Tuesday, November 26, 2013

The Truth Has No Place in Kaplan's Court

1,400 people have died from oil pollution in Ecuador

Reposted from Eye on the Amazon

You likely already know that Chevron (as Texaco) admitted to deliberately dumping close to 18 billion gallons of toxic foundation waters into the pristine Ecuadorian Amazon over several decades (1964-1992). The company split from Ecuador in 1992, conducted a "remediation" proven to have been a complete sham, and got a $40 million "get out of jail free" card from the government of Ecuador (which specifically did NOT exempt them from any third party action). The results of their malicious acts to save just a few dollars per barrel? A wave of cancers and birth defects (incidentally, a Texaco engineer estimated in the 60's that about $4 million would cover the costs of building industry-standard lined waste pits but Texaco thought that was too costly) and a horrific health crisis that continues to this day.

In what is one of the most unlikely and significant victories in environmental and human rights history, 30,000 indigenous people and campesinos won a $9.5 billion judgment in a class action suit after 20 years of ugly legal battles (now upheld by Ecuador's highest court). Unlikely because of the unprecedented and overwhelming pressure placed on the plaintiffs, their supporters, Ecuador and the Ecuadorian judicial system. And significant as it sets an encouraging precedent that those victimized by powerful corporate forces have hope for justice and a way to fight back.

So how on Earth could this victory be so ridiculously, unethically and illegally turned on its head and evolve into the shocking display that just played out in a US Federal Court? And what repercussions and worrisome precedents could such reckless actions hold for corporate accountability and legal processes around the world?

I just spent most of the last two weeks in that New York City courtroom, where U.S. lawyer Steven Donziger and the Ecuadorian Lago Agrio plaintiffs found themselves accused of extortion and racketeering by the 3rd largest corporation in America. Chevron's sham trial will wrap up today, but thanks to Kaplan's inexplicable decision not to allow any testimony related to Chevron's contamination of the Ecuadorian Amazon – the actual issue here and disaster from which all this started – there's a lot that will never be discussed in the courtroom.

Unfortunately, there's even more going on here than a Chevron-friendly judge misusing his power to the detriment of 30,000 long-suffering people in Ecuador. This is the furthering of a strategy that corporations will continue to develop to crush the free speech of critics and limit our chances to fight back on anything resembling a level playing field. This RICO suit and everything Kaplan has allowed Chevron to get away with in its wake is a serious threat to open society and due process of law.

In 2010, before the Lago Agrio court had even issued a judgment (which Chevron now claims was "ghost written" by the legal team for the Ecuadorians), U.S. Federal Judge Lewis Kaplan had already made up his mind about the case. By issuing a worldwide injunction (later overturned by the 2nd Circuit Court of Appeals) Kaplan began a twisted journey through the looking glass and dragged the United States with him. Based on Chevron's trumped-up charges pieced together from edited Crude outtakes and thousands of emails between an international team constantly battling Chevron pressure tactics, Kaplan decided that a fraud had taken place and encouraged Chevron to file a RICO suit.

Kaplan has never been to Ecuador, knows nothing about its legal system and didn't even consider key evidence or hold a hearing to determine the facts. He doesn't even speak Spanish. His order, according to Professor Burt Neuborne, an extremely well-regarded human rights and civil liberties lawyer who is also the Legal Director of the Brennan Center for Justice at NYU Law School, "[sent] an unmistakable message of American judicial arrogance to the rest of the world that can only result in increased levels of reciprocal judicial suspicion and hostility, with negative consequences for the transnational rule of law."

There will more than a few law journal articles about what Kaplan has done here (much of which is in direct contrast to some of his prior rulings). But here are just a few highlights of the violations of civil rights and perversion of legal power Kaplan allowed or encouraged:

Each of these pieces of Chevron's scorched-earth legal strategy is part of a specific approach to suppress free speech, scare off supporters, create and expand negative rumors, to divide and conquer the opposition. It's already been criticized by criminal defense lawyers familiar with RICO as a way to "send a message to a lawyer who wants to take up a cause for an underdog that Big Brother, the big corporate entity, is going to start coming after you for criminal conduct."

Even with Kaplan clearly on their side, Chevron does still have to do some of the work. There's a significant difference in the law between extortion by force and extortion by pressure. One allows a meritorious claim as a defense and the other doesn't. Yet, if the trial record does not allow for evidence of the reasons Donziger and the LAPs initially filed their suit – the toxic contamination – how can anyone make a judgment on whether their claims against Chevron have merit? Chevron has to affirmatively prove that the LAPs have no right to recovery, yet they never submitted any evidence related to the actual contamination.

If you cut through the theatrics that have little or nothing at all to do with the claims, Chevron is left with absolutely nothing more than a triple hearsay statement from an admitted liar and corrupt judge, who was paid more than $300,000 by Chevron for his testimony. There's not a single piece of evidence to prove in even the slightest that Judge Zambrano did not write the verdict. Everything Chevron has introduced has been done so to suggest that something nefarious happened without actually proving the claims. Mix that with Kaplan's attitude towards Donziger and all things Ecuador and you have a show trial and nothing more.

Even Kaplan himself appeared frustrated that Chevron's lawyers have not made his task easy by giving him a solid case to base his judgement upon. That is why they dropped the damages claim to ensure no jury would ever hear their case – they'd never swallow it. Nevertheless, most are confident Kaplan will complete the task he set out before the Lago Agrio judgment was even issued – he will hand Chevron a ruling they can tout to anyone who will listen.

It's no matter that it will not be based on the facts. No matter that it will not contain any evidence of actual extortion or illegal acts. No matter that it will be used expressly to violate the order of the 2nd Circuit Court of Appeals when they directed Kaplan not to act as an enforcement court.

Truth is stranger than fiction. These events would seem too outlandish to be true had I not witnessed them with my own eyes. And that is exactly what Chevron is hoping for. They will use Kaplan's verdict for years to come (though the verdict itself will inevitably be faced with legal problems that will likely cause it to fall apart quickly under appeal), and possibly spend billions more hoping empty words based on lies and manufactured "facts" will drown out the voices of the tens of thousands who continue to live with the harsh reality of Chevron's despicable acts in the Amazon.

Monday, November 18, 2013

"Welcome to America – Now Give Us Your Property or You're under Arrest!"

Donald Moncayo demonstrating oil contamination from a Chevron waste pit

Reposted from Eye on the Amazon

Donald Moncayo has been a friend and ally to Amazon Watch and a member of the affected communities in Ecuador dedicated to showing the world the truth of what Chevron (operating as Texaco) did to the rainforest in Ecuador. For eight years he has led "Toxi-tours" for journalists, environmentalists, elected officials and others to witness Chevron's destruction firsthand. Donald is no stranger to the foul smell and noxious contamination in Ecuador, but that wasn't enough to prepare him for the despicable treatment he would receive in a US federal court.

Last week Donald left Ecuador for the first time in his life after volunteering to testify in Chevron's sham trial in New York City. The trial where Chevron, the company that admits to deliberately dumping billions of gallons of oil drilling waters into the Ecuadorian rainforest, is suing the very victims of their own acts as extortionists.

I was in the courtroom with Donald. As a witness to the events last week, I will try to recount the bizarre scene I saw unfold. Unfortunately, we all felt powerless to stop a blatant abuse taking place right before our eyes. During a cross examination by Chevron's prosecution team from Gibson Dunn, Donald was asked repeatedly about instances where he saw a woman working in Judge Zambrano's office behind a computer. This woman, Evelyn Calva, typed the decision dictated by Zambrano – the decision that Chevron falsely claims was "ghost written" and which has now been upheld by Ecuador's supreme court. Donald knew Calva because she too had planned to testify for the defense in New York. During the course of explaining how he came to learn the identity of the woman he saw typing for Judge Zambrano, Donald openly shared that he had been in communication with a lawyer on the team in the US to discuss steps to submit his written testimony. The reaction to his statements by both the prosecution and the judge was as if Donald was revealing some nefarious plan. Yet, as as anyone who's ever even been to court knows, it's perfectly normal for lawyers to assist witnesses in preparing and submitting their statements.

As he has done on numerous other occasions Judge Kaplan then began questioning Donald himself – as if he were part of Chevron's legal team. He asked if Donald had sent emails to this "US lawyer" and Donald answered that he had. He was then told to reveal the email address of this lawyer in open court and Donald responded that he did not know the address by heart but that it was on his computer. At which point Kaplan said "Ah ha! And where is your computer now, Mr. Moncayo?" Donald responded that it was in his hotel room. Kaplan stood, gestured with his arm and open hand to Chevron's lawyer and said, "Mr. Brodsky..." at which time Chevron ate up everything that Kaplan had just handed them on a silver platter and declared they would like a subpoena Donald's entire computer.

With the exception of Chevron's legal team, the faces around the courtroom were in shock at this point. To call what was happening "highly irregular" is an incredible understatement. The evidentiary stage of this case was closed months ago. And for good reason – that is the proper process for trying a case.

However, within moments of mentioning an entirely benign and regular communication between legal counsel and a witness, the entire contents of Donald's computer were being sought by one of the most aggressive and unscrupulous legal teams ever assembled. In another absurd and unjust move, Judge Kaplan signed an order demanding the computer be delivered by 6 pm that same day. Donald didn't even have a lawyer to represent him. If he wanted to object to the order he was supposed to find one, in this land foreign to him, in less than two hours?

Then, to everyone's disbelief, the "U.S. lawyer" in question was identified in the courtroom and made to stand up as if she too had committed some unsavory act (Judge Kaplan didn't ask her what her email address is, although that was the pretext for seizing Donald's computer).

Kaplan made it crystal clear that he had absolutely no concern for the rights of this witness and many feel that his willingness to throw trial procedure out the window to get discovery from this one witness probably signified that he thought the prosecution had so little evidence to make their case that he wanted to try to find more. It supports Steven Donziger's statement that "Kaplan is not judging this case, he's prosecuting it." The only thing Chevron has submitted as evidence of any crime is a triple hearsay statement by an admitted liar – and that rankles Kaplan because he wants to win this case for Chevron.

In Kaplan's circus court, Ecuador's legal system and Ecuadorians themselves are treated with disdain and disrespect, so it's no surprise that Kaplan couldn't care less about Donald's rights. One lawyer with over 20 years experience trying cases expressed shock at the derogatory, sarcastic and demeaning treatment he received from both the lawyers for the prosecution and the judge himself. When Donald's lawyer (brought in at the very last minute) objected to the order and raised concerns about what implications there were for Donald under Ecuadorian law, Kaplan rolled his eyes and said, "he came into my jurisdiction with it. It's subject to my order."

But Chevron's lawyers were not satisfied with that order, they wanted to lick the plate clean, so once Donald was forced to give his laptop over he was told that he must also give them his email and password so that every email he has could be downloaded and produced to the court. Donald, a man who has been exposed to Chevron's dirty tricks and contamination in Ecuador was then told if he did not comply he would go to jail in the US. He stood helpless as Chevron's lawyers took his computer away in a car with technical experts and a lawyer representing Chevron.

Donald was devastated. He insisted on making his way to his lawyer's office in White Plains immediately to oversee the process. Upon his arrival, he was outraged to witness Chevron's legal team and technical experts attaching devices to his computer. Their work went on for over 10 hours while Donald stood by in anguish. To Donald this was nothing more than a complete violation from a company that has been besieging his community for decades and has proven they will stop at nothing to get away with their horrible crimes. Donald had absolutely no reason to trust this process. What if Chevron were planting something on his computer? What if they planted something on the copy to incriminate him or prejudice the case? After what Donald had seen with Chevron's dirty tricks with Borja and Hansen, scare tactics with the Ecuadorian military, and manipulation of Crude outtakes, Donald's fear of Chevron is justified by his experience.

Piguaje, who had already arrived, will probably testify this week, but no other Ecuadorians are eager to come and appear as witnesses in this case. And who could blame them? The intimidation and mistreatment by Kaplan and the abusive tactics of Chevron and Gibson Dunn have had a chilling effect on the case. The legal team and representatives of the affected communities in Ecuador are outraged and fearful of future treatment. Due to the actions of Kaplan, Ecuador has every right to view the United States judicial system as nothing more than an ally and enabler of corporate crime and injustice. It would not surprise me if Kaplan's unapologetic bias and mistreatment of Donald Moncayo does not end up becoming an international incident.

Tuesday, November 12, 2013

Through the Looking Glass in Chevron's Delusional Kangaroo Court

Donald Moncayo demonstrating oil contamination from a Chevron waste pit

Reposted from Eye on the Amazon

I spent today witness to a circus that bore some passing resemblance to a court of law in New York City. On one side of the room, Chevron's army of lawyers sat snickering as Judge Lewis Kaplan's condescending tone morphed into moments where he actually stood up and questioned the witnesses as if he were completing the legal squad: Gibson, Dunn, Crutcher and Kaplan in cahoots. On the other side, a small team overwhelmingly outgunned – some volunteer – lawyers, human rights activists and Ecuadorian Donald Moncayo, who had never even left Ecuador before.

If you had any doubts as to the assertions that this is nothing but a show trial then today would have blown them all away. Time and again Judge Kaplan stood up and continued questioning witnesses after Chevron's pack of hyenas had presumably finished. With one exception, every objection by Gibson Dunn was sustained and every one by the Ecuadorians' legal team overruled.

Then before breaking for lunch, Judge Kaplan kept everyone in the courtroom to share with us his twisted math skills. In a statement with absolutely no relevance to the matters at hand, he wanted everyone to know that Ecuador's GDP is $84 billion and if Chevron paid the order of $19 billion it would be an influx of over 20% of their GDP (let's ignore for a moment that Chevron wouldn't be paying this money to Ecuador, but rather to over 30,000 private citizens). But he went on: the GDP of the US is about $15 trillion. So were this to happen in the US it would be like receiving $3 trillion – the amount of President Obama's budget. Why is this relevant? Or better yet, why not take it to its logical comparison: If Chevron did in the US what it did in Ecuador it would be like destroying an area of the size of Alabama in the United States.

Try to imagine an Ecuadorian oil company submerging Alabama in toxic wastewater and leaving it there for decades. Then when the people of Alabama successfully sued the company to pay for a cleanup, a random judge in Ecuador declares the verdict invalid and hauls, let's say, Judge "Faplan," author of the Alabama decision, into court in Ecuador and calls him a corrupt liar and says his ruling has no merit. If that seems insane, you're right. And now you're close to understanding the travesty of justice that we are witnessing here.

We've got some bad news for the real Judge Kaplan, though. Just hours after leaving court we learned that the Ecuadorian supreme court issued a final ruling in the actual case in Ecuador, upholding the Zambrano verdict. They did eliminate the previous verdict's "punitive damages" for not apologizing to the affected communities, however, given that this is not explicitly permitted in Ecuadorian law, which cut the judgment down to $9.5 billion.

Now Judge Kaplan has to do his math all over again.