Donziger & Ecuadorians File Motion to Strike Testimony of Chevron's Well-Paid Witness

Today, the legal team for Steven Donziger and the Ecuadorians targeted by Chevron's retaliatory RICO suit filed a motion—filled with devastating detail—to strike the testimony of the oil giant's star witness.

That star witness, disgraced former Ecuadorian Judge Alberto Guerra, testified during the RICO trial last week that representatives of the Lago Agrio Plaintiffs secured the opportunity to ghostwrite the 2011 judgment against Chevron issued by the Ecuadorian court by promising the presiding judge $500,000.

Well, I guess Chevron can rest its case. Silver bullet. Or, more like magic bullet.

One of the main problems with the story—besides the fact that it never happened—is that after weaving his tall tale, Guerra admitted that he had offered between ten and twenty bribes to judges during his career as a lawyer and after becoming a judge, accepted about the same number of bribes, sometimes for as small as $200, to "fix" cases.

But it gets worse, at least for the credibility of his fanciful testimony. From today's motion:

Guerra further understood from multiple conversations and lunch meetings with Chevron attorneys—where, as Guerra’s testimony revealed, they always fully heard out his offers and consulted with their principals before allegedly saying “no”—that as an out-of-work former judge with no role in the case, he simply didn’t have the “goods” Chevron wanted. Guerra had every incentive to manufacture those goods so that he could bargain hard with Chevron about the price of his testimony. And bargain he did, lying repeatedly to Chevron—i.e., that he was in possession of emails that would confirm Chevron’s ghostwriting allegations; that he possessed drafts of the Judgment; that the Lago Agrio Plaintiffs had recently offered him $300,000 to cooperate—in order to improve his bargaining position.

Okay, so the guy is an admitted liar and criminal but you know, maybe he's telling the truth now. What incentive could he possibly have to make up a new story now? Back to the motion:

When, after a long career of paying and accepting bribes, Guerra apparently decided that he would place himself in the service of Chevron, the former judge was earning $500 per month and had no savings. In contrast, Chevron has committed to paying Guerra, for a period of at least two years, a “salary” of $10,000 per month—20 times more than he was earning in Ecuador. It is unclear what need Guerra has for such a generous salary, in light of the fact that Chevron also: (i) provides Guerra with a monthly $2,000 “housing allowance”; (ii) bought Guerra a car and is paying for his auto insurance; (iii) is paying for health insurance to cover Guerra, his wife, his son, his son’s wife, and his grandchildren; (iv) paid Guerra roughly $12,000 to purchase household items upon his move to the U.S.; (v) paid Guerra’s moving expenses, including five airline tickets, transportation of personal items, and a temporary hotel stay upon arriving in the U.S.; (vi) paid Guerra roughly $50,000 in exchange for “evidence,” including $10,000 for belatedly finding a single document that supposedly eluded Guerra upon prior searches because it was “stuck” to something else; and (vii) pays the legal fees of Guerra’s various attorneys, including the fees of the lawyers handling immigration issues for his various family members. Guerra’s relocation on Chevron’s dime also reunited him with his daughter and a second son, who live in the U.S. and who Guerra had not seen in several years.

In other words, Chevron is bribing a judge to say that Donziger bribed a judge.

And the package Chevron has put together for this judge is outrageous, and egregiously runs afoul of federal law and ethical rules of conduct.

The motion outlines how the payments violate the federal Anti-Gratuity Statute as well as the Rules of Professional Conduct of New York, where the trial is taking place. By all means, read the motion for a detailed explanation of the rules but here is the view of prominent legal scholar and law professor Erwin Chemerinsky in a sworn declaration for the Defendants:

“if a party or its counsel were permitted to pay a testifying witness for physical evidence, beyond the reasonable value of that evidence, and to pay the witness a salary in exchange for an agreement to testify, there would be little left of the rule against compensating fact witnesses.” 

And the conclusion of the motion on the payments to Guerra?:

The bottom line is that Guerra is and apparently always has been desperate for money, and will stoop to extraordinary lows to get it—including fabricating a story for Chevron, weaving big lies with small truths in an effort to create the illusion of a verified account. Guerra’s recent testimony only serves to drive his unreliability home.

The motion is well worth reading in its entirety as it also highlights the admitted lies, the contradictions, and the suspect assertions in Guerra's testimony, as well as the total lack of anything approaching corroborating evidence for his explosive allegations.

During cross-examination, Guerra explained that he spent 3-4 days of every week for 3 full months in New York working with a team of Gibson Dunn lawyers led by Randy Mastro in preparation for his two days in court. That should be enough time for even a novice actor to learn his lines, no matter how fanciful a story he’s telling.

And hey, if it means reuniting with his beloved family in the United States, where he’ll enjoy a lifestyle he could only dream of before, it’s time well spent. And then some.

And for Chevron?

Simple. Guerra’s testimony is Chevron’s ‘magic bullet’ to save its RICO case and help the company avoid paying the $19 billion judgment for its devastation of the Ecuadorian Amazon.

If it worked, it would be money well spent.  And with a biased federal judge presiding, it probably will work – until a real court, the Second Circuit Court of Appeals, reviews the matter down the road. 

Never mind that the money spent on bribing Guerra to fabricate his story could be used to clean up the company’s contamination in Ecuador. But for Chevron, living up to its legal and moral responsibilities overseas would set a terrible precedent. 

In the end, Guerra’s preposterous testimony, bought and paid for by Chevron, his court performance the culmination of months of preparation by a team of highly-paid lawyer-thespians at Gibson Dunn, adds one more layer of absurdity to the farce that the current proceedings represent. A single federal judge in New York can no more act as an appellate court for the entire Ecuadorian Judiciary than Alberto Guerra’s words can be taken as the truth. And Chevron can no more hide from the truth than the company’s legal machinations can conceal its contamination, and its liabilities, in Ecuador.

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Letter to the Court: Donziger Expresses Fair Trial Concerns to Judge Kaplan

In an October 23rd letter to Judge Lewis A. Kaplan, Steven Donziger writes:

“I write to record objections to certain procedures being used that I believe are interfering with my ability to mount a defense and violating my fundamental right to a fair trial.”

Steven’s letter goes on to enumerate in detail issues in the proceedings currently underway, including prohibitions by the judge against using evidence of Chevron’s liability for contamination in Ecuador, and no ruling yet from the judge as to whether Steven will be allowed to testify in open court (as opposed to only by written declaration).

Read and/or download the letter here (PDF document).

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Corporate Rights or Human Rights?

Katie Redford at Earth Rights International posted a blog here,  writing eloquently on the privilege to "speak" and limit activism that corporations are enjoying, as the rights of human beings to hold those corporations accountable continues to wane.  The struggle of the Lago Agrio Plaintiffs and Steven Donziger is highlighted as an example of SLAPP (Strategic Litigation Against Public Participation) suits by corporate defendants seeking to avoid accountability.  Click here, or read on below...
 
 
Posted October 16, 2013
by Katie Redford

Every day, human rights defenders around the world risk their lives to stand up against injustice. Whether investigating government abuse in Syria or Russia, or exposing corporate abuse in Nigeria or Ecuador, brave individuals everywhere depend on fundamental rights of free speech to do their work.   The United States has always celebrated such rights as vital to our democracy—after all, there is a reason that the First Amendment came first.  Yet recent trends, bolstered by a series of federal and Supreme Court cases, have privileged the free speech rights of corporations while silencing the living, breathing human beings that need those rights most.

It’s certainly no news that today’s corporations enjoy unprecedented global power.  Likewise, the corporate lobby’s campaign to stifle human rights activism has been steadily increasing.  Since Citizens United, which extended First Amendment rights to corporations as “persons”, we’ve seen bold legal arguments against laws and regulations that would hold them accountable to fundamental human rights law.  This year, for example, the Supreme Court held in Kiobel v. Shell that Nigerian survivors of torture and crimes against humanity could not seek justice against Shell in U.S. Courts.  The “mere corporate presence” of Shell in the U.S. was not enough for the Court to allow the plaintiffs—lawful residents of the U.S.—to bring their case.  Courtroom doors that have been open to the world’s powerless for over 30 years are now closing thanks to a concerted effort by the most powerful.

Yesterday, the Supreme Court heard arguments in a case that could push this dangerous precedent even further.  Largely outside the radar of the human rights community, DaimlerChrysler AG v. Bauman arises out of the company’s alleged participation in targeting labor activists in Argentina’s Dirty War, a period of terror that involved the murder, torture and disappearances of thousands of activists and political dissidents.  The allegations are chilling: Mercedes-Benz Argentina identified workers within its plant as “subversives” to state security forces, knowing full well that, as a result, those workers would be abducted, tortured, murdered or “disappeared”.   Equally chilling is the prospect that the Supreme Court will enshrine corporate rights over human rights in law once again.   Like Shell in Kiobel, the question is whether the German company is legally present in the U.S. for purposes of jurisdiction.  Daimler says that it has a constitutional right to be treated separate from its subsidiaries.  Where that right exists in the constitution is up to anyone’s imagination.

Unfortunately, it’s not just the Supreme Court that’s privileging corporate rights over human rights.  The American Petroleum Institute (API) sued the Securities and Exchange Commission (SEC) earlier this year, arguing a First Amendment right to make secret payments to foreign governments.  The case concerned Section 1504 of the Dodd-Frank Act which would require oil, gas and mining companies to disclose the payments they make to foreign governments, making this information available to the people living in resource-rich countries for the first time.  Such transparency regulations prevents corruption and promotes human rights, not least access to vital information that citizens in resource-rich countries require to demand accountability from their own governments.  Yet the API argued that the First Amendment allows them to conceal such payments, and the SEC is now revising their rule.

Finally, we have seen the rise in SLAPP (Strategic Litigation Against Public Participation) suits by corporate defendants against the human rights attorneys and NGOs that have advocated against them.  Perhaps the most extreme, but certainly not the only, example of this has been the tactics that Chevron has employed this year against all advocates criticizing their human rights and environmental abuses in Ecuador.  Faced with an $18 billion judgment against it for environmental devastation in the Amazon, Chevron has relentlessly targeted the organizations, lawyers, journalists and activists who have campaigned or publicly spoken out about the company’s destructive operations in Ecuador.  In spite of sanctions and other judicial admonishments, Chevron’s lawyers have continued to SLAPP activists with harassing subpoenas and depositions, undoubtedly aimed at chilling the future First Amendment activity that makes their company look bad.  EarthRights has defended these organizations, like Amazon Watch, but in spite of successful defense, Chevron’s legal machine continues these abusive practices.

Sadly, these cases are not new or unique.  Human rights advocates have always faced an uphill battle, especially when taking on corporate abuse.  What is new is the way in which our highest courts are privileging corporations and their rights over those of actual human beings.  SLAPP suits and corporate tactics aimed at discouraging human rights advocates from speaking out and demanding justice are time-tested.  But the aggressiveness and vigor with which Chevron has been allowed to pursue such tactics is new, and other corporations are following suit.

We must ask ourselves this question:  How can we speak truth to power when those with power have more rights to speak?

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Chevron Withdraws Key Element of RICO Charge Against Donziger

Check out the press release issued today by the legal team representing Steven Donziger and the Ecuadorian Plaintiffs—now, of course, Defendants in Chevron's retaliatory RICO case.

See below for important points on the first week of trial, and stay tuned for next week...


FOR IMMEDIATE RELEASE
October 18, 2013

Contact: Chris Gowen, 610-513-0539, press@gowengroup.com

Chevron Withdraws Key Element of RICO Charge Against Donziger

NEW YORK, /CSRwire/ - With the first week of trial in Chevron’s RICO case over, it is becoming increasingly clear that the oil giant is facing significant hurdles as it attempts to salvage a verdict that will allow it to block international efforts to enforce the $19 billion Ecuador judgment.
 
After the first four witnesses, several issues have come into sharp focus.  First, Chevron is willing to give up major portions of its RICO claims to avoid compelling evidence of its environmental pollution and corrupt activities in Ecuador from coming out in court.

At the same time, Judge Lewis A. Kaplan is doing everything he can to assist the oil giant’s case.  Kaplan has blocked most lines of questioning about environmental contamination, blocked evidence of Chevron’s surveillance of Donziger, granted Chevron a trial preparation room five times the size of that used by Donziger and Ecuadorian defendants Hugo Camacho and Javier Piaguaje, and most notably, has twice taken over the questioning of Chevron witnesses.

“I don’t think there’s a lawyer in the world who would guess that this is a RICO case had they sat through the first week of trial,” said Christopher Gowen, the spokesman for Donziger.  “Chevron clearly wants to retry the Ecuador case that it lost in its preferred court”.

Gowen said Chevron’s case rests largely on a veritable parade of witnesses “who seem to personally dislike Steven Donziger” but have little information relevant to the legal claims in the case.   “Chevron will continue to use this proceeding to try to destroy Donziger’s reputation by distorting facts about him, which seems to be central to their strategy,” he added.

The most stunning development occurred the first day when Chevron dropped a key predicate RICO act alleging that Donziger and his colleagues pressed for prosecutors in Ecuador to file “bogus” criminal charges against Ricardo Reis Veiga, a top Chevron lawyer.  Just as lawyers were about to confront Reis Veiga with evidence that the charges were based on scientific proof that he designed and supervised a fraudulent remediation, Chevron agreed to drop that issue.

That move “completely validates everything Steven Donziger has been saying about this issue for years.” said Gowen.  “It was manufactured by Chevron to put pressure on Donziger and harm his reputation, and it was false.”

“We were prepared to prove that Veiga orchestrated a major fraud in Ecuador to try to get Chevron out of its huge liability, and that the criminal charges against him had a valid basis,” Gowen continued.  “You may draw your own conclusions about why Chevron dropped this claim.”

Another of Chevron’s key witnesses, a former technical consultant for the rainforest communities named David Russell’s written testimony, authored by Chevron’s lawyers stated that Donziger pressured him to put out an inflated damages estimate in 2003 to pressure the company into a settlement.  Curiously, Mr. Russell had a much different tone during a 2003 interview with the Wall Street Journal where, in his own words, he called the Ecuadorian contamination “larger than the Chernobyl disaster”.

Under cross-examination on the stand, Russell testified that he spent days putting together the assessment based on assumptions then available from limited data, and did so with no interference from Donziger.

Whether the thousands of dollars Mr. Russell has made from Chevron for his “testimony prep” influenced his testimony is rather obvious.  Russell even admitted that Chevron lawyers at Gibson Dunn & Crutcher wrote his testimony for him in the first person.

Chevron scientist Sara McMillen was caught having to admit that the company’s technical experts were told to only look for “clean” soil samples during the judicial inspections.  Donziger has long accused Chevron of engaging in junk science to defraud Ecuador’s court.  (For a copy of his own claims against Chevron that Judge Kaplan would not let go forward, see here).

 McMillen also conceded that Chevron called its own paid experts “independent” – the exact same term used by Donziger and his colleagues that Chevron claims was inappropriate.

"Chevron's witnesses have affirmed what the victims of Chevron's contamination have known all too well for decades -- that a huge area where Chevron operated is horrifically polluted," said Han Shan, spokesperson for the Ecuadorians named in Chevron's RICO suit. "Chevron's attempts to run from this basic truth adds insult to injury for thousands of people who continue to suffer the impacts of the company's reckless conduct."

Chevron’s RICO has three main problems:

First, the main activity in the case took place outside the U.S. in Ecuador, while the statute only applies to acts in the country.  Second, now that Chevron has dropped money damages claims to avoid a jury, there is no equitable relief remedy available (such as an injunction blocking enforcement) Third, and most notably, Mr. Donziger did not commit a “predicate act” as clearly required by the RICO Statute, according to Gowen.

“Chevron figured out how to avoid a jury because the company knew full well New Yorkers would have seen through its charade,” he added.

###

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RICO Bombshell Further Erodes Credibility of Key Chevron Witness

On the very second morning of the trial in Chevron's retaliatory RICO suit, one of the oil giant's star witnesses dropped a bombshell.

And the star witness—Chevron's own Ricardo Reis Vega, the company's vice president who oversaw its legal defense in the Ecuador case—dropped that bombshell on another of Chevron's star witnesses.
 

With the courtroom packed with people who mostly already knew about the incident, the major revelation drew little response except some frantic scribbling in notebooks and whispering in the dark suited, shoulder to shoulder Chevron seating section.

For those of you who haven't been closely following the tortuous grind of this case, Reis Veiga's admission is substantial and eviscerates the credibility of the witness Chevron is relying on to support its most explosive—and ridiculous—allegations in the case.

Reis Vega was asked if he had personal knowledge that in 2009, the disgraced former judge in the case in Ecuador, Alberto Guerra, approached Chevron, promising to "fix the case."

Reis Vega replied, simply, "Yes, I do."

Chevron is promising that Judge Guerra—who the company admits offered to "fix the case", will be its star witness in Chevron's trial. He is expected to say that the Ecuadorian Plaintiffs' legal team offered to bribe judges, an outrageous claim they vigorously deny.   Judge Guerra who has in fact been paid more than $325,000 by Chevron, in some cases by lawyers toting suitcases in cash.  Who is bribing whom?

While this all sounds hyperbolic; unfortunately it is not, and will be corroborated soon enough in court.

Read this Motion for Terminating Sanctions filed last month for more information on Guerra's total lack of credibility.

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Eye on the Amazon: Retaliation Trial Opens Against Victims of Chevron Contamination in Ecuador

Reposted from Eye on the Amazon



Today in New York Ecuadorian villagers from the Amazon rainforest region ravaged by Chevron's oil contamination were joined by supporters for a rally in Foley Square across from the courthouse where a trial opened in the California-based oil giant's retaliatory RICO lawsuit against the Ecuadorians and their U.S.-based legal advocates.

The Ecuadorians are representing 30,000 plaintiffs who won a landmark judgment against Chevron in an Ecuadorian court in 2011 in which the company was ordered to pay more than $18 billion for cleanup of widespread contamination, as well as compensatory and punitive damages. The case holding Chevron accountable for toxic dumping by its predecessor company, Texaco, has been upheld by appellate courts in Ecuador.

After nearly 20 years since the case was filed in 1993, Chevron still refuses to pay for a cleanup and is waging a scorched earth legal, PR, and lobbying campaign to crush its victims and their advocates and supporters. The oil giant stripped its assets from the country, forcing the Ecuadorians to pursue enforcement of the judgment in countries where the company maintains assets.

While Secoya indigenous community leader Javier Piaguaje continues to contest that the New York court can assert Personal Jurisdiction over him, he has traveled to New York to represent the tens of thousands of Ecuadorian plaintiffs who couldn't be there and defend them against Chevron's insulting allegations. He had this to say outside the courthouse in Foley Square today:

Ladies and gentlemen,


30,000 people were affected by Chevron's contamination and each day this number increases. Almost 30 years of criminal operation by the Chevron-Texaco oil company in Ecuador; more than 1,500 square miles of contaminated Amazonian rainforest; rising cases of cancer that almost always end in death; the suffering of our women for the great number of miscarriages; the devastation of the ecosystems and the destruction of thousands of species of plants and animals.


When Texaco arrived, we were expelled from our ancestral lands and two indigenous peoples went extinct. What the oil company brought to the Ecuadorian Amazonian was violence, death and destruction; meanwhile, the company got all the riches that the land offers at the cost of our lives, our health, and our home.


For this reason we continue our efforts to hold Chevron accountable, so that the company pays for all of the harm that it caused. We are here in New York now, where Chevron persecutes us and accuses us of being criminals and is supported by a judge who doesn't know our reality and suffering and hopes. Who are the real villains in this story?


We are outside this courthouse to tell the history that Judge Lewis Kaplan has refused to hear. Our misery is real and it will not cease to exist by a judicial process in New York, where Chevron hopes to avoid its responsibility with the collaboration of a judge that isn't even willing to validate the harm that we've had to endure. We come to denounce the abuse that is being committed in affected communities but also to tell them that we have already fought for 20 years and this RICO lawsuit will not stop us in our quest for justice.


The oil company has declared that it will fight us "until hell freezes over." Obviously our economic conditions are not the same; they can buy justice, we cannot. Because of this we must unite to fight against a giant that understands money, but not values like solidarity, truth, fellowship, and above all, justice.


Our fight is to keep the Amazon, the lungs of the planet, alive.


Our fight should interest the whole world.


We unite to make the world a place that is worth living in. The Amazon was one of those places. With your help, it can be again.


Thank you.

Forty-seven "named plaintiffs" – all of them indigenous rainforest residents and rural villagers – have been named in Chevron's lawsuit, which alleges that the entire case is a conspiracy to extort the company. Two of the Ecuadorian villagers, while rejecting the New York court's jurisdiction over them, have nonetheless appeared in the case in order to fight the allegations. Fearing a public backlash for suing victims of its pollution, Chevron has focused its smear campaign on New York-based human rights attorney Steven Donziger, who has advised the Ecuadorians in their efforts since first visiting the contaminated region in 1993.

The Ecuadorians and their supporters have called for an end to Chevron's retaliatory lawsuit, and are calling this latest effort a "rigged show trial" before a federal judge, Lewis A. Kaplan, who has displayed outright hostility to the Ecuadorians' legal efforts to demand a cleanup. Judge Kaplan has also made repeated disparaging on-the-record comments about Ecuador's judicial system.

Texaco operated in Ecuador until 1992, and Chevron absorbed the company in 2001, assuming all of its predecessor's assets and liabilities. Chevron has admitted to dumping nearly 16 billion gallons of toxic wastewater – the byproduct of oil drilling and pumping – into rivers and streams relied upon by thousands of people for drinking, bathing, and fishing. The company also abandoned hundreds of unlined, open waste pits filled with crude, sludge, and oil drilling chemicals throughout the inhabited rainforest region. In other countries at the same time as it was operating with no environmental controls in Ecuador, the company re-injected wastewater and used other easily-deployed technologies to deal with the toxic byproducts of its activities.

Multiple independent health studies have shown an epidemic of oil-related birth defects, cancers, and other illness. It is estimated that the contamination has directly led to at least 1,400 deaths.

More Information:

For more on the campaign to hold Chevron accountable for its abuses in Ecuador: ChevronToxico.com

For more on the impending trial in Chevron's retaliatory lawsuit: StevenDonziger.com

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Chevron’s Retaliatory Show Trial Opens in New York

Today in a New York Courtroom,  Chevron’s campaign to evade accountability for its environmental and human rights abuses in Ecuador officially enters a new, egregious, ridiculous stage.

This morning, in Judge Lewis Kaplan’s courtroom on the 21st floor of the Daniel Patrick Moynihan U.S. Courthouse in New York, Chevron’s team of lawyers assembled on one side, while long-time advocate for the Ecuadorian rainforest communities, Steven Donziger and his team assembled on the other. Some journalists and supporters of the fight to hold Chevron accountable filled out the courtroom and fidgeted, while waiting for whatever would come next.Missing from the courtroom as Judge Kaplan called the first day’s hearing to order was Javier Piaguaje, Secoya indigenous leader from the community of San Pablo, deep in the Ecuadorian Amazon. He has consistently rejected the New York court’s jurisdiction but traveled here to represent the thousands of Ecuadorian victims of Chevron’s pollution who are being victimized even now by Chevron’s ongoing scorched earth campaign to crush their righteous fight for justice.

Earlier in the morning, Javier stood beneath the Flaming Sword of Justice Monument to briefly address a large crowd of people gathered in Foley Square; members of the Ecuadorean community in New York, and supporters of human rights and the environment who came out in solidarity.
High above Foley Square, Judge Kaplan began the proceedings without a single representative from the affected Ecuadorian communities. A few minutes later, finally, Javier joined Steven in the courtroom, along with their lawyers. Javier had been delayed by long lines at the entrance check-point; security was tight for the high-profile arraignment of a terror suspect.

But as the proceedings continued, the scene grew only more bizarre.

In its opening statement, Chevron failed to mention a single element of law against the Ecuadorian defendants. It seems clear that the court has no choice but to dismiss the entire matter against the Ecuadorians.

In fact, Chevron’s opening statement displays an absolute obsession with Donziger, but an utter lack of legal basis to proceed in the show trial now underway. Chevron even failed in its opening statement to suggest any sort of relief they may be seeking from the court, suggesting they don’t have a legal basis for relief.

At the outset, besides the overarching fact that this whole RICO case is merely a weapon of mass distraction designed to explode the landmark verdict won by the Ecuadorian plaintiffs after one of the most litigated environmental cases in history, Chevron’s case has a couple obvious major problems from a legal standpoint: the company can’t meet the elements of law, and there’s no relief available anyway.

And all of that became clear within the first hour or two. Stay tuned…

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Setting the Record Straight: Steven on HuffPost Live

This is an excellent segment. Watch Steven Donziger interviewed on HuffPost Live:  
 

Steven sets the record straight when the ill-informed host throws out some baloney about film outtakes showing Steven talking about bribes—an allegation Chevron hasn't even made despite its myriad other ridiculous accusations. No such outtakes exist because it never happened, on film or otherwise.

Chevron has thrown around so many wild accusations that people can't even keep them straight, which is probably the point.

And of course, Chevron knows a thing or two about bribes.

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Judge Kaplan Denies Jury Trial for Donziger and Ecuadoreans

Today, the New York Law Journal ran an article on its front page about the upcoming trial in Chevron's retaliatory RICO lawsuit against the victims of Chevron's abuses in the Ecuadorean Amazon, and their long-time U.S. attorney, Steven Donziger. The piece begins:

The pitched battle between Chevron Corporation and a lawyer and Ecuadorians who won a multi-billion-dollar environmental judgment against the oil company in Ecuador is set for trial on Oct. 15, before Southern District Judge Lewis Kaplan.

Reporter Mark Hamblett opens with the competing narratives—Chevron on one side, human rights attorney Donziger and the Ecuadoreans on the other—in this case:

Kaplan Monday denied the request of attorney Steven Donziger and two of his Ecuadorian clients for a jury trial in the case, where Chevron is alleging Donziger ran a racketeering conspiracy to win the so-called Lago Agrio litigation in Ecuador by fraud, and Donziger is accusing Chevron of scorched-earth tactics to avoid taking financial responsibility for environmental damage left behind by a predecessor oil company.

As the trial evidence mounted in Ecuador over Chevron's devastation of a sprawling swath of inhabited Amazon rainforest, it became increasingly clear that Chevron would likely be found liable. On that, the company was right, and in February 2011, the oil giant was ordered to pay nearly $19 billion in compensatory and punitive damages.

But by then Chevron had launched its retaliatory campaign against Donziger and the Ecuadoreans. In 2009, with an adverse judgment from the Ecuadorian court looming, Chevron press operative Chris Gidez wrote in an internal company memo that “our L-T [long-term] strategy is to demonize Donziger.”

Today's NY Law Journal article continues:

After Chevron filed its lawsuit, Donziger said, "It then used 'the explosive' 'thermonuclear' impact of the allegations—the 'terrorizing' effect of civil RICO 'as another court has described it'—to launch a global smear campaign designed to destroy my reputation, chill my free speech rights, and drive me away from representing the Ecuadorian communities who are my clients. This campaign was promoted, encouraged and amplified by the very court that Chevron now seeks to preside over a bench trial."

In addition to "fundamental fairness" requiring a jury trial, Donziger said, "Chevron has accused me of being a 'criminal' in open court," and "it would amount to a travesty of justice to deny me and my clients a jury trial in what is essentially a private prosecution funded by corporate largesse."

Legal Newsline covered the development today as well, quoting Donziger spokesman Chris Gowen, who called Kaplan's decision “a clear abuse of power” and said that it shows Chevron doesn’t believe in its own case:

“This critical decision made only days before trial virtually guarantees Chevron its desired outcome from a judge who already has decided all key issues in the case before evidence has been presented,” Gowen said in a statement.

While Judge Kaplan—who famed trial attorney John Keker charges with allowing Chevron’s RICO case to degenerate into a “Dickensian farce”—remains intent on being the sole decider, Donziger and the Ecuadoreans are preparing for trial.

As we file this post, there is one brief comment on the Legal News Line article from a reader named Peter. We don't know who Peter is but we think he nails it:

The fact that Donziger is prepared to risk a huge financial judgement in order to be tried by jury clearly illustrates which side is more confident of its merits.

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Chevron Continues Abusive Efforts to Rig Trial in Retaliatatory RICO Case vs. Donziger and Ecuadorian Villagers

Last week, after bringing in heavy-hitting trial lawyer Ted Olson to argue its case, Chevron prevailed in its effort to keep its favorite judge overseeing the upcoming trial over the oil giant's retaliatory lawsuit against lawyer Steven Donziger and his clients from the Ecuadorian Amazon. Days later, on the eve of the trial, Chevron dropped its damages claims against Donziger.

Why would they do that?

Well, once Chevron secured Judge Lewis Kaplan—who has displayed outright bias against the Ecuadorians and their legal team who sued Chevron over its rainforest Chernobyl—the company wanted to make sure it was Kaplan, and Kaplan alone, deciding the case.

As The Wall Street Journal—a pro-Big Business organ if there ever was one—put it:

"Trying the case before a jury would be riskier for the company, experts said, in part because jurors might not be sympathetic to its argument that it has been victimized by the lawyers for Ecuadorian villagers."

In other words, a jury would likely see right through Chevron's cynical efforts to play the victim after being found guilty of massive oil contamination—causing a horrific epidemic of oil-related sickness and death amongst thousands of poor rural Ecuadorians—in one of the most-litigated environmental cases in history.

And so, the company argued, without damages claims, Donziger loses his right to a jury trial.

But, according to a press release today, Donziger and the other RICO defendants disagree, and will pressing their view before the court tomorrow:

Donziger and his clients are due to file a motion tomorrow explaining why the law still requires a jury rather than allowing a bench trial before Judge Lewis A. Kaplan, who has a documented history of bias in favor of Chevron.

But, in addition to making sure the oil giant's dear friend in the federal court is the sole "decider," the company is going to alarming lengths to rig the trial:

Chevron is now trying to bar any and all evidence of environmental contamination in Ecuador from its RICO case as part of a strategy to deny rainforest villagers and their New York attorney Steven Donziger a fair trial, according to recent court filings.

The press release continues:

Chevron has asked Judge Kaplan to bar Donziger and the Ecuadorians from using any of the overwhelming scientific evidence that proved the company’s guilt when it was found liable by the Ecuador court for $19 billion in damages.
…
Chevron also has asked Judge Kaplan to bar Donziger and the Ecuadorians from presenting evidence related to “environmental and human conditions” in the affected area of Ecuador’s rainforest and to exclude the use of any scientific studies related to the contamination.  The Ecuador court relied on such studies as well as tens of thousands of chemical sampling results to find Chevron liable in the case.

Christopher Gowen, a law professor and spokesman for Donziger and the Ecuadorians called Chevron’s attempts to restrict evidence “stunning in breadth and scope,” saying:

"Chevron obviously is so afraid of its own wrongdoing that it wants to have an environmental trial without talking about the environment. That’s what corporate polluters do when they get caught with their pants down.”

Chevron's shocking requests to Judge Kaplan are laid out in its Summary Notice of Motions in limine. Here is an excerpt:

    Chevron requests that this Court enter an order: 

• precluding Defendants from offering at trial evidence, arguments, or questioning in support of the proposition that the findings of the Cabrera report, the Ecuadorian judgment, or Defendants’ allegations in the Ecuadorian proceeding were accurate or supported by evidence and sound scientific analysis, including but not limited to a prohibition on the submission of evidence, arguments, or questioning regarding the following topics, except insofar as the evidence is otherwise relevant:
  
• alleged environmental and human conditions in the Oriente region of Ecuador, including scientific or other studies, testing or sampling results, video or still images, or personal testimonies; and
• the procedures employed in the TexPet Remediation, the efficacy of those procedures, or their compliance with agreements and with Ecuadorian law.

Today's press release outlines more:

In various court filings, Chevron also has asked Judge Kaplan to bar Donziger and the Ecuadorians from presenting evidence of:

**Chevron’s repeated contacts with high-level government officials in Ecuador to try to illegally quash the case;

**Chevron’s many private contacts with Ecuadorian judges and independent court experts;

**Chevron internal videos showing company technical experts in Ecuador laughing at the pollution while discussing ways to hide it from the court;

**Personal testimony from individuals about pollution and health impacts that was relied on by the Ecuador court;

**Chevron’s sting operation against an Ecuador judge where the company tried to orchestrate a fake bribery scandal to derail the trial;

**Chevron’s creation of dummy companies to hide its control of a supposedly independent laboratory that processed soil samples for the court;

**Evidence that the legal team for the rainforest communities received death threats and were harassed during the trial;

**Evidence of Chevron’s surveillance of Donziger, Ecuadorian lawyer Pablo Fajardo, and others;

**Evidence of Chevron’s lobbying contacts in the U.S. designed to pressure Ecuador’s government to quash the case.

Pablo Fajardo, lead lawyer for the rainforest communities in Ecuador, commented:

“We thoroughly reject Chevron’s blatant attempt to rig the trial before Judge Kaplan by barring the decades of accumulated evidence of its environmental crimes, fraud, and misconduct in Ecuador."

As always, for an overview of Chevron's crimes in Ecuador, watch this video overview or this 60 Minutes segment, or review this summary of the overwhelming evidence against the company.  Chevron is now fighting a $19 billion judgment against the company.

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