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)