The trial of the environmentalist lawyer Steven Donziger ended this week in a federal district court in Lower Manhattan. For a decade, Chevron’s lawyers have pursued him after he won a landmark case against the corporation on behalf of 30,000 clients in Ecuador for polluting a vast stretch of rain forest.
If convicted of criminal contempt, Donziger faces up to six months in a federal prison—after already serving 650 days under house arrest, confined there by Judge Loretta Preska, who ruled that he might flee the country before his trial.
There are no jurors in the jury box in Judge Preska’s wood-paneled courtroom. Once again, Donziger is being denied the right to be judged by a jury of his peers.
The courtroom is partly empty, because of social distancing requirements. But Chevron’s attorneys are there, as always, to oversee the oil giant’s legal onslaught—even though the case is supposedly United States v. Steven Donziger.
After ignoring the case for several years, the mainstream press is also tentatively starting to cover it. The first reports have been biased, but at least they are warning Chevron shareholders and institutional investors, like big pension funds, that its attempts at revenge are further tarnishing its reputation.
(This renewed publicity comes at a bad time for Chevron. The corporation is already under fire over its financial support for the military dictatorship in Myanmar. Chevron continues to make payments to the violent regime there despite pleas from human rights organizations worldwide that it instead put the funds into escrow, pending the restoration of democracy.)
Martin Garbus, 86-year-old veteran of countless human rights battles, opened Donziger’s defense on May 10 with a ringing statement of indignation. “No justice will be done here,” he said. “We know you won’t return a verdict of not guilty.” Judge Preska regularly interrupted Garbus and another defense attorney, Ron Kuby, directing them to stick to the specifics of the case. “This is not a press conference,” she said several times. She added, “the rally was outside,” referring to a pretrial demonstration by dozens of Donziger’s supporters.
Garbus also repeatedly referred to Rita Glavin, who is prosecuting, as “the Chevron prosecutor.” What he meant was that she is not in fact employed by the federal prosecutor’s office for the Southern District of New York, which refused to take the case. Instead, in an irregular maneuver that astonished legal scholars, another federal judge, Lewis Kaplan, picked her to prosecute Donziger. (Glavin actually works for a private law firm, Seward & Kissell, which has financial ties to Chevron.) It was Kaplan who presided over Chevron’s previous legal attack against Donziger and some of his Ecuadorean allies, a now notorious prosecution under the RICO Act, a statute originally designed to take on the Mafia.
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In that case, a Chevron legal maneuver also deprived Donziger and his codefendants of a jury, so it was Kaplan alone who in 2014 found him and the others guilty of racketeering. Kaplan’s verdict contradicted the findings of the Ecuadorean courts, which in 2013 had found Chevron guilty of polluting an area of rain forest the size of the state of Rhode Island. It prohibited the Ecuadoreans from collecting their $9.5 billion judgment in the United States; they plan to use the money to clean up their poisoned habitat and to improve care for the rising number of cancer patients who they say are falling ill because of the contaminated soil and water.
The current trial is a direct outcome of Kaplan’s verdict. Donziger and his Ecuadorean clients in the Amazon Defense Coalition cannot collect their judgment in Ecuador either, because Chevron sold its assets in that country. So they are forced to bring legal cases in other jurisdictions where the global oil giant has assets. Donziger and the Ecuadoreans were vigorously pursuing environmental justice in Canada—until Chevron’s lawyers struck again, charging that he had not complied with Kaplan’s original verdict in several respects.
Hence the current trial. The key charge is that Kaplan ordered Donziger to turn over his electronics to Chevron’s lawyers, and Donziger declined. Donziger’s defense team argues that access to his electronics will give Chevron insight into his legal strategy, and violate the right of his clients to have their communications with him kept private. Garbus’s opening statement contended that Donziger had shown respect for the legal system all along, and that if a higher court turned down his challenge, he would promptly obey and turn over his cell phones and computers. What’s more, Donziger could have been charged with civil contempt, a milder and more appropriate accusation, instead of criminal contempt, which can mean prison if convicted.
After the opening statements, the trial started bogging down in numbingly tedious testimony about legal and financial minutiae. But one theme did emerge in Glavin’s prosecution; she was insinuating that Donziger is motivated by the contingency fee he would earn personally if Chevron were to finally pay its legal obligations. A Wall Street Journal report’s first sentence echoed this implication: “Steven Donziger once stood to gain hundreds of millions of dollars for winning a $9.5 billion environmental-contamination verdict against Chevron Corp…” Chevron and its pro-corporate allies in the media have long made this charge explicitly; Donziger is nothing more than an ambulance chaser who found his way to the rain forest.
The insinuation grows more absurd as time passes. Donziger has fought this case for 28 years. He is 59 years old. He has just spent 650 days under house arrest. If he were truly motivated only by money, he would have dropped out long ago, dusted off his Harvard Law School diploma, and found another money-making opportunity.
Before Donziger’s trial started, he was denied justice in another arena. In 2019, the New York Bar Association suspended Donziger’s law license, but also appointed a special hearing officer to allow him to defend himself. John Horan, a former prosecutor, presided over a series of hearings. As always, a phalanx of Chevron lawyers crowded into the small hearing room, alongside Donziger’s witnesses and supporters.
Horan decided for Donziger in February 2020. He recommended restoring Donziger’s right to practice law, and he also upbraided Chevron: “The extent of [Donziger’s] pursuit by Chevron is so extravagant, and at this point so unnecessary and punitive, [that] while not a factor in my recommendation, it is nonetheless background to it.”
The Bar Association appealed, and in August 2020 New York State’s Appellate Division, First Department, reversed Horan’s finding. There were no more hearings. There was no more chance for Donziger to defend himself.
Donziger’s unjust treatment by the US legal system is triggering a growing global solidarity movement. The number of Nobel Prize winners who support him is now up to 68; another 475 lawyers and human rights defenders have signed a letter that calls his prosecutions “one of the most important corporate accountability and human rights cases of our time.” A special legal monitoring committee of distinguished jurists is following his case with concern. On the eve of the trial, a former US ambassador, Steven J. Rapp, asked for permission to attend the trial remotely, via Zoom; Judge Preska denied his request. Some 200 law students from 55 law schools signed a letter asking the US Department of Justice to review the nearly unprecedented private prosecution of Donziger.
Donziger addressed his growing army of supporters in a letter just before his trial started. He said, “I am merely a foil that Chevron has created to send a message of intimidation to other human rights lawyers and to draw attention away from the fact that it deliberately and maliciously poisoned communities in the Amazon.”
He continued: “There are real people in Ecuador’s Amazon who today are suffering and dying from Chevron’s pollution. Chevron has managed to get ‘protection’ from a deeply flawed—and at times outright unethical—legal system.”
Garbus said he expects a verdict in about 30 days. If convicted, Donziger faces up to six months in a federal prison.
Garbus’s opening statement ended by questioning the entire proceeding in Preska’s courtroom. He and the defense team are not trying to convince the judge. They want to win justice for Donziger in higher appellate courts and expose Chevron’s persecution to a global audience.
Garbus: “Steven Donziger was denied his request to have a jury of American citizens to decide this case. But Mr. Donziger now has a different jury. Some are seated in the press box.”
Judge Preska: “That’s totally apparent to me, Mr. Garbus.”
Garbus: “[They] will tell children, men, and women throughout the world of what has happened in this case. That may ultimately be the decision that survives the history of this case.”