Noted Human Rights Lawyers Launch Steven Donziger Support Committee and Demand Halt to Chevron-Orchestrated Attacks

Harvard Law Professor Nesson Says Chevron Used “Manufactured Lies” to Orchestrate Donziger’s Home Detention Based on Unfair Prosecution

Contact: Martin Garbus, Attorney (646-515-2593)

New York – Renowned human rights and civil liberties attorneys Martin Garbus, Charles Nesson and Clive Stafford-Smith are among dozens of civil society leaders to launch a support committee for human rights defender Steven Donziger and demand an end to his unprecedented house arrest after he helped Indigenous peoples in Ecuador win a landmark $9.5 billion pollution judgment against Chevron.

An appellate court hearing regarding Mr. Donziger’s request for release from home detention will be heard tomorrow (Feb. 11) at 10 a.m. in the Thurgood Marshall Building at 40 Foley Square, 17th Floor.

Attorneys, human rights leaders and environmental leaders from around the world have joined the Committee, which is demanding that Mr. Donziger be released immediately from home detention; that Chevron cease its attacks on all human rights defenders; that Chevron comply with court orders that it clean up its extensive pollution of Indigenous lands in Ecuador, a catastrophe known as the “Amazon Chernobyl”; and that Chevron cooperate with a call from Amnesty International and other NGOs for an independent investigation of the company for engaging in witness bribery and fraud in the case.

The Committee also called on the federal appellate court in New York (known as the Second Circuit) to immediately order the release of Mr. Donziger from pre-trial home detention – which has now lasted longer than any such sentence in New York history – as he prepares for a June trial where he intends to contest criminal contempt charges filed by a controversial pro-business judge, Lewis A. Kaplan.

“We come together as global citizens to demand that Steven Donziger be treated fairly by New York judicial authorities in the face of what appears to be a flagrant abuse of power by Chevron as it desperately seeks to evade responsibility for its pollution,” said Garbus, who also referred to Judge Kaplan, who has facilitated Chevron’s attacks from his Manhattan trial court and who personally charged Mr. Donziger with criminal contempt after the prosecutor’s office refused the case.

“Steven is a deeply respected human rights litigator who has set a high standard for integrity as he fights a corporate polluter intent on undermining a valid judgment owed to the Indigenous peoples of the Amazon,” added Garbus, who has practiced law in New York for 60 years. “The abusive targeting of Steven by a self-interested oil company must stop.

“Our support network has come together to ensure Steven gets an appropriate court review of the draconian measures imposed on him by Judge Kaplan,” he added.

(Here is a website about the Chevron’s Ecuador disaster; a summary of the evidence; a video of Chevron’s dumping of toxic waste; and a background article on Chevron’s intimidation.)

(To sign a pledge for Mr. Donziger, click here; to support Mr. Donziger’s Legal Defense Fund, click here.)

Distinguished Members of Support Committee

Those joining the Support Committee include Harvard Law Professor Nesson, who teaches a course that focuses on the Ecuador case; Garbus, a noted First Amendment scholar who has represented Daniel Ellsberg, Cesar Chavez, Nelson Mandela and Andrei Sakharov, among others, in a distinguished legal career spanning six decades; Clive Stafford-Smith, a leading death penalty lawyer and the founder of the London-based human rights group Reprieve; Atossa Soltani and Leila Salazar, respectively, the founder and executive director of Amazon Watch, one of the nation’s premier environmental organizations; Andrew Frisch, a former federal prosecutor who represents Mr. Donziger; Lynne Twist, Founder and President of the Soul of Money Institute and Co-founder of the Pachamama Alliance, which works to protect Indigenous territory in the Amazon; Bill Twist, Co-founder and CEO of the Pachamama Alliance; and John Perkins, the bestselling author and Co-founder of the Pachamama Alliance.

Also joining the committee are Roger Waters, the human rights activist, musician, and founder of Pink Floyd; Rex Weyler, the Co-founder of Greenpeace; Simon Taylor and Patrick Alley, Co-founders of Global Witness, one of the largest anti-corruption groups in the world; John Phillips, a highly recognized Indigenous rights lawyers in Canada; Susana Sawyer, author and professor of anthropology, University of California, Davis; Deepak Gupta, a prominent appellate lawyer who has argued multiple times before the U.S. Supreme Court; and Josh Zinner, attorney and the Executive Director of the Interfaith Center On Corporate Responsibility (for identification purposes only).

From Ecuador, several prominent citizens also joined the support committee. They include Billy Navarrete Benavides, Executive Director of the Permanent Committee for the Defense of Human Rights (CDH); Rafael Pandam, President of the Amazon Parliament of Ecuador; Luis Yanza, Ecuador community leader and recipient of the Goldman Prize (considered the “Nobel” of the environment); Patricio Salazar, attorney and member of the Board of the Quito Chamber of Commerce; Dr. Antonio Malo Larrea, a professor and leading ecologist; Dr. Camilo Martinez Iglesias, former Professor at the University of Barcelona; Dr. Felipe Ogaz Oveido, Founder of Accion Juridica Popular, a rule of law organization; and Dr. Maria Cecelia Herrera, a human rights lawyer and former United Nations official.

Others joining the support committee include Jason Adkins, a Harvard Law graduate and the Chairperson of Public Citizen (for identification purposes only); John Campbell and Justin Marceau, professors at the Sturm College of Law at the U. of Denver; Sarah Leah Whitson, a Harvard Law graduate and a former director for Human Rights Watch; Rick Friedman, one of the nation’s leading trial attorneys and the former President of the prestigious Inner Circle of Advocates; Roger Normand, attorney and Co-founder of the Center for Economic and Social Rights; Karen Hinton, the former press secretary to New York City Mayor Bill DeBlasio; Paul Paz y Mino, Associate Director of Amazon Watch; Ginger Cassady, Program Director at Rainforest Action Network; and Dr. Rob Moodie, Professor of Public Health, University of Melbourne, and the former global coordinator for the United Nations on the AIDS crisis.

Objectives of Support Committee

Garbus said the support committee will focus on the following objectives:

• Joining the call by Global Witness and other major civil society organizations around the world for an immediate end to Mr. Donziger’s house arrest.

• An independent investigation by prosecutorial authorities of Chevron for fabricating false testimony to target Mr. Donziger – what Harvard Law Professor Nesson calls a “manufactured lie”. (Chevron paid its star witness, Alberto Guerra, at least $2 million and coached him for 53 days before he testified before Kaplan about a supposed bribe. Guerra later recanted under oath while a forensic report proved he perjured himself.)

• Calling for the criminal contempt charges against Mr. Donziger to be resolved in a civil context before a neutral judge.

Background

A graduate of Harvard Law School, Mr. Donziger has been praised by leaders of the environmental movement for his work over two decades to win the Ecuador pollution judgment in 2011 – considered one of the most significant environmental court victories ever. Three appellate courts in Ecuador, the venue where Chevron insisted the trial be held and where it had accepted jurisdiction, affirmed the judgment. All determined that Chevron deliberately discharged billions of gallons of oil waste into the Amazon, poisoning waterways and decimating Indigenous peoples who continue to suffer from cancers and other grave health ailments.

After losing the 2011 trial, Chevron deployed at least 60 law firms and 2,000 lawyers to attack Mr. Donziger in what experts believe is the most well-financed corporate retaliation campaign ever directed against a lawyer. Chevron’s top lawyer in 2009 had threatened the Ecuadorians with a “lifetime of litigation” if they persisted with the case. While Mr. Donziger has been called a lawyer of “Herculean tenacity” by BusinessWeek and an “Eco-Justice Hero” by Greenpeace Co-founder Rex Weyler, a series ofdecisions by Judge Kaplan in recent years have virtually bankrupted his family. (See article from The Intercept.)

These decisions also landed Mr. Donziger in home detention since August of last year on what Garbus and others believe are exaggerated charges filed by Kaplan stemming from normal disputes in a civil litigation between Chevron and Donziger, who works out of his small Manhattan apartment as a sole practitioner. Mr. Donziger has now been in home detention pre-trial for far more time than any lawyer in New York has served post-trial after being convicted on the same contempt charge.

Evidence that Mr. Donziger is being unfairly targeted by Chevron and Judge Kaplan is mounting, said Garbus.

The regular federal prosecutor’s office in New York, the SDNY, refused Kaplan’s request that it prosecute Mr. Donziger – an obvious sign that the office did not consider the contempt charges worthy. The judge then took the virtually unprecedented step of naming a private corporate law firm – one with deep ties to the oil and gas industry and to Chevron (see this court submission) -- to “prosecute” Mr. Donziger in the name of the U.S. government. Kaplan also hand-selected a longtime colleague on the bench, Loretta Preska, to oversee the criminal contempt case after he bypassed the normal random case assignment system.

Lawyers from the private firm appointed by Judge Kaplan, Seward & Kissel, have been working closely with Chevron’s private lawyers at the firm Gibson Dunn & Crutcher to keep Mr. Donziger detained and his passport confiscated, preventing him from continuing his work enforcing the judgment in Canada and other countries against Chevron’s assets.

“Judge Kaplan is effectively acting as the grand jury, prosecutor, and jury in the same case,” Donziger’s lawyer, former federal prosecutor Andrew Frisch, warned in a recent court filing.

With a trial not scheduled until June, Mr. Donziger says his family – including a 13-year-old son – has been severely impacted emotionally and financially by his home detention. The lawyer cannot even walk into the hallway of his apartment building without permission of a court officer. (An article documenting Chevron’s attacks on Mr. Donziger was recently posted on The Intercept.)

Record Fines and Other Questions

As a sign of the degree of Kaplan’s personal animus toward Mr. Donziger, prior to the filing of the criminal contempt case, the judge had imposed on Mr. Donziger an exorbitant fine that would have reached a preposterous $1 trillion per day after 40 days and doubled each day thereafter – far higher than any fine ever imposed in the U.S., including those on any bank or corporation (which had been $50,000 per day in New York). Kaplan later “reduced” the fine to a still-exorbitant $100,000 per day.

Garbus and Professor Nesson pointed out that Judge Kaplan appeared to time the filing of the criminal contempt charges to coincide with precisely the time Mr. Donziger was preparing a civil appeal of what appears to be the unconstitutional order that he turn over his computer and cell phone to Chevron lawyers. In the entirety of his legal career, Garbus says he has never seen a judicial order requiring a lawyer to turn over his confidential case file to adversary counsel in the middle of a litigation. Kaplan also issued another decision in May trying to block Mr. Donziger from even working on the case.

Nesson said he was “stunned” by the Kaplan orders.

“Any judicial order that a lawyer turn over his computer and case file to adversary counsel threatens to drive a stake into the very heart of the attorney-client privilege which is the foundation of any adversarial system of justice,” said Nesson, the Harvard professor who wrote an article criticizing Kaplan’s role in the Chevron RICO case. “It is in my view an absolute affront to the rule of law. Steven was ethically obligated to file his appeal and in my view Judge Kaplan is abusing his power by filing a criminal case over the very issues in dispute on appeal.”

Garbus said the filing of the criminal contempt case also suggests Judge Kaplan was trying to obstruct Mr. Donziger’s efforts to use courts in Canada and other jurisdictions to enforce the Ecuador judgment, a process that threatened to result in scrutiny of some of Kaplan’s more controversial findings including those that relied on Chevron’s false witness testimony. The Ecuadorians also had won a landmark victory in Canada in 2015 when the Supreme Court ruled unanimously that the communities had a right to enforce their judgment.

Judge Kaplan also has a documented history of bias in favor of Big Business and Wall Street. (See here.) He started favoring Chevron from the bench as early as 2010, when he regularly mocked Mr. Donziger and Ecuador’s courts while presiding over discovery actions filed by the company. He also seemed to relish referring to the Indigenous peoples from Ecuador who won the environmental case as the “so-called plaintiffs”, refusing to acknowledge their basic humanity. (Legal briefs documenting Kaplan’s bias are here and here; an article is here.)

Prominent San Francisco trial lawyer John Keker, who represented Mr. Donziger before Judge Kaplan, called Chevron’s case targeting the human rights lawyer a “Dickensian farce” driven by Kaplan’s “implacable hostility” toward the lawyer. Another lawyer in the case, Craig Smyser, compared Kaplan’s rulings in the RICO case to those of a “Star Chamber” in the Spanish Inquisition. Both withdrew from the case, concluding the result was pre-ordained. Judge Kaplan also refused to consider any evidence of Chevron’s environmental contamination in Ecuador.

“It seems that Judge Kaplan for years has been trying to attack Steven Donziger to help rescue an American oil company caught engaging in massive pollution in the Amazon,” said Simon Taylor, the Co-founder of Global Witness, which is monitoring the proceeding. “This abusive targeting of a respected human rights lawyer appears to violate basic rules of fair play. It is especially disturbing coming from the United States, which is normally a country that respects the rule of law.

Litigators at the main Chevron law firm targeting Mr. Donziger, Gibson Dunn & Crutcher, have been found by multiple courts in other cases to have fabricated evidence or engaged in “legal thuggery” to attack adversaries. The company still has refused to produce its notes from the 53 coaching sessions of its paid witness Guerra, who now lives in a luxury house in the United States. Chevron continues to pay Guerra for not working and covers his income taxes, health care, and other expenses, according to the company’s own admissions.

Indigenous groups and local communities in the Amazon who have worked with Mr. Donziger for years also have demanded his immediate release.

“It is critical that the world support not only Steven’s human rights but also our right to choose our own lawyer, in this case a person who has cared about our well-being more than any outsider we have ever met,” said Ermil Chavez, the President of the FDA, the grass roots coalition of Amazon communities that won the case against Chevron. “Any attack on Steven is an attack on all of Chevron’s victims in Ecuador.”

The formation of the support committee follows a call by several major civil society organizations last November for an end to Mr. Donziger’s house arrest and for the dropping of the contempt charges. Among the groups backing Mr. Donziger are Greenpeace USA, Global Witness, Amazon Watch, Pachamama Alliance, Earth Rights International, the International Corporate Accountability Roundtable, and the Civil Liberties Defense Center (see here for statement.)