The Donziger Exception: How SDNY’s First Covid-Age Criminal Trial Fell Apart

Steven Donziger stands in front of an oil pump in Ecuador in this undated photo. (Photo permission courtesy of Steven Donziger)

MANHATTAN (CN) — Private lawyers tapped as prosecutors asked the defendant to foot the technology bill for holding the proceedings remotely. Witnesses from around the globe prepared to testify, and attorneys from across the country worried about how to best serve their client in New York. There would have been no jury. 

It was supposed to have been the first criminal trial in Manhattan Federal Court for the coronavirus age, but the plan fell apart — with the man on the dock complaining about a constitutional and public-health crisis in the making. 

“It was pretty obvious to me that if the trial was going forward, it would have deprived me of my constitutional right to a fair trial, with potentially devastating results for me and my family,” Steven Donziger, a now-disbarred environmental attorney fighting for his freedom, said during a series of interviews conducted before and after the adjournment. 

Facing misdemeanor contempt-of-court charges, Donziger’s initial trial date today long appeared certain, and his prospects looked grim. A judge rejected three of his requests for an adjournment and brushed aside entreaties by his attorneys in Seattle, Washington; Eugene, Oregon; Cape Cod, Massachusetts; and the coronavirus hotspot of Dallas, Texas, not to make them travel to New York for quarantine and trial.  

But on Friday, U.S. District Judge Loretta Preska unexpectedly changed her mind, excoriating Donziger for what she called delay tactics. 

“That we find ourselves in this situation is deeply disturbing, especially given the court’s view that it is largely the result of the machinations of Mr. Donziger and his legal team,” Preska wrote, setting a new trial date for Nov. 3. 

Denying that accusation, Donziger argued that Preska’s ruling showed her distaste for him. 

“This isn’t a jury trial right now,” the 58-year-old Donziger said. “She is the fact-finder, and she’s already obviously prejudged it. So she should not be overseeing this case. She should really recuse herself.”

‘I’m No Spring Chicken’

Behind Preska’s frustrated 5-page ruling, there is another inside story of the collapse of the would-be debut criminal trial for the Southern District of New York since it scaled down operations in March. The tale involves a defense attorney threatening to sue his own client, a defendant expected to fund technology that he claims violates his rights, and a uniquely complicated case with a court record that spans decades. 

Every court proceeding in the age of the coronavirus has its challenges, probably none so more than the case of Steven Donziger. 

Still a fresh-faced lawyer in his late 20s when he began the case that defined his career, Donziger toiled for decades to help indigenous Ecuadoreans win a $9.8 billion verdict against Chevron for polluting the Amazon rainforest in 2012. During the oil giant’s blistering counteroffensive, he has encountered strange setbacks and a string of judicial oddities that he calls the “Donziger exception.”

When Chevron filed a lawsuit branding Donziger a racketeer, U.S. District Judge Lewis Kaplan rejected his request for a Manhattan jury trial on the grounds that no money damages were sought. Donziger would be on the hook for potentially millions in legal fees anyway after the judge labeled him a fraud. Judge Kaplan’s ruling went out of its way to characterize Donziger’s conduct as criminal, but federal prosecutors never charged him with any of the offenses the judge laid at his feet. And when the U.S. Attorney’s Office declined to prosecute, Kaplan personally charged Donziger criminally for contempt of court.

Based on Kaplan’s ruling, Donziger was stripped of his law license, even though the referee who presided over his disbarment proceedings passionately attested to the former human rights attorney’s fitness to practice law.  

Now Donziger, who casts himself as the target of a massive retaliation campaign by Big Oil, faces a prosecution that puts him at risk of up to six months behind bars during a pandemic. 

“I’m no spring chicken,” Donziger noted, fearing for his health and safety if convicted of six criminal contempt counts. 

Kaplan charged Donziger with several counts of violating court orders, appointed the Chevron-linked Seward & Kissel law firm as prosecutors and sent the case to his colleague Judge Preska, who said a year ago that the case against Donziger “appears strong.” Donziger now fears for the worst. 

“I had pneumonia and other respiratory issues,” he said. “To do the trial would require me to get on the subway twice a day for long rides to court and back. To be in court would be to be exposed to other people, and that adds a lot of stress to a situation that should be a situation where my entire focus should be on my defense.” 

For his defense, Donziger plans to argue that Kaplan’s orders would have forced him to betray his Ecuadorean clients, and he tried to appeal those rulings to the Second Circuit before the judge charged him. Several former federal prosecutors confirmed in interviews that court-ordered prosecutions like Donziger’s are extremely rare.

In this file photo from a so-called “Toxic Tour” of the Amazon, Ecuadorean activist Donald Moncayo dips his gloved hand into oil from the soils of Lago Agrio 5, a site that Chevron said it remediated. (Courthouse News photo/Adam Klasfeld)

Like Having the Sturgis Rally in South Dakota 

Those defending Donziger also have concerns for their health.  

Rick Friedman, a partner at the Seattle-based firm Friedman Rubin, has represented Donziger for decades and knows better than most about the geographic diversity of the witnesses and lawyers involved in the case. 

“This case is particularly ill-suited for a trial in the age of coronavirus because everybody’s from all over the country and even over the world,” Friedman said. 

Martin Garbus, an 87-year-old legal titan who once drafted the Czechoslovakian Constitution with that country’s dissident-turned-president Václav Havel, moved away from New York to wait out the pandemic on Cape Cod, but the octogenarian is not eager to return to the big city.  

Donziger’s counsel for his civil case, Zoe Littlepage, is also helping out his criminal case from the coronavirus hotspot of Dallas.  

“I mean, it’s like having the Sturgis rally in South Dakota,” Friedman quipped, referring to the disastrous gathering that reportedly sickened some seven motorcycle enthusiasts within a week last month. “You bring in motorcyclists from all over the country. You’re basically creating a melting pot for coronavirus.” 

When those lawyers said they would not show, Judge Preska reappointed one of his former lawyers: the Manhattan-based Andrew Frisch. 

Only, for Donziger, there is a problem with that plan: Frisch announced plans to sue him for nonpayment of legal fees. 

Asked whether a defense attorney suing his criminally prosecuted client is a conflict of interest, Friedman responded: “I would say that’s obvious: Yes.” 

“He’d be representing Steven while opposing him in different litigation,” Friedman added later. “It’s absurd.” 

On that point, Preska ultimately agreed. 

“There is no question that Mr. Frisch’s withdrawal will cause a major disruption to this case given that none of Mr. Donziger’s other lawyers is willing to lead the defense at trial starting next week and a government witness has already arrived in New York to quarantine for two weeks,” Preska wrote. “Nevertheless, having weighed the countervailing factors, the court concludes that permitting Mr. Frisch to withdraw so that Mr. Donziger can have a trial lawyer with whom he is not at total loggerheads is the appropriate course.” 

Frisch did not immediately respond to an email requesting comment. 

Legendary criminal defense attorney Ron Kuby offered to represent Donziger — on a couple of conditions. 

“I will commit to this court, barring the occurrence of events such as an asteroid strike, a resurgence of the pandemic requiring lockdown orders, or the suspension of civil government over election results, I will be prepared to try this case on December 7, 2020,” Kuby, one of two defense attorneys requested by “The Dude” in the Hollywood film “The Big Lebowski,” wrote in a legal brief. 

A three-month delay was a bridge too far for Preska, who — apparently less concerned with the prospect of civil government’s suspension than Kuby — set an Election Day trial. 

‘A Guinea Pig’ 

Because of the pandemic, Ecuadorean witnesses originally expected to testify in person will instead appear by video, over defense objections about constitutional concerns. Donziger cried foul. 

“Zoom trials in a civil case are, I mean, I don’t have an issue with that if the parties consent,” Donziger said. “But in a criminal case, with someone’s liberty at stake, and you have Sixth Amendment issues and confrontation clause. You can’t do it.” 

Lead prosecutor Rita Glavin proposed a technological solution, showing him two private vendors pitching technology to facilitate the proceedings. Donziger said he learned later that she proposed that he would foot the $25,000–$30,000 bill. 

“I should pay for the technology because [my attorneys] won’t [risk coming to New York],” Donziger exclaimed in indignation. “That’s the government — the so-called government’s position. I should pay for the technology that they are going to use to make sure I do not get a constitutional trial.” 

Glavin did not immediately respond to an email requesting comment. 

The private prosecutors are also making a mint: as of last month, their legal bills added up to more than $250,000 in taxpayer money to pursue misdemeanors. 

Before the trial’s ultimate postponement, Donziger slammed what he described as a plan to make him a “guinea pig.” 

“Like we’re gonna, you know, use the Donziger case to show it can be done,” Donziger said of what he described as the Southern District’s plan. “For lawyers who can’t come, for witnesses, we won’t travel: ‘You can come in by Zoom. We’ve already done it once. It went fine. The guy got convicted.’ But it just doesn’t work.” 

Reached for comment after the ruling granting an adjournment, Donziger sounded elated and relieved, and he quickly turned his attention from his upcoming trial to the court of public opinion.  

Reached before publication, Donziger had just put in long hours at a hearing Israeli lawmaker Miki Haimovich coordinated before the Knesset, questioning Chevron’s planned $13 billion purchase of Israeli gas assets in light of their conduct in Ecuador. 

“Been up since 3 am for Israel hearing,” Donziger texted. 

Chevron spokesman Sean Comey called the environmental claims against Chevron “false and unsupported by scientific evidence.”

The Ecuadorian Amazon is dotted with oil pools across a land mass roughly the size of the Chernobyl fallout, areas heavily drilled by Chevron’s predecessor Texaco and the state-run enterprise Petroecuador. 

Battles over liability over that pollution has sprawled across three continents, but nobody doubts the reach of the contamination, observed by numerous reporters who have taken “toxic tours” of the regions by local activists.

Touting Chevron’s court wins in multiple jurisdictions, Comey did not respond to multiple, direct questions about Israeli parliament members’ criticism of the history of that drilling, and the Knesset hearing featuring Donziger.

That is only the latest show of international support Donziger has received. Nearly 30 Nobel Prize winners, the European Parliament and bar associations from Canada, Ireland, France, Israel and beyond have backed him throughout his prosecution. A seven-member panel of legal scholars — including Duke Law’s Professor Emeritus Michael Tigar and ex-U.S. Ambassador at Large Stephen Rapp — has formed a monitoring committee to follow every wrinkle of his case. 

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