Donziger Seeks Dismissal Of 'Vindictive' Prosecution

By Khorri Atkinson
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Law360, New York (April 12, 2021, 9:48 PM EDT) -- Embattled attorney Steven Donziger urged a New York federal court Monday to dismiss charges that he disobeyed court orders in an underlying civil suit Chevron lodged against him over a $9 billion Ecuador environmental judgment, arguing the criminal case warrants dismissal because he's a victim of malicious, "vindictive and selective prosecution."

In his 12-page dismissal motion, Donziger reiterated judicial bias claims against U.S. District Judge Lewis Kaplan, who presided over his racketeering trial with Chevron Corp. six years ago. The senior judge had triggered the ongoing criminal case against the environmental lawyer after finding in 2014 that Donziger used fraud in obtaining a $9.5 billion oil pollution judgment in Ecuador against the $226 billion energy giant.

With Chevron still on the offensive post-ruling, Judge Kaplan in 2019 held Donziger in civil contempt for breaking court orders and hit him with heavy fines. The judge said Donziger had blatantly ignored orders forbidding him from profiting from the award.

Judge Kaplan had also issued an order for the collection, imaging and examination of Donziger's devices for Chevron's civil suit. The order required him to provide a list of his devices to a forensic expert and surrender the devices and accounts for imaging. Donziger did not follow either order, according to papers in the criminal case, and would not do so until his "due process rights were respected." He says the devices and accounts hold sensitive client information.

Donziger had railed against the allegations, saying Chevron is trying to use the U.S. court system to undermine the legitimacy of the Ecuadorian judgment, which was affirmed by all four layers of that country's court system.

He argued in Monday's filing that at every turn in the underlying civil case, Judge Kaplan displayed animosity and "did not bother to even disguise his disdain for" him. At one point in the case, the judge "suggested from the bench that the suit against Chevron was nothing more than a cynical con," Donziger wrote, further noting that the same judgment the attorney secured "was validated by at least six appellate courts in Ecuador and Canada, including the Supreme Courts of both countries."

"It has also been noted by objective independent journalists as well as prominent trial lawyers who have decades of experience in the federal courts, such as renowned litigator and former U.S. Marine and Supreme Court clerk John Keker, who called the Kaplan proceeding a 'Dickensian farce' driven by Judge Kaplan's 'implacable hostility' toward Mr. Donziger," the defendant wrote.

Donziger lambasted the judge for pursuing the criminal contempt charges over the refused participation of the U.S. Attorney's Office for the Southern District of New York. According to court filings, the Manhattan U.S. attorney's office declined Judge Kaplan's request to prosecute Donziger, saying it has more important priorities. That caused Judge Kaplan to refer the allegations to Seward & Kissel LLP, a private law firm, for prosecution.

The criminal case was eventually transferred to U.S. District Judge Loretta A. Preska.

In a declaration Monday that accompanied Donziger's motion, defense attorney Martin Garbus of Offit Kurman PA argued that his client is entitled to discovery on his vindictive or selective prosecution claim.

Garbus is seeking to pursue a "narrowly targeted set" of discovery materials he claimed would disclose the roles, relationships and actions of Judge Kaplan, the private prosecutor, Chevron and Judge Preska.

He wrote that discovery would also reveal whether former U.S. Attorney for the Southern District of New York Geoffrey Berman's refusal to prosecute was related in any way to his abrupt firing last June by then-President Donald Trump and then-U.S. Attorney General William Barr. And it would disclose information about who was involved in the decision to overrule Berman's judgment of non-prosecution, he added.

"If Judge Preska and Judge Kaplan claim that this is not a selective prosecution, then they should show the facts that support that now," Garbus said. "This is very different than the more usual selective prosecution motion or recusal motion or a motion attacking the unconstitutional application of a rule or statute."

Both filings on Monday accused Judge Kaplan of floating violating Rule 42 of the Federal Rules of Criminal Procedure, which addresses the appointment of a prosecutor. The rule says that if a private prosecutor is appointed, that prosecutor must be disinterested.

"No attempt was made to appoint a disinterested prosecutor," the declaration said. "The prosecutor who was appointed had many specific interests in the prosecution. Seward has strong ties to the oil industry, including, but not limited to, having represented Chevron in the recent past, and representing companies dependent on business from Chevron."

The firm has denied any conflict.

Trial in the case is set to begin May 10. Donziger has been under house arrest since August 2019. 

Private prosecutor Rita Glavin of Glavin PLLC, who departed Seward in March, told Law360 on Monday she has no comment on the filings. It's unclear why Glavin left the firm. 

Meanwhile, Garbus told Law360 in an email that "this is a constitutional case of first impression involving the two-year wrongful arrest and nearly two-year confinement, the deprivation of the rights of a fine man, that will go directly to the Supreme Court." 

"Another classical case of outrageous misconduct by a judge and a prosecutor to put in jail and silence a father, a husband, someone they disagree with and are desperate to jail," the attorney added. 

The prosecution is represented by Rita Glavin and Sareen Armani of Glavin PLLC and Brian Maloney of Seward & Kissel LLP.

Donziger is represented by Martin Garbus of Offit Kurman PA.

The case is U.S. v. Donziger, case number 1:19-cr-00561, in the U.S. District Court for the Southern District of New York.

--Additional reporting by Pete Brush and Andrew Strickler. Editing by Michael Watanabe.

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