Recently, a fellow lawyer asked me if Steven Donziger was going to jail. Donziger, the New York lawyer who doggedly pursued Chevron for its contamination of the Ecuadorian Amazon and helped win a multi-billion-dollar verdict in Ecuador, was found to have participated in racketeering. A federal court found that he was involved in a scheme to bribe an Ecuadorian judge. He's been prohibited, by court order, from receiving any money from the Ecuador verdict. He could lose his law license.
And yet - when you look at the facts - it appears that Chevron's lawyers - Randy Mastro's team at Gibson Dunn & Crutcher - are more likely to have committed a crime.
For many years, ERI has supported Ecuadorian communities' efforts to force Texaco, now Chevron, to cleanup the mess that it left behind after years of operations in the Amazon. ERI has never represented the Ecuadorian plaintiffs, but we have served as amicus, defended activists who support the Ecuadorians, and consulted with the Ecuadorians' lawyers from time to time. This case has been without a doubt one of the most talked-about cases to date.
In the past few years, however, the story has become less about the Ecuadorian communities – who still contend with massive, unremediated oil pollution – and almost all about the person of Steven Donziger, a force of nature who’s kept driving this case forward for nearly 20 years. While the Ecuadorians obtained a multi-billion-dollar verdict in Ecuador – a verdict that has not been paid – Chevron sued Donziger for defrauding and bribing the Ecuadorian court. Last year the company won a decision from a New York federal court, which ordered that Donziger had to pay Chevron any money he received from the case.
Before we get into Chevron's actual case, a couple things are worth noting. First, no court has ever suggested that Chevron is not responsible for massive contamination of the Ecuadorian Amazon. In fact, Chevron decided not to make this argument to the New York court. Chevron originally sued Donziger arguing that the Ecuador litigation was a “sham,” but they dropped this entirely by the time of trial. They never attempted to show that they weren't responsible. Chevron used its fraud-on-the-court arguments to completely sidestep the question of its own responsibility.
Second, the New York trial was a bizarre process. ERI's Marissa Vahlsing, who volunteered on the trial before coming to work for us, gave a taste of the strange experience. Seasoned trial lawyers had never seen anything quite like this, where Chevron's team was given a capacious jury room to prepare while Donziger's team was given a closet; where the judge refused to tell anyone what evidence was admitted until he wrote his judgment; where the judge repeatedly engaged in direct questioning of the witnesses to help Chevron make its case.
But put all that aside. Let's just look at what the court found. It may surprise you.
Judge Kaplan, the aforementioned New York federal judge, found that Donziger and his team committed three violations of RICO, the federal racketeering law: 1) they conspired with a court-appointed expert in Ecuador, Richard Cabrera, to write the expert's report; 2) they organized a scheme to bribe the Ecuadorian judge; 3) they secretly "ghostwrote" the judge's decision against Chevron.
Sounds pretty bad, huh?
Most people aren't going to read the judge's 497-page decision. After all, there's 497 pages there; the evidence must be overwhelming, right? Read on, because all the evidence you need to know can fit on two pages.
The Cabrera report
There's no doubt that the Ecuadorians' contact with the expert, Cabrera, looks shady by U.S. standards; Donziger says that practices are different in Ecuador. I, personally, have no idea what the standards are in Ecuador. There's a lot of evidence that Donziger's team tried to hide their contact with Cabrera, secretly paid him, and wrote his report. So let's suppose it was an unethical practice. While that might merit discipline against the lawyers, it doesn't make a difference for the verdict against Chevron.
Why? Because all of the evidence of Donziger's collusion with Cabrera was put before the court in Ecuador - and the judge said he was not relying on the Cabrera report. See for yourself: The judge said Chevron's "petition for the [Cabrera] report not to be considered when passing ruling is accepted." (This is Chevron's translation.)
Chevron's focus on Cabrera ignores the mountain of other evidence that the Ecuadorian court relied on in ruling against Chevron. This is why Chevron didn't bother to try to show that the judgment was based on a sham; there's just too much evidence of contamination. The court's ruling stated that it considered 2,311 environmental samples - "not considering the sampling performed by the expert Cabrera."
The most serious of the findings against Donziger & crew is that they orchestrated a bribery scheme. Let's be clear - Chevron introduced zero evidence that any money changed hands in exchange for the judgment. There is no evidence that Judge Zambrano, who issued the Ecuadorian judgment, came into any money. So where's the bribery case?
There were three lines of evidence for bribery – seems like a lot, right? Let’s go through them. Most important is 1) the testimony Ecuadorian ex-Judge Alberto Guerra. In addition to Guerra, there are 2) records that appeared to show four $1000 transfers from the Ecuadorian plaintiffs to Judge Guerra in 2009-2010; and 3) shipping records showing that Guerra exchanged packages with Judge Zambrano and bank deposit slips that Guerra said showed that Zambrano paid him small amounts of money.
We’ll save Guerra for last, since he’s been the subject of some pretty great coverage recently – he’s the “star witness” in headlines like this: “Chevron's star witness in $9.5 billion Ecuador oil pollution claim admits: 'I lied.’” Let’s dispose of the other evidence first.
Alleged payments in 2009-2010
Guerra testified that the Ecuadorian plaintiffs paid him in 2009-2010 because he was ghostwriting orders on the case. This gets a little confusing, since the Ecuadorian case cycled through a bunch of judges, starting with Judge Guerra himself. During 2009-2010, however, Judge Zambrano - who wrote the final judgment - had been briefly assigned to the case; he would later be assigned back to the case at the end. Guerra said he was writing orders for Zambrano, and taking bribes from litigants.
Guerra's computer did contain drafts of a number of Zambrano's orders, and Zambrano admitted that he farmed out some work to Guerra. The evidence for payments is thin – it’s either circumstantial or relies on highly questionable documents – but it’s not worth getting into. Why? Because these payments were not for the judgment. They happened well before the judgment, and Zambrano would leave the case and then come back before writing the judgment. During this period, nothing significant at all was happening in the case, and some of the orders issued actually went against the Ecuadorian plaintiffs.
Like with Cabrera, let’s assume the worst – that Donziger and his team did pay some bribes to an admittedly corrupt judge – but a judge who was not assigned to the case, during a period when nothing much was happening in the case. There was no evidence at all that the Ecuadorian plaintiffs paid the actual judge – Zambrano – or that his decisions were influenced by any payments to Guerra. And none of this affected the judgment.
Shipping and bank records
As for the shipping records and the bank deposit records, attorney Ted Folkman took a look at both of these lines of evidence in his recent blog. He concludes that the deposit slips aren't really corroborating, since, at bottom, "one has to rely on [Guerra's] word, which is not too valuable."
The shipping records are worse. In addition to the suit against Donziger, Chevron has also brought an arbitration case against the government of Ecuador, and Guerra also testified in that case. Transcripts of that testimony were recently released. As Folkman and others point out, Guerra's testimony in the arbitration admits that none of the shipments from Guerra to Zambrano "had anything to do with" the Chevron case – that evidence is now unquestionably worthless.
The only direct evidence of bribery for the judgment was Guerra’s own testimony – he said that, during the period of the judgment, he again arranged to ghostwrite for Judge Zambrano, and that the plaintiffs offered him $500,000 to throw the case for them. Guerra is, to be charitable, a somewhat compromised witness. The New York judgment itself recognized a number of bases for questioning Guerra's credibility:
- "[T]he fact that Chevron . . . is supporting him and has assisted his relocation from Ecuador to the United States." In fact, to date, Chevron has paid Guerra over $300,000.
- "Guerra admitted that he often has been dishonest. His professional history includes multiple instances in which he has accepted bribes, lied, and facilitated illegal relationships between parties and judges."
- Guerra "[a]ttempted to solicit bribes from both the [Ecuadorian plaintiffs] and, on at least two occasions, from Chevron."
- Guerra " lied to the Chevron investigators in claiming that the [Ecuadorian plaintiffs] had offered him $300,000" - that never happened.
Additionally, and perhaps most importantly, Guerra initially told Chevron that he had a draft of the judgment on his computer. But no evidence of this was ever found. This contrasts with the earlier period, when Guerra did have drafts of the orders he apparently ghostwrote for Zambrano.
On Monday, reports from VICE and Courthouse News cast serious doubt on Guerra's credibility – they looked at the recently released arbitration testimony, which shows that "large parts of [Guerra's] sworn testimony, used by Kaplan in the RICO case to block enforcement of the ruling against Chevron, were exaggerated and, in other cases, simply not true."
Guerra's new testimony, reported by VICE, sheds more light on the tactics used by Chevron's lawyers to obtain his testimony:
One of them took me by the arm and said, 'Look, look, look what's down there. We have $20,000 there,'" Guerra explained in his testimony before the tribunal. "Specifically, one of them was the one that led me to take a look at it. It was inside a safe.". . . Guerra admitted that at this point he tried to get more money from Chevron. "At some point, I said, well, why don't you add some zeroes to that amount, and then later on I said, 'I think it could be 50,000.'
This is Chevron's star witness.
Ghosts in the machine
So perhaps Guerra did ghostwrite some orders for Zambrano back in 2009-2010, and maybe solicited bribes for that. The evidence for ghostwriting the opinion, however, has essentially evaporated. Judge Kaplan found that the opinion was ghostwritten based on Guerra's testimony that the plaintiffs gave them drafts of the judgment on a USB drive, and based on a textual analysis by Chevron that suggested that the opinion had multiple authors and that parts of it were lifted from documents authored by the Ecuadorian plaintiffs – notably, the so-called "Fusion memo," which Judge Kaplan described as an "internal" document, not filed on the court's official docket (and so, presumably, evidence of collusion between the plaintiffs and the judge). Further evidence has poked all kinds of holes in this conclusion.
In the arbitration tribunal, forensic experts examined Guerra's and Zambrano's computers. Unlike the 2009-2010 orders - where drafts were found on Guerra's computer - they found no drafts of the judgment on Guerra's computer. Instead, they found numerous drafts on Zambrano's computer, consistent with ordinary drafting and editing activity, and they also found no evidence that a USB drive had been connected to Zambrano’s computer shortly before issuing the judgment.
Additionally, while Judge Kaplan believed that documents such as the "Fusion memo" were internal documents of the Ecuadorian plaintiffs, never submitted in court in Ecuador, more recent evidence suggests otherwise. Donziger had always maintained that the Fusion memo was, in fact, provided to the Ecuadorian court, but that the court records were incomplete.
While all the evidence in the arbitration tribunal has not been released, Ecuador's brief to the tribunal discusses the Fusion memo:
In fact, we now know that the Fusion Memo was almost certainly provided to the Court, openly and transparently, at the 2008 Aquarico judicial inspection and that all exhibits to the Fusion Memo were receipted in the record. . . . a review of the Record shows repeated instances of both parties supplying massive amounts of documents to an overwhelmed Court, without all the submitted documents being docketed.
Basically, the Ecuadorian government has had a lot more resources than Donziger, and they've been able to look at every document in the court as well as videos of judicial inspections where materials were handed to the judge - and they believe that they identified both the moment when the Fusion memo was submitted, and all the content of it.
To sum up: Maybe Donziger and his team did some shady business with an Ecuadorian expert, but that expert's work was excluded by the Ecuadorian judge. Maybe the Ecuadorian plaintiffs even paid Guerra several times in 2009-2010, when he was not a judge on the case. But there's no evidence that they bribed Judge Zambrano or ghostwrote his judgment.
Where's the crime?
So where's the real crime here? You don't need 497 pages or 1842 footnotes (really!) to establish it. As Courthouse News notes, when Chevron approached him, Guerra "had only $146 in his bank account a year earlier, and owed tens of thousands more to finish the construction of his house. He said he could not scrape money for airfare to visit his children in the United States." He demanded money from Chevron, who complied; Guerra "has a contract with Chevron for various perks, including at least $326,000, an immigration attorney and a car."
Wait a minute, you might be saying - can you do that? Can you pay someone hundreds of thousands of dollars to testify as a witness?
That's where this story gets really sad. Because the law is amazingly clear on this, and yet not only has there been no criminal inquiry into this, Chevron was able to use Guerra's testimony to obtain a judgment against Donziger in federal court.
Federal law prohibits "corruptly" paying anything to a witness "with the intent to influence" his testimony - it gets you up to fifteen years in prison.
But maybe federal prosecutors don't think they have enough evidence to show that Chevron and its lawyers intended to influence Guerra's testimony - they were just paying for his time. While that strains credulity, given the facts here, it doesn't matter. Federal law covers that, too: "Whoever . . . directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceeding, before any court . . . shall be fined under this title or imprisoned for not more than two years, or both."
Shorter prison sentence, lesser offense, but still a crime. For this crime, it doesn't matter what your intent is, or whether you're trying to influence the witness's testimony. You can't pay someone to testify. Period.
The reason for this is obvious. If you could pay witnesses to testify, they would have an incentive to say what you want to hear. I don't know whether Gibson Dunn told Guerra to lie, but I do know that Guerra lied - and admitted he lied - in order to tell them what they wanted to hear. And at that point, you can never tell who's telling the truth.
We know which lawyers met with Guerra, because he testified about that: "I basically held meetings with Mr. Randy Mastro, Mr. Avi Weitzman as representatives of Gibson [Dunn.] I only met with them or mainly with them[.]"
These are the lawyers who put Guerra on the stand, knowing that his testimony was bought and paid for in violation of federal law.
So I don’t think Steven Donziger is likely to go to jail – though in this case, nothing would surprise me anymore. But if prosecutors are looking for crimes, I have some suggestions on where to start.
Photo CC BY Rainforest Action Network