Imprisoning the David to Chevron's Goliath is the latest outrage by a US judiciary now engineered to always favor the interests of capital.
Judge Loretta Preska, an advisor to the conservative Federalist Society, to which Chevron is a major donor, sentenced human rights attorney and Chevron nemesis Steven Donziger to six months in prison Friday for misdemeanor contempt of court after he had already spent 787 days under house arrest in New York.
Preska's caustic outbursts she said at the sentencing, "It seems that only the proverbial two-by-four between the eyes will instill in him any respect for the law" capped a judicial farce worthy of the antics of Vasiliy Vasilievich, the presiding judge at the major show trials of the Great Purges in the Soviet Union, and the Nazi judge Roland Freisler who once shouted at a defendant,"You really are a lousy piece of trash!"
Donziger, a graduate of Harvard Law School, has been fighting against polluting American oil companies for nearly three decades on behalf of indigenous communities and peasant farmers in Ecuador. His only "crime" was winning a $9.5 billion judgment in 2011 against Chevron for thousands of plaintiffs. The oil giant had bought Texaco oil company holdings in Ecuador, inheriting a lawsuit alleging it deliberately discharged 16 billion gallons of toxic waste from its oil sites into rivers, groundwater, and farmland. Since the verdict, Chevron has come after him, weaponizing litigation to destroy him economically, professionally, and personally.
The sentencing came a day after Donziger petitioned the court to consider an opinion by the United Nations human rights council that found his house arrest a violation of international human rights law. The U.N human rights council said his house arrest counted as detention under international law and it was therefore illegal for Judge Preska to demand an additional six months in jail. Amnesty International also called for Donziger's immediate release.
Donziger and his lawyers have two weeks to appeal the judge's order that Donziger be sent immediately to jail. Preska denied Donziger bail claiming he is a flight risk. If the Federal Court of Appeals turns down Donziger's appeal he will go to jail for six months. The irony, not lost on Donziger and his lawyers, is that the higher court may overturn Preska's ruling against him, but by the time that decision is made he will potentially have already spent six months in jail.
"What Judge Preska is trying to do is force me to serve the entirety of my sentence before the appellate court can rule," Donziger told me by phone on Monday. "If the appellate court rules in my favor, I will still have served my sentence, although I am innocent in the eyes of the law."
Donziger, his lawyers have pointed out, is the first person under U.S. law charged with a "B" misdemeanor to be placed on home confinement, prior to trial, with an ankle monitor. He is the first person charged with any misdemeanor to be held under home confinement for over two years. He is the first attorney ever to be charged with criminal contempt over a discovery dispute in a civil case where the attorney went into voluntary contempt to pursue an appeal. He is the first person to be prosecuted under Rule 42 (criminal contempt) by a private prosecutor with financial ties to the entity and industry that was a litigant in the underlying civil dispute that gave rise to the orders. He is the first person tried by a private prosecutor who had ex parte communications with the charging judge while that judge remained (and remains) unrecused on the criminal case.
"No lawyer in New York for my level of offense ever has served more than 90 days and that was in home confinement," Donziger told the court. "I have now been in home confinement eight times that period of time. I have been disbarred without a hearing where I have been unable to present factual evidence; thus, I am unable to earn an income in my profession. I have no passport. I can't travel; can't do human rights work the normal way which I believe I am reasonably good at; can't see my clients in Ecuador; can't visit the affected communities to hear the latest news of cancer deaths or struggles to maintain life in face of constant exposure to oil pollution. In addition, and this is little known, Judge [Lewis A.] Kaplan has imposed millions and millions of dollars of fines and courts costs on me. [Kaplan is the judge for Chevron's lawsuit against Donziger; Preska is his handpicked judge for the contempt charges.] He has ordered me to pay millions to Chevron to cover their legal fees in attacking me, and then he let Chevron go into my bank accounts and take all my life's savings because I did not have the funds to cover these costs. Chevron still has a pending motion to order me to pay them an additional $32 [million] in legal fees. That's where things stand today. I ask you humbly: might that be enough punishment already for a Class B misdemeanor?"
Judge Preska was unmoved.
"Mr. Donziger has spent the last seven years thumbing his nose at the U.S. judicial system," Preska said at his sentencing hearing. "Now it's time to pay the piper."
The six-month sentence was the maximum the judge was allowed to impose; she ruled that his house arrest cannot be counted as part of his detention. From start to finish, this has been a burlesque. It is emblematic of a court system that has been turned over to lackies of corporate power, who use the veneer of jurisprudence, decorum, and civility to make a mockery of the rule of law.
When the law is neutered, judges become the enforcers of injustice. These corporate judges, who epitomize what Hannah Arendt called the banality of evil, now routinely make war on workers, civil liberties, unions, and environmental regulations.
Preska sent Jeremy Hammond to prison for a decade for hacking into the computers of a private security firm that works on behalf of the government, including the Department of Homeland Security, and corporations such as Dow Chemical. In 2011, Hammond released to the website WikiLeaks and Rolling Stone and other publications some three million emails from the Texas-based company Strategic Forecasting Inc., or Stratfor. The sentence was one of the longest in U.S. history for hacking and the maximum Preska could impose under a plea agreement in the case. I sat through the Hammond trial. I watched Preska spew her bile and contempt at Hammond from the bench with the same vitriol she used to attack Donziger.
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