S5, Ep10 | The Kill Step

S5 Ep 10: The Kill Step

Amy Westervelt [00:00:09] In March 2014, Judge Lewis A. Kaplan issued a nearly 500 page ruling against Donziger and the Lago Agrio plaintiffs blocking the collection of the $9 billion Ecuadorian judgment in the US. Judge Kaplan cites in the summary of his ruling the Cabrera report, Crude outtakes, and Guerra's testimony. He writes that among the various objectives of Donziger's PR campaign has been an effort to "shift the focus from the fraud on Chevron and the Lago Agrio court to the environmental harm. That Donziger and the local Agrio plaintiffs claim was done in the Oriente. There's an accent on that last E in Oriente in Judge Kaplan's summary. That's a mistake, which is unfortunate, given how many of the Ecuadorians we spoke with accused Kaplan of being racist and or too ignorant about their country, its laws and its language to oversee this case. But the sentiment that Kaplan expresses here is also really interesting. How dare you shift the focus from the fraud committed against a company to the damage inflicted on a community? Kaplan says we shouldn't be quote unquote distracted by the pollution. Then he writes, "The court assumes that there is pollution in the Oriente. On that assumption, Texaco and perhaps even Chevron, though it never drilled for oil in Ecuador, might bear some responsibility." And yeah, the accent mistake is there, on Oriente. They threw out this ruling. Kaplan continues "In any case, improvement of conditions for the residents of the Orient appears to be both desirable and overdue. But the defendants effort to change the subject to the Orient, understandable as it is as a tactic, misses the point of this case. The issue here is not what happened in the Oriente more than 20 years ago, and who, if anyone now is responsible for the wrongs then done. It instead is whether a court decision was procured by corrupt means, regardless of whether the cause was just. An innocent defendant is no more entitled to submit false evidence to co-opt and pay off a court appointed expert or to coerce or bribe a judge or jury, than a guilty one. So even if Donziger and his clients had a just cause—and the court expresses no opinion on that—they were not entitled to corrupt the process to achieve their goal. Justice is not served by inflicting injustice. The ends do not justify the means."

Amy Westervelt [00:03:02] This passage has really stuck with me throughout this season, and it raises some really big questions that we're going to spend these last two episodes grappling with what is justice? Where is the line between the law and morality? Are there ends that justify means and if so, what kind of means? Welcome back to Drilled season five La Lucha Moonglow. I'm Amy Westervelt and this is episode 10 The Kill Step. We're going to dig into what happened after the RICO judgment and all these messy questions right after this quick break.

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Amy Westervelt [00:05:22] In the wake of its wins against Nicaraguan farmers on behalf of Dole and against the Ecuadorians on behalf of Chevron, Gibson Dunn began referring to its approach on these cases, using the US court system to declare a foreign judgment fraudulent as the "kill step." It was sold as an effective way to keep multinational corporations out of trouble abroad, and it has this sort of scorched earth winner take all fight to the death. Feel about it. As soon as the RICO verdict came down, Donziger and his appeals lawyer, Deepak Gupta, began working on an appeal just as a reminder, we interviewed Donziger while he was on house arrest this summer. He still is, and he would often hang his head out the window while we were talking. So if you hear some wind or background noise, that's why

Steven Donziger [00:06:22] we've contested the evidence every step of the way. I mean, I've always proclaimed that this evidence was false. However, and this is the rub on appeal. You can contest facts or you contests can contest law. But under the US appellate system, it's usually futile to contest facts because they're almost never overturned. The appellate judges don't like to revisit factual determinations by a trial judge. So given that Kaplan had written five hundred pages and there were dozens and dozens of findings, we could have easily used up our entire allotment of pages on the appellate briefs, you know, formally disputing every single one of his 100 findings.

Amy Westervelt [00:07:09] Instead, Gupta decided to focus on the entire application of Rico to this case as inappropriate.

Steven Donziger [00:07:16] So he chose to focus on that, but we contested the facts every step of the way. We just didn't formally ask for Kaplan to be overturned on the facts

Amy Westervelt [00:07:25] after the appeal had been filed. While the court was deliberating, Garrett testified in front of the arbitral tribunal and admitting to having lied in a few instances during his RICO testimony.

Steven Donziger [00:07:37] So when Guerra admitted lying during the pendency of the appeal of Kaplan's decision, we immediately took this new information, as evidenced by a transcript, and we submitted it to the federal appellate court to add to the record so they could consider it because it was cut to the core of one of our main arguments.

Amy Westervelt [00:07:59] What Donziger's lawyer had argued in the appeal was in part that a lot of the justification for bringing the RICO suit in the first place had come from this corrupt witness, which should never have been allowed.

Steven Donziger [00:08:11] They totally ignored it. They didn't even mention it in their decision, and they completely affirm. Judge Kaplan, without reviewing any of his factual findings or his credibility findings of this obviously corrupt lying witness,

Amy Westervelt [00:08:26] the 2nd Circuit affirmed Kaplan's ruling in the RICO suit, and that carried a lot of weight. Here's what Melissa Simms, who gave us a primer on Rico earlier this season, said about it.

Melissa Sims [00:08:36] From a legal standpoint, there was a judgment, and the Court of Appeals affirmed the decision. So, you know, it is what it is. It's final.

Amy Westervelt [00:08:45] On top of what that meant for Donziger and the Lago Agrio plaintiffs that they would not be able to collect the judgment in the U.S. and might also struggle in other courts around the world. It also set a new precedent in a few different ways.

Lindsay Ofrias [00:08:57] To me, the biggest thing is how much the RICO case has completely obscured who they are and what they're doing.

Amy Westervelt [00:09:06] Lindsey Ofrias is an anthropologist and documentary filmmaker who's been studying the affected people in Ecuador since 2005.

Lindsay Ofrias [00:09:15] The people who have been fighting in Ecuador and actually reality of the oil disaster have been completely obscured from view, at least in the United States and in other powerful countries

Amy Westervelt [00:09:27] Ofrias is working on a documentary about how Rico has been used against activists in recent years.

Lindsay Ofrias [00:09:33] I think it's important also to note that when we talk about the Ecuadorian plaintiffs, they're not just people who are involved in a legal battle, they're doing all kinds of things. And so two of those people, Umberto Pugwash and Carmen Zambrano, I went with them for Standing Rock in 2016. And part of the idea was for a coalition building and also trying to think about what is possible outside or beyond this whole vortex of the law. That kind of sucks everything into it. And so something that I will always remember is that around the fire when evening where everybody would come and sit around the fire and share stories, and Bertha and Carmen gave kind of like a warning about what they had gone through. And we know that it was likely to come to pass once again that this RICO precedent has been set. And indeed, that's what happened. And we can see so many, many cases in which the RICO law has morphed from its original intention of targeting the mafia and white collar criminals, to silencing protests, to trying to quell particular forms of political organizing.

Amy Westervelt [00:10:47] Julio Gomez, the attorney who represented the Ecuadorian plaintiffs in the RICO, also said the case stands as something of a warning to attorneys who would take on a big multinational corporation like Chevron.

Julio Gomez [00:10:59] If you will try to get involved in a case like this or against another oil company. And you do any research. I mean, the amount of information available online about the history of this case and the damage it has caused the attorneys who have worked on it is everywhere. So anyone who's contemplating doing something like this and begins to read about how difficult it is. I mean, even hearing probably my own positions in this in this interview, that certainly is not going to motivate people to to take on these kinds of cases. Yeah, it's yeah, it's it creates an enormous chilling effect. And that's again more of the disadvantage for people trying to seek justice,

Amy Westervelt [00:11:39] according to Sims. There has also been a surprise silver lining for some plaintiffs attorneys.

Melissa Sims [00:11:46] Well, you know, I've been watching it since its inception just because I feel so badly for the people in Ecuador who face this environmental disaster. And so it's fascinating watching it unfold, and I thank the Lord, I'm not a part of it at this point in time. But but we have a lot that we're learning from it. Plus, we have a lot of information that we're going to be able to utilize in our case is going forward. So one of the things that we're doing is the plaintiffs bar is we're actually exercising the rights of these people internationally to sue in the United States because what we're finding is that when we tell the courts how difficult it is for these people to get compensation for their conduct, and then we show what Chevron has done, how they have been defending this judgment in the United States and how hard it is that actually helps us in our cases to prove that we have jurisdiction here in the United States.

Amy Westervelt [00:12:53] Meanwhile, the Ecuadorian plaintiffs are still trying to collect this judgment elsewhere in the world. Donziger was working on the case up in Canada when his recent troubles began. Chevron asked Kaplan to file civil contempt charges against Donziger because of his work. But before that, Donziger faced another challenge.

Steven Donziger [00:13:13] I'm a member of two different state bars, one in New York and one in Washington, D.C. Yeah. So, you know, the first inkling I got that the bar licensing process was going to be used against me to try to disbarred me was a letter I received from the the organization in the District of Columbia that licenses lawyers.

Amy Westervelt [00:13:36] Donziger says he remembers this letter vividly. Basically, it said that they had heard about the RICO decision and were concerned and wanted to hear his side

Steven Donziger [00:13:45] so they didn't do anything. And a few months later, I got a similar letter more hostile in tone from the from the New York or Manhattan grievance committee. That's the group in New York City that monitors lawyers, and they asked me similar questions. But the big difference was the referral to the New York Grievance Committee came from several judges on the federal bench who worked with Judge Kaplan on the same court.

Amy Westervelt [00:14:19] The letter argued that Donziger was a threat to the public and should be immediately disbarred without a hearing. In July 2018, he was suspended from practicing law.

Steven Donziger [00:14:30] I mean, I had my law license suspended without a hearing, so let's go back. In the RICO case, I was denied a jury. Fast forward to my bar licensing procedure, and they concoct this idea that I can't get a hearing there. And by the way, those hearings are overseen by very establishment lawyers that are appointed by the same committee. So they didn't even want me to have that hearing. So they deny my law license suspended without a hearing. But under the law, when you get the property interest like a professional license suspended without a hearing, you're entitled under the due process clause of our constitution to what's called a post suspension hearing.

Amy Westervelt [00:15:13] Donziger got his hearing sort

Steven Donziger [00:15:16] of in on that first day. No one knew what to do. It was bizarre. Like, here I was like, I don't really know what this hearing is because they're telling me, you can't challenge anything. And I'm like, No, I have to be able to challenge this. The whole point of a post suspension hearing is to allow the hearing that could have taken place before to now happen. And they're like, No, you can't use this to relitigate Kaplan's findings. And I'm like, Well, then I'm not really getting a hearing.

Amy Westervelt [00:15:47] The hearing officer got briefs from both the grievance committee and Donziger about how, why and whether this hearing should really happen.

Steven Donziger [00:15:55] You know, the Chevron Kaplan strategy was to just keep attacking me, distracting me, and if that didn't work, they would just up the ante and upping the ante meant locking me up. And it's really scary.

Amy Westervelt [00:16:07] It was in the course of the disbarment proceedings that Donziger was charged with first civil and then criminal contempt. He was put on pretrial house arrest for the criminal contempt charge in August 2019, and he finally got that bar hearing a month later in September. This part of the story reminds me not only of the whole kill step thing, but also of a quote that's appeared in multiple stories about this case. In 2009, Donald Campbell, a spokesman for the company at the time, said this we're going to fight this until hell freezes over and then we'll fight it out on the ice. When his bar hearing happened in September 2019, Donziger had to request permission from the court to leave his apartment. He showed up to the hearing with his ankle bracelet on Chevron's attorneys came to

Steven Donziger [00:17:09] and I found it really creepy that There, There,, first of all, they had in theory, should have no interest in what happens to me in a bar proceeding. They're not a party.

Amy Westervelt [00:17:19] Several lawyers spoke on Donziger's behalf, and a few months later, the hearing officer recommended that Donziger keep his law license.

Steven Donziger [00:17:27] But he doesn't have the power to make the final decision. It goes up to the same court that ordered him not to consider Kaplan's findings. Chevron lawyer Randy Mastro is quoted in the press, saying This is never going to stand, it's totally going to be overturned. The hearing officer didn't do his job properly,

Amy Westervelt [00:17:45] according to Donziger. In the majority of these sorts of cases, the hearing officer's recommendation usually stands.

Steven Donziger [00:17:52] But obviously, this is a different situation.

Amy Westervelt [00:17:58] Shortly before this season launched, we learned from Danziger that the hearing officer had been overturned. He's been disbarred. He filed an appeal in September, and now he's waiting to hear back from the New York State Court of Appeals. Next time we're going to attempt to wrap up this complicated story with some final thoughts on the case, how it's been litigated, how it's been covered and what's happening today in Ecuador. Come back for that.

Credits [00:18:41] Drilled is an original production of the Critical Frequency podcast network. The show was created, reported and written by me. Amy Westervelt, my co-rapporteur this season is Karen Savage. Our editor is Julia Richie. The show's editorial consultant is Rekha Murthy Mixing and mastering by Mark Lush Original Score by Bea Beeman, fact checking by Rudin. Again, our artwork for this season was done by these super talented Matt Fleming. Special thanks to Trevor Gowan and Emily Gertz. If you are a Patreon subscriber, thank you. Your money is helping to make this season, and as a special thank you to Patreon 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 Petria CNN.com, slash 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.