After five days in court and 650 days on house arrest, Steven Donziger, the environmental attorney who helped win a multibillion-dollar judgment against Chevron over contamination from oil drilling in Ecuador, chose not to testify in his own defense in the final day of a trial over contempt of court charges.
“My lawyers said you’d be crazy to testify, so we decided to cut the case short,” Donziger told The Intercept. “No need to continue to legitimize what’s essentially a charade.”
As the Intercept previously reported, Donziger was charged with contempt of court for refusing to hand over his computer, cellphone, and other electronic devices in August 2019 and has since been on house arrest in his Upper West Side apartment in New York City. Although no attorney without a criminal record in the federal court system has ever before been detained pretrial for a misdemeanor offense, Donziger has been confined to his home for 21 months for the misdemeanor charge. If convicted, he faces six months in prison.
The contempt case stems from a long and twisted legal saga that began in 1993, when Donziger was part of a team that filed a class-action lawsuit against Texaco on behalf of more than 30,000 farmers and Indigenous people in the Amazon over massive contamination from oil drilling. Chevron became involved when it bought Texaco in 2001.
Donziger’s case has commanded international attention, with Nobel laureates, law students, human rights advocates, and climate activists, including Greta Thunberg, calling for his release and pointing to his case as an example of corporate abuse of the judicial system. In April, Democratic members of Congress, including Rep. Alexandria Ocasio-Cortez, wrote to Attorney General Merrick Garland asking him to review the case. On his way into federal district court Monday morning, Donziger was greeted by a crowd of supporters, which included actor Susan Sarandon, musician Roger Waters, and Manhattan borough president candidate Lindsey Boylan.
As activists strive to hold fossil fuel companies responsible for their role in the climate crisis, there is growing popular recognition of the significance of Chevron’s aggressive legal campaign against the environmental lawyer. But for the third time in the epic legal battle stemming from the pollution, the legal proceedings took place without a jury.
The initial litigation over pollution in the Amazon was held in the Ecuadorian court, which doesn’t have juries. A 2011 Racketeer Influenced and Corrupt Organizations, or RICO, suit that Chevron filed against Donziger initially sought $60 billion in damages. Such suits seeking damages entitle a defendant to a jury, but Chevron dropped the monetary claims two weeks before trial, and as a result, no jury was present. In August, Judge Loretta Preska, who is overseeing the contempt trial, denied Donziger’s request to have a jury present. Preska also denied Donziger’s request to stream video of the trial.
“We tried again at the beginning of the trial to get a jury, and she denied it again,” Donziger said of Preska. “Had I had an unbiased fact-finder, that is, a jury of my peers, there’s a very good chance I would be acquitted of all six counts.”
Charles Nesson, an attorney and Harvard Law School professor, agrees. “This is a story of the denial of jury trial,” Nesson said. “He’s been effectively convicted and disbarred and more or less bankrupted without any jury. And now he’s about to be convicted. And all of this without a jury.”
Litigation between Donziger and Chevron, whose consultants acknowledged a plan to demonize the environmental lawyer in 2009, had been overseen by Judge Lewis A. Kaplan. The judge had asked the U.S. attorney to prosecute Donziger for the contempt charge; the federal attorney, Geoffrey Berman, had declined to do so. In a move that appears to be unprecedented, Kaplan appointed a private law firm to handle the prosecution in July 2019. Bypassing the standard random assignment process, Kaplan then hand-picked the judge who would oversee the case: Preska.
“He knows in choosing her, he is choosing the one judge in the Southern District, perhaps, who is going to go after Steven in the worst possible way. And Kaplan was exactly right,” said Martin Garbus, one of Donziger’s attorneys.
“I have seen many, many rigged court systems. The way this is rigged is peculiar and amazing in New York.”
Garbus, who has represented Nelson Mandela, Daniel Ellsberg, and Cesar Chavez and worked in Rwanda, China, and the Soviet Union, among other countries, said he was stunned by Donziger’s case. “I have seen many, many oppressive judges, and I have seen many, many rigged court systems. The way this is rigged is peculiar and amazing in New York,” said Garbus. “Nothing like this has ever happened before in the American legal system.”
Donziger and his team have repeatedly pointed to ties between Preska and Chevron, noting that the judge is a member of the Federalist Society, a conservative legal organization that has received funding from Chevron. Although Chevron is not a party to the current contempt litigation, the prosecution’s witnesses have included attorneys for Gibson Dunn, which has represented Chevron in litigation against Donziger and had dozens of meetings with the private prosecutors now prosecuting the contempt case. Chevron did not immediately respond to a request for comment.
“It’s not a normal public prosecution,” Donziger said.
“Virtually every time Donziger’s team raised objections, they were overruled,” said Paul Paz y Miño, associate director of Amazon Watch, an organization devoted to the protection of the rainforest and Indigenous people in the Amazon basin. “And almost every time the prosecution objected, Preska sustained their objections.”
Leaving the court, Donziger said that he was feeling good even though he believed the judge had been biased against him. “Between her open display of bias and specific legal rulings, we have very good grounds for appeal,” he said. “I think we’re much further along in holding Chevron accountable.”
Closing arguments in the case will be submitted in writing in two weeks, and a decision is expected after that. But Donziger suspects he already knows the outcome.
“I am going to get convicted. This is not a fair proceeding,” he said, as he headed back to his apartment. “I’m still completely fucked.”