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Donziger Prosecutor's Final Pitch: Guilty 'Beyond Dispute'

The special prosecutor tapped to bring criminal contempt charges against disbarred human rights lawyer Steven Donziger said evidence at trial clearly shows he flouted court orders, as both sides submitted their final arguments to a Manhattan federal judge.

Law 360 - Rachel Scharf 11/06/2021

Donziger Prosecutor's Final Pitch: Guilty 'Beyond Dispute'

Donziger Prosecutor's Final Pitch: Guilty 'Beyond Dispute'

Following a five-day bench trial that wrapped on May 17, Donziger and private prosecutor Rita Glavin presented competing judgment proposals to U.S. District Judge Loretta A. Preska. In briefs filed Tuesday and Wednesday, they sparred over whether Donziger should be convicted of a misdemeanor for disobeying court orders during a civil racketeering case challenging Chevron's 2011 multibillion-dollar Ecuadorian court loss over oil pollution.

Glavin, who was tapped by U.S. District Judge Lewis Kaplan to prosecute Donziger after the U.S. Attorney's Office declined to take up the judge's contempt charges, said she clearly laid out during trial that Donzinger willfully violated Judge Kaplan's orders after he ruled in 2014 that the attorney had used bribery and fraud to obtain a $9.5 billion Ecuadorian judgment for Indigenous communities affected by Chevron predecessor Texaco Inc.'s decades-long oil-dumping practices. 

She said there is no doubt that Donziger committed textbook criminal contempt by refusing to sign over his personal interest in the $9.5 billion judgment or turn his electronic devices over to forensic experts following the ruling.

"The evidence established that Donziger had no intention of complying with the RICO judgment because he did not want to relinquish his valuable interest in the fraudulently obtained Ecuadorian judgment ... through which Donziger expected to be paid up to $560 million," Glavin wrote.

Donziger has claimed repeatedly that he shouldn't have been required to turn over his laptop and cellphone while he was seeking appellate review of Judge Kaplan's discovery order. But Glavin pointed to trial testimony that Donziger is to blame for not asking the Second Circuit to stay the ruling.

Donziger's lawyers, who declined to mount a defense at trial following repeated assertions that court bias would make it a waste of time, fought back in their competing brief that the court had wrongly blocked him from presenting evidence that the initial order to turn over his electronic devices was unlawful.

Donziger asked Judge Preska for the third time to dismiss the charges, reiterating his previous arguments that the case was a "corporate prosecution" funded by Chevron.

"For the first time in the history of the United States, a private law firm with substantial ties to the oil and gas industry has been granted the powers of the United States to prosecute an adverse party and human rights attorney," Donziger wrote.

Donziger said he established beyond a reasonable doubt at trial that Judge Preska and the prosecutors were all biased toward Chevron, and that the oil giant funded the prosecution by paying lawyers from Gibson Dunn & Crutcher LLP to assist Glavin and her former firm Seward & Kissel LLP.

He cited testimony from cross-examination of Gibson Dunn attorneys, in which one lawyer said he billed Chevron for a first-class plane ticket from Los Angeles to New York to work with the prosecutors. Gibson Dunn later said this was a mistake and that it refunded Chevron for the plane ticket, according to the brief.

"It was admitted that Gibson Dunn lawyers provided hundreds of hours of time to the private prosecutors, likely paid for by Chevron to the tune of $10 million or more in fees," Donziger said.

Even though Donziger has said he expects to be convicted, his attorney Martin Garbus expressed newfound confidence in a comment to Law360 Thursday.

"I think we're going to win. I've never said that before in this case, but I think that the prosecution is full of conflicts," Garbus said. "I think that we will win, if not now then on appeal, on the question of prosecutorial misconduct."

Glavin declined to comment on the closing briefs Thursday.

Donziger is represented by Ron Kuby and Rhiya Trivedi of the Law Office of Ronald L. Kuby and Martin Garbus of Offit Kurman PA.

The prosecution is represented by Rita Glavin and Sareen Armani of Glavin PLLC and Brian Maloney of Seward & Kissel LLP.

The case is U.S. v. Donziger, case number 1:19-cr-00561, in the U.S. District Court for the Southern District of New York.