Chevron v Donziger

Written By: - Date published: 10:48 am, October 9th, 2021 - 12 comments
Categories: climate change, International, law, law and "order", science, us politics - Tags:

If you need proof that the US Justice system is fundamentally flawed this case, involving the Judicially sanctioned attacks on a lawyer who took on Chevron for destroying habitat in the Amazon forest and causing misery and adverse health effects to the local inhabitants provides plenty.

Chevron’s defence to the original claim was pretty flimsy.  It alleged that Brazilian company Petroblas caused all of the polution and it was innocent.  Nope not one drop of pollution came from its wells.

Wikipedia has this brief description of the background:

Donziger represented over 30,000 farmers and indigenous Ecuadorians in a case against Chevron related to environmental damage and health effects caused by oil drilling. The Ecuadorian courts awarded the plaintiffs $9.5 billion in damages, which led Chevron to withdraw its assets from Ecuador and launch legal action against Donziger in the US. In 2011, Chevron filed a RICO suit against Donziger in New York City. The case was heard by U.S. District Judge Lewis A. Kaplan, who determined that the ruling of the Ecuadorian courts could not be enforced in the US because it was procured by fraud, bribery, and racketeering activities. As a result of this case, Donziger was disbarred from practicing law in New York in 2018.

After having been under house arrest since August 2019 awaiting trial on charges of criminal contempt of court, which arose during his appeal against Kaplan’s RICO decision, in July 2021 US district judge Loretta Preska found him guilty; he was sentenced to 6 months in jail in October 2021.[2] While under house arrest, in 2020 twenty-nine Nobel laureates described the actions taken by Chevron against Donziger as “judicial harassment” and human rights campaigners have described Chevron’s actions as an example of a strategic lawsuit against public participation (SLAPP).[3] In April 2021, six members of the Congressional Progressive Caucus demanded that the Department of Justice review Donziger’s case.[4] In September 2021, the United Nations High Commissioner for Human Rights ruled that the pre-trial detention imposed on Donziger was illegal and called for his release.

There were circumstances which made this case really strange.  From Dharna Noor at Gizmo:

Many factors make the criminal charges against Donziger highly unusual. They were brought not by the state, but by a private prosecutor, Rita Glavin. U.S. District Court Judge Lewis Kaplan, who presided over a 2012 RICO case against Donziger, appointed Glavin to bring the charges after public prosecutors refused to do so, a move previously unheard of in the American judiciary. Further, until recently, Glavin worked at a firm that counted Chevron as a client.

Kaplan also handpicked Judge Loretta Preska to oversee Donziger’s contempt trial, going against the court’s standard process of random assignment. This “allegedly bypassed Rule 16 of the [Southern District of New York] Rules for the Division of Business Among District Judges, which states ‘the assignment committee shall transfer the case by lot,’” the UN working group wrote. Preska serves as an advisor to the pro-business Federalist Society—to which Chevron is a major donor—and has a history of ruling in favor of oil companies in court.

The basis of the charges were primarily that Donziger refused to hand over his laptop, phones and files to Chevron, citing professional privilege and client confidentiality which are very appropriate responses.  He appealed this decision but even though the appeal was pending was charged with contempt of court when he failed to do so.  He spent over two years on home detention, and was not even allowed to go outside for regular exercise.  He was forced to defend the case represented by a lawyer he had a dispute with and was then sentenced to the maximum penalty.

Here are my collated bullet points of some of the matters of concern:

Donziger’s case involved the following:

  • The original RICO case was presided over by a Judge with financial interests in Chevron.
  • The contempt case was presided over by a judge with a history of ruling in favour of oil companies and corporates and who serves as an advisor to the Federalist Society which Chevron is a major donor to.
  • This Judge was hand picked contrary to the usual allocation process.
  • After Federal Prosecutors refused to take up the case a law firm that had previously acted for Chevron were appointed to prosecute.
  • Donziger’s application for Jury Trial was refused.
  • Even though he was on home arrest and the delay would only hurt him the Judge forced his previous lawyer, who he was in dispute with,  to take over and run the case.
  • Despite spending over two years on home detention, a very significant penalty in itself, he was sentenced to the maximum of six months imprisonment.
  • His request for bail pending hearing of his appeal was turned down.  He will have to serve his full term even if the sentence is overturned.

The UN Commission on Human Rights criticised harshly the way he has been treated.  From Gizmodo:

“The Working Group is appalled by uncontested allegations in this case,” six international jurists wrote in the 15-page report that forms the basis for the UN’s declaration. “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.”

The report goes on to call Donziger’s home detention “arbitrary” and found that it violated provisions of international law including the rights to a fair trial and a fair judge. The body urged the U.S. government to free him and compensate him for the damages.

“Taking into account all the circumstances of the case, the appropriate remedy would be to release Mr. Steven Donziger immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law,” the working group, which is comprised of five international jurists, said.

To be frank this stinks.  The administration of justice needs to be even handed at every branch.  Prosecutors need to be independent and exercise proper judgment on clearly defined criteria.  Judges need to have no particular interest and should be completely devoid of even the perception of bias.

Clearly the appeal courts are going to look at this.  I hope that for the sale of the reputation of the US courts and the need to hold multinational corporations that pollute to task the appeals succeed.

12 comments on “Chevron v Donziger ”

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  1. Patricia Bremner 1
    9 October 2021 at 11:43 am

    An illustration of corruption in high places. Goes way beyond a "Wink and Nod.”

    The Banksters did not freeze the assets?…. added collusion?

    The attack on the whistle blower!! How often does this bullying happen.? quite often sadly and scares some appellants into withdrawing.

  2. Gezza 2
    9 October 2021 at 12:18 pm

    My Lawd, on the face of those facts, that’s absolutely outrageous & egregious judicial misconduct.

    One hope it does go to appeal & Donziger is not only vindicated but massively compensated.

    The politicised US Justice system displayed for all to see at its very worst.

  3. Brigid 3
    9 October 2021 at 2:12 pm

    I've been watching this egregious fiasco.

    It's sickening

  4. Macro 4
    9 October 2021 at 3:58 pm

    Regrettably after the Trump/McConnell assault on the American judicature, with the appointment over his 4 catastrophic years, of large numbers of politically biased and pro-business RW judges (at all levels), one fears that justice went out the door the moment Trump walked in.

    The rest of the world can wring its hands at such injustice, but this will be the future for America for at least a generation until the bad apples die off.

  5. Ad 5
    9 October 2021 at 4:08 pm

    If Donald Trump becomes President again in 2024 we will see a permanent downgrade to to its corruption index placing and its democracy index placing.

    But it's Chevron that ought to be in the gun here. Their strategic objectives are:

    • Targets more than doubling return on capital employed by 2025.
    • Expects free cash flow to grow more than 10% per year by 2025.
    • Targets 35% carbon intensity reduction by 2028.

    They started the year at US$84 and now trading at US$105, forecast to keep going up 14-15% next year. Anyone who doomsays the US economy as old just needs to keep tracking these oil stocks, making bank all the way.

    Anyone wanting to see the old forests of Ecuador, check out the great photo collection of Salgado in his book Genesis. Sigh at the loss.

    • Adrian Thornton 5.1
      9 October 2021 at 6:56 pm

      Donald Trump..really FFS!..you do understand that the USA was doing all the awful things it did around the world under Trump, before Trump came along, and is still doing them after Trump is now gone right?

      • Ad 5.1.1
        9 October 2021 at 7:41 pm

        Yes really. Donald Trump has had a more damaging effect than any Democratic President since the Depression through his Republican Party appointments and elections on the US judiciary from the lower courts to appeal courts right up to the Supreme Court. The post in fact is precisely about judicial activism, not about "awful things" in general.

  6. Subliminal 6
    9 October 2021 at 5:59 pm

    This goes back a long way

    Beginning in 1993, Donziger and a group of other lawyers brought a class-action lawsuit against Texaco, on behalf of over 30,000 farmers and indigenous people, charging that the company’s oil drilling in the Amazon had resulted in massive contamination. After a visit to the region, Donziger said what he saw at the time was, “what honestly looked like an apocalyptic disaster,” including children walking barefoot down oil-covered roads and jungle lakes filled with oil. Due to the work done by Donziger, the region became known as the “Amazon Chernobyl.”

    The class-action case was originally brought in New York City, where Texaco’s headquarters were located. Since the plaintiffs were propertyless, funding for the lawsuit was provided by the Amazon Defense Coalition and others who would receive a small portion of any settlement. Following the merger, Chevron argued that Texaco had already cleaned up its operations in Lago Agrio and that its local partner Petroecuador was responsible for the remaining contamination.

    Chevron then convinced the US court that the jurisdiction of the case was in Ecuador. In exchange for this arrangement, the US court exacted a promise from Chevron that it would accept the decision of the Ecuadorian courts.

    So Chevron specifically got the case shifted to Ecuador because they thought that bribery would settle the case but when they lost of course they went back to the USA claiming that Ecuador had no jurisdiction,

  7. Adrian Thornton 7
    9 October 2021 at 6:51 pm

    Thanks for highlighting this outrageous travesty MS. I have been following this one for quite a while now, even donated to the cause…don’t you find it strange that RNZ have been banging on about the apparent injustice of Alexei Navalny for the past couple of years but I haven’t heard them once mention this story?

    If there was any justice in the world he would have been given the Nobel Peace Prize this year to embarrass the US government to act..but as we all know there isn’t any justice in this world for the poor and disenfranchised or as it turns out even the people who fight on their behalf.

  8. cathyo 8
    10 October 2021 at 2:30 pm

    unbelievable