal Monitoring Committee is closely following Donziger’s case; the group includes Nadine Strossen, the former head of the American Civil Liberties Union, and Michael Tigar, the distinguished defense attorney and human rights activist.
What’s more, hundreds of students from more than 50 US law schools say they will boycott recruitment visits from Seward & Kissel, the law firm that is prosecuting Donziger for contempt. In a letter, the students said Seward & Kissel’s previous ties to Chevron meant the firm has a “significant conflict of interest” in the Donziger case. They added, “The unethical behavior of Seward & Kissel’s Chevron-linkedprosecutors opens the door to future cases in which judges give private law firms the authority to prosecute the critics of multinational corporations – without disclosing their ties to those same industries.”
