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Complaint signed by 37 organizations representing 500,000 lawyers worldwide details shocking violations of the code of Judicial Conduct by U.S. judge in long-running Chevron retaliation campaign
Chevron and Kaplan targeted Donziger after he helped Indigenous peoples win a landmark $9.5 billion judgment against the company in 2011 for dumping oil waste in the Amazon
NEW YORK—September 1, 2020—Dozens of legal organizations around the world representing more than 500,000 lawyers along with over 200 individual lawyers today submitted a judicial complaint documenting a series of shocking violations of the judicial code of conduct by United States Judge Lewis A. Kaplan targeting human rights lawyer Steven Donziger after he helped Indigenous peoples win a historic judgment against Chevron in Ecuador to clean up the pollution caused by decades of oil drilling with no environmental controls.
The complaint was formally filed by the National Lawyers Guild in conjunction with the International Association of Democratic Lawyers (IADL). IADL was founded in Paris in 1946 to fight to uphold the rule of law around the world and has consultative status with UN agencies.
Five pages in length with a 40-page appendix with 15 exhibits, the complaint is to be turned over to the chief judge in the federal appellate court in New York that oversees the trial court where Kaplan sits. The complaint is signed by an unprecedented number of legal organizations from approximately 80 countries collectively representing 500,000 lawyers.
The Chief Judge of the Second Circuit Court of Appeals, Robert Katzmann, has a duty to read the complaint and determine whether he will appoint a committee to investigate and issue findings.
The complaint could result in a censure of Kaplan or even his removal from the bench.
“We wrote this judicial complaint after studying the record in this case and coming to the conclusion that Judge Kaplan has been acting as a de facto lawyer for Chevron in this litigation. He has shown a shocking pattern of escalating efforts to harm Mr. Donziger for his advocacy of the rights of indigenous people in Ecuador spanning a 10-year period,” said Jeanne Mirer, the President of the IADL. “The violations constitute a clear breach of the norms set out in the judicial canon of ethics that govern the behavior of judges in the United States. We believe the complaint demands urgent investigation by Judge Katzmann to stop this pattern of abuse and to prevent a highly regarded human rights lawyer from being unjustly convicted.”
The complaint documents what its authors say is a pattern of ethics violations committed by Judge Kaplan, a former tobacco industry lawyer. Kaplan denied Donziger a jury, put in place a series of highly unusual courtroom tactics, severely restricted Donziger’s ability to mount a defense, and through his had picked judge to try him for criminal contempt has had him detained him at home for more than one year on contempt charges that were rejected by the U.S. Attorney, and allowed him to be prosecuted by a private law firm that has Chevron as a client. He also imposed enormous fines on Donziger without a jury finding that have all but bankrupted him.
The complaint alleges that the “statements and actions of Judge Kaplan over the last ten years show him to have taken on the role of counsel for Chevron … rather than that of a judge adjudicating a live controversy before him.” It added, “By these standards, he has violated his duty of impartiality under the canons of judicial conduct.”
The complaint concluded that Judge Kaplan since 2010 has “beyond all bounds of reason” tried “to destroy Steven Donziger, both personally and professionally” and “by extension has blocked the access to remedy for the 30,000 Indigenous clients from the Ecuadorian Amazon that he has represented since 1993.”
“Complainants are very concerned that the persecution of Mr. Donziger by Judge Kaplan and Chevron will have a chilling effect on the work of other human rights lawyers, acting as a warning of the consequences they will suffer should they try to hold major corporations accountable for their human rights violations,” the complaint said.
Organizations signing the complaint also include the Center for Constitutional Rights; Lawyers Committee for Human Rights; National Conference of Black Lawyers; the Confederation of Lawyers of Asia and the Pacific (including lawyers from Japan, Philippines, Vietnam, Indonesia, and Pakistan); the African Bar Association, which includes lawyers from 61 nations; and the Indian Lawyers Association, among several others. The IADL also has members from more than 50 nations.
Also signing the complaint are more than 200 individual lawyers, including Professors Charles Nesson and Lawrence Lessig of Harvard Law School; Marie Toussaint, a member of the European Parliament; Sarah Leah Whitson, the former Middle East Director for Human Rights Watch; Scott Badenoch, Jr., the Co-chair of the Environmental Justice Committee of the American Bar Association; and Bill Bowring, Professor of Law, Birkbeck College, University of London.
In 2011, Donziger helped Indigenous peoples win a $9.5 billion environmental judgment against Chevron after it was found to have deliberately dumped billions of gallons of oil waste in a huge of swath of Amazon rainforest in Ecuador. Donziger represented 30,000 indigenous and local Ecuadorian communities that had been decimated by the dumping, with rates of childhood leukemia and other cancers skyrocketing. The court ruling was affirmed by six appellate courts in Ecuador and Canada, including the high courts of both countries.
As part of an avowed campaign to “demonize” Donziger, and despite accepting jurisdiction in Ecuador, Chevron came back to the United States and filed a civil “racketeering” case against the lawyer and all 47 named plaintiffs from the rainforest that potentially sought $60 billion in damages — the highest personal liability in U.S. history. The company steered the case to Judge Kaplan, who denied Donziger a jury and then let Chevron pay a witness at least $2 million while moving him and his entire family from Ecuador to the United States. Chevron lawyers coached the witness, Alberto Guerra, for 53 days before Kaplan let him testify against Donziger; Guerra later admitted under oath that he had lied repeatedly. Kaplan also refused to let Donziger testify on direct.
Prominent trial lawyer John Keker called the proceedings before Kaplan a “Dickensian farce” driven by the judge’s “implacable hostility” toward Donziger. In the meantime, 29 Nobel laureates and several human rights organizations have criticized the harassment of Donziger by judicial authorities and have demanded his immediate release.
After the Canadian Supreme Court ruled in favor of the Ecuadorian plaintiffs, Judge Kaplan last year filed unprecedented criminal contempt charges against Donziger after he appealed post-judgment discovery orders to turn over to Chevron his attorney-client privileged work on his computer and cell phone. A judicial order requiring an attorney to disclose confidential work product to adversary counsel is thought to be unprecedented. That appeal is scheduled to be argued on Sept. 15 while Kaplan is trying to drive Donziger to trial on the contempt charges on Sept. 9, despite the fact Donziger’s lawyers cannot travel from out of town during the COVID-19 pandemic and not a single criminal trial has been held in the district since March.
In another unusual move, after the U.S. Attorney’s Office refused to pursue Judge Kaplan’s contempt charges the judge appointed a private law firm, Seward & Kissel LLP—which is known for its extensive financial ties to the oil and gas industry—to prosecute Donziger in the name of the government while being paid an hourly rate by taxpayers. The firm immediately pushed for Donziger’s pre-trial detention and later disclosed that Chevron was a direct client of the firm.
Donziger is now in his 13th month of home detention in a misdemeanor case where the longest sentence ever imposed on a lawyer convicted of the charge is three months of home confinement.
The judicial complaint follows the formation last week of a case monitoring committee comprised of a separate group of prominent lawyers that also has been critical of how judicial authorities in New York have treated Donziger. The committee includes Michael Tigar, chair of the American Bar Association’s Section of Litigation; Nadine Strossen, a former president of the American Civil Liberties Union and a New York Law School professor; and Stephen Rapp, a former U.S. Department of State ambassador-at-large for the Office of Global Criminal Justice.
In a news release last week announcing its formation, the committee said that “trial monitoring committees are often seen in high-profile cases around the world, but they’re most often employed in developing countries with problematic judiciaries.”
“It is unusual for a case in the United States to have such deep problems that a trial monitoring committee feels the need to attend,” said attorney Scott Badenoch, who helped organize the group.
National Lawyers Guild
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