Panel of International Trial Monitors Condemns U.S. Judges Kaplan and Preska for Violating Fair Trial Rights of Human Rights Attorney Donziger

Panel Demands Donziger Be Released Immediately From Detention 

New York -- A panel of prominent international trial monitors, including former U.S. ambassador Stephen Rapp, is demanding the U.S. government launch an independent investigation into federal Judges Lewis Kaplan and Loretta Preska for violating the fair trial rights of U.S. human rights attorney Steven Donziger and detaining him illegally for almost three years after he won a large pollution judgement against Chevron.  

Donziger, who has the support of 68 Nobel laureates and dozens of bar associations and human rights groups around the world, has been detained both in prison and at his apartment in New York City on a misdemeanor contempt charge for five times longer than the maximum sentence allowed by law after he helped Indigenous peoples in Ecuador’s Amazon win a $9.5 billion pollution case against Chevron in 2013. In a bizarre twist, Chevron essentially financed his private criminal prosecution out of Chevron law firms Seward & Kissel and Gibson Dunn after the government prosecutor refused the charges which were filed directly by Judge Kaplan. 

Donziger had appealed an unprecedented civil discovery order by Kaplan that he turn over his computer and cell phone to company lawyers, arguing to do so would violate attorney-client privilege and his own ethics obligations. That appeal prompted Kaplan -- who has financial investments in Chevron -- to charge Donziger with criminal contempt. 

The trial monitoring panel’s report concluded that the “unequivocal assessment of the criminal contempt proceedings against Steven Donziger is that he has been subject to multiple violations of his internationally protected human rights, including his right to a fair trial by an independent and impartial tribunal and his right to the presumption of innocence.” 

The panel’s report concluded that Donziger is “entitled to an enforceable remedy for violation of his internationally protected rights” pursuant to the International Covenant on Civil and Political Rights, a human rights treaty signed by the United States in 1992 and backed by 173 countries. “The Panel recommends immediate and unconditional release from detention as well as compensation for all violations of his right to liberty.” 

Donziger said he felt “vindicated” by the report and demanded the Biden Administration, including U.S. Attorney General Merrick Garland, move immediately to release him from home detention. “This is the second group of prominent lawyers who have looked at my trial and concluded that I was railroaded by two judges and two private Chevron law firms who essentially took over the prosecutorial machinery of our country to try to silence a critic of the fossil fuel industry,” he said. “It’s an outrage that has turned my life upside down and I am calling on those responsible to be held accountable.” 

The trial monitors include Rapp, who served as Global Ambassador for War Crimes under the Obama Administration; Professor Catherine Morris, the U.N. representative of Lawyers’ Watch Canada, which monitors political attacks on lawyers worldwide; Professor Etienne C. Toussaint, who teaches law at the University of South Carolina; and Nykeeba Brown, the Co-Vice Chair of the Environmental Justice Committee of the American Bar Association.  

The trial monitoring report condemning the proceedings against Donziger follows a similar opinion issued last September by a United Nations Human Rights body comprised of five international jurists. That body, the Working Group on Arbitrary Detention, also concluded that the contempt proceedings against Donziger violated his fair trial rights and that his pre-trial detention was illegal under international law. (The UN report can be found here.) 

The trial monitors took aim at Judge Kaplan’s appointment of Rita Glavin, a private prosecutor from a Chevron law firm, to target Donziger after his contempt charges were rejected by the U.S. Attorney in Manhattan, the regular public prosecutor. Kaplan also appointed Judge Preska -- a leader of the Chevron-funded Federalist Society -- rather than adhering to court rules that require criminal cases be randomly assigned.  

“There has been no appearance of independence and impartiality in the process of appointments of the special prosecutor and the judge, in violation of international law and related standards,” the report stated, in reference to the appointments of Glavin and Preska by the very judge who charged Donziger. 

Other of the report’s conclusions and recommendations include: 

• That Judge Preska, who was seen reading a newspaper during witness testimony, also “demonstrated an appearance of bias” giving “deference to the prosecutor without equally ensuring full and respectful attention to defence counsel’s submissions and cross-examination.” 

• That Donziger’s 800-day pre-trial home confinement denied him the presumption of innocence and amounted to prolonged “arbitrary” detention in violation of the laws. It was based on “unfounded speculation about possible flight risk” that had “little or no basis in the evidence.” 

• That Donziger be given credit for his 25-month detention prior to trial – more than four times longer than the maximum sentence of six months imposed by Preska – and that he therefore should be released immediately. 

• That the U.S. government “conduct and independent and impartial investigation” into the conduct of Judges Kaplan and Preska in violating Donziger’s rights. 

• Accept the recent recommendation from give jurists from the United Nations that Donziger be released and compensated for his illegal detention. 

• Implement measures to ensure all private prosecutors are supervised and forced to uphold the same rules and standards as public prosecutors.  

“Mr. Donziger’s pre-trial home confinement for 25 months on charges attracting a six-month sentence was unreasonable,” said the report, adding that it appeared “to have been punitive in nature and purpose.” 

The report also added, “Judge Kaplan and Judge Preska consistently interpreted and applied laws and rules in ways that gave a ‘rule by law’ air of legitimacy to proceedings that aimed toward seemingly predetermined conclusions while disregarding fundamental principles of the rule of law.”