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For Donziger Trial US Witness Zelman Can Testify By Video 6th AM Challenged Rejected

By Matthew Russell Lee, Scoop Patreon, thread

SDNY COURTHOUSE, Oct 23 – Steven Donziger, who had a June 2020 trial date postponed amid the Coronavirus pandemic, was wrongly accused of being close in Ecuador with Rafael Correa and thus a flight risk, it has emerged.

   Donziger's lawyer Andrew J. Frisch challenged Prosecutor Rita Glavin and her 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.

  On August 17, 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.

  Now on October 23, Judge Preska has ruled: "On October 22, 2020, Mr. Donziger moved to adjourn his November 4 trial date for reasons related to the COVID-19 pandemic. (Dkt. no. 187.) Mr. Donziger made a similar motion on July 29, when trial was scheduled to begin on September 9, and the Court denied that motion and Mr. Donziger’s follow-on motion for reconsideration. (Dkt. nos. 111, 124, 130, 132, 145.)1 Mr. Donziger’s latest motion to adjourn raises three arguments:

 (1) COVID-19 will prevent defense witnesses from attending trial; (2) allowing one of the Government’s witnesses, David Zelman, to testify via live video rather than in person will violate Mr. Donziger’s rights under the Sixth Amendment’s Confrontation Clause; and (3) COVID-19 safety measures may undermine Mr. Donziger’s right to effective assistance of counsel. While the Court will await full briefing before ruling on the first and third issues, it has already rejected Mr. Donziger’s argument about Mr. Zelman’s video testimony, and Mr. Donziger has not established that reconsideration of that ruling is warranted. Accordingly, the motion to adjourn based on Mr. Zelman’s video testimony and non-attendance at trial, which the Court treats as a motion for reconsideration, is DENIED."

Now in mid October the US, represented by this private firm which also purports to represent criminal defendants in the SDNY, has written: "With respect to witnesses who reside outside the United States, we submit that the defense must propose procedures that will preserve the sanctity of criminal proceedings, such as taking the testimony of witnesses at the nearest United States embassy or consulate in the presence of a consular officer. In addition, to the extent the defense proposes testimony from a witness that cannot be extradited to the United States, the defense should specifically address procedures to ensure the reliability of that witness’s testimony given that there would be no penalty for perjury. Of particular note, Ecuador has a constitutional prohibition against extradition of its citizens. See Report on International Extradition Submitted to Congress, U.S. Dep’t of State  (“Ecuador has a constitutional prohibition against the extradition of its citizens.”). Thus, absent some showing by the defense otherwise, the Government expects to take the position that without the means to extradite any Ecuadorian citizen from Ecuador, a proposal to take such witnesses’ testimony remotely in that country would “essentially be free of any penalty of perjury, calling into doubt the reliability of any of the potential testimony.” United States v. Buck, 271 F. Supp. 3d 619, 623-24 (S.D.N.Y. 2017) (denying defense application to present trial testimony from witnesses in Switzerland via videoconference); see also United States v. Banki, No. 10-cr-08, 2010 U.S. Dist. LEXIS 27116, *7-8 (S.D.N.Y. Mar. 23, 2010) (denying defense application to present trial testimony via video from witnesses in Iran because the U.S. has “no diplomatic relations with Iran and no means to extradite even U.S. citizens residing within its borders” meaning the “oath becomes nothing more than an empty recital”). The need for a case-by-case showing is highlighted by the example of Luis Yanza, a proposed defense witness who was mentioned at the October 5 conference. Yanza, an Ecuadorian citizen, is a defaulted defendant in the Civil Case, 11 Civ. 691. See Civ. Dkt. 1985. Yanza’s role in the corrupt and fraudulent activities that led to the Ecuadorian Judgment and which supported entry of the RICO Judgment against Donziger, were featured prominently in the March 4, 2014 opinion accompanying the RICO Judgment, including: (1) Yanza’s role in setting up and using a secret Ecuadorian bank account to make covert payments to a purportedly independent expert appointed by the Ecuador court in order to influence that expert’s work; and (2) Yanza’s presence at a meeting with Donziger in which a bribe to the presiding Ecuadorian judge was discussed. Chevron Corp. v. Donziger, 974 F. Supp. 2d 362, 428, 432-33, 514 (S.D.N.Y. 2014), aff’d, 833 F.3d 74 (2d Cir. 2016), cert. denied, 137 S. Ct. 2268 (2017). Yanza’s participation in the fraud and corruption is also documented in the decision by the international arbitration panel in The Hague. See, e.g., Civ. Dkt. 2082-1, ¶¶ 4.301-4.303 (payments to court-appointed expert were “made corruptly as bribes” by Plaintiffs’ representatives including Donziger and Yanza). Given the prior findings about Yanza, the inability to extradite him, his failure to appear in the United States for the Civil Case and his status as a defaulted defendant in that case, we oppose remote testimony by Yanza at this time. However, the defense nonetheless should have an opportunity to make a particularized showing with respect to Yanza (and each of the other defense witnesses for whom remote testimony is sought), as we already made clear in our August 5 and September 1 letters, and as this Court already directed in orders dated August 17, September 2, and September 16.

Accordingly, for the reasons set forth above, the Government requests that the defense expeditiously make a case-by-case showing of the need for remote testimony and propose procedures for the taking of such remote testimony of each particular witness at issue to ensure the sanctity of criminal proceedings. The defense has been on notice of the issue of remote testimony since August 2020 and the November 4 trial date is three weeks away." Watch this site.

  On September 16, Judge Preska reiterated that date but adjourned a September 17 in person (at least for Donziger proceeding: "LORETTA A. PRESKA, UNITED STATES DISTRICT JUDGE: The conference scheduled for tomorrow, September 17, is adjourned sine die. The Court will advise the parties of the new conference date in a later order. In the meantime, Mr. Donziger shall comply with the Court’s September 2 order directing him to submit a list of witnesses whose testimony the defense proposes to introduce at trial by video. (See dkt. nos. 124, 161, 166.) For each such witness, Mr. Donziger shall describe the subject matter of the expected testimony and the reason why remote testimony is needed. Finally, the parties are advised that the November 4 trial date in this case is firm and will not be modified."

On August 24, a still-rare in person proceeding in her courtroom, that Inner City Press attended, see below.

  On August 27, the proceeding continued, with Donziger reading out a statement about his Constitutional rights and proposing a new pro bono lawyer, who could only start in December: Ron Kuby. Inner City Press live tweeted it, below.

  Now 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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