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Criminal Contempt and “Rule by Law” in New York: Trial Monitors Reflect on US v. Donziger

by & Stephen Rapp and Etienne Toussaint

The recent findings of an international trial monitoring panel in the case of United States v. Donziger reveal the failure of a New York court to ensure a fair trial in accordance with international law and human rights standards. As the panel concluded in their extensive report, critical changes are needed in laws, rules, and courtroom procedures to ensure that the methods of US federal courts match their longstanding mission to uphold the rule of law.

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In September 2020, an international group of legal academics and practitioners (which include the writers of this article) convened to examine how American courts are implementing the international legal obligations of the United States. Developed in response to the intense international scrutiny of the administration of justice in the United States after the May 2020 police killing of an unarmed Black man, George Floyd – an injustice that sparked world-wide outrage about the violent policing of Black people, Indigenous Peoples, and other racial and ethnic minorities – the panel sought to identify violations of international law commitments in the United States with an eye toward both accountability and reform.

The panel launched its initiative by accepting a September 2020 request to monitor the trial of New York lawyer, Steven Donziger. Mr. Donziger had been charged with criminal contempt in 2019 based on his legal representation of Ecuadorian Indigenous and community groups in a decades-long and high profile environmental lawsuit against the American multinational energy corporation, Chevron. The maximum available sentence for Mr. Donziger’s contempt charge was six months of imprisonment. However, when the panel launched its investigation, the defendant had already been in pre-trial home confinement with an ankle monitor for more than one year.

The panel used internationally recognized trial monitoring standards to compare the process and outcome of Mr. Donziger’s legal proceedings with international laws binding on the United States. After monitoring the Donziger proceedings for more than 18 months, the panel released its 55-page report of findings on 24 January 2022 under the name of “International Monitoring Panels to Evaluate Trials in the United States” (IMPETUS).

Based on its extensive investigation, IMPETUS concluded that the US courts and prosecutors involved in the Dongizer criminal proceedings fell disturbingly short of international fair trial standards. This determination was particularly troubling because the United States has not only ratified the International Covenant on Civil and Political Rights (ICCPR), but the US constitutional and rule of law also evoke the fundamental principles of the ICCPR.

The Donziger proceedings resulted in more than two years of pre-trial home confinement for Mr. Donziger, plus a six-month prison sentence. After assessing the process leading to this result, IMPETUS identified critical failures that obstructed the administration of justice, including the lack of an independent and impartial tribunal, the lack of equality of justice, and denial of the presumption of innocence. These findings are summarized below along with the panel’s recommendations.

On 24 January 2022, IMPETUS transmitted its report and recommendations to the parties litigating Mr. Donziger’s case, the US District Court of the Southern District of New York, the US Department of Justice, the Federal Judicial Center, and the American Bar Association Center for Human Rights. It remains to be seen how this report will be received and whether its recommendations will be implemented.

Background of the Donziger case

The following background summary is drawn from the executive summary of the IMPETUS report:

(Steven Donziger)

The criminal contempt charges against Steven Donziger arose in the context of his work as a lawyer representing Indigenous Peoples and local communities in Ecuador beginning in 1993. In February 2011, a court in Ecuador awarded Mr. Donziger’s clients a US$19 billion judgment against Chevron for damages and clean-up costs related to pollution of the environment and communities in the Ecuadorian Amazon by Chevron’s predecessor company, Texaco. Ecuador’s Supreme Court upheld the judgment in 2013, but reduced the award to US$9.5 billion for clean-up costs.

In February 2011, Chevron commenced an action in the US Federal Court against Mr. Donziger under the Racketeer Influenced and Corrupt Organizations Act (RICO) claiming that the Ecuadorian judgement had been obtained by fraud. In 2014, Judge Lewis A. Kaplan issued a civil judgment against Mr. Donziger ordering that the defendants not be allowed to benefit from the Ecuadorian judgement. Mr. Donziger was unsuccessful in his appeal to have the RICO decision overturned.

The criminal contempt case against Mr. Donziger is an extension of the civil RICO case of Chevron Corp. v. Donziger, 11-CV-691 (SDNY), over which Judge Kaplan continues to preside for post-judgement discovery and enforcement purposes. On 30 July 2019, Judge Kaplan charged Mr. Donziger with six counts of criminal contempt after civil contempt rulings had failed to secure Mr. Donziger’s compliance with post-judgment discovery orders in the RICO matter. Included were discovery orders to provide documents that Mr. Donziger argued was subject to lawyer-client privilege.

New York federal prosecutors declined to prosecute Mr. Donziger, citing lack of resources. Judge Kaplan then appointed the private law firm of Seward & Kissel LLP to prosecute the criminal contempt charges […]

Judge Kaplan appointed Judge Loretta A. Preska to preside over the criminal contempt case. On 27 July 2021, Judge Preska convicted Mr. Donziger of all six counts of criminal contempt. On 1 October 2021, Judge Preska sentenced Mr. Donziger to six months imprisonment, the maximum available sentence, and denied release pending appeal…

On 10 December 2021, various COVID-19 prevention measures led prison officials to release Steven Donziger to serve the remainder of his six-month sentence under home confinement.

Our finding: Prolonged arbitrary detention of Steven Donziger

After in-person trial observation and review of transcripts of the criminal contempt proceedings, as well as a review of relevant laws and standards, IMPETUS determined unequivocally that Steven Donziger has been subjected to multiple violations of his internationally protected human rights, resulting in prolonged arbitrary detention. In this finding, IMPETUS independently reached conclusions similar to those of the UN Working Group on Arbitrary Detention in its opinion issued 1 October 2021.

Appearance of judicial bias: Appointment of trial judge and special prosecutor

IMPETUS found an appearance of bias in the appointment of the judge and prosecutor. This resulted from a “confluence of multiple roles taken by Judge Kaplan” who “presided over all the underlying litigation, laid the criminal contempt charges, appointed the special prosecutor, appointed Judge Preska to hear the charges, and retains conduct over enforcement proceedings in the underlying RICO case.”

Judge Kaplan appropriately decided not to try the criminal contempt charges himself. However, he bypassed court rules providing for the random selection of trial judges and directly appointed Judge Preska to preside over the trial. While Judge Kaplan’s appointment of Judge Preska did not violate any rule per se, this decision gave rise to defence challenges to Judge Preska’s independence and impartiality, which she dismissed. In response to the challenge, Judge Preska argued that the rule’s stated purpose is case management, and therefore does not “vest any rights in litigants or their attorneys.”

The IMPETUS report notes that this case management rule “contains no language affirming the obligation to ensure actual or perceived independence and impartiality of judicial assignments”, but further clarifies that this omission “does not obviate the mandate for the court to ensure that any judges who are appointed are, and are seen to be, impartial and independent.”

Judge Kaplan’s appointment of the special prosecutor also attracted defence criticism. The New York public prosecutor declined Judge Kaplan’s request to prosecute, citing a lack of resources. Judge Kaplan then appointed a special prosecutor in compliance with Rule 42 of the Federal Rules of Criminal Procedure. Specifically, Judge Kaplan appointed the law firm of Seward & Kissel LLP (Seward). It was later discovered that Seward had ties to Chevron. It remains unknown whether Judge Kaplan inquired about potential conflicts prior to the appointment.

Furthermore, Judge Preska dismissed defence arguments that the appointment provided a conflict of interest, stating that the volume of the Seward law firm’s work for Chevron “was de minimis…less than 0.1% of Seward’s annual revenue.” Seward’s work for Chevron included legal opinions for Chevron affiliates, but the special prosecutor asserted that privilege precluded disclosure of the nature of this work.

The IMPETUS panel concluded that the circumstances of Judge Kaplan’s appointment of Judge Preska and the special prosecutor created an appearance of bias. As discussed in the IMPETUS report, this appearance of bias could have been avoided by utilizing a random judicial appointment and by taking effective measures to ensure that the appointed special prosecutors had no prior connections to Chevron whatsoever.

IMPETUS further noted that this concern “might have been ameliorated or allayed by the exercise of strict judicial impartiality on the part of Judge Preska from the outset of her involvement in the case.” However, throughout the pre-trial proceedings and trial, Judge Preska demonstrated an appearance of bias giving “latitude and deference to the prosecutor without equally ensuring full and respectful attention to defence counsel’s submissions and cross-examination.”

Inequality

The IMPETUS panel also discovered extreme inequality in the Donziger case. The court record indicates an extraordinarily high level of resources available to the special prosecutors, far higher than would be expected in a public prosecution of a misdemeanour. Furthermore, the special prosecutors have billed the government hundreds of thousands of dollars in fees and have spent hundreds of hours with Chevron lawyers preparing for trial. The special prosecutors stated that much of the time expended was attributable to the need to prepare for numerous defence applications.

By contrast, the record indicates that Mr. Donziger has relied on pro bono lawyers; he has stated that his own resources were exhausted by Chevron’s civil litigation against the Ecuador court award.

Alongside the inequity in resources, the IMPETUS panel observed that the special prosecutors’ behaviour during the proceedings was “more in keeping with the zealousness partisan counsel against Mr. Donziger than that of an impartial, disinterested prosecutor” required by international and US legal standards.

The IMPETUS panel was unable to ascertain whether there is any oversight body or mechanism to hold special prosecutors accountable to uphold fair prosecution standards, other than judicial oversight during the case they are prosecuting.

Judge Preska allowed the inequality between the special prosecutors and the defence to persist unchecked. Indeed, she often appeared to join sides with the prosecutor. During pre-trial defence motions, Judge Preska accused Mr. Donziger of engaging in “machinations” and “manipulations” when seeking to adjourn the trial. The IMPETUS panel’s examination of the record led to a different conclusion – that the trial delays resulted from a combination of factors related to COVID-19 restrictions and the defendant’s requests for adjournments to ensure the availability of pro bono counsel. The ICCPR guarantees the right of every criminal defendant to have “adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing.”

IMPETUS recommended that relevant US authorities implement measures to ensure “that special prosecutors are accountable to uphold the same rules, guidelines, standards, oversight, and budgetary restraints applicable to public prosecutors in like cases.”

Denial of the presumption of innocence leading to prolonged arbitrary detention

The most concerning findings of the IMPETUS investigation relate to Mr. Donziger’s pre-trial home confinement for 25 months on misdemeanour charges attracting a maximum six-month sentence. While this appeared to be prima facie unreasonable, the IMPETUS panel examined the record to test for reasonableness and compliance with international pre-trial release standards.

Specifically, IMPETUS applied the ICCPR, Article 9.3, as interpreted by the UN Human Rights Committee. In 1990, the Committee stated that pre-trial detention “must be based on an individualized determination that it is reasonable and necessary taking into account all the circumstances, for such purposes as to prevent flight, interference with evidence or the recurrence of crime.”

The judge imposed home confinement with an ankle monitor on Mr. Donziger based on a finding that he was a flight risk. The IMPETUS panel’s examination of the record indicated that this finding was based not on evidence but on speculation that Mr. Donziger had contacts in Ecuador who were politically active (report pages 47-51). The IMPETUS report stated that at pre-trial release hearings:

Judge Preska accepted the special prosecutor’s assertions of flight risk that had little or no basis in evidence and were contradicted by the defendant’s evidence of lack of motivation to flee or means to cross multiple borders with no passport. Mr. Donziger was required to surrender his travel documents and was subject to a Personal Recognizance Bond of $800,000. Home confinement with an ankle bracelet was made unnecessary by these other conditions.

Neither the special prosecutor nor Judge Preska appeared to recognize that under both international and US law the prosecutor retains the onus to prove flight risk based on the preponderance of the evidence, and that restrictions on liberty must be the least restrictive means possible to ensure attendance at trial. IMPETUS concluded that the pre-trial confinement of Mr. Donziger “did not serve the purpose of prevention of flight; rather it appears to have been punitive in nature and purpose.” The unjustified or punitive use of pre-trial detention is a manifest and serious violation of legal obligations under both international and domestic law.

The IMPETUS report expressed further concern that at sentencing Judge Preska did not appear to consider the defendant’s 25 months of home confinement when sentencing him to the maximum available punishment, six months of imprisonment. The IMPETUS panel recommended changes in law to ensure that convicted persons cannot be sentenced to punishment that fails to consider and give the convicted person credit for all forms of de jure and de facto pretrial confinement.  

Arbitrary application of laws towards seeming predetermined conclusions

The violations of the presumption of innocence were particularly disturbing given the IMPETUS panel’s observation that “the judges, special prosecutors and defence counsel are all highly skilled and knowledgeable of the domestic law, rules, and technical procedural requirements.”

The Donziger proceedings reveal that several US laws or rules may be arbitrarily applied in ways that side-step fair trial principles. Time and time again, when a procedural rule was capable of being deployed against the defendant, “the special prosecutor and judges did so.”

IMPETUS recommended that relevant authorities review and amend “laws, rules, decrees, and policies to prevent arbitrary applications that side-step or violate fundamental norms and principles of international human rights law and standards related to the administration of justice, including independence and impartiality of judges and prosecutors and fair trial principles.”

The relevance of international law in US courts

International law is an important interpretive tool for US courts to ensure that any ambiguity in US domestic laws is resolved in favour of US international obligations. US case law confirms that a statute “ought never to be construed to violate the laws of nations if any other possible construction remains” (Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804)).

Despite this well-established principle, the IMPETUS panel noted with concern that “the proceedings were conducted without reference, formal acknowledgement, or deference either to international human rights law or the US Constitutional guarantees of an independent and impartial tribunal or the fundamental principle of equality before the law guaranteed by the ICCPR.” IMPETUS recommended that appropriate bodies ensure that US judges and lawyers “have education in international human rights law and standards binding on the US, in particular with regard to criminal proceedings.”

Rule of law vs “rule by law”

The rule of law is the cornerstone of international human rights laws, norms, and standards, which include fair trial rights. The Universal Declaration of Human Rights (UDHR) affirms that “…it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”

In the Donziger case, the “rule of law” appeared to be interpreted by Judge Preska as a duty on the defendant to obey the law without acknowledgment that the rule of law is primarily intended to limit arbitrary actions of authorities.

The UN defines the rule of law as:

a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency.

The rule of law is distinguished from “rule by law”, which refers to the arbitrary application of laws, rules, or decrees in ways that violate fundamental principles of international human rights laws, norms, and standards. The IMPETUS panel found it inescapable to conclude that the judges involved in the Donziger case, “consistently interpreted and applied laws and rules in ways that gave a ‘rule by law’ air of legitimacy to proceedings that aimed toward seemingly predetermined conclusions while disregarding fundamental principles of the rule of law.

The findings in the Donziger case lead IMPETUS to conclude that continued international trial monitoring of selected US cases is necessary and urgent to shed further light on questions of US compliance with international human rights law, including the multilateral human rights obligations of the ICCPR, which has been ratified by 173 countries around the world. The need to focus on cases involving people from groups that face discrimination is urgent, including Indigenous Peoples, Black people, racial and ethnic minorities, and those who represent them.

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Catherine Morris, J.D., LL.M., is the UN Representative of Lawyers’ Rights Watch Canada. Stephen Rapp, J.D., United States Ambassador-at-Large (ret.), who headed the Office of Global Criminal Justice in the US State Department (2009-2015). Etienne C. Toussaint, M.S.E., J.D., LL.M., is an Assistant Professor of Law at the University of South Carolina School of Law.

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