U.S. Judge Preska Slammed for Doing Chevron’s “Dirty Work” in Unprecedented 500-day Detention of Human Rights Lawyer Steven Donziger
Two Judges with Financial Links to Chevron Colluding with Chevron Private Prosecutor to Attack Lawyer, Critics Say
New York – In a decision described as Kafkaesque by human rights advocates, a U.S. judge who leads a pro-corporate judicial organization funded by Chevron has refused yet again to release celebrated environmental attorney Steven Donziger from home detention after he helped his Indigenous clients win a historic $9.5 billion pollution judgement against the oil giant.
Judge Loretta Preska today issued a New Year’s Eve order continuing Donziger’s indefinite house arrest in Manhattan for a 17th month even though the longest sentence ever imposed for his misdemeanor contempt charge – which his lawyers consider unsupported by evidence – is three months of home confinement if convicted. Partly because the COVID pandemic has closed the New York courthouse, Donziger has yet to be granted a trial.
In the meantime, Preska has denied Donziger’s release four times even though not a single person in the U.S. charged with a federal misdemeanor has been held for even one day, much less well over a year, according to Donziger’s lawyer Ron Kuby (see here).
“This case is an absolute miscarriage of justice and is Kafkaesque in the extreme,” said Rex Weyler, the co-founder of Greenpeace who has accused Chevron of committing “ecocide” in Ecuador after courts found the company deliberately dumped billions of gallons of oil waste onto Indigenous ancestral lands in the Amazon.
Preska has attracted wide criticism for refusing to recuse herself from the case despite being a leader of the Federalist Society, a pro-corporate society of lawyers and judges to which Chevron is a major donor. She also has denied Mr. Donziger a jury of his peers and allowed a private Chevron law firm -- Seward & Kissel -- to prosecute the lawyer in the name of the U.S. government after the U.S. Attorney’s office refused the case. (See background.)
Weyler added, “A private Chevron law firm abetted by a Chevron-linked judge is trying to crush the courageous human rights lawyer who helped Amazon communities beat Chevron in court. Preska should recuse herself from the case due to her conflicts and other judges must step in to review the judicial misconduct in this case.”
“The reputation of the U.S. judiciary is on the line here and that reputation is being stained further each day Mr. Donziger is wrongfully detained,” Weyler added.
The latest decision by Preska is part of a “cesspool of improper judicial conduct and corruption” that warrants Donziger’s release and the sanctioning of the judges involved, said Marty Garbus, a longtime civil rights lawyer who has represented Nelson Mandela, Cesar Chavez, and Daniel Ellsberg in a career that has spanned six decades.
“I’ve never seen such a degree of judicial malfeasance as that displayed by Preska, Kaplan, and the private prosecutor in what is clearly a corporate-backed retaliation case against highly respected attorney Steven Donziger,” said Garbus.
Other advocates also condemned Preska for keeping Donziger detained as a supposed “flight risk” even though no other person in the entire United States charged with a misdemeanor has been held pre-trial for even one day, according to Kuby, Donziger’s lawyer. (The maximum sentence for the charge is six months in prison; no lawyer in New York convicted of contempt ever has been sent to prison.)
Kuby said, “Judge Preska acknowledges she is treating Mr. Donziger differently and more harshly than any other alleged misdemeanant in the history of federal misdemeanors. Apparently, the basic notion of equal treatment under the law is not a principle guiding Judge Preska’s decision making in the unique Donziger case.”
“I am truly shocked to hear that Judge Preska yet again has denied Steven Donziger release from home confinement,” said Simon Taylor, a founder of London-based Global Witness, one of many human rights organizations that have rallied to Donziger’s defense. “What credible reason can there be for this decision? Steven has been held for more than 500 days pre-trial or nearly 3 times the maximum sentence if he were to be convicted. No other attorney in US legal history has even faced a single day of home confinement for what, as Preska herself labelled, a misdemeanor offence.
“As for the claim that Steven is a flight risk – that is just beneath contempt. I can think of no better explanation for this latest Preska decision, other than that it is an act of plain mean-spirited vindictiveness,” he added.
Scott Wilson Badenoch, Jr., attorney and organizer of a monitoring committee of human rights experts for the Donziger case and the co-chair of the Environmental Justice Committee of the American Bar Association, said, "Judge Preska is doubling down on a clearly flawed decision to detain a famous human rights defender pre-trial. There is nothing about her decision that aligns with international fair trial standards. The world is watching and what we see is shocking by any standards, let alone American ones.
“Judge Preska seems to have a pattern of treating Mr. Donziger differently than every other misdemeanor defendant without a record would expect to be treated in a fair legal system," Badenoch added.
Mr. Donziger played a leading role in an international legal team that in 2011 won the case against Chevron in Ecuador, where the company operated from 1964 to 1992 and where it had accepted jurisdiction. Twenty-nine appellate judges in Ecuador and Canada have since affirmed the decision against Chevron based on voluminous scientific evidence that the oil giant dumped 16 billion gallons of toxic waste into the Amazon, decimating Indigenous groups and causing an epidemic of cancer. (See summary of evidence against Chevron.)
Rather than pay the judgment, Chevron threatened the affected communities with a “lifetime of litigation” unless they dropped the case. The company also filed a retaliatory civil “racketeering” case against Mr. Donziger in New York and directed it to Judge Lewis A. Kaplan, a former tobacco industry lawyer who also has financial ties to Chevron, according to Kaplan’s financial disclosure forms.
Kaplan made a series of biased comments against Donziger, denied him a jury, allowed Chevron to pay an admittedly corrupt witness $2 million, and refused to let the lawyer testify on direct before “convicting” him of fraud. In the meantime, the Supreme Courts of both Ecuador and Canada have affirmed the judgment on the merits or for enforcement purposes while rejecting Kaplan’s findings.
As enforcement actions against Chevron advanced in Canada and other countries, Judge Kaplan issued an apparently illegal order that Mr. Donziger turn over his computer and cell phone to Chevron. When Mr. Donziger appealed the order, Kaplan ordered him charged criminally and detained him at home before appointing a prosecutor from a Chevron law firm, Rita Glavin, to try to convict him.
Kaplan also appointed Judge Preska in apparent violation of local rules requiring random assignment of cases.
Even though he is detained, Mr. Donziger’s appeal of Kaplan’s order that is the basis of the criminal contempt case is still pending before the federal appellate court. Further illustrating the bias of driving the contempt case, no lawyer in the United States other than Donziger who has appealed a civil discovery order ever has been charged criminally while the appeal is pending.
Private prosecutor Rita Glavin has her own history of misconduct. In echoes of her ethical problems in the Donziger prosecution, Glavin once was sanctioned by the U.S. Department of Justice for refusing to disclose evidence and botching the prosecution of former Alaska Senator Ted Stevens. (See this report.)
Glavin and her partners at the Seward firm have refused to withdraw from the Donziger case due to their obvious conflict of interest, even though a leading ethics expert and a group of international trial monitors have demanded they do so. (See affidavit.)
Donziger has since received the support of 55 Nobel Laureates who have demanded he be released and the case dismissed. He also has received the support of the European Parliament, 37 bar associations, human rights organizations like Amnesty International and Global Witness, the International Assocation of Democratic Lawyers, and the national bar councils of France, Spain, Italy, and Ireland, among many other organizations and individuals.
For a short video about Mr. Donziger’s detention and Chevron’s environmental crimes in Ecuador, see this recent video by VICE that has been shared over 1 million times.