Leading NGO Compares NY Judiciary to “Banana Republic” After Refusal to Allow Powerful Evidence Challenging False Chevron RICO Findings
Submitted by: Amazon Defense Coalition - FDA
Posted: Oct 02, 2018 – 11:28 AM EST
NEW YORK, Oct. 02 /CSRwire/ - Global Witness, one of the world’s leading human rights groups, has expressed “serious concern” to the New York judiciary over its use of Chevron’s false evidence in a secret process that denies prominent U.S. human rights attorney Steven Donziger the ability to challenge his interim suspension from the practice of law. Donziger helped rainforest communities in Ecuador obtain a historic $9.5 billion pollution judgment against Chevron, which prompted the company to retaliate by lobbying for the suspension of Donziger’s law license. Many lawyers have expressed “shock” at the New York bar’s endorsement of Chevron’s attacks.
A graduate of Harvard Law School, Donziger has been called a “hero” of the environmental movement by Greenpeace co-founder Rex Weyler while environmental defenders have lauded his work in helping Ecuadorian villagers hold Chevron accountable for what is considered the worst oil-related catastrophe in the world. (See here for testimonials; here for a summary of the evidence against Chevron.) Donziger has not received even one client complaint in 25 years of law practice, yet the New York bar suspended him in July without a hearing based on four-year old civil findings from a lone U.S. judge, Lewis A. Kaplan, that have largely collapsed. (See here for an explanation of Chevron’s RICO fraud and the collapse of the Kaplan findings.)
“The systematic pursuit of New York lawyer Steven Donziger fails basic principles of due process,” Global Witness said in a statement issued last week, indicating that it was monitoring the bar grievance process and Kaplan’s retaliatory “racketeering” case. The NY bar designated Donziger an “immediate threat to the public order” based on the findings from Kaplan, who Donziger says violated the canons of judicial ethics by holding undisclosed investments in Chevron during the “racketeering” trial and by displaying open animus toward himself and his clients. (See here for details of Kaplan’s bias in favor of Chevron; here for an article on Kaplan’s tactics.)
“Global Witness has been documenting the killings of frontline environmental defenders for many years, as part of its wider concern about the shrinking space for civil society to operate around the globe – civil society’s ability to operate being a central plank of an open, accountable and democratic society,” the organization wrote in its statement. “It is shocking to note the similarities of behavior between [the Donziger] case before the NY bar, and cases we have observed in a myriad Banana Republics around the world, where official harassment of anyone who threatens the powerful is the norm. Given the total lack of response to serious questions posed to the New York Grievance Committee, we are looking forward to receiving a public response to the concerns we set out in our letter. Nothing less than the credibility of New York as a jurisdiction that fights the corrupt is at stake.”
Kaplan’s civil “racketeering” decision issued in 2014 in favor of Chevron was based largely on false testimony from an admittedly corrupt witness, Alberto Guerra, paid $2 million by the oil company. Guerra later admitted he had lied repeatedly in Kaplan’s court after being coached for 53 days by Chevron’s lawyers at the Gibson Dunn law firm. Kaplan’s findings have been rejected by 17 appellate judges in Ecuador, including in a recent 8-0 decision by the country’s highest court; they also have been ignored by several appellate judges in Canada, including the country’s entire Supreme Court, which ruled the villagers have the right to pursue Chevron assets in an enforcement action. (See here.)
Based in London with a staff of 150, Global Witness has worked to hold the oil industry and governments accountable for corruption and human rights violations. It recently released a report documenting the murder of environmental defenders around the world. It also invited Donziger to speak about Chevron’s environmental crimes in Ecuador at the prestigious Hay Festival in Wales, considered one of the world’s leading literary gatherings.
“What seems to be happening to Steven Donziger, given evidence in the public domain, is a serious case of judicial harassment - a sham process, wrapped up by the gentile world of the New York Bar as legitimate,” said Simon Taylor, a co-founder and director of Global Witness. “The attacks on Steven seem to have all the hallmarks of the kind of bullying and persecution we have documented and witnessed in countries around the world, where threats to corporate interests result in vicious counter-attacks. I am particularly concerned about what appears to be a continuing effort, invoking collateral estoppel, to deny Mr. Donziger a public hearing to defend himself and to provide evidence.
“Mr. Donziger now appears to have joined a long list of the persecuted, and I am particularly shocked that this is taking place in New York—a jurisdiction with a proud reputation for its fight against corruption and the corrupt,” Mr. Taylor added. “The fact that this is happening on the basis of highly suspect evidence, and possibly false witness testimony, raises the distinct possibility that Mr. Donziger is being framed. It is critical that this ‘process’ be monitored by all concerned to protect the rule of law and the maintenance of free, open, and accountable societies - and that is precisely what we will be doing.”
In its statement, Global Witness chided the New York judiciary for ignoring a detailed letter seeking information about its secret proceedings. Last week, the situation deteriorated further when NY bar staff attorney Naomi Goldstein refused to let the public observe the first day of Donziger’s post-suspension hearing before a referee appointed by the bar. That hearing, which will be re-scheduled for November with the attorney insisting it be open to the public, is supposed to result in a recommendation by the referee to a state appellate court to lift the suspension or to issue a permanent sanction.
Donziger was one of a handful of U.S. attorneys who filed the Ecuador pollution case on behalf of Amazon Indigenous peoples and farmer communities in U.S. federal court in 1993. After Chevron succeeded in shifting the matter to Ecuador in 2001, the company sold off its assets in the country and then tried to pressure the courts politically to drop the case. When that failed, Chevron sued Donziger in 2011 on the civil “racketeering” allegations in the same U.S. court where it had fought the original lawsuit.
Donziger always maintained the Chevron allegations against him were false and had already been denied by Ecuador’s courts, and that the U.S. retaliation case was being wielded by the oil company as an intimidation weapon against lawyers for the villagers. Kaplan played along with Chevron, refusing to allow Donziger’s counterclaims outlining how Chevron engaged in criminal racketeering by trying to corrupt the Ecuador court process and by making false allegations. Kaplan also refused to seat a jury of impartial fact finders even though Chevron had sued Donziger for $60 billion -- the largest potential personal liability in U.S. history.
Kaplan also allowed Chevron to pay huge sums to Guerra in violation of federal ethics rules barring witness payments. Guerra later admitted he lied, while a forensic report proved he lied. Kaplan has refused to correct his findings, which the New York bar is now claiming Donziger cannot challenge as part of the disciplinary process.
Further infuriating Chevron’s legal team is that Donziger has continued to help his clients enforce the Ecuador pollution judgment in Canada, posing enormous risk to the company’s asset base in that country. The Canada Supreme Court in 2015 ruled unanimously in favor of the Ecuadorians in denying a Chevron jurisdictional challenge, while 36 institutional shareholders this year criticized CEO Michael Wirth and urged company management to explore settlement of the case. Chevron’s 1,000 abandoned toxic waste pits in Ecuador have decimated Indigenous peoples and produced a humanitarian crises that has led to numerous deaths from cancer and other oil-related diseases.
Donziger has picked up wide support around the world as he has fended off Chevron’s campaign to taint his reputation and bankrupt him. Chevron has spent an estimated $2 billion to hire 60 law firms and 2,000 lawyers to attack the Ecuadorians and their lawyers; the company currently has a motion pending before Kaplan seeking $33 million in legal fees and costs from Donziger, who works out of his small apartment.
“As I have said repeatedly, I will not be bowed by Chevron’s or Kaplan’s attacks based on false and distorted evidence rejected by courts around the world,” said Donziger. “My focus is on enforcing the valid Ecuador judgment in Canada so an adequate clean-up can be carried out in the Amazon rainforest and lives and Indigenous cultures can be saved. In the meantime, I will continue to contest Chevron attacks in New York courts and I will demand those bodies provide me due process of law.”
(Here is a 33-page analysis of the many flaws in the Kaplan proceeding; here is a criminal referral of Chevron to the U.S. Department of Justice; here is a letter to the bar hearing officer demanding the right to present evidence in a public hearing.)
The NY bar did not move against Donziger until late 2016 when six of Kaplan’s colleagues on the New York federal bench sent a controversial referral letter to state bar officials demanding his suspension without a hearing. The NY bar staff attorneys who received the letter, led by Goldstein and Jorge Dopico, subsequently refused to interview Donziger, much less consider his evidence, before asking a state appellate court to suspend him on a theory of “collateral estoppel” which barred him from challenging the erroneous Kaplan findings.
In a statement issued in July, Donziger said his suspension is “based largely on false witness testimony paid for by Chevron and presented by an admittedly corrupt witness coached 53 days by company lawyers.’’
He added: “To base attorney discipline on Judge Kaplan’s erroneous and disputed findings in a civil case without even providing me a hearing is a gross injustice” that threatens the legal rights of all lawyers. He promised to continue to fight to present evidence and to appeal to New York’s highest court if necessary.
“I also want to thank Global Witness for agreeing to monitor the situation and report on it,” Donziger added. ‘Transparency and accountability are critical to prevent Chevron’s bullying lawyers from getting away with a scheme to violate my due process rights, all apparently to help a U.S. company evade its liability to people it harmed in Ecuador. The bar attorneys are charged with upholding the rule of law in New York. Violating my due process rights is not consistent with this obligation and is itself a violation of the rule of law.”
While Chevron’s lawyers continue to attack Donziger, they are also facing increased risks for engaging in the intimidation campaign.
In addition to the criminal referral letter outlining evidence of Chevron’s illegal activity to the U.S. Department of Justice, the Ecuadorians recently issued a reportshowing that Chevron lawyers at the U.S. law firm Gibson Dunn falsified evidence for the company to frame Donziger and that the law firm did the same on behalf of other wealthy clients in at least two other cases. Chevron still pays its star witness Guerra enormous sums of money after moving his entire family to the United States. Chevron and Gibson Dunn also provided Guerra with a house, car, health insurance, legal fees, and payment of all income taxes.
Further, a new Chevron witness – a business owner in Boston named Katie Sullivan – admitted last week under oath that she had been targeted by Chevron’s intimidation campaign and forced under pressure to sign an affidavit written by Gibson Dunn lawyers that contained assertions that are untrue. Sullivan played a critical role helping raise funds for the Ecuadorians.
Weyler, the co-founder of Greenpeace, called Donziger a “hero” for standing up to Chevron and the bar. “This is always the way the status quo power structure protects its own,” said Weyler, responding to the bar’s decision to suspend Donziger. “The more frightened they are by the truth, the greater their lies. They did this to anti-slavery activists centuries ago, to the suffragettes, to Gandhi and Martin Luther King, to indigenous leaders throughout the world.
“This shameless pandering by the NY judiciary to power and money will be exposed in time,” he added.
For a full report from the Ecuador legal team explaining Chevron’s fraud in the Kaplan racketeering case now used as the basis to suspend Donziger, see here. Donziger also has filed a formal complaint against U.S. judicial authorities with the Inter-American Commission On Human Rights for a failure to protect him from what he calls a “vicious” Chevron retaliation campaign. That human rights complaint can be read here.
Donziger also announced that Rick Friedman, a prominent trial lawyer based in Seattle, has agreed to help represent him during the bar proceeding.
(Here is background on how the legal community is “shocked” by Donziger’s treatment by the New York bar, with comments from Harvard Law Professor Charles Nesson, First Amendment lawyer Marty Garbus, and prominent trial lawyer Rick Friedman.)
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