It is rare — it is ever? — that retired judges will step into the public eye to criticize a sitting judge’s handling of an ongoing case. It takes extraordinary circumstances: like, for the first-time in history, criminally prosecuting a human rights lawyer for seeking interlocutory appeal of civil discovery orders in order to protect attorney-client privilege and constitutional rights, and keeping the lawyer on house arrest for over a year even though the maximum sentence he could possibly receive in a worst-case scenario is six months and the longest sentence ever given to a lawyer for litigation conduct is three months.
No wait, maybe that wouldn’t be enough. Add in that the lawyer (Steven Donziger, of course) is being prosecuted by a private law firm under an arcane procedural rule, and that the law firm hid for 7 months the fact that it has an attorney-client relationship with Donziger’s hyper-litigious nemesis Chevron Corp., the company that has admitted to paying “fact” witnesses in its racketeering case against Donziger. Oh, and the judge hearing the criminal contempt was not randomly selected per the usual procedure, but hand-picked by the civil case judge who has publicly attacked Donziger from the bench for over a decade.
So yeah, I guess that’s why Judges Gertner and Bennett, both famous for holding their ethical grounding even in the face of intense political pressure and career consequences, felt like they had to speak out:
A court in a contempt case is wielding a self-made power to vindicate its own authority. Therefore, appearances are very important. If a court is going to proceed with an extraordinary Rule 42 prosecution outside of the guardrails provided by a normal prosecutor’s office, it should triple-check the details to make sure that the public has no reason whatsoever to question the impartiality and integrity of the proceedings. . . .
Had we been the judges in this case, we would have been deeply troubled if we had not been told about a potential conflict of interest. If we had been informed in a timely fashion, we would have sought to have the chief judge of the district select and appoint a prosecutor, so that no concern over favoritism or neutrality might arise. . . .
Finally, the Donziger case raises questions about when the resort to criminal process is appropriate, and when it is not. The remedies of civil contempt and related coercive sanctions provide plenty of tools for a judge to manage situations like this. In fact, Donziger was very clear with the court that he was prepared to be held in civil contempt so he could properly resolve the important constitutional issues at stake, given the dangers faced by his clients in Ecuador. . . .
To protect both the court’s contempt power and the purpose of criminal sanction, criminal contempt should be reserved only for acts so grave and abhorrent that they amount to an offense not just against the presiding judge, but one that has potential for undermining public confidence in the authority and dignity of our courts. Donziger, at a minimum, should be released from his extraordinary pretrial detention so he can continue his work on behalf of his clients, while the critical issues raised by his criminal contempt case are reviewed by an appellate court.
Gertner & Bennett, Criminal Contempt Charges In Donziger Case Are Excessive (Law360)
An amicus brief was filed today by the National Lawyers Guild and International Association of Democratic Lawyers in the Second Circuit on behalf of human rights attorney, Steven Donziger, supporting his request for mandamus relief.
The brief provides an international human rights law perspective on shocking treatment of Mr. Donziger in nearly a decade legal attacks on him by Chevron Corporation and, more recently, private lawyers acting as criminal prosecutors and actively coordinating with Chevron. The brief links the pattern of judicial abuse to Chevron’s impunity and the persecution of human rights defenders globally.
In an underlying historic environmental case, Mr. Donziger successfully sued Chevron on behalf of indigenous peoples and affected communities for environmental devastation in the Ecuadorean Amazon, in what has been called one of the most important corporate accountability cases of our time. Since 2011 when the $9.5 billion judgment was issued against it (affirmed by three levels of Ecuadorean courts), Chevron has refused to make any effort to pay or clean-up the Amazon, instead aggressively sought to, in its own words “demonize” Mr. Donziger. After Mr. Donziger refused to give attorney-client privileged information to Chevron in one of the civil lawsuits, he was abruptly charged with criminal contempt of court—but because public prosecutors refused to take the case, private lawyers, linked to Chevron, were appointed to prosecute the contempt. As part of the process, Mr. Donziger has been on pre-trial home detention for over 11 months.
When U.S. courts fail to offer due process as dramatically as they have in Mr. Donziger’s case, international human rights law must stand as a bulwark to protect human rights defenders and the underlying causes they represent. Mr. Donziger’s case has important implications for attorneys engaged in human rights and environmental rights work, and for communities around the world.
The brief was filed by lawyers Natasha Lycia Ora Bannan and Natali Segovia on behalf of the NLG and the IADL. Both organizations earlier launched an international open letter from lawyers, legal organizations and human rights advocates. Signed by over 475 endorsers, the letter raised serious concerns about the profound injustices in the Donziger case, “one of the most important corporate accountability and human rights cases of our time.”
Judge-appointed Private Prosecutor Has Deep Ties to Chevron; Retaliatory Lawsuit Against Attorney Steven Donziger Must Be Dismissed
By Lauren Regan|June 30th, 2020
Eugene, OR – Attorneys for human rights attorney Steven Donziger have asked the U.S. Court of Appeals to weigh in on the interlocking conflicts of interests at the heart of a trumped-up case tracing back to Donziger’s major $9.5 billion victory on behalf of Ecuadorian plaintiffs against the oil giant Chevron. The Civil Liberties Defense Center is a member of the legal team that has petitioned the Second Circuit U.S. Court of Appeals to dismiss the case at question, which is currently before the U.S. District Court for the Southern District of New York.
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Washington, DC – Late last night, ten leading civil rights, human rights, and environmental organizations – members of the national coalition challenging Strategic Lawsuits Against Public Participation (SLAPPs), the Protect the Protest task force – filed a brief to the United States Court of Appeals for the Second Circuit demonstrating Chevron’s corruption of the judicial process in its decades-long effort to avoid paying for a cleanup of 16 billion gallons of toxic waste it dumped into the Amazon. Furthermore, the brief asserts the appointment of Chevron’s former law firm Seward and Kissel to criminally prosecute attorney Steven Donziger is highly improper and undermines the very notion of an impartial judiciary.
More than a decade ago, Chevron set out to “demonize” Steven Donziger, the human rights lawyer who held Chevron accountable for years of pollution in the Ecuadorian Amazon – first in a U.S. lawsuit and then in Ecuadorian courts. After losing the $9.5 billion judgment in Ecuador, Chevron engaged in a pattern of corrupt and illegal behavior to win a retaliatory SLAPP suit in the U.S. by vilifying the plaintiffs and their lawyers, illegally paying its star witness and harassing, intimidating, and punishing those who supported Donziger.
Donziger has been under house arrest for over ten months while appealing an order to surrender his computer, cell phone, and email passwords to the court. Now, the judge is permitting the use of private lawyers as prosecutors after the U.S. Attorney’s Office twice refused to prosecute. The private law firm, Seward and Kissel, previously represented Chevron in private practice and continued coordination with Chevron.
Paul Paz y Miño, Amazon Watch Associate Director and Protect the Protest task force member said: “Reasonable observers may be tempted to conclude that the court picked a side by retaining such a partial prosecutor. Permitting Seward and Kissel to remain as prosecutor would undermine confidence in the judiciary.”
SLAPP suits are filed by powerful actors, often major corporations, in an attempt to ruin defendants who have engaged in constitutionally-protected activity – including the right to petition the courts. SLAPP suits often follow a pattern of serial bullying and may sweep up numerous parties with some connection to the case. While SLAPP suits are typically civil litigation such as defamation suits, the fact that a law firm connected to Chevron is pursuing a criminal prosecution here does not mean that the case is not a SLAPP suit – it means that it marks a dangerous new frontier in such tactics. These organizations are submitting the amicus brief to show that as long as this prosecution is not independent of Chevron, it should be considered a SLAPP suit – the latest in a long pattern of abuse of the law by Chevron and its counsel.
Paul Paz y Miño continued: “Steven Donziger is being criminally prosecuted not only for his advocacy but by the very targets of his advocacy. Chevron has not merely sued its adversary; it is pulling the strings of a criminal prosecution. That the prosecutor of Chevron’s nemesis is Chevron’s former law firm not only undermines confidence in the prosecutor’s impartiality; it would also undermine confidence in the impartiality of the judiciary.”
The amicus brief was submitted by:
The Center for Constitutional Rights (CCR)
Center for International Environmental Law (CIEL)
The International Corporate Accountability Roundtable (ICAR)
The Partnership for Civil Justice Fund (PCJF)
Portland Rising Tide
Rainforest Action Network (RAN)