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.

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