Even before opening arguments on Monday morning, counsel for Steven Donziger signaled their intent to have an appeals court review potential communications between a federal judge and the private law firm he appointed to prosecute Donziger on contempt counts.
MANHATTAN (CN) — Attorneys for environmental lawyer Steven Donziger appeared to anticipate a pre-decided conviction on six contempt counts as the unusual bench trial two years in the making finally opened Monday morning.
Donziger faces six misdemeanor counts of contempt of court for allegedly disobeying the orders of U.S. District Judge Lewis Kaplan in a case where Donziger and indigenous Ecuadoreans living in the oil-polluted Amazon rainforest stood accused of obtaining a $9.8 billion verdict against Chevron through a fraud on Ecuador’s court system.
Kaplan drafted the contempt counts himself and tapped a private counsel to lead the prosecution against Donziger after the U.S. Attorney’s Office declined to do so. U.S. District Judge Loretta Preska is presiding over these extremely rare proceedings, but Donziger’s attorney repeatedly suggested Monday morning that she has prejudged the case.
“At the end of this case, we will ask you, but know you will not, to return a verdict of not guilty on all counts,” defense attorney Martin Garbus said ruing the defense’s opening argument Monday morning.
Earlier in the day during a pretrial logistics hearing, defense co-counsel Ron Kuby anticipated Donziger’s future appeal, asking Judge Preska collect Judge Kaplan’s communications with the law firm he appointed as private prosecutors, Seward & Kissel, to filed under seal with the Second Circuit for review “once Mr. Donziger is convicted.”
Donziger, who has spent over 600 days under court-ordered house arrest in his Manhattan apartment, faces up to six months in prison on the criminal contempt counts.
Lead prosecutor Rita Glavin said Monday that she anticipates three days of direct witness testimony to conclude on Thursday.
Kuby, a legendary civil rights attorney who is name-dropped in “The Big Lebowski,” said he expects two days of defense arguments that will likely start next Monday.
During the prosecution’s half-hour opening arguments Monday, Glavin said Donziger stood to make $550 million from the Ecuadorean judgment against Chevron through his 6.3% contingency fee interest, and that he deliberately defied post-judgement court orders issued by Judge Kaplan concerning those proceeds in the U.S. case Chevron filed under federal anti-racketeering law.
“He began violating that RICO judgment as soon it as was issued,” Glavin said Monday. “He made the decision to not to comply with the judgement right from the beginning.”
Donziger’s legal team has accused Judge Preska of bias because of her connections to the Chevron-funded Federalist Society, and launched an unsuccessful motion for her recusal from the case.
On the eve of the trial, Donziger reiterated his stance that the case against him is intended to intimidate and suppress efforts to hold the oil industry accountable for environmental damages.
“This is much bigger than me,” Donziger said in a video statement on Sunday. “This is an effort by corporate America, particularly the fossil fuel industry, to impose a new playbook in how our court system works, so they can continue their planet-destroying pollution practices that are really threatening the existence of everybody.”
Outside the courthouse Monday morning, Donziger was joined by a crowd of supporters, including actress Susan Sarandon, political activist Marianne Williamson and founding Pink Floyd bassist Roger Waters.
With Judge Preska denying Donziger’s requests to make a public Zoom feed or audio stream of the bench trial available, public interest in his case resulted in multiple courtrooms serving as overflow rooms for spectators and supporters on Monday.
Donziger became involved in the decades- and continent-spanning case when indigenous and farmer residents of the Ecuadorean rainforest tapped him to sue Chevron’s predecessor Texaco in 1993, alleging that the company left behind an environmental and public health disaster for the 30,000 residents of Amazon. Chevron’s first step after acquiring Texaco was to secure the dismissal of that initial case in New York, saying the litigation belonged where the drilling occurred: the Ecuadorean city of Lago Agrio, whose name is a nod to Texaco’s former headquarters in Sour Lake, Texas.
Come 2011, an Ecuadorean judge would awarded the plaintiffs $18 billion for environmental damage caused by Texaco during its operation of an oil consortium in the rainforest from 1972 to 1990. Ecuador’s highest court upheld the verdict three years later, but reduced the judgment to about $9.5 billion.
In the meantime, Chevron filed suit in New York to undercut any obligation it had to honor the Lago Agrio judgment. Though it had promised back in the ’90s to abide by the Ecuadorean court system, it later insisted that Donziger’s fraud voided this obligation.
Chevron took on Donziger personally in the New York litigation, convincing Judge Kaplan that he had attempted to “shake-down” the company for billions by pressuring it to pay an illegitimate judgment.
As the Ecuadoreans fought to collect on the judgment, Judge 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.