The long-awaited federal trial of embattled lawyer Steven Donziger, who faces six
counts of criminal contempt of court and up to six months in prison if convicted, will
kick off with what are expected to be riveting, and perhaps controversial, opening
arguments at 10 a.m. today.
Donziger, the environmental lawyer who famously helped 30,000 Indigenous
Ecuadorians win an $8.6 billion oil-pollution judgment against Chevron—which has
never been collected on— has long accused the Manhattan federal court judge
presiding over his bench trial, Loretta Preska, of bias against him in the case.
The 56-year-old lawyer, who attended Harvard Law School with former President
Barack Obama, will be represented this morning inside a 24 -floor courtroom by two
titans from the criminal defense and civil rights practice: Ronald Kuby, 64, the
outspoken lawyer and former New York City radio host who for 17 years teamed on
cases with the late William Kuntsler; and Martin Garbus, 86, a still-active special
counsel at Offit Kurman who’s appeared numerous times before the U.S. Supreme
Court, observed foreign elections at the behest U.S. presidents, helped draft other
nation’s constitutions, and who in the 1990s was called by The Guardian “one of the
world’s finest trial lawyers.”
Kuby, Garbus and Donziger himself—who last year was disbarred in New York state
but who may rise to his feet and argue pro se today, he told the Law Journal Friday—
are expected to pull no punches during both opening arguments and their crossexaminations
of prosecution witnesses, who will likely start to be called this afternoon.
It is expected that while the veteran lawyers’ opening arguments will zero in on
Donziger’s alleged legal innocence, their contentions may equally center on Preska’s
alleged biases and, more broadly, on the alleged corruption of a U.S. legal system—
which Donziger claims is doing powerful Chevron’s bidding—that has put the
internationally recognized human rights lawyer up against possible prison time.
Asked by text message Friday night exactly who will be handling his openings this
morning, Donziger—always unpredictable and geared for the fight—said: “Might be
both” Kuby and Garbus. “Or me.”
On the other side of this morning’s courtroom, which is expected to be outfitted with
plexiglass barriers and virus-protected by social distancing and mask-wearing, will be
Rita Glavin, Donziger’s court-appointed special prosecutor.
Glavin is a former veteran Southern District of New York federal prosecutor and, in
2009, was head of the U.S. Department of Justice’s criminal division. In March, she left
her position as a Manhattan-based Seward & Kissel partner and started her own
boutique firm. Within weeks, she began fighting in the press on behalf of her newest,
and perhaps first, client: New York Gov. Andrew Cuomo, who faces sexual harassment
allegations and who’s being investigated by a team of lawyers appointed by state
Attorney General Letitia James.
Glavin’s known as formidable and quick on her feet with arguments—and, if needed,
objections. In the 20-month run-up to Donziger’s trial today, she and other lawyers
from Seward & Kissel won almost every pretrial motion and tooth-and-nail legal fight.
Though Donziger and his team maintain Preska’s many rulings against him, to date,
have been more about the judge’s alleged bias and potential conflicts of interest than
about Glavin’s lawyering.
The six misdemeanor charges Donziger faces spring from his complex, decades-long
legal battles with Chevron.
Donziger’s key moment, and seeming massive victory, came in 2011 in Ecuador. The
country’s high court awarded an $8.6 billion judgment to 30,000 Indigenous
Ecuadorians he’d helped to represent. The Indigenous people’s health and Amazonian
rainforest land had been damaged by vast oil-drilling waste allegedly created by
Chevron’s predecessor, Texaco, beginning in the 1960s, and their legal action had
centered on demanded oil cleanup and money for those allegedly affected, some of
whom had contracted cancer.
Chevron had argued, in turn—and unsuccessfully—that it wasn’t Texaco but another
oil producer that was responsible for the un-remediated oil pollution in the
Amazon. And after the high court awarded victory to the Ecuadorians, Donziger, as
their lead lawyer, was set to take home more than $100 million in contingency fees.
But Chevron kept firing back. It launched a Racketeer Influenced and Corrupt
Organizations Act case against Donziger in federal court in the Southern District of
New York, arguing that the entire Ecuadorian judgment was based on fraud committed
by Donziger, including him allegedly bribing Ecuadorian judges and ghostwriting a
judgment.
In 2014, Manhattan-based U.S. District Judge Lewis Kaplan agreed with Chevron,
issuing a 485-page decision in Chevron’s favor. And as part of it, Kaplan ruled the $8.6
billion judgment could never be collected on.
Even before Kaplan had ruled—and especially after—Donziger and his seemingly
ever-growing team of lawyers and supporters have complained loudly that Kaplan
denied Donziger’s requests to have his RICO trial be decided by a jury. Instead,
he’d made it a bench trial, with him as the arbiter of justice.
In addition, Donziger’s team also have long contended that Kaplan, a former defense
lawyer for tobacco companies and a member of the conservative-leaning Federalist
Society, to which Chevron has contributed money, is heavily biased in favor of the oil
company.
After Kaplan’s 2014 civil fraud ruling, which in 2015 was affirmed on legal grounds by
the U.S. Court of Appeals for the Second Circuit, Donziger and Chevron’s
legal warfare didn’t cease, but instead dragged on in post-Kaplan judgment battles.
And as various types of post-judgment struggles unspooled before Kaplan, he ruled
that Donziger owes to Chevron millions of dollars in fees, costs and penalties.
In subsequent efforts to extract the sums from Donziger, Chevron accused the
environmental lawyer of hiding money and information that would help it recover
several million dollars. And in 2018, Kaplan in turn ordered Donziger to turn over his
cellphone and computer for data harvesting and inspection. But Donziger refused,
claiming his devices would reveal years of attorney-client privileged communications
he’d had with his Ecuadorian clients.
Kaplan eventually held Donziger in civil contempt for not giving the devices to a datainspection
expert. And on July 31, 2019, Kaplan decided to charge Donziger with
various counts of criminal contempt, most of which mirrored the civil-contempt
charges, including the central charge of Donziger withholding his computer and
cellphone.
Since then, Donziger and his team have complained that Preska was hand-picked by
Kaplan to be the judge in Donziger’s criminal contempt case, and have repeatedly
alleged that she herself has been a Federalist Society member and is biased. They’ve
also complained that he is having a bench trial before Preska as opposed to a jury
trial.
By Jason Grant, New York Law Journal
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