Steven Donziger has been under house arrest for over 580 days, awaiting trial on a misdemeanor charge. It’s all, he says, because he beat a multinational energy corporation in court.
By Jack Holmes and cross-posted from Esquire.
t’s a beautiful day in New York, but Steven Donziger cannot leave his house. There’s an electronic bracelet around his ankle, and he is only permitted to leave for medical appointments, meetings with lawyers, and school events for his 14-year-old son. He needs permission from a pretrial-services officer each time—those are the terms of his house arrest. So on a 68-degree Thursday in March, he is getting fresh air by sitting in front of an open window in his apartment on 104th street in Manhattan while we talk on the phone. He has not been convicted of a crime. He’s only been accused of a misdemeanor, and he’s still awaiting trial. But, as of March 17, 2021, he has been locked up in his apartment for 589 days because, he says, he took on a massive multinational oil firm and won.
Donziger is a human rights lawyer who, for more than 27 years, has represented the Indigenous peoples and rural farmers of Ecuador against Texaco—since acquired by Chevron—which was accused of dumping at least 16 billion gallons of toxic waste into the area of the Amazon rainforest in which they live. Cancer is now highly prevalent in the local population. Some have called it the “Amazon Chernobyl.” They first filed suit in New York in 1993, but Texaco lobbied, successfully, to move the proceedings to Ecuador. In 2011, the team of Ecuadorian lawyers Donziger worked with won the case, and Chevron was ultimately ordered to pay $9.8 billion.
But for Donziger, that was nowhere near the end. Chevron, a $260 billion company, went to a New York federal court to sue him under a lesser-known civil—non-criminal—provision of the Racketeering Influenced and Corrupt Organizations (RICO) Act. They later dropped their demands for financial damages because it would have necessitated a jury trial. That is something Donziger has been unable to get. Instead, Judge Lewis A. Kaplan, a former corporate lawyer whose clients included tobacco companies, became Donziger’s judge-and-jury in the RICO case. He heard from 31 witnesses, but based his ruling in significant part on the testimony of Albert Guerra, a former Ecuadorian judge whom Chevron relocated to the U.S. at an overall cost of $2 million. Guerra alleged there was a bribe involved in the Ecuadorian court’s judgement against Chevron. He has since retracted some of his testimony, admitting it was false.
But Kaplan, who refused to look at the scientific evidence in the original case, ruled the initial verdict was the result of fraud. And he didn’t stop there. He ordered Donziger to pay millions in attorneys fees to Chevron and eventually ordered him to turn over decades of client communications, even going after his phone and computer. Donziger considered this a threat to attorney-client privilege and appealed the ruling, but while that appeal was pending, Kaplan slapped him with a contempt of court charge for refusing to give up the devices. When the U.S. Attorney for the Southern District of New York declined to prosecute the case, Kaplan took the extraordinary step of appointing a private law firm to prosecute Donziger in the name of the U.S. government. The firm, Seward & Kissel, has had a number of oil-and-gas clients, including, in 2018… Chevron. Kaplan bypassed the usual random case-assignment procedure of the federal judiciary and handpicked a judge to hear the contempt case: Loretta Preska, a member of the Federalist Society, among whose major donors is… Chevron. Preska has, like Kaplan, rejected Donziger’s requests to have his trial heard by a jury of his peers. Both judges declined Esquire’s request for comment on Donziger’s cases, citing court policy.
At this point, the details of Chevron’s conduct in the Amazon are very far in the rearview. So are the allegations against Donziger with respect to his conduct in the initial case, though he has been disbarred based on Kaplan’s ruling. (A “special referee” appointed by the Supreme Court of New York, John Horan, found his law license should be reinstated, although the Appellate Division rejected those findings and that matter is still on appeal.) The question at hand is whether he should have an ankle bracelet on. On March 10, 2021, he went before a three-judge panel to argue for his release from pre-trial detention before the same appellate court that has largely rejected his prior appeals in the case. Their ruling on the pending appeal could come down any day now. In the meantime, in a conversation below edited for length and clarity, this is Donziger’s side of the story…