S5, Ep6 | A Verdict And a New Charge

S5 Ep 6: A Verdict and a New Charge

[00:00:00] I contended with you, endorsed a professor in Newtown. Noize own process for the Lucha Devil gathers its own process for the Lucha Pueblo's.

[00:00:27] This is Pablo Fajardo, again, the Ecuadorian lawyer we heard from last time. He says, We have to understand that this trial with everything about this case is that it's not the lawyer's legal fight. The legal fight is for Luis Pueblo's avocado's, the towns that were affected, the people who are affected. So it's not the lawyers. It's the people who were directly affected.

[00:00:50] That's what they're fighting for.

[00:00:57] This right here is the center of the story, the heart of a lot of what has happened in the decade since the verdict in Ecuador has focused on the ins and outs of legal process, things lawyers are doing far away from the oil pits in Ecuador.

[00:01:13] But at its root, this case is about an environmental disaster, the poisoning of a pristine jungle and the people living in it, and the fact that those people are still suffering the consequences of what was done 30, 40 years ago. We have picked up on this last time of Fado and Donziger are somewhat at odds these days, neither will say exactly why, but there are a few possibilities on the table. First, Fado is now also suing Petroecuador, the state owned oil company that Chevron has said is really responsible for the pollution in the Amazon. That case could feasibly be seen as a threat to the effort to collect on the Chevron judgment.

[00:01:58] And just as a case that somehow calls the Chevron case into question because it's holding Petroecuador accountable, too. Although Fajardo says, of course, yeah, they both did things. They're both responsible. They should both be held to account. On the other side, Donziger has been centered in a lot of the media coverage of this story, often more so than the damage done to Ecuador.

[00:02:21] That's not necessarily his fault. Sometimes it's just a function of what's happened more recently and the fact that people are being assigned stories on him and can't get into the whole long history. But in either case, it can and has caused some resentment in Ecuador.

[00:02:42] Today, we're going to talk about why media coverage of this case started to shift away from Húsavík, plus those people in Ecuador who were affected and towards the lawyers because that was not an accident. That was the strategy. Think about it.

[00:02:58] If you're Chevron, you'd probably rather fight a Manhattan attorney in the court of public opinion than thousands of indigenous people who no longer have access to clean drinking water in the Amazon.

[00:03:13] When Chevron brought on Gibson Dunn in late 2009, the firm had just finished up a case for Dole, the food company. And they've been really successful deploying what they called the quote unquote kill step, which worked to nullify a judgment against the company that had come in Nicaragua. Basically, the lawyers had convinced a U.S. court that the case in Nicaragua was a sham, part of a con that these plaintiffs who claimed they had been sterilized by a pesticide used on its banana plantation down there were frauds. Pretty quickly after they started working on the Chevron case in Ecuador. The Gibson Dunn lawyers were describing that case in fairly similar terms. We heard in the last couple of episodes about the various subpoenas and depositions that Randy Mastro, the lead attorney on the case for Gibson Dunn was getting that all culminated in Chevron filing a civil racketeering suit under RICO against the plaintiffs and attorneys in the Ecuador case in 2011. That came just a couple of weeks before the verdict actually came down against Chevron in Ecuador. Remember, Steven Donziger, the American attorney working on the case, told us a while back that Chevron had stolen the moment of that victory.

[00:04:35] [00:04:35]So when the decision came down in Ecuador, I was in New York with some other lawyers in the U.S. who had been working on the case, and we got the news and we were obviously thrilled, but we were also at that point dealing with the RICO case. So it was all confusing. [15.2s]

[00:04:51] [00:04:51]And in a weird way, Chevron had stolen the moment. [3.0s]

[00:04:54] [00:04:54]They'd stolen more than the moment they've taken control of the story. From that point on, most coverage of this case has focused on the legal ins and outs, not the original environmental damage in the Amazon. [14.4s]

[00:05:09] [00:05:09]It became all about the lawyers and not the affected people at all. And in general, that framing of the story has tended to benefit Chevron. [8.1s] So what the heck was this RICO case? What were the charges and what happened here? That story coming up right after this quick break.

[00:05:45] The RICO case filed against lawyers and some of the Ecuadorian plaintiffs in this Chevron Ecuador case was pretty damning.

[00:05:55] Charges sounded really bad. They included intimidating judges, tampering with evidence, ghostwriting witness testimony and even ghostwriting the final judgment itself.

[00:06:07] But like everything else in this story, the RICO case was anything but straight forward.

[00:06:13] So my name is Melissa Simms and I'm an attorney with Sanders Phillips Grossman in New York.

[00:06:17] We asked Melissa Simms, who's been involved in various RICO cases and is familiar with this case, but has no stake in it to give us the lay of the land on RICO in general and some of the particularities of this case to start with. What the heck is Rico? It stands for a Racketeer Influenced and Corrupt Organizations Act, which is the law these cases are filed under.

[00:06:43] It was passed initially in the 1970s and intended first to the Mafia.

[00:06:48] What they tried to do is establish a law where you could tie all of their crimes together in one case and show them to be an enterprise which allowed the prosecution to be able to connect a lot of different incidences into one enterprise to show that these people came together for a common purpose.

[00:07:11] And that common purpose cause whatever type of damage, though, either RICO statute is written, you can't just bring a RICO charge against a group of people doing crimes together. The crimes have to be in service of some broader goal.

[00:07:26] OK, so it can't just be you and I going to rob the bank.

[00:07:29] It has to be you and I going to rob a bank with the purpose of taking the money to further some other type of conduct.

[00:07:38] Sims is a plaintiff's attorney, which means she's usually bringing RICO complaints against large corporations on behalf of people who've been wronged in some way by the company's behavior.

[00:07:48] In the past few years, for example, she's been working on the big opioid cases where they were able to show that pharmaceutical companies, distributors and some doctors were knowingly getting people hooked on prescription opioids.

[00:08:01] Now that illegal conduct is one of a list of conduct in the statute. So in the federal statute that has to be enumerated like bribery, extortion, arson, robbery, kidnaping, the most common is mail and wire fraud. So mail and wire fraud are the ones that we fall back on on our cases, because you can show if there's an attempt to deceive us, that's all you need is an intent to deceive using the U.S. mail or wire and the wire. Funny. Or you could also apply it to the Internet.

[00:08:40] SIM says for plaintiffs attorneys, the burden of proof can be really high to make a RICO claim stick to get passed, a motion to dismiss. And she says usually with a RICO complaint, you have to show a long pattern of behavior.

[00:08:55] It's something that is more than just one or two times. It has to be an ongoing event.

[00:09:01] There has to be more than two occasions in the last 10 years of these people that get together to perpetuate something that they could not do on their own.

[00:09:13] That didn't really happen in this case.

[00:09:16] So, you know, going after a one or two event type of conduct that I think they're alleging and Chevron, that is that is really rare to be able to pass a motion to dismiss on a RICO claim.

[00:09:32] The other big anomalies here center around damages and a jury generally in a RICO suit.

[00:09:38] The whole point is damages. The people bringing the claim were damaged in some quantifiable way and they're seeking compensation. In fact, one of the reasons big companies have become a target for RICO cases is that plaintiffs can ask for what's called treble damages. So three times the damages they'd be able to get in a simple liability case when it filed a suit. Chevron did claim damages, but then shortly before the trial was set to begin, they dropped the damages claim. They made it solely about blocking the Ecuadorian judgment from being collected in the U.S. But it's weird because that's what Ricos all about damages.

[00:10:15] What good is that? Without damages?

[00:10:17] Simms says damages are the whole basis of RICO claims. In general, she says, it would be kind of pointless to bring a RICO case if you don't have any damages. But it may also explain why the plaintiff's request for a jury trial was denied without damages. To us, there's not much need for a jury.

[00:10:40] This RICO case is every bit as complicated and confusing as the original case in Ecuador. So we're going to spend a couple of episodes going through it, not because we want to take our eyes or ears off of what happened in Ecuador, but because we think it's important to evaluate these claims transparently and to weigh them against the damage at the heart of the original case, the environmental damage in the Amazon. To explore this mismatch that filmmaker Joe Berlinger described last time between what's legal and what's moral, to look at where the focus of the story turned and figure out where we think it should be now.

[00:11:16] So first charge pressuring the Lago Agrio court and manufacturing evidence.

[00:11:24] When we talked to Randy Mastro, the lawyer with Gibson Dunn, who led this RICO effort for Chevron, he talked a lot about how much Donziger and the other plaintiffs attorneys were trying to influence and pressure Ecuadorian judges among various other pieces of evidence. Mastro pointed to outtakes from the documentary Crude. Here he is talking about one scene in particular.

[00:11:45] He also was captured at a dinner.

[00:11:49] I mean, sitting next to a woman who says to him, you know, the judge will be killed if he doesn't rule in your favor in this country. And Donziger says, well, I don't know about killed, but he thinks he will, which is just as good.

[00:12:08] It sounds really sheave what Mastro's describing, but trying to make your case in the public so that it's unpopular for a judge to rule against you. It's kind of the entire basis of litigation PR which PR firms created for multinational corporations in the first place. And it's something a lot of companies, including various oil companies, have used to their benefit for years.

[00:12:36] Another scene master described is a bit more concerning where he's talking about mobilizing to put people in front of the courthouse to the thousand people in front of the courthouse to pressure. And he's saying literally, we have to pressure the judge. We have to make him know who's boss. We have to make those in control. We're going to put a thousand people in front of the courthouse and we're going to mobilize. And there's even discussion of arming the thousand people and some discussion about whether that is, you know, a conspiracy and a crime.

[00:13:04] In the outtake, it's hard to tell whether the arming part is serious. In this clip, you'll hear Donziger describe pulling together a bunch of protesters, which he describes as an amateur seeto an army. Then Louisiana jumps in and says in Spanish, we're using the word army, but it's not really an army.

[00:13:21] It's like a specialized group, very much a government form, almost ready to go to a hospital, which has, as you say, has the lowest common.

[00:13:39] And Gruppo groups, especially Silo's, he said he saw a woman from Amazon.

[00:13:45] Watch asks if it's possible these videos might be subpoenaed and warns the group to sign again for the subpoena of videos like this one of ours. What about us?

[00:14:04] These guys are a small group with a hint.

[00:14:09] They I just want you to know that it's illegal to conspire to break the law.

[00:14:14] In another shorter snippet from this scene that we found on YouTube, Jansma says this warehouse is giving estamos and the most out of building.

[00:14:26] And so he's saying, and then if we need weapons, we can provide weapons. That does sound bad, although Johns's laughing a lot. So it's hard to tell what the context was here. Remember, this is 30 seconds taken out of what seems to be a 15 minute or so scene. So we're not really sure how this particular segment was taken out, what was before and after it, how it might have been edited. All we're seeing is this one part.

[00:14:57] It mostly sounds like people organizing a big protest. The manufacturing evidence part of this section of the RICO complaint refers to the two issues.

[00:15:08] M. mentioned a couple of episodes back, the Kombucha report and the Kabera report. Here he is explaining the issue with Charles Kormákur, an expert for the plaintiffs.

[00:15:18] When we compelled Dr. Tom Baker's testimony in Georgia, what he actually testified was that the reports that Steve Donziger and his Ecuadorian lawyers submitted to the court in Ecuador was not carmaker's conclusion, that he had not, in fact, concluded that there was a significant environmental damage in the work that he had done.

[00:15:45] Donziger and the plaintiffs denied this. They said Humbucker had been fired and his deposition was basically sour grapes. Then there's the Kebir report, which Mastro's says the plaintiff's experts, Douglas Bultmann and and Messitte ghostwrote.

[00:16:00] Here's Mastro, the supposedly independent expert in Ecuador who had been appointed by the court to be an objective, independent party in assessing environmental damage and how much there was and attributing it to to parties if they were found to be environmental damage, that in fact, that was not an independent objective.

[00:16:23] A report it had been ghostwritten word for word I stress, Danziger's explanation was that this was all perfectly normal, that the plaintiffs had asked for Kabera to be appointed and that their experts helped to run analysis for his reports. He talked about this a couple of episodes ago. But here's a little snippet to remind you.

[00:16:43] Stratis did write or draft most of the Kabera report. Cabrera, though, reviewed it, signed.

[00:16:50] They worked together. There was a massive amount of information, literally tens of thousands of chemicals.

[00:16:56] Sampling results in any single individual would never have the capacity to pull that together, analyze it by himself or herself.

[00:17:04] Douglas Veltman, the scientist from Stratis Consulting, told 60 Minutes in no uncertain terms what he thought of Texaco's practices in the Amazon.

[00:17:13] It's a disgrace. They treated Equador like a trash heap.

[00:17:19] He was named as a defendant in the RICO, too, and in his initial deposition, he said, quote, We didn't collect any data ourselves. We were only looking at the data that had been collected by others. According to Bultmann, that included data collected as part of the trial, including the judicial inspection data, where plaintiff experts and chevon experts collected environmental data. And Cabrera and his team also collected environmental data. When asked why the plaintiff samples all seem to be contaminated and Chevron samples devoid of contamination, Veltman explained why, quote, Chevron may have sampled farther away from the pits and they used a different analytical method from that of the plaintiffs. At one point, the attorney conducting the deposition asks, did you reach any conclusion about whether or not the environment had been contaminated during Texaco's work? In the concession by their work in the concession and Veltman answers quote, That conclusion is that Texaco did cause environmental contamination as a result of their operations.

[00:18:26] Then the attorney asks, did you reach a conclusion as to whether or not text cooperation's in the concession complied with the industry standards in effect at the time? And Veltman says, quote, The way that Texaco operated that oil field was substandard by industry practices. They used practices that were common in the early nineteen hundreds. But by the time they were conducting operations in Ecuador, these practices were not typically used, certainly in the US and in most places in the world.

[00:19:08] Now, again, it's the method of the report that's been called into question, and in this case in particular, the idea that Veltman and his colleague and Messitte wrote the report and that Cabrera just signed his name to it.

[00:19:23] And it's possible that the plaintiffs and their attorneys and bellmen and Messitte should have been more transparent about Stratasys work with Kabera. Ultimately, it seems like a moot point because both the Kombucha report and the COBRA report were thrown out by the judge in Ecuador. In the final judgment, Judge Sambrano wrote that he had disregarded these reports because of the controversy swirling around them both, which begs the question why we had reports that were disregarded by the Ecuadorian court be used as proof that the case was fraudulent.

[00:20:00] According to Danziger's attorney for the RICO case, Zoe Littlepage, it was all a diversion tactic.

[00:20:07] We have seen a pattern in the last decade of defense lawyers starting to and mainly corporations starting to attack the lawyers personally and the advocates personally as opposed to the plaintiffs or dealing with the underlying issues. And it has been a terrifying trend for most people in the bar that when you bring a case, you are putting yourself personally on the line, not just representing your client.

[00:20:39] That's never really happened before, but Mastro is about to up the ante. Here's what he argued in court.

[00:20:47] So you asked me, did Zambrano say you didn't rely on Cabrero? Actually, it's more complicated than that because Sambrano didn't write his own judgment.

[00:20:58] Mastro's accusation is that the plaintiffs and their attorneys ghostwrote the final judgment donziger, the other plaintiffs attorneys and the plaintiffs themselves, of course, say this is completely false.

[00:21:11] So let's look at how Mastro tried to make this case. First, he points to phrases that were found in the Ecuadorian legal team's files that were similar or exact to phrases found in the judgment. Suspicious may be, but not necessarily proof.

[00:21:32] They never did find the smoking gun, the final judgment itself on any devices or hard drives and both their expert and a forensic expert hired by the Ecuadorian government did find multiple drafts of the judgment on Zambrana computer, which is consistent with him writing it himself.

[00:21:53] However, as with everything else in this case, each side thought that the existence of multiple drafts proved their point. M.A bolsters his claims with two things. First, he points to judge brownnose behavior at the RICO trial.

[00:22:08] When I cross-examined him and gave him a pop quiz and he couldn't answer a single question right about the most central important elements in his judgment, couldn't answer a single one correctly.

[00:22:21] And then he points to the testimony of a witness named Alberto Gedda Gerra was, by his own admission, a corrupt judge in Ecuador.

[00:22:31] He claimed to have been part of this big conspiracy to ghostwrite the judgment, who'd had a change of heart. And then his M.O. put it flipped.

[00:22:45] Her, though, changed his testimony in a few instances, despite having been prepped by Chevron's attorneys, and that's what we'll dig into next week.

[00:23:06] Next time on Drilled.

[00:23:09] Well, it was shocking. You know, we knew coming in that Chevron had gone and recruited and paid cash in a duffel bag to in charge who had been essentially disbarred in Ecuador for corruption and fraud.

[00:23:27] And, you know, as an American lawyer, I just assumed that that's sort of what sounded like a story, like a movie plot, Wolf, would be completely laughed out of an American courtroom that we would have a key witness in a trial be someone that Chevron had paid close to a million dollars to in either money or compensation or, you know, they bought him a Harald's, they gave him a job. They put in cars. They gave his flights for him and his family to move out of Ecuador. They take to the immigration lawyer to bring him here. They you know, and it all started with Chevron showing up to a sketchy meeting with this former disbarred judge with a duffel bag full of cash.

[00:24:21] Drilled is an original production of the Critical Frequency podcast network. The show was created, reported and written by me. Amy Westervelt Liko. Reporter this season is Karen Savage. Our editor is Julia Ritchie. The show's editorial consultant is Rekha Murthy Mixing and Mastering by Mark Brush.

[00:24:43] Original Score by B. Beamon, Fact Checking by Wunan Yan. Our artwork for this season was done by these super talented Matt Fleming. Special thanks to Trevor Gowan and Emily Gert's If You Are a Patriot subscriber. Thank you. Your money is helping to make this season. And as a special thank you to Patriot members, we're providing a variety of benefits, including bonus content and early access to episodes in this season. If that sounds appealing to you or you just want to support our work, go over to Patrón dot com Drilled and sign up. We also have some merch associated with that. You can find stories, documents and photos related to this season on our website at Drilled. News dot com. That's it for this time. Thanks for listening and we'll see you next week.