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As Donziger Trial Begins His Lawyers Predict Conviction and Appeal as Gibson Dunn Dishes

By Matthew Russell Lee, Scoop Patreon, thread

SDNY COURTHOUSE, May 10– Steven Donziger, who had a June 2020 trial date postponed amid the Coronavirus pandemic, had his bench trial begin on May 10, 2021. Inner City Press live tweed it, here: (podcast here)

Ron Kuby: Mr. Donziger wants to address the court. And we want a jury trial. Also we need relief regarding communications between the private prosecutor and Judge Kaplan.

Judge Preska is back. She says: Mr. Kuby, I have dealt with most of you have have raised, many times. One request, I just received. Kuby: Sometimes when I am talking and my voice is booming in my head, I don't realize that you are talking to.

 Judge Preska: Anything you haven't said before? Kuby: I'd like you to collect Judge Kaplan's communications with the private prosecutor, and with yourself, to file with the 2d Circuit under seal once Mr. Donziger is convicted.

 Private prosecutor Glavin: I haven't communicated, really, with Judge Kaplan since 2019. Judge Preska: Let's start. Mr Garbus? I can't hear you. Garbus: We received a letter from DOJ on Friday declining to exercise any supervision over the prosecutor in this case.

Judge Preska: Mr Garbus, if you're going to walk around the courtroom you'll have to put your mask on. Kuby: Mr. Donziger wants to speak to you about access. Judge Preska: So now he's a fact witness? We need to get started.

 Donziger: There are people trying to get in who are being told the overflow room is full. Judge Preska: The staff is working on this. Text them back and tell them.

Donziger: Ambassador Rapp wrote to you, I don't know him-- Judge Preska: I've rule on this. Kuby: Your Honor, I'm old -- Judge Preska: You're not as old as I am.

Judge Preska: We'll hear from Ms Glavin. Max 45 min. Glavin: Mr. Donziger disobeyed court order after court order, for years. It is a crime. It is called criminal contempt. We, the special prosecutors, have to prove an order, disobedience and that it was willful.

Glavin: Chevron sued Donziger, accusing him of fraud and corruption to obtain a $9B judgment against Chevon, in Ecuador. Donziger stood to make $550 million. But Judge Kaplan issued a RICO judgment.

 Glavin: Judge Kaplan established a trust. He ordered Donziger to transfer to Chevon his shares in a Gibraltar companies called Amazonia.

 Glavin: ... But Donziger did not assign his shares, even after exhausting his appeals. He said it publicly. In 2018 Chevron moved to hold Donziger in contempt. Donziger had an agreement with the Amazon Defense Fund. These were only assigned in 2018...

 Kuby: I hate to do this, but if the prosecutor could confine itself to what Mr Donziger is actually charged with, it could be helpful. Or not. Judge Preska: I'll bear it in mind. Glavin: There was a second phase. Judge Kaplan said Chevron was entitled to discovery

Glavin: Mr. Donziger was ordered to surrender his electronic documents-- Judge Preska: I think you mean, Devices. Glavin: Yes devices. He was ordered to surrender his passport, as another coercive order. But Mr. Donziger did not surrender his passport.

Now, Donziger's opening:

Garbus: Every single things the special prosecutor has said was known to the US Attorney and we refused to prosecute. Glavin: Objection as to relevance. Judge Preska: Sir? You only have 45 min. Why don't we keep it to the relevant matters?

 Judge Preska: You asked me for 4 hours. I gave you each 45 minutes.  Garbus: We may have a different understanding at this point on what is relevant. The US Attorney's Office with 260 attorneys and a budget of $50 million declined to prosecute.

 Judge Preska: They declined for lack of resources. But you are characterizing it as refusal to prosecute it. Garbus: We believe it is.  Judge Preska: The portion of the order that the 2d Circuit reversed is not at issue here.

Garbus: Donziger was not allowed to know what the injunction meant, to Judge Kaplan. He filed a Hail Mary interlocutory appeal. The evidence will show, he was always respectful, never contemptuous to Judge Kaplan.

Garbus: Chevron in 2010 went to the US Attorney's Office to try to get a prosecution and it was turned down. On Friday, we learned that the government was in no way supervising - Judge Preska: If you want to waste your time, don't say you didn't have enough time.

 Garbus: Why did Judge Kaplan appoint your Honor? Glavin: Objection! Move to strike! Judge Preska: Mr. Garbus, this is not relevant. This is not a press conference, sir. Garbus: Donziger faces a near certain conviction.

 Garbus: But the press will inform the world what has happened in this case. Judge Preska: Thank you. Ms. Glavin? Glavin: The government calls its first witness, Champion.

Glavin: Name and where you work. A: Anne Champion, Gibson Dunn law firm in New York. Glavin: Let's turn to 11-civ-691. What was your involvement? Champion: I worked on the trial and post judgment phase. Judge Preska: My friends at back table, you can only have 3.

 Glavin: Who were the people Chevron was suing? Champion: In 2003, Chevron was sued in Ecuador for environmental damage. Chevron sued 48 people back as vicariously liable for Mr. Donziger's fraud.

Champion: The Ecuador judgment said it would double if Chevron did not apologize in a certain number of days. Kuby: Assumes fact not in evidence - Chevron's lack of apology. Judge Preska: Counsel is just asking it it doubled.

 Champion: Chevron alleged under civil RICO that Mr. Donziger masterminded a fraud scheme, including ghost writing the judgment. And false criminal reports against the company, false publicity and things of that nature. Glavin: Move to admit Donziger's notice of appearance. Kuby: We consent to entry of things in the docket, unless we say otherwise. Judge Preska: The court reporter thanks you.

Champion: There was a trial in this courthouse, in this floor or nearby, before Judge Lewis Kaplan. Glavin: Did Judge Kaplan issue a judgment? Champion: Yes. For Chevron Corporation.

 Champion: The case has initially been funded by a Philadelphia lawyer, Joseph Kohn. Then, Mr. Donziger. Glavin: Do you see Mr. Donziger  in the courtroom? Champion: Yes, there, in the Free Donziger mask.

Glavin: Can you read from the RICO judgment, Paragraph 9? Champion: Mr. Donziger will pay the cost of this action.

 Kuby: I have an objection. The audience might be unaware that Mr. Donziger is not charged with not turning over the Amazonia shares. If the court is concerned with relevance, let's omit this. Glavin: We told them we would introduce this.

Kuby: We're not claiming unfair surprise. Judge Preska: After we finish this line, shall we take lunch? Kuby: Sure. The groundwork for Amazonia has been laid. But Amazonia fell out of the case years ago.

Judge Preska: What about it going to state of mind? Kuby: That's a stock kind of thing to say. And his case is a character assassination. We are not claiming he didn't understand specific orders. But the prosecutor is using state of mind to attack character

 Judge Preska: Want to go to lunch, friends?  Voices: Yes. Thread will continue

   Previously, Donziger's lawyer Andrew J. Frisch challenged Prosecutor Rita Glavin and her then firm Seward & Kissel LLP for alleged conflict of interest, claims shot down on January 6. But Frisch didn't raise, and perhaps has no standing to raise, another conflict of interest, for prosecuting for the US while also representing defendants being prosecuted by the US Attorney's Office.

 Now, Donziger has served subpoenas on Gibson Dunn and some of its partners, seeking information. They have responded on May 4 with a motion to quash; their memo of law begins, "Defendant Steven Donziger, an adjudicated racketeer who led a decades-long scheme to extort Chevon Corporation.

 Now on May 6, Donziger has fired back: "Corporate law firm and litigation behemoth Gibson Dunn & Crutcher (GDC) has made many millions of dollars in the last decade attacking and demonizing renowned human rights lawyer Steven Donziger. GDC lawyers have used virtually every dirty trick in the book: threats and intimidation, paid 'fact' witnesses, corporate espionage, blitzkrieg litigation, crushing discovery demands, invasion of the attorney-client privilege, corrupt experts, fake journalists, and more. And while they did all this per marching orders from their client, Chevron, to “strateg[ically] demonize Donziger,” they have now developed it all into an independent business model. Gibson Dunn sells itself as “not just a law firm, but a rescue squad,” “willing[] to work beyond the courts,” to think “aggressively” and “innovatively”—“like plaintiffs lawyers”—and to “tireless[ly] unearth evidence to try to discredit” its clients’ critics, even when those critics are the client’s own human rights victims." We'll be here.

On April 15, Donziger's lawyer Martin Garbus wrote to Judge Preska asked that she make the trial viewable worldwide by Zoom.

Judge Preska on April 16 denied the request.

Docketed on April 27 was a request from a committee including Michael Tigar, Nadine Strossen, Jeanne Mirer, Simon Taylor, Charles Nesson and Kip Hale have written to Chief Judges and Judge Preska for audio access to monitor.

Now on April 29, Judge Preska has ordered: "ORDER as to Steven Donziger. The Court is in receipt of the letter, dated April 13, 2021, from the Danziger Case Monitoring Committee ("the Committee") regarding the public-access measures for Defendant Steven Donziger's upcoming trial. (See dkt. no. 270.) That letter discusses two topics: (1) measures to ensure that those who attend the trial in person can do so safely and (2) remote audio/visual access to the trial proceedings for those who wish to observe them. As to the first point, the Court reiterates its previous order which indicated that (1) the Court had requested access toa larger courtroom for Mr. Donziger's trial, (2) the Court will provide one or more overflow rooms from which to observe the proceedings, and (3) the Court will allow members of the press to sit, in a distanced manner, in the jury box to ensure that more seats are available to the public. The Committee's letter provides no legal authority to the contrary, and the COVID-19 pandemic does not afford the Court license to ignore the Federal Rules. Consistent with guidance from the CDC and New York State Department of Health, the Southern District of New York has adopted extensive rules and guidelines to prevent the spread of COVID-19 in its courthouses and to ensure that any in-person proceedings can be held safely. 3 Subject to the protocols in place at the time of Mr. Donziger's trial, any interested member of the public may attend the trial in person (Signed by Judge Loretta A. Preska on 4/30/21)." Watch this site.

There are precedents worth noting, including Judge Rakoff's recent provision of a call-in line for his trial in US v. Weigand, after passage of the CARES Act. And several Federal District courts have provided Zoom access. Inner City Press will keep reporting on this case.

  Back on August 17, 2020 Judge Preska reaffirmed that the trial will go forward on September 9. But amid a flurry of letters from Donziger's back up counsel on September 4, Judge Preska issued an order moving the trial to November 3: "Before the Court is Mr. Frisch’s motion (dkt. no. 157) asking the Court to vacate its order directing him to appear as Mr. Donziger’s counsel at trial set to begin next Wednesday. For the following reasons, Mr. Frisch’s motion is GRANTED, and trial is continued to November 3." Then 4 then 9.

Now on November 6 the US' private counsel has written to Judge Preska, "We write on behalf of the United States to inform the Court that the Government consents to the defense request for an adjournment of the trial date. While we are ready for trial on Monday, November 9, 2020 (just as we were ready to begin trial on September 9), and Mr. Donziger has certainly had adequate opportunity to secure counsel in-person for the November 9 trial, we do not oppose allowing Mr. Donziger additional time to secure counsel to attend trial inperson... the Government consents to the defense request for an adjournment, and respectfully requests that a firm trial date be set for January 19, 2021 assuming that date is acceptable for the Court."

 On January 10, Judge Preska "reluctantly" granted another adjournment of the Donzinger trial, this time to May 10 - and also denied Donziger's motions to dismiss Counts 1, 2 and 3 of the Court's July 31, 2019 Order to Show Cause." Those are still in 11-cv-691....

On August 28, Judge Preska has disqualified two of Donziger's lawyers - and has put Frisch back in the case, in a separate order. The first: "CURCIO ORDER as to Steven Donziger. The Court issues this order to reiterate its findings at the Curcio hearing held on August 24 and 27, 2020, at which the Court disqualified two attorneys on Mr. Donziger's defense team Richard Friedman and Zoe Littlepage and again ordered that if Mr. Donziger's other counsel Martin Garbus and Lauren Regan -- decline to appear in a manner acceptable to him or are unable to act as lead counsel, his former lead attorney, Andrew Frisch, will represent Mr. Donziger at trial beginning on September 9. For the foregoing reasons and as explained at the Curcio hearing, Mr. Friedman and Ms. Littlepage are disqualified, and if Mr. Garbus and Ms. Regan decline to appear at trial or the circumstances of their appearance are unacceptable to Mr. Donziger or they are not in a position to act as lead counsel, Mr. Frisch will represent Mr. Donziger at trial commencing on September 9. (Signed by Judge Loretta A. Preska on 8/28/20)."

  Then, dispensing with or preparing for the "if," this: "Attorney update in case as to Steven Donziger. Attorney Andrew James Frisch for Steven Donziger added."

  Yet still Team Donziger is angling for a perhaps merited delay, this time only one additional week, denied by Judge Preska in an order released on Saturday August 29: "ORDER as to Steven Donziger. This evening, Ms. Regan sent an email to Chambers, attached as Exhibit A to this order, stating as follows: Judge Preska requested that Mr. Donziger's legal team provide a list of witnesses who intend to appear by video by today's date. Since Mr. Friedman and Ms. Littlepage were removed from the case yesterday, and I was not involved in that facet of the trial preparations, I believe the defense will need another week so that Mr. Frisch can respond appropriately. Presumably by yesterday the several consummate professionals involved in this matter had already prepared a list due to be submitted today. While taking Ms. Regan's point that it may now be Mr. Frisch who will submit this list, he may have until Monday, August 31, to do so. SO ORDERED. (Signed by Judge Loretta A. Preska on 8/28/2020)."

  In the 2d Circuit, there's this.

  From Inner City Press' live thread: Judge Preska: Mr. Donziger, with whom did you consult with about the conflict?

Donziger: Charles Nesson from Harvard Law.... and CJA lawyer Todd.

Judge Preska: Do you wish to proceed with Mr Friedman as your lawyer?

Donziger: Let me read something from the podium... I only became aware of this conflict issue on August 21. Private prosecutor Glavin: This was raised to Mr. Friedman in May. Donziger: There's a lot going on in my life... I've never done a Federal criminal case, never heard of Curcio

Donziger: I'm being forced to choose between Constitutional rights. I want to make a record. I have a right to a conflict free lawyer. But they all have conflicts... I've faced disbarment, this case is important to my life, my wife and 14 year old son...

Judge Preska: We are here to talk about conflicts. Donziger: Can I just finish my point? I have a proposal. I have another counsel from NYC, pro bono, qualified. Won't need to travel. But he cannot until December 7. His name is Ron Kuby.

 Now after Donziger returns from phone call in jury room, the court room is being sealed and Press excluded.

We're back, and Judge Preska asks if she can disclose "the second issue Mr Donziger raised." Marty Garbus wants to talk to Friedman.  Judge Preska: Call him on your phone. Garbus: I'll have to get off this phone. Judge Preska: I can't help you with that.

 On August 24 at the defense table was Donziger, alone. He had three lawyers on a TV screen, but to speak with them by a landline, the Press was politely asked to leave the courtroom by Judge Preska.

Donziger asked for an order to bring his cell phone upstairs. It will not be happening, but on August 27 the landline will be put in the jury room -- the same one in which a jury convicted Patrick Ho of UN bribery.

  On August 24 Prosecutor Glavin complained that Martin Garbus did not try to fix his Internet fast enough.

 At issue on August 24 was 2014 correspondence Glavin submitted on August 11, involving Richard Friedman and Zoe Littlepage, and whether it raised a conflict of interest that Donziger might try to raise in any appeal. A CJA lawyer was on call, but Donziger said with all due respect he didn't know or therefore trust her.

  The trial is shaping up to be a circus. Inner City Press will cover it.

On August 21, Dongizer's Oregon-based co-counsel has renewed the request to postpone the trial, saying that cross country airplane travel is too dangerous. Dr Anthony Fauci is cited. 

Now on August 22, the hybrid-private prosecutor has filed to have a government witness with a redacted condition appear by two way video: "The prosecution respectfully requests that the Court enter findings and an order permitting the live, two-way video conference testimony of a subpoenaed Texas-based prosecution witness at the September 9, 2020 trial. As detailed below, this application is based on the witness’s advanced age and [REDACTED], placing him at a uniquely heightened risk for severe and life-threatening illness if he contracts COVID-19, his physician’s strong admonition that he not travel to New York given his age and his medical condition, and the anticipated nature of the witness’s testimony. Because the witness is required to travel from Texas, presently a Restricted State under New York Department of Health guidance, he would also be required to arrive in New York by Wednesday, August 26, 2020, in order to quarantine for 14 days prior to entering the courthouse for his testimony at the September 9 trial." How will Judge Preska rule? Watch this site.

 On July 9, Donziger's lawyer Richard H. Friedman asked SDNY Judge Preska for disclosure of how much is being paid for the private prosecution of his client. He cited US v. Suarez, a Second Circuit decision find a qualified public right of access to CJA forms and says, "that right should be even stronger in the present context."

 Now on July 22, Judge Preska has ruled: "ORDER as to Steven Donziger: Having reviewed samples of Seward & Kissel's prior invoices for the special prosecutors' work on this case, the Court concludes that disclosure in line with what the Court of Appeals approved in Suarez is appropriate. For each paid invoice, the special prosecutors shall disclose (i) the invoice cover sheet showing the billing totals; (ii) the page of the billing statement showing "Total Hours," "Total Services," "Total Disbursements," and "Total Amount Due," and redacting any other information from that page, including any itemized time entries or narrative descriptions, as that information risks improperly revealing the prosecution's strategy before trial and thus falls outside the public right of access; and (iii) the final page of the invoice showing the hours, rates, and amount attributable to each individual lawyer. To the extent the special prosecutors have concerns that producing the invoices in the fashion outlined above would threaten disclosure of trial strategy or would otherwise result in prejudice, they may apply to the Court for appropriate relief. (Signed by Judge Loretta A. Preska on 7/22/2020)." Watch this site.

   Inner City Press politely in writing asked for a response on this last year; no answer. It has been advised by other criminal defense attorney's that the issue should be raised to the Federal Defenders, given their role. But should that be necessary? We'll have more on this.

  On December 4 U.S. District Court for the Southern District of New York Judge Loretta A. Preska proposed four trial dates and the parties chose, for now, June 2020. Glavin, who has yet to answer written Press questions about simultaneous services as Special Prosecutor and CJA defense attorney (we still remain hopeful, and open to publishing any explanation), again argued that the Speedy Trial Act does not apply to this proceeding. Time was excluded nevertheless.

 On September 13 in another off shoot of l'affaire Donzinger, SDNY Magistrate Judge Robert W. Lehrburger a discovery hearing was held. The lawyer for Chevron described in great detail the so-called "Donzinger protocol" to search for responsive records. She then said there were still bugs to the protocol, such as a search for Amazon as in the Ecuadorian Amazon rainforest turning up documents about what she called the "mail order company" Amazon. Somewhere Jeff Bezos was wincing. Or not.

  Still unexplained is how a lawyer can at once prosecute a case for the United States and represent indigent criminal defendants against it. We hope to have more on this - we did ask.

  On August 12 Donzinger's then new lawyer Andrew J. Frisch appeared before SDNY Judge Loretta Parker and informed her that while follow lawyer Martin Garbus, staying at Truro near Provincetown in Massachusetts, is willing to co-sign Donziger's bond, it is possible he will not travel to the courthouse in Boston, much less New York, in the time frame specified.

 Frisch offered to find another co-signer. Judge Preska gave him until the close of business on Wednesday, August 14. This is a unique hybrid of a case, both criminal and civil; Judge Preska for the record excluded time under the Speedy Trial Act.   Representing the United States in the proceeding was lawyer Rita J. Glavin, who also serves as an appointed criminal defense attorney on the SDNY's Criminal Justice Act panel, which to some might seem a conflict, into which Inner City Press has respectfully inquired. And is still waiting. The case is US v. Donziger, 19-cr-561 (Preska).

Inner City Press will continue to cover this and other SDNY and 2nd Circuit cases - watch this site, and there is more on Patreon, here.


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