Lawyers Accuse Trial Judge Kaplan of “Vindictive Corporate Prosecution” of Human Rights Attorney Steven Donziger in Contempt Case

Dismissal Sought Prior to May 10 Trial; Department of Justice Request Pending 

New York – Lawyers for human rights attorney Steven Donziger today moved to dismiss his unprecedented criminal contempt case as an improper “vindictive prosecution” orchestrated by Chevron to help the oil giant evade a $9.5 billion pollution judgement owed to Indigenous communities in Ecuador.  

The legal filing is here. 

After helping his clients in Ecuador win the judgment, Donziger has spent almost two years in pre-trial home detention in Manhattan for a federal misdemeanor that carries a maximum sentence of six months if convicted. Both the presiding judge and private prosecutor in the case have financial links to Chevron, considered a flagrant conflict of interest by experts.  

Donziger is the only person in American held pre-trial on a federal misdemeanor and he has been in home imprisonment for seven times the longest sentence (90 days of home confinement) ever imposed in New York for criminal contempt. 

“The extraordinary and disturbing facts of this case -- a case that includes the first private corporate prosecutor in U.S. history – are more than enough to sustain claims of vindictive and selective prosecution,” Marty Garbus, the legendary civil rights lawyer, wrote in the motion. “The evidence of vindictiveness behind the decision to prosecute in this is case is overwhelming and therefore compels dismissal.” 

The motion also asks that Judge Loretta Preska – who ordered Donziger imprisoned Mr. Donziger in his home – assign the motion to another judge to ensure a neutral fact finder. “Judge Preska has obviously pre-judged Mr. Donziger’s case to the presentation of evidence and has engaged a two-year pattern of trying to cover up the flagrant conflicts of interests in the case, starting with the private Chevron prosecutor and continuing to her own role” said Garbus.  

“The motion explains how all three key people targeting Donziger have financial links to Chevron – the charging judge, Kaplan, has financial investments in Chevron; the presiding judge Loretta Preska appointed by Kaplan is a leader of the Chevron-funded Federalist Society; and the prosecutor, Rita Glavin, worked for a Chevron law firm with extensive financial ties to the oil industry,” said Garbus. 

“In any other country, this type of arrangement would be considered utterly improper,” he said. 

Donziger organized and led an international team of lawyers that in 2011 won a $9.5b pollution judgment against Chevron in Ecuador, where the oil giant had accepted jurisdiction and where it had insisted the trial be held. The company later moved its assets out of Ecuador and threatened the Indigenous groups with a “lifetime of litigation” if they did not drop their claims. 

The criminal contempt case against Donziger stems from an unprecedented order from Kaplan that thye lawyer turn over his computer and cell phone – and all his confidential attorney-client communications – to Chevron which was trying to seize his assets to pay its legal fees. The Kaplan order was later overturned on appeal, but Kaplan charged Donziger with criminal contempt and locked him up while the lawfulness of the order was being contested. 

Several international trial observers, including former U.S. Ambassador for War Crimes Stephen Rapp, have criticized Preska and Kaplan for violating Donziger’s fair trial rights. (See here for background.) Moreover, several international human rights groups led by Amnesty International have asked the U.S. Department of Justice to review the private prosecution, which they claim is illegal. 

In the meantime, hundreds of lawyers around the world have rallied to Donziger’s defense and demanded his freedom, including a leading international law group; 55 Nobel Laureates; and the National Lawyer’s Guild, which filed a 50-page misconduct complaint against Judge Kaplan. 

Glavin also has been under heavy criticism for leaving her Chevron law firm to represent Governor Andrew Cuomo. Glavin’s firm already has billed taxpayers at least $464,000 to prosecute Donziger on a misdemeanor after the U.S. Attorney (the regular federal prosecutor) declined the case, citing a lack of resources. 

Preska also recently terminated Zoom access to the trial, which Garbus called a clear attempt to prevent public scrutiny of the proceeding. That issue is still being litigated.