SLAPP’d Episode 2 | The Trial Begins

Alleen (on tape): It is fricking early. It's 6:38. I wanted to leave at six 30, but that's fine. Um, and I am headed to the Morton County Courthouse.

Alleen (voiceover): It's day 1 of the Energy Transfer vs Greenpeace trial in Mandan, North Dakota. The courthouse won't open until 7:30. But I heard there was very limited seating in the courtroom, and I want to be sure to get in, even if it means waiting outside the door until it opens.

Alleen (on tape): Last week it was 30 below. Luckily, right now it's about 36 degrees, so if I'm standing around outside, I will survive.

Alleen (voiceover): It's important that I'm there to listen, because no one's gonna get to record anything inside the trial.

Alleen (on tape): You know, we had some pretty unfavorable rulings from the judge about press access. I'm pretty irritated that I'm not gonna be able to bring anything except a pen and paper in there. Um, the judge is worried about, uh, witness contamination and jury contamination, so he ruled that (navigation interrupts) — so he ruled that we can't even like record on our cell phones for note taking purposes.

Alleen (voiceover): Drilled and several other media organizations filed a request for a livestream of the trial. When the judge said no, we asked just to be able to record so we could get quotes right. That was a no, too. Now, we're waiting on the North Dakota Supreme Court to respond to our appeal. But i'm not feeling optimistic.

I pull up to the courthouse. The parking spots in front of the brick building are empty.

Alleen (on tape): Okay. The sheriff's the only one here. Me and the sheriff

Alleen (voiceover): I park the car and head in, leaving my recorder behind.

I did not need to get there this early. But it gives me time to take in the scene.

The courtroom is humble. It could be an office space, if it wasn't for all the wood furniture. I sit on a light-colored wood bench that looks like a church pew. In front of me, dark wood paneling frames the judge's bench and the door to his chambers. Everything is laid out exactly like you'd expect, with a jury box to the judge's left. A law enforcement officer wearing a tactical vest observes from a corner of the room.

Other observers sit down around me. They're mostly Greenpeace people.

The judge enters from behind the stand, and we all stand up. Judge James Gion is around 70, with white hair and a white beard, and tired lines down his face. When I look him up later I'll learn that in his spare time he plays guitar and harmonica. He used to play in a country band called Dakota Gold.

And now come the potential jurors. Around 30 file into the room, filling the reserved audience pews. They're everyday midwesterners, dressed casually. Almost all of them are white.

Judge Gion greets the jurors with a notable North Dakota accent. ‘I want to congratulate you on being chosen for jury duty, because it is one of the highest obligations and privileges of our democratic system.’

Only 11 people will actually sit on the jury for this trial. The lawyers for Energy Transfer and Greenpeace will spend the next two days selecting them.

Greenpeace has been trying for years now to move this trial to a different county. They say that Morton County residents are so biased against anti-pipeline protesters that there's no way Greenpeace could get a fair trial.

Every judge in this district recused themselves from the case because of conflicts. The court had to pull Judge Gion from rural western North Dakota for this. But Greenpeace is stuck with Morton County Jurors. I'm not even sure there will be any jurors left after Greenpeace weeds out the biased ones.

The curtain is raised, and the trial is set to begin. It's scheduled to last five weeks. But the next two days of jury selection will be what decides Greenpeace's fate. In fact, maybe it's already decided.

This season of Drilled we bring you SLAPP’d. The story an Indigenous nation fighting for its water, an international environmental nonprofit, and an energy giant using the courts to punish protestors. I'm Alleen Brown.

Alleen (voiceover): Jury Selection begins.

Energy Transfer's lawyer, Trey Cox stands behind a little podium, facing the potential jurors. He's blond and looks like a high school football coach. He's got an intense energy, like he's about to unleash something.

Neither side is using their staff attorneys for this case. And Energy Transfer has hired a real doozy of a law firm. Trey and most of the other lawyers for the company come from Gibson Dunn and Crutcher. Maybe you don't know their name, but you know their work. The firm argued the landmark Supreme Court case Citizens United. That's the one that used the First Amendment to get rid of limits on certain types of political donations.

Trey introduces himself, with a subtle, southern accent. He weaves in personal details — I guess to sound relatable. "I'm originally from Shreveport, Louisiana," he says. "I ended up following not A girl but THE girl to Dallas, Texas."

When I look it up later, I'll see that Trey is married to a Erin Nealy Cox, a former U.S. prosecutor appointed by Donald Trump.

Trey begins asking the potential jurors questions. ‘Is there anyone uncomfortable or feels like they will struggle to award a pipeline company like my client something in the neighborhood of $300 million, if the evidence and law supported it?’

No one raises their hand.

Greenpeace's lawyer Everett Jack takes his turn. He wears a tomato-red striped tie and parts his hair to the side. He's lanky and his face looks a little worn.

He tells the potential jurors that his hometown is Portland, Oregon and that he's married with two daughters and three grandkids. I feel like Everett Jack could be cast in the role of Atticus Finch — the lawyer in the book To Kill a Mockingbird. In real life he's married to Faye Resnick, a recurring guest star on the Real Housewives of Beverly Hills. Kris Jenner, the matriarch of the Kardashian family, officiated their wedding.

As Everett begins to question the group of jurors, a pattern emerges. Juror after juror says that hearing about the Standing Rock protests reminds them of what they call ‘the disruption in our community.’ One woman puts it plainly. ‘I think you'll have a tough time finding people completely unbiased on that, because it effected everyone.’

Everett Jack follows up. ‘How many of you feel the same way?’

All but a handful of people raise their hands.

Everett asks another question: ‘Is there anybody that heard a rumor there were paid protesters out at the protest site?’

Nearly all the hands in the room go up.

My mind wanders back to those internal documents that had been leaked to me years back, by someone who worked with Energy Transfer's private security contractor, TigerSwan — back when I’d been interested in what kind of spying TigerSwan was doing for the oil company.

But going through the documents, I realized that they were doing more than just surveillance. The files referenced a social media campaign carried out by a guy named Rob Rice. Here's Rob:

Rob Rice Archival: There is a new trend among anti-pipeline protestors online. It's PayPal. Last year at Standing Rock, we saw more than $20 million raised by protestors who set up thousands of GoFundMe accounts.

Alleen (voiceover): TigerSwan was paying Rob Rice to develop Facebook pages aimed at local community members like the ones in the jury pool now. Rob posted videos where he posed as a news anchor reporting on the protesters. He said that they were paid, outside agitators. He also said that they were working to hide how they raised money. Ironically, Rob failed to share in these videos that he himself was being paid by TigerSwan.

Rob Rice Archival: Now paid protestors are switching their tactics. They're beginning to use PayPal as their main method of raising money. Why? Because you can't tell how much they've raised or what they're using it for.

Alleen (voiceover):The paid protester will come up again and again as the boogeyman of this trial. It's an old trope that says that protests do not come from local communities with serious grievances. Instead, they're driven by professional outsiders, and people making money off of disruption. Back in 1914, the Rockefellers and Standard Oil used this claim against a coal miner strike. In recent years, the idea of the ‘professional protester’ has popped up more and more as mass protest movements have grabbed headlines. And it turns out Energy Transfer started pushing that narrative in Morton County nearly a decade ago.

Neither Rob Rice nor TigerSwan responded to my requests for comment. And I've found no evidence that TigerSwan was specifically trying to influence a future jury pool back then. But what I do know is that Energy Transfer continued to aim messaging at the local community.

Before I flew into town, I was looking through a web site Energy Transfer had recently launched called Taking Back the Truth. It's dedicated to quote ‘setting the record straight not only on oil and gas – the lifeblood of our modern society — but our projects and our company.’

The pipeline company had also posted photos on Twitter of North Dakotans holding giant checks the company donated to community groups.

Even more bizarrely: last fall these weird newspapers started appearing at the doors of Morton County residents. Sandwiched in between articles criticizing Kamala Harris or analyzing the dangers of quote-unquote illegal aliens, were stories describing negative things that happened, related to the Standing Rock protests. Those protests were a long time ago — these weren’t articles a normal newspaper would publish.

According to their court filings, Greenpeace uncovered a murky trail of funds that connects these weird newspapers to Energy Transfer's board chair Kelcy Warren.

The newspaper's publisher, Metric Media, didn't respond to our request for comment.

When Greenpeace's lawyer asks about the weird newspapers, one guy pulls out a copy he brought with him. ‘I thought it was kinda weird that I got that,’ he says. ‘It brought back memories. I agree with it that what happened down there wasn’t good.’

As jury selection continues, another potential juror tells the lawyers that she knows that Energy Transfer donated money — three million dollars actually — to build the shiny new library a few blocks from the courtroom.

From what I could tell, Energy Transfer's propaganda efforts haven't slowed down much since the protests. And here in the courtroom, they're paying off.

Alleen (voiceover): Before today, I would have thought naked bias would be enough to make you ineligible for a jury. But Greenpeace's lawyers, are having a hell of a time getting the judge to disqualify people.

It turns out a bunch of people in the jury pool have financial ties to the fossil fuel industry. There's a guy who works maintenance at the local refinery. A woman whose family collects royalties from oil extracted on their land. One person works at Dakota Gasification; another works for Coal Creek Station.

Everett Jack asks the potential jurors to raise their hands if this isn't the right case for them.

Five people's hands go up.

One hand-raiser explains: I work in the petroleum industry.

Juror 14 says he would be uncomfortable ruling against his industry. And he would be less likely to believe Greenpeace's witnesses than Energy Transfer's. He's even got a second layer of bias: He has a family member in law enforcement, who policed the protests.

Energy Transfer's attorney Trey Cox hits back with a question of his own — one that he will repeat throughout the day: ‘If the judge instructs you that the law requires you to only consider the evidence in this courtroom and to treat all the parties fairly, are you able to follow the judge’s instruction?’

‘Yes,’ the man replies

It's funny that Trey asks that question.

He actually wrote a book on how to pick a sympathetic jury, it's called ‘Mastering Voir Dire’ — that's a lawyer word for jury selection. Trey and his coauthors note that people are often unaware of their biases. His book says, ‘This may lead to the juror being dishonest with herself as well as the court. A notable and common example occurs when a potential juror says they can be 'fair and impartial to both sides' after revealing a predisposed belief or opinion that renders them incapable of impartiality.’

Trey's own book says questions like the one he's asking today hide biases.

Judge Gion rules that juror 14 will remain in the jury pool.

Versions of this happen over and over. A woman whose father works in oil and gas says she got lost driving once around the time of the protests and found herself in an area where pipeline opponents were gathered. People banged their hands on her car. Gion rules that she remains in the pool.

Another man says he heard negative stories about the Standing Rock movement from a friend who serves in the National Guard and was called to respond to the protests.

When Greenpeace's Everett Jack asks if he'd be able to disregard what his friend told him, he replies, “How can I erase or ignore what was said? He adds, Wouldn't that be impossible?”

Gion rules that he stays in the pool.

Midway through day 2 of this, the moment arrives for the lawyers to make their selections.

They silently pass papers back and forth. Those of us in the gallery observe anxiously.

And the jurors are announced.

That guy who said his work for the fossil fuel industry means Greenpeace would have a disadvantage? He's on the jury.

Another juror works at a gasification company.

A third overseas two power facilities. ‘My job depends on fossil fuels,’ he'd said during jury selection.

The woman whose family receives royalties for oil on their land? She’s on it, too. And three others have had husbands with ties to the oil and gas industry.

One woman's husband also worked for a security company hired by the pipeline as well as for the contractor that drilled under the river for Energy Transfer. She said she didn't think he worked at those places during pipeline construction…but still.

By my count a total of 7 out of 11 jurors and alternates have economic ties to the fossil fuel industry. And no one on the jury has identified themselves as Indigenous.

This was the best Greenpeace could do.

The organization's lawyer Everett Jack makes one last motion to relocate the trial. Judge Gion denies it.

This doesn't seem fair. But maybe I shouldn't be surprised.

Because there's something else I noticed in those TigerSwan private security documents I mentioned earlier. In addition to spreading propaganda about paid protesters, TigerSwan was also helping Energy Transfer look into the money behind the Standing Rock movement. They put together spreadsheets listing dozens of crowdfunding pages and how much each raised.

They were identifying which cars showed up at certain protests. And they were using an infiltrator to figure out what groups protesters belonged to. They didn't seem to mention Greenpeace, though there are several pages missing.

Their emails show that they were clear about what all of this was for: As early as 2017, TigerSwan was specifically helping Energy Transfer lawyers develop a racketeering case. A RICO.

It was a different law firm that actually filed Energy Transfer's first RICO suit. Gibson Dunn took over the case in 2023. But it turns out they first got involved almost a decade ago.

Before the court clears for the day, I rush outside to try to get people to talk to me about what's happening. I wait at the courtroom doorway.

Alleen (on tape): Whew. My fingers are very cold.

Alleen (voiceover): Trey Cox and Energy Transfer's other lawyers exit. I shoot my shot.

Alleen (on tape): Mr. Cox, can I ask you a quick question? Sure. Thank you. Okay.

Alleen (voiceover): They don't want to talk to me.

Alleen (nope): Hey. Are you guys able to share a quick comment?

Greenpeace guy: Nope. Sorry.

Alleen (on tape): Okay,

Alleen (voiceover): Neither do people from Greenpeace, at least not with the trial just starting. I'm going to have my work cut out for me.

I finally find someone who is down to talk. Scott Badendoch. He's a lawyer with the Environmental Law Institute, and he's part of a group called the Energy Transfer vs Greenpeace Trial Monitoring Committee. They're a group of lawyers that came together specifically to watch this trial.

Scott: Trial monitors don't monitor trials because they want to, they monitor trials because they feel they need to. And Bismarck in, uh, end of February is definitely not the my first choice.

Alleen (voiceover): Scott and the other trial monitors call this a SLAPP suit. SLAPP spelled S L A P P, meaning Strategic Lawsuit Against Public Participation. The point of a SLAPP suit is not necessarily to win, but to drain opponents of resources, and discourage them from speaking out. SLAPPs are meant to set an example.

Alleen (on tape): What, what's in your notes? What did, what really stood out to you?

Scott: It seemed like virtually every single juror was directly or one step removed from the oil and gas industry. Then when you combine that with the fact that they all have negative opinions about what happened there, those two together — it sort of combined to be a real problem.

Alleen (voiceover): Some of these trial monitors have run into Gibson Dunn and Crutcher before. Gibson Dunn represented Chevron in a notorious RICO case against an environmental lawyer named Steven Donziger.

It turns out, Steven is also in North Dakota. He's one of the people who organized the trial monitoring committee.

Steven is tough to catch outside the courtroom. He's constantly beelining it to his car to look at his phone and post updates on social media about what's happening inside the courtroom. I make arrangements to meet him for an interview at his hotel. For Steven, this case is personal.

Steven: I really wanted to come and look those Gibson Dunn lawyers in the eye and let them know I'm sitting right there on the front row. Watching them and I'm posting about it. We're, we're putting out statements about it and we're going to, going to do a report about it.

Alleen (voiceover): To understand the trial here in North Dakota, you have to understand Energy Transfer's law firm, Gibson Dunn and Crutcher. They have a history of helping big corporations avoid accountability for harming the environment or undermining Indigenous people's rights.

At the end of Steven's clash with Gibson Dunn and Crutcher, he lost his law license and even his freedom. The case harmed Steven's clients too: Indigenous Ecuadorians fighting oil contamination in the Amazon.

To really get to the bottom of it, we have to go back to a case from the early 2000s and a legal strategy that Gibson Dunn developed back then.

In 2007 Banana workers in Nicaragua won a multimillion dollar lawsuit in the U.S. against the fruit company Dole for poisoning them with a pesticide called DCBP. Dole hit back. They hired Gibson Dunn and Crutcher to launch a full fledged attack against everyone involved. Dole's general counsel at the time gave their strategy a cute name: The Kill Step.

Dole and the lawyers alleged a vast conspiracy, where the workers' attorney recruited fake banana workers to use to go after the fruit company. There were all kinds of holes in this story. But to the American judge, it didn’t really matter. The money that had been awarded to the workers was taken back.

And Dole and Gibson Dunn didn’t just go after the lawyers and the plaintiffs, they went after the story that was being told. They sued filmaker Fredrik Gertten who'd made a documentary about the banana workers, called Bananas!

Fredrik: They create an angle and, and then everybody has to follow. If you go against the angle they created, you are the radical, you know?

Alleen (voiceover): Eventually Fredrik forced Dole to drop the lawsuit, and he even won a countersuit. A court in California siad that this was a "SLAPP suit." That "Strategic Lawsuit Against Public Participation" thing. But Dole and Gibson Dunn had damaged Fredrik's ability to tell the banana workers' story. He couldn't get his film distributed in the U.S.

Fredrik: We had sold the U.S. TV Rights to ITVS Which was a part of PBS. Um, and they didn't dare to broadcast it.

Alleen (voiceover): A few years later, Chevron hired Gibson Dunn and Crutcher to go after another lawyer: Steven Donziger. Drilled did a whole season on Steven's case, [00:28:00] and I re-listened to it. The heart of the story was another horrible case of contamination, this time in the Ecuadorian Amazon. The homeland of Indigenous Ecuadorians was destroyed, and Steven helped them win a big case against the oil giant Chevron.

Here's from Drilled Season 5, hosted by my boss, investigative reporter and editor Amy Westervelt:

Amy Westervelt: Chevron was ordered to pay more than nine billion dollars to clean up waste pits of oil and refining fluids left in the Ecuadorian Amazon by Texaco, the company Chevron acquired in 2000. But the case didn't end there. Back in the U.S., Chevron took Donziger and the other lawyers to civil court filing a racketeering case against them, otherwise known as a RICO case and accusing them of fraud.

Alleen (voiceover): It was the Kill Step all over again.

Steven lost the RICO case, and over the next few years Chevron and Gibson Dunn kept going after him. He ended up on house arrest for two years and in jail for 45 days for a contempt of court charge.

Steven: the impact on me was profound on my life, the life of my family. Chevron is still after me. I cannot travel out of the country.

They have taken most of my money. I I live off bisically philanthropy, people giving money to my legal defense fund helps pay my household expenses. I mean, it's a crazy way to live. I'm 63 years old. I have nothing other than half of my house, which Chevron has a lien on.

Alleen (voiceover): Perhaps even more troubling is that the Indigenous Ecuadorians couldn’t collect the settlement awarded to them. Chevron had pulled its assets out of Ecuador, and now a U.S. judge had said they couldn’t collect in the U.S. either. Just like with the banana workers in Nicaragua, the victims of contamination were left with no justice.

In this case, too, they went after a journalist — a guy named Joe Berlinger, who directed a a film about the contamination, called Crude. Chevron and Gibson Dunn forced him to hand over his unused footage so they could use it as evidence against Steven and the others.

Gibson Dunn was effective at using the courtroom to weaponize Steven Donziger's missteps, and the legal drama also distracted from the oil oozing through the Amazon rainforest.

At the heart of the Kill Step strategy is an attempt to discredit the client's legal adversaries. But The Kill Step is more than that.

As the Bananas! filmmaker Fredrik Gertten sees it, one of Gibson Dunn's calling cards is legal attacks that double as PR. He calls it the Double-Kill: Extreme legal aggression combined with strategic communication.

Fredrik: So they tried to take down my character. They tried to take down the lawyer who represented the banana workers, you can see that with, with, uh, Crude, they tried to go after Joe Berlinger, then they went after his lawyer and, and they, with the lawyer Steve Donziger, they were really, uh, they've been very successful taking down his, his figure, his public figure.

And I think that's what you are up against. That's the, that's the double kill in some ways.

Um, and it's, it's not a new thing, you know, because every whistleblower in history has had it coming after — if you are a factory worker and you, you go and say, ‘Hey, we are actually letting out poison in the chemicals in the river,’ there will be a story, first of all saying, ‘Oh, you are risking the work of all your colleagues.’ And then there will be a story, ‘He's probably beating his wife or he might be an alcoholic. You know, I heard that he's hard on drugs.’ You know, you do everything to make the whistleblower look like he's not somebody you can trust.

That's, that's a very old technique and, but they use it. They infuse that technique with millions of dollars.

Alleen (voiceover):There's another thread that connects several of Gibson Dunn's most well-known cases: attacks on the rights of Indigenous nations. Natali Segovia is director of the Water Protectors Legal Collective, which has represented pipeline opponents. She's Quechua, and is also part of the monitoring group and is in town for the trial.

Natali: Gibson Dunn has been involved in, um, struggles against Indigenous peoples and against Indigenous justice for a long time.

Alleen (voiceover): She says the Steven Donziger and Chevron case is one example. But there's another that's even bigger.

Natali: They took up the case against the Indian Child Welfare Act, uh, all the way up to the Supreme Court.

Alleen (voiceover): The Indian Child Welfare Act or ICWA passed unanimously in the 1970s in response to the Indian Adoption Project and the forced separation of Indigenous children from their families.

The law assures that if Indigenous kids are removed from their parents, or lose their parents, they have an opportunity to be placed with Indigenous family members and communities, before being adopted out.

ICWA went unchallenged for more than 30 years. Then, beginning in 2013, a series of constitutional challenges were filed against it by corporate law firms, supported by a whole ecosystem of rightwing think tanks.

In 2015, Gibson Dunn and Crutcher joined some of these cases, and by 2017 it became the main law firm taking on the cases pro bono.

Natali: For a law firm to willingly step in and try to overturn legislation that was meant to be restorative and reparative and a form of reparative justice, um, just kind of tells you the kind of law firm that they are.

Alleen (voiceover): One of those cases went all the way to the Supreme Court in 2023. And Trey Cox, the lawyer in the courtroom today, worked on it, too. His law firm at the time partnered with Gibson Dunn on the case. And he joined Gibson Dunn soon after. Gibson Dunn and Crutcher lost the Supreme Court case attacking ICWA. But the firm didn't move on. They already have another constitutional challenge lined up.

Tribal leaders across the U.S. believe that these cases are NOT about the welfare of Native kids or adoptive families — the true target is Indigenous land rights. And bear with me here, because this one is even more tricky: in the ICWA case Gibson Dunn argued that ICWA creates an unconstitutional race-based preference. The thing is, being Indigenous is not a racial identity — it's a political one that means you belong to a nation that has a treaty with the United States that affords you certain rights. Rewriting Indigenous identity as racial would make it a lot easier to attack Indigenous nations' rights to decide what happens on their land.

Natali Segovia from Water Protectors Legal Collective says that Energy Transfer's lawsuit against Greenpeace is also about undermining Indigenous rights, for corporate gain. Because she says the true targets of this legal attack include members of the Standing Rock Sioux Tribe.

Natali: This lawsuit was a proxy war against the Standing Rock Sioux tribe and against Indigenous sovereignty.

Alleen (voiceover): In the months and years before we got to trial, the impacts of this case went way beyond Greenpeace. I asked her about Cody Hall, and the fact that he was still named in Energy Transfer's lawsuit up until the trial began.

Natali:   it's sort of like a scarecrow tactic, right? If you put up a scarecrow, it doesn't actually do anything to physically protect your crops. But it might scare others that are similarly situated, um, from, you know, coming anywhere near this like specific thing. You know, they weren't just, it wasn't just the named parties. There were third parties that received subpoenas in the case.

Alleen (voiceover): The organization that Natali leads, which has provided legal support to pipeline opponents, was one of them.

Natali: Water Protectors Legal Collective received a subpoena in 2021. We fought it for three years. Yeah, and we were just the first of many organizations that were subpoenaed throughout  for their work in, in proximity to Standing Rock,  in part to learn information as part of the discovery process, but  in every SLAPP suit there is this, uh, measure of intimidation, chilling, and a chilling effect  on broader society and then a broader subset, right? In particular environmental and Indigenous organizations.

Alleen (voiceover): As has been the case with so many of Gibson Dunn's lawsuits, rewriting the narrative, changing the story being told about Standing Rock, has been critical to the success of this case. And yet again, in the Energy Transfer vs. Greenpeace case, journalists have been targeted. The company sought to force reporters with the media outlet Unicorn Riot to hand over their footage to pick through for evidence. The pipeline company lawyers took it all the way up to Minnesota's Supreme Court, where the state's shield law for journalists stopped them.

Gibson Dunn's pattern of going after journalists is important because the firm has also used the media to build a reputation for defending the First Amendment. Gibson Dunn has offered its services pro bono or joined the boards of CNN, ProPublica, Reveal, and the International Women’s Media Foundation. That work is often carried out by a Gibson Dunn partner named Ted Boutrous. He's a First Amendment expert, who also happens to be Chevron's attorney in several climate case. AND he worked on the Dole case, where the firm developed the Kill Step.

Ted Boutrous would not talk to me for this story.

Back at the hotel, Steven and the other trial monitors are waiting for me to finish this interview so they can go eat dinner.

Alleen (on tape): Um, well I think that's all I've got. Is there anything you wanna add that we didn't talk about?

Steven: No.

Alleen (on tape): Great.

Steven: Let's go eat. Do we have reservation?

Alleen (voiceover): I reached out to Energy Transfer and Gibson Dunn about everything I talked about with the trial monitors. Gibson Dunn declined to comment. Energy Transfer sent me this statement.

"Our lawsuit is about recovering damages for the harm Greenpeace caused our company. It is not about free speech. Their organizing, funding, and encouraging the unlawful destruction of property and the dissemination of misinformation goes well beyond the exercise of free speech. We look forward to proving our case and we trust the North Dakota legal system to do that."

Alleen (voiceover): In the lobby of Steven's hotel, a commercial blares on a big TV surrounded by couches.

Commercial: Tomorrow, millions of Americans will go to work and school. Some will go on vacation and others will simply come home. But America will move tomorrow because North Dakota works today. North Dakota produces more than 1.1 million barrels of crude oil every day with almost half of that safely going through the Dakota Access Pipeline.

Alleen (voiceover): With jury selection behind us, the real show is about to begin, and I'm eager to hear how each side will present their cases. Greenpeace has made a last-ditch attempt to relocate the trial. They appealed to the North Dakota Supreme Court. But I'm not so surprised when I learn that the appeal is denied. Our request for better media access is denied too.

When I talk to trial monitor Natali Segovia, she points out something funny. One of the state Supreme Court judges who weighed in on the trial relocation decision and the media access decision previously recused himself from being the judge in this trial. He'd said before he had a conflict of interest, but that didn't stop him from weighing in this time.

Everywhere I turn with this case, I run into another ethical hiccup.

When I reach out to a court clerk for clarification about the recusal, the court re-files the decision, this time without that judge.

As I get ready to listen to opening statements tomorrow, I want to believe these jurors' sincere pledges that they will listen to the evidence and issue a fair judgement.

But as an investigative journalist, I'm also supposed to follow the evidence. I know the makeup of the jury. I've read lawyer Trey Cox's own books. This case is stacked against Greenpeace.

I want to believe that Greenpeace will ONLY lose if Energy Transfer proves its case. And I haven’t really seen yet what kind of dirt the pipeline company has dug up.

But if Energy Transfer didn’t find a smoking gun? If Greenpeace loses anyway? Then I want to see how they pull this thing off.