After a week of proceedings, the criminal trial for attorney Steven Donziger — who won a multibillion-dollar case against Chevron over pollution in the Amazon rainforest — wrapped up on Monday. In his estimation, the trial was a “charade.” And yet he was relatively pleased with the outcome.
“Given that we stood no chance to win the actual trial, the proceeding could not be better for us,” he said.
Donziger led a case against Chevron on behalf of 30,000 Indigenous people and peasant farmers from the Ecuadorian Amazon. In 2013, he won a $US9.5 ($12) billion judgment against the energy giant, marking the largest human rights and environmental court judgment in history. Chevron refused to pay and instead put all its energy into going after Donziger in court in what is one of the most outlandish cases to wend its way through the courts in recent memory. Donziger has been under house arrest for going on 22 months, a judge with an industry-friendly record has been handpicked to preside over the proceedings, and the prosecuting lawyer worked until recently at a private law firm with ties to Chevron.
The trial, which began on May 10, focused on misdemeanour charges of criminal contempt against Donziger for disobeying court orders, the charge that landed him in home detention. Specifically, Donziger refused to hand over his laptop, cell phone, and other electronic devices when the court ordered him to so back in 2019. He said doing so would violate his legal clients’ privacy.
If found guilty, Donziger could face up to six months of prison time. He and his lawyers have no doubt he’ll be convicted.
“No justice will be done here,” Martin Garbus, an attorney representing Donziger, said in the courtroom on the first day of the trial.
The criminal charges against Donziger are unusual, as they were brought by a private prosecutor, Rita Glavin, who until March was a partner at the law firm Seward and Kissel. Last year, Seward and Kissel admitted that they’d represented Chevron as a client as recently as 2018, confirming Donziger’s lawyer’s suspicions and posing a glaring conflict of interest. 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.
The contempt trial was overseen by Loretta Preska, the same federal judge who placed Donziger on house arrest in 2019. She was also selected to oversee the criminal case by Kaplan. Handpicking a judge for a case went against the standard process of random assignment that the court normally uses, and Preska’s role an advisor to the pro-business Federalist Society and documented history of ruling in favour of energy companies has raised concerns for Donziger’s supporters.
Paul Paz y Miño, the associate director of Amazon Watch, said that Preska has applied the rules of the court selectively. She invoked them last month in her decision to disallow the criminal trial to be broadcast on Zoom despite clear public interest. Then as the trial was beginning, Paz y Miño said, she invoked court rules when Donziger’s supporters wanted to sit in the part of court designated for journalists.
“She said the Southern District doesn’t allow people who aren’t press in the press area,” he said. “But she had no problem ignoring the rules when the case was assigned to her by Kaplan. … The hypocrisy is full on display.”
Paz y Miño said Preska’s biases only became more clear as the proceedings began. From the first day, she said that she was not interested in hearing from Donziger’s lawyers about why he refused to turn over his laptop and cell phone — namely that doing so would violate attorney-client privileges. A judge for a related trial ruled that the sanctions Kaplan placed on Donziger were not clear and should be overturned in March, but put Preska deemed all of that irrelevant.
“She said he was given an order by a federal judge, he didn’t comply, he’s held in contempt. She pretty much said everything short of ‘you’re guilty’ on the first day of the trial,” Paz y Miño said.
As the trial continued, Paz y Miño said Preska continued to conduct herself unfairly. He said she only sustained one of Donziger’s team’s objections to the proceedings, whereas she upheld all but one of the prosecution’s.
Kaplan’s role in the trial also made supporters raise their eyebrows. It’s Kaplan’s orders Donziger is being accused of disobeying, so he is the aggrieved party. Despite this, he chose the judge to preside over the case. Further, he has not recused himself from the case, so he could still be in communication with Glavin, the private lawyer prosecuting Donziger.
Donziger’s team believed the trial was so clearly unfair that they spent just 10 minutes on defence arguments on Monday. Donziger himself didn’t even testify in court.
“I just was advised by my lawyers that it would not be a good idea, and as I thought it through, it just didn’t make sense,” he said at a press conference. “It wouldn’t have moved the needle.”
Closing arguments will be submitted in writing in two weeks, and a decision is expected sometime after that. Though Donziger has no question he’ll be convicted, he said the trial could actually help him construct a solid appeal if and when he is convicted because it so clearly demonstrated the reasons that the case was unfairly biased and should be thrown out.
“This trial had already been decided and the purpose of the proceeding was to try to glom on a veneer of due process over a decision that I think was made behind closed doors by judges,” he said, noting the circumstances “seriously strengthen our appeal.”
Support for his plight is also building elsewhere. Last month, U.S. representatives including Rep. Alexandria Ocasio-Cortez and Rep. Cori Bush, sent a letter to Attorney General Merrick Garland asking him to review the case. Whatever the verdict, it almost certainly won’t be the end of the case.