Steven Donziger attends his pre-sentencing rally.
An environmental advocate who helped obtain a $9.5 billion judgment against Chevron for oil drilling in Ecuador was sentenced to spend six months in jail after a federal judge found him guilty of contempt of court, following an unusual court-ordered prosecution denounced by Nobel Prize winners, multiple bar associations, U.S. lawmakers and a United Nations working group on arbitrary detention.
“This case is wholly unconcerned with any responsibility Chevron might bear for pollution in the Oriente region of the Ecuadorean Amazon,” Senior U.S. District Judge Loretta Preska said before issuing a sentence she compared to a “proverbial two-by-four between the eyes.”
“Might That Be Punishment Enough Already?”
Steven Donziger, now 60, has seen his fortunes change dramatically since 2011, when he helped thousands of indigenous and farmer residents of the Ecuadorean Amazon win a multi-billion dollar judgment against Chevron. The case then centered around the legacy of decades of drilling by Chevron’s predecessor Texaco in the jungle.
“I have thoroughly enjoyed my work and feel blessed in being able to carry out my chosen purpose,” Donziger said in his courtroom address.
For more than a decade, Chevron sought to recast the litigation as a story about the conduct of lawyers for the Ecuadoreans. The case against Chevron originated inside a federal court in Manhattan in 1993, where Donziger’s then-clients filed the lawsuit against Texaco. Chevron acquired that company in 2011, inheriting the lawsuit and winning the right to move the case to Ecuador.
After Donziger’s defense attorney Ron Kuby described the case’s origins, he said: “It was Chevron that did not trust the U.S. courts, not Mr. Donziger.”
As an adverse judgment appeared imminent, Chevron returned to same federal court in New York to sue Donziger under federal anti-racketeering law, a statute designed to fight organized crime. Despite accusations of serious misconduct like bribery, fraud and witness tampering, the civil case was tried without a jury—over Donziger’s objections.
U.S. District Judge Lewis Kaplan ruled broadly in Chevron’s favor in 2014.
As a result of that decision, Donziger was disbarred during bar proceedings where he was not allowed to contest Judge Kaplan’s findings. Losing his law license, Donziger faced the prospect of paying millions in Chevron’s enormous legal fees, even though the oil company dropped its monetary demand before trial to avoid a jury. He has spent more than two years wearing an ankle bracelet, under home confinement.
“I ask you humbly: Might that be enough punishment already for this level of offense?” Donziger asked, getting uncharacteristically emotional.
“They Are Not, Nor Have They Ever Been, the Government”
Then, a decades-long civil case took a criminal turn. Chevron reportedly lobbied the U.S. Attorney’s office for the Southern District of New York to prosecute him. That office declined the company’s entreaties. Judge Kaplan separately referred criminal charges, accusing Donziger of disobeying his post-trial orders.
Instead, in an unusual development, Kaplan ordered Donziger’s prosecution for contempt of court after the U.S. Attorney’s office for the Southern District of New York declined his criminal referral. In mid-2019, the judge hand-crafted six misdemeanor charges himself, appointed attorneys from a Chevron-tied law firm Seward & Kissel to act as private prosecutors and steered the case to another judge, without formally recusing himself from the matter.
When Judge Preska referred to Seward & Kissel’s lawyer Rita Glavin as the “government” and the case as “United States v. Donziger,” Kuby mocked the designation.
“I understand the confusion, but they are not, nor have they ever been, the government,” Kuby said, repeatedly referring to the “private, for-profit” prosecutors.
Glavin characterized the case dramatically differently, pointing out Judge Kaplan’s findings that Donziger obtained the Ecuadorean judgment through fraud and corruption. The appellate court upheld that ruling, and the Supreme Court denied his petition, she added.
“The full record of this case is public,” Glavin said. “There are transcripts. There are filings.”
She claimed that Donziger left Judge Kaplan with no other choice.
“It is unethical for attorneys to not comply or refuse to comply with court orders,” Glavin said. “It simply is.”
Eschewing Chevron’s allegations of misconduct, Donziger’s criminal charges accused him of defying six of Kaplan’s orders in a bid to profit off the Ecuadorean ruling the U.S. judge found fraudulent. The case went before Judge Preska, who confined Donziger to house arrest more than two years ago.
Calling respect for court orders “all that separates us from trial-by-combat,” Preska said: “It seems that only the proverbial two-by-four between the eyes will instill within him any respect for the law.”
Donziger said his opposition to Judge Kaplan’s orders was to protect his clients’ attorney-client privileged materials, but Judge Preska said the defiance of certain orders had a more self-interested motivation — trying to collect on a portion of a multi-billion dollar judgment that he was forbidden to seek.
“Indeed, it had nothing to do with anything other than Mr. Donziger’s refusal to relinquish a potential payday for himself,” Judge Preska said.
“A Bit of a Martyr to the Environmental Movement”
Donziger’s lawyer Kuby said that the world has taken notice that the process looks irregular.
“C’mon, judge, how does this look?” Kuby asked. “How does any of this promote respect for the law?”
One of two lawyers demanded by “The Dude” in the Hollywood film “The Big Lebowski,” Kuby gained his reputation as co-counsel for the late, self-described radical lawyer Bill Kunstler, with whom he represented the 1984 Republican National Convention flag-burner Gregory Lee Johnson and so-called “blind sheikh” Omar Abdel-Rahman, convicted in connection with the 1993 terrorist attacks on the World Trade Center. His co-counsel Martin Garbus, who sat by him during the proceedings but spoke little, represented such luminaries as Nelson Mandela and Václav Havel.
Kuby said that the latest prosecution has transformed his client into an iconic figure.
“Chevron has succeeded in making Mr. Donziger a bit of a martyr to the environmental movement,” said Kuby, known for taking politically charged cases.
Kuby added that it was “up to the court if you want to make him a larger martyr than he is already.”
Before proceedings began, several dozens of his supporters congregated outside of court for a rally, including celebrities like Pink Floyd musician Roger Waters and Andrew Cuomo accuser Lindsey Boylan. In her speech, Boylan noted that Glavin—acting as Donziger’s prosecutor—also represents Cuomo, and she described the Chevron saga as in keeping with the abuser’s playbook “DARVO,” short for “deny, attack, and reverse victim and offender.”
Multiple speakers made reference to an internal Chevron communication describing their long-term strategy as “demonize Donziger,” and Kuby quoted a Chevron representative describing the litigation strategy in the Ecuador case.
“We will fight this until hell freezes over, and then fight it out on the ice,” the representative said.
Citing that remark, Kuby said: “Now, here we are about 30 years later, and we’ve still got our skates on.”
Speakers angrily denounced the proceedings outside the court, and two protesters held a banner with Judge Kaplan and Judge Preska’s faces with block letters: “SHAME ON YOU.”
Judge Preska noted that Donziger’s courtroom address showed no sign of contrition, characterizing the defense as more of an “offense.”
“Mr. Donziger does not regret what he did or did not do,” Preska said. “He expressed no remorse and still blamed his predicament on his advocacy.”
Surrounded by high-profile legal firepower, Donziger retained prominent University of Texas Law Professor Steve Vladeck—a recent congressional witness for his scholarship relating to the Supreme Court’s “shadow docket“—for the pending appeal of the contempt of court convictions. Bar associations from Ireland and Israel came out in Donziger’s support, and the U.N. Working Group on Arbitrary Detention ruled his years-long house arrest unlawful.
Before his sentence on Friday, Donziger’s home confinement lasted 787 days, wearing an ankle bracelet. Kuby’s announced his plan to appeal to the Second Circuit.
(Photo by Law&Crime’s Adam Klasfeld)
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