Through the Looking Glass in Chevron's Delusional Kangaroo Court

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.

You Get What You Pay for (Perjury, in This Case)

Reposted from Eye on the Amazon

Having virtually all the money in the world often means you can buy silence, you can buy time, and you can buy lies. Chevron has demonstrated this time and again in its decades-long battle to evade accountability for deliberately dumping 18 billion gallons of toxic wastewater into the Ecuadorian Amazon.

The problem is that this time what Chevron has bought is a bag of lies in the form of false testimony from a thoroughly disreputable source, and they aren't able to hide the price tag. In the ongoing saga of Chevron's scorched earth legal strategy, last week disgraced former judge Alberto Guerra testified in support of the company's most explosive allegations – that the judgment against Chevron was ghostwritten by the plaintiffs and that his efforts to seek bribes were partly on behalf of Judge Nicolas Zambrano, who issued the historic $19 billion final judgment in the Ecuadorian environmental litigation.

Somehow, Chevron expects the court (and the public) to believe that a man who has admitted to fixing cases and accepting bribes throughout his career as a lawyer and a judge is being honest this time, despite receiving hundreds of thousands of dollars from Chevron for his testimony. And everything depends upon his word, as the supporting "evidence" that he's presented is laughably incomplete (he claims that his computer died, and that's why he has essentially nothing to back up his story). For months Guerra worked with Chevron to prepare his testimony – and yet it was STILL full of gaping holes and contradictions. Amazon Watch was there in court and couldn't help wondering how anyone could take Guerra seriously. Of course, there's no jury in this trial – something Chevron worked very hard to guarantee – just a wall of stone-faced lawyers whose fat paychecks depend upon Judge Kaplan accepting Guerra's testimony as credible (or at least convenient).

It doesn't take a law degree to see that a man who's known for being a "liar for hire" and who has admitted that Chevron is paying him more than 20 times his prior salary is NOT a credible witness. But Chevron is operating in a legal realm of its own creation. It's one where you can sue the victims of your own environmental abuses, where you can prevent consideration of any actual evidence in the case, and now where you can pay witnesses whatever you like to give their "testimony" on your behalf.

These unethical maneuvers have not gone unnoticed by the legal community. Erwin Chemerinsky, a noted legal scholar and dean of the University of California Irvine School of Law stated:

"That Chevron and its counsel have crossed the line here cannot seriously be debated. If a party or its counsel were permitted to pay a testifying witness for physical evidence, beyond the reasonable value of that evidence, and to pay the witness a salary in exchange for an agreement to testify, there would be little left of the rule against compensating fact witnesses. That is precisely what has occurred here."

The Ecuadorians have now moved that all of Guerra's fraudulent testimony be stricken. Remember, this was the best Chevron could do on this case. They know that they can't discuss the abundant evidence of their misdeeds – it still sits in toxic pools by the hundreds in Ecuador – so they've pinned their feeble accusations of a sinister conspiracy on claims of a corrupt legal process. I think they have managed to uncover some corruption, however. So when will Chevron and their legal team be brought before a court to answer for paying a confessed charlatan to commit perjury?

Donziger & Ecuadorians File Motion to Strike Testimony of Chevron's Well-Paid Witness

Reposted from The Chevron Pit

Today, the legal team for Steven Donziger and the Ecuadorians targeted by Chevron's retaliatory RICO suit filed a motion – filled with devastating detail – to strike the testimony of the oil giant's star witness.

That star witness, disgraced former Ecuadorian Judge Alberto Guerra, testified during the RICO trial last week that representatives of the Lago Agrio Plaintiffs secured the opportunity to ghostwrite the 2011 judgment against Chevron issued by the Ecuadorian court by promising the presiding judge $500,000.

Well, I guess Chevron can rest its case. Silver bullet. Or, more like magic bullet.

One of the main problems with the story – besides the fact that it never happened – is that after weaving his tall tale, Guerra admitted that he had offered between ten and twenty bribes to judges during his career as a lawyer and after becoming a judge, accepted about the same number of bribes, sometimes for as small as $200, to "fix" cases.

But it gets worse, at least for the credibility of his fanciful testimony. From today's motion:

Guerra further understood from multiple conversations and lunch meetings with Chevron attorneys – where, as Guerra's testimony revealed, they always fully heard out his offers and consulted with their principals before allegedly saying "no" – that as an out-of-work former judge with no role in the case, he simply didn't have the "goods" Chevron wanted. Guerra had every incentive to manufacture those goods so that he could bargain hard with Chevron about the price of his testimony. And bargain he did, lying repeatedly to Chevron – i.e., that he was in possession of emails that would confirm Chevron's ghostwriting allegations; that he possessed drafts of the Judgment; that the Lago Agrio Plaintiffs had recently offered him $300,000 to cooperate – in order to improve his bargaining position.

Okay, so the guy is an admitted liar and criminal but you know, maybe he's telling the truth now. What incentive could he possibly have to make up a new story now? Back to the motion:

When, after a long career of paying and accepting bribes, Guerra apparently decided that he would place himself in the service of Chevron, the former judge was earning $500 per month and had no savings. In contrast, Chevron has committed to paying Guerra, for a period of at least two years, a "salary" of $10,000 per month – 20 times more than he was earning in Ecuador. It is unclear what need Guerra has for such a generous salary, in light of the fact that Chevron also: (i) provides Guerra with a monthly $2,000 "housing allowance"; (ii) bought Guerra a car and is paying for his auto insurance; (iii) is paying for health insurance to cover Guerra, his wife, his son, his son's wife, and his grandchildren; (iv) paid Guerra roughly $12,000 to purchase household items upon his move to the U.S.; (v) paid Guerra's moving expenses, including five airline tickets, transportation of personal items, and a temporary hotel stay upon arriving in the U.S.; (vi) paid Guerra roughly $50,000 in exchange for "evidence," including $10,000 for belatedly finding a single document that supposedly eluded Guerra upon prior searches because it was "stuck" to something else; and (vii) pays the legal fees of Guerra's various attorneys, including the fees of the lawyers handling immigration issues for his various family members. Guerra's relocation on Chevron's dime also reunited him with his daughter and a second son, who live in the U.S. and who Guerra had not seen in several years.

In other words, Chevron is bribing a judge to say that Donziger bribed a judge.

And the package Chevron has put together for this judge is outrageous, and egregiously runs afoul of federal law and ethical rules of conduct.

The motion outlines how the payments violate the federal Anti-Gratuity Statute as well as the Rules of Professional Conduct of New York, where the trial is taking place. By all means, read the motion for a detailed explanation of the rules but here is the view of prominent legal scholar and law professor Erwin Chemerinsky in a sworn declaration for the Defendants:

"if a party or its counsel were permitted to pay a testifying witness for physical evidence, beyond the reasonable value of that evidence, and to pay the witness a salary in exchange for an agreement to testify, there would be little left of the rule against compensating fact witnesses."

And the conclusion of the motion on the payments to Guerra?:

The bottom line is that Guerra is and apparently always has been desperate for money, and will stoop to extraordinary lows to get it – including fabricating a story for Chevron, weaving big lies with small truths in an effort to create the illusion of a verified account. Guerra's recent testimony only serves to drive his unreliability home.

The motion is well worth reading in its entirety as it also highlights the admitted lies, the contradictions, and the suspect assertions in Guerra's testimony, as well as the total lack of anything approaching corroborating evidence for his explosive allegations.

During cross-examination, Guerra explained that he spent 3-4 days of every week for 3 full months in New York working with a team of Gibson Dunn lawyers led by Randy Mastro in preparation for his two days in court. That should be enough time for even a novice actor to learn his lines, no matter how fanciful a story he's telling.

And hey, if it means reuniting with his beloved family in the United States, where he'll enjoy a lifestyle he could only dream of before, it's time well spent. And then some.

And for Chevron?

Simple. Guerra's testimony is Chevron's "magic bullet" to save its RICO case and help the company avoid paying the $19 billion judgment for its devastation of the Ecuadorian Amazon.

If it worked, it would be money well spent. And with a biased federal judge presiding, it probably will work – until a real court, the Second Circuit Court of Appeals, reviews the matter down the road.

Never mind that the money spent on bribing Guerra to fabricate his story could be used to clean up the company's contamination in Ecuador. But for Chevron, living up to its legal and moral responsibilities overseas would set a terrible precedent.

In the end, Guerra's preposterous testimony, bought and paid for by Chevron, his court performance the culmination of months of preparation by a team of highly-paid lawyer-thespians at Gibson Dunn, adds one more layer of absurdity to the farce that the current proceedings represent. A single federal judge in New York can no more act as an appellate court for the entire Ecuadorian Judiciary than Alberto Guerra's words can be taken as the truth. And Chevron can no more hide from the truth than the company's legal machinations can conceal its contamination, and its liabilities, in Ecuador.

Corporate Rights or Human Rights?

Reposted from EarthRights International

Every day, human rights defenders around the world risk their lives to stand up against injustice. Whether investigating government abuse in Syria or Russia, or exposing corporate abuse in Nigeria or Ecuador, brave individuals everywhere depend on fundamental rights of free speech to do their work. The United States has always celebrated such rights as vital to our democracy—after all, there is a reason that the First Amendment came first. Yet recent trends, bolstered by a series of federal and Supreme Court cases, have privileged the free speech rights of corporations while silencing the living, breathing human beings that need those rights most.

It’s certainly no news that today’s corporations enjoy unprecedented global power. Likewise, the corporate lobby’s campaign to stifle human rights activism has been steadily increasing. Since Citizens United, which extended First Amendment rights to corporations as “persons”, we’ve seen bold legal arguments against laws and regulations that would hold them accountable to fundamental human rights law. This year, for example, the Supreme Court held in Kiobel v. Shell that Nigerian survivors of torture and crimes against humanity could not seek justice against Shell in U.S. Courts. The “mere corporate presence” of Shell in the U.S. was not enough for the Court to allow the plaintiffs—lawful residents of the U.S.—to bring their case. Courtroom doors that have been open to the world’s powerless for over 30 years are now closing thanks to a concerted effort by the most powerful.

Yesterday, the Supreme Court heard arguments in a case that could push this dangerous precedent even further. Largely outside the radar of the human rights community, DaimlerChrysler AG v. Bauman arises out of the company’s alleged participation in targeting labor activists in Argentina’s Dirty War, a period of terror that involved the murder, torture and disappearances of thousands of activists and political dissidents. The allegations are chilling: Mercedes-Benz Argentina identified workers within its plant as “subversives” to state security forces, knowing full well that, as a result, those workers would be abducted, tortured, murdered or “disappeared”. Equally chilling is the prospect that the Supreme Court will enshrine corporate rights over human rights in law once again. Like Shell in Kiobel, the question is whether the German company is legally present in the U.S. for purposes of jurisdiction. Daimler says that it has a constitutional right to be treated separate from its subsidiaries. Where that right exists in the constitution is up to anyone’s imagination.

Unfortunately, it’s not just the Supreme Court that’s privileging corporate rights over human rights. The American Petroleum Institute (API) sued the Securities and Exchange Commission (SEC) earlier this year, arguing a First Amendment right to make secret payments to foreign governments. The case concerned Section 1504 of the Dodd-Frank Act which would require oil, gas and mining companies to disclose the payments they make to foreign governments, making this information available to the people living in resource-rich countries for the first time. Such transparency regulations prevents corruption and promotes human rights, not least access to vital information that citizens in resource-rich countries require to demand accountability from their own governments. Yet the API argued that the First Amendment allows them to conceal such payments, and the SEC is now revising their rule.

Finally, we have seen the rise in SLAPP (Strategic Litigation Against Public Participation) suits by corporate defendants against the human rights attorneys and NGOs that have advocated against them. Perhaps the most extreme, but certainly not the only, example of this has been the tactics that Chevron has employed this year against all advocates criticizing their human rights and environmental abuses in Ecuador. Faced with an $18 billion judgment against it for environmental devastation in the Amazon, Chevron has relentlessly targeted the organizations, lawyers, journalists and activists who have campaigned or publicly spoken out about the company’s destructive operations in Ecuador. In spite of sanctions and other judicial admonishments, Chevron’s lawyers have continued to SLAPP activists with harassing subpoenas and depositions, undoubtedly aimed at chilling the future First Amendment activity that makes their company look bad. EarthRights has defended these organizations, like Amazon Watch, but in spite of successful defense, Chevron’s legal machine continues these abusive practices.

Sadly, these cases are not new or unique. Human rights advocates have always faced an uphill battle, especially when taking on corporate abuse. What is new is the way in which our highest courts are privileging corporations and their rights over those of actual human beings. SLAPP suits and corporate tactics aimed at discouraging human rights advocates from speaking out and demanding justice are time-tested. But the aggressiveness and vigor with which Chevron has been allowed to pursue such tactics is new, and other corporations are following suit.

We must ask ourselves this question: How can we speak truth to power when those with power have more rights to speak?

RICO Bombshell Further Erodes Credibility of Key Chevron Witness

Reposted from The Chevron Pit

On the very second morning of the trial in Chevron's retaliatory RICO suit, one of the oil giant's star witnesses dropped a bombshell.

And the star witness – Chevron's own Ricardo Reis Vega, the company's vice president who oversaw its legal defense in the Ecuador case – dropped that bombshell on another of Chevron's star witnesses.

With the courtroom packed with people who mostly already knew about the incident, the major revelation drew little response except some frantic scribbling in notebooks and whispering in the dark-suited, shoulder-to-shoulder Chevron seating section.

For those of you who haven't been closely following the tortuous grind of this case, Reis Veiga's admission is substantial and eviscerates the credibility of the witness Chevron is relying on to support its most explosive – and ridiculous – allegations in the case.

Reis Vega was asked if he had personal knowledge that in 2009, the disgraced former judge in the case in Ecuador, Alberto Guerra, approached Chevron, promising to "fix the case."

Reis Vega replied, simply, "Yes, I do."

Chevron is promising that Judge Guerra – who the company admits offered to "fix the case", will be its star witness in Chevron's trial. He is expected to say that the Ecuadorian plaintiffs' legal team offered to bribe judges, an outrageous claim they vigorously deny. Judge Guerra has in fact been paid more than $325,000 by Chevron, in some cases by lawyers toting suitcases in cash. Who is bribing whom?

While this all sounds hyperbolic, unfortunately it is not, and it will be corroborated soon enough in court.

Read this Motion for Terminating Sanctions filed last month for more information on Guerra's total lack of credibility.