The Judge: Corruption Charges Hit the Courts

We left off last time with each side accusing the other of bribing Ecuadorian judge Alberto Ghera, and we're going to get back to the end of that story today, I promise. But first we need to talk about another judge, the American Lewis A Caplan, Senior District court judge in the Southern District of New York. Caplan approved Chevron's various subpoenas prior to the RICO being filed. He oversaw the rico trial itself, and he's the judge behind Stephen Donziger's

Ecuador's Supreme Court validated the judgment and said, yep, they always used nine billion dollars. And Chevron basically gave him the finger and said, you know, pulled all their assets out of Ecuador. I was like, oh, no one here for you to take. And so then, you know, the way the legal system works is you can go to other countries where assets exist and ask that country to

To those proceedings.

And most states in the US shoot him away and said that's that's not real. But when they got to Judge Kaplan's court in the Southern District of New York, you know, he's a former tobacco lobbyist, and so Chevron realized they had a friend in that courtroom on this like minor proceeding. And then while they were in that minor proceeding, it was Kaplin that said, you know, this sounds like a RICO case.

Kaplan has denied this. He says Chevron already made its intention to file a RICO claim known before he made these comments. Donziger and the Logo Ugriel plaintiffs have accused Kaplan of bias against them on other fronts too. Here's Donald Moncayo. You might remember him from earlier episodes. He's the guy who used to lead people on tours of the toxic pits in the Amazon. Moncayo came to New York to testify in the Rico case.

Yes, Paramil, who is corpor mas l.

He says for me, Caplin was a corporate judge, the most racist judge I've ever seen. We've heard stuff like this from quite a few Ecuadorians and their lawyers. They've told us that Caplin didn't really understand Spanish, that he didn't grasp Ecuadorian law or the differences between Ecuadorian law and US law, and that he was just generally dismissive of the Ecuadorians. We're going to dig into whether and how that played out in the Rigo trial right after

Judge Caplin likes to run a very tight ship, as many federal judges do, and he was not amused by activism, and he certainly was not amused by Stephen's attempt to be both an activist and a lawyer. In fact, he appeared to be sort of insulted by lawyers who went beyond just being an advocate and actually being an activist. So, remember, all of the underlying facts of the case was Stephen and many activists groups attempts to get the word out about what was happening in the Amazon, and.

So for a lawyer to sort of cross those lines and attend protests.

And be a part of an activism movement appeared to upset and anger Judge Caplan.

Little Page says even the logistics of the courtroom favored Chevron.

Judge Caplan gave Chevron half of the room, so they had five or six rows of benches. Then he gave the media every other seat except for one row, which seats about six or seven people, so that was all we were allowed to bring in on our triality was six or seven people because they couldn't sit. He also gave Chevron a jury room for all their extra lawyers who couldn't fit in their five or six rows, and

Who were working for us.

So in the mornings we would be lined up in this very long line. We had to get there very early, and it was in October November, so it was cold,

They would get out.

And go straight into the courtroom, So we would have been in line for forty five minutes when they would arrive and go straight through.

Julio Gomez is the attorney for the Ecuadorians named as defendants in the Rico case. He says he also saw examples of this, particularly with respect to how stacked the case was in favor of Chevron, simply by virtue of Chevron having the budget to put what Gomez, Little Page, and Donziger all described as a quote unquote army of lawyers on this case.

For example, one of the things we wanted to do in our case is to have live testimony. In any usual case, you have a witness get on the stand and they give what's they direct examination. Their attorney questions them, what happened to you, what did you see, what did you observe, et cetera, and then the other side cross examines you live. That's the way most trials are conducted in the United States. In New York, in this particular, trial. New York has this practice where, well, you know, that

That's crazy.

Yeah, that's just impossible. I would have much preferred having them testify live, because not only do they have to tell their story properly, and some witnesses, no matter how well you prepare them, are going to screw up when they give their testimony in court.

That would have benefited us.

But more importantly, we would have heard the testimony in real time and had time to react to it slowly, as opposed to being bombarded with all of the testimony at once and then being required to prepare to go in and cross examine and everybody in the next week.

Guma says he actually asked Caplan to space out the testimony, have live testimony and live cross examinations, but to no avail.

We made repeated appeals to Kaplan that take into account our life act of resources to develop procedures for the trial that could counteract the prejudice that these procedures would cause on the plaintiffs, on Steven Donziger, and on the Ecuadorian plaintiffs. And I don't remember any instance when the court made those kinds of accommodations to us. Judge says, no,

The mismatch of resources is something that came up a lot when we started digging into the Rico case. A couple episodes back, filmmaker Joe Berlinger said something about how we have a justice system where deep pockets prevail. Gomez said something very similar about the Rico trial.

What would it take to mount the challenge to that another oil company. The people don't understand the incredible, incredible inequity in our legal system to finances. Know, if you have the money, you can right the most incredibly prepared, beautifully articulated briefs. You can hire the best investigators. You can look under every stone, you can hire the best experts with the best credentials. I mean, you can, whether whether you're on the right or on the side of wrong,

That mismatch started to come into play more and more as the case wore on. It showed up in a lot of different ways, like the number and length of motions that Chevron filed.

You know, you could work on this case twenty four hours a day, not sleep, not eat, not spend time with your family, not spend time working on other cases to earn a living, and you wouldn't have enough time to do everything that a thousand attorneys on the other side were doing or piling on you to do, because Chevron would file every type of motion they could at every single instance they did it. That was just it was insane.

On top of what was happening in court, Chevron had attorneys working the case out of the courts too.

Chevron plays dirty by putting pressure on pieces of the strategy that would benefit them. So, for example, they went after the Ecuadorians had hired an environmental engineering firm to do the analysis in Ecuador, and Chevron was making arguments that those analyzes were not only unreliable, they were being ghosts written by this firm for the other experts in Ecuador. One of the things that Chevron did was to put you know, that's an environmental engineering firm. It's a business

Gumez is talking about Stratus, the environmental engineering firm that worked on the Cabrera Report. Now, remember the Cabrera Report is something we've about quite a bit. It's this report that the Damage's assessment was initially based on in Ecuador. Mastro says Donziger and the Ecuadorians were far too involved in what was supposed to be an independent report and that Stratus should not have been writing any part of it. Donziger says it was all perfectly legal within Ecuadorian law.

When you are the victim of a fraud.

And as an extortion scheme, as Chevron believed it was.

It took.

Tenacity and conviction and perseverance and principle to stand up to the fraud, so that Chevron asserted every form that would listen that this is what we believe happened here and it was wrong.

And then for Chevron to prove it.

I mean, I I.

Think that Chevron not only had every right to do that, I think.

It's it speaks volumes about you know, Chevron on behalf of its shareholders and stakeholders.

I'm doing the right thing and not being m hm.

Pressured or or holding back in the face of what I believed to be a fraud and mix extortion scheme than not paying tribute to anyone involved in that fraud or extortion scheme.

Two years after his original deposition, Stratus VP Douglas Beltman recanted his testimony. In that recantation, Beltman notes that he and colleague and Macet wrote the Cabrera Report with no interaction with Cabrera. He also notes repeatedly that they were never directed to try to separate Petro Ecuador's responsibilities from Texico's, which became Chevron's, and that they were instructed by Donziger to use a contamination standard that would increase the cost

They convinced that firm or forced that firm, in my opinion, to switch sides and turn against the Ecuadorian plaintifs who were their clients.

Gomez and little Page made this argument in court as well, but Kaplan wasn't having it. We asked Donziger about Beltman's recantation too, because he looms large in it as the person directing Beltman's work.

Douglas Beltman. That just makes me weep and hurt. Doug was one of our scientific experts, a wonderful man of high integrity and intelligence and skill. And Chevron just I think they just destroyed his life. I mean, they named

My co reporter on this season, Karen Savage found Doug Beltman. He's retired now and can't talk publicly about the case because he signed various agreements with Chevron that prohibit it. He said he wished he could talk to us, but he couldn't, and he sounded pretty scared to attract any

Okay, so one of the things that I saw is a guy named Joseph Cohne, Yeah, testified against you, said you obtained millions of dollars in litigation funding and didn't keep him in the loop basically and misrepresented what was going on.

Tell us more about that.

Joe Cone is a prominent lawyer in Philly. His law firm funded most of the case. They funded my work on the case. For the most part, we worked well together. He's a good, solid lawyer. When Chevron started to make these allegations that the Cabrera report was done wrongly or fraudulently, and then they filed the Rico case, Joe got extremely nervous.

The people who could have easily abandoned Donziger and didn't were the Ecuadorians. The US courts really had no jurisdiction over them. That's true in general, but in this case in particular. Keep in mind that Chevron had argued itself about a decade ago that the New York courts had no jurisdiction over what had happened in Ecuador. Here's their attorney, who you'll Gomez again.

Looking back to take the position that this case cannot return to New York at all, and that the defend that the Ecuadorian plaintiffs should simply default entirely and not do absolutely anything and completely protest the return of this case to New York. If I had it to do over again, that's probably the card that I would play.

Participate in it.

I think if I had it to do over, I would advise my client to do that, to completely protest the trial. And and that's it. And unfortunately Stephen didn't have that option because Stephen lives in New York and he's subject to the jurisdiction of the court and he has to defend the case. But my clients did have that option, and that was not a card we chose to play.

According to Donziger's lawyer in the Rico case, the Little Page, Judge Kaplan focused on two key issues in the case, the Cabrera report and the allegation that the judgment itself had been ghostwritten.

It was very clear Judge Kaplin was really focused on the bribery, and so a lot of a lot of the stuff that had happened in the underlying case, and a lot of the disquiet that the tribesmen had about the way Chevron had handled the case and some of the sort of dirty tricks Chevron had played in Ecuador with the underlying case was not allowed into evidence. We were not allowed to explore any of those prior issues. And Judge Caplin's ruling was it was just wasn't relevant.

We've covered the Cabrera report at length, but the bribery little pages referring to there brings us back to the Gerra story. We heard last time from Chevron's attorney Randy Mastro that Ghera had been part of the conspiracy with Donziger and the Ecuadorians and then flipped on the Lago Agrio plaintiffs testifying against them. Here's Mastro again.

There were actually multiple witnesses in Ecuador and in the United States who'd been working with the plaintiffs team who flipped during the case. I'm a former federal prosecutor and I don't use that term lightly. They were part of the conspiracy, or they refused to be a part of the conspiracy, and they later gave testimony against Donziger and his allies about the conspiracy that they were perpetrating.

Alpert Toquera wasn't.

The only one, and he gave very powerful testimony at the trial, and he ended its testimony by saying, I know I did bad things. In words or substance, he said, I know I did bad things. I regret that I did bad things, but I'm telling the truth today.

But Gara's testimony changed in a couple of instances, and the story took some wild turns. We asked Little Page to walk us through it.

Well, it was shocking, you know, we knew coming in that Chevron had gone and recruited and paid cash in a Duffel bag to a judge who had been essentially disbarred in Ecuador for corruption and fraud. And you know, as an American lawyer, I just assumed that that sort of what sounded like a story like a movie plot

Give him bonuses of cash. If he came forward with more and more.

Supposed facts that he had just remembered, he would get a bull everything he had just remembered.

So that was an incredible concept.

Gumez was also blown away by this.

Given what Gara was allowed to testify about, and given the fact that the court chose to believe some aspects of his testimony and disregard other aspects of his testimony. I don't know that another witness would have made the difference if the court's willing to cherry pick testimony like that, and you know, the court had reasons to do it, and the court has every prerogative to do it. Judges

Little Page says it was clear from investigations of Gara and his leader testimony that he was regularly adding more supposed evidence to his story to get more money out of Chevron. Transcripts of his testimony back this up.

The first time he met with Chevron, Judge Ghara had, first of all, with every conversation with Chevron, it was always about how much money Gara could get, always, so every conversation, and they were recording these conversations, we were actually able to see them. You could see in his conversations that he was every single time. It was how much am I going to get? But just listen to

He said very specific facts.

He said he met Judge Sembrano at the Keito airport, because Judge Ghara lived in Quito, not in the Frontira, not where the actual case was happening. So he said Sombrano had been at the Keto airport. He went to the Quito airport. Judge Sombrano handed him the draft verdict on a flash drive, and his understanding was this flash drive was coming from the plaintiffs lawyers, from Stephen Donzinger and the other Ecuadorian lawyers. He took that flash drive home to his house in Quito, where he put it

And of course he sold off his.

Multi year old computer to them and they put a forensic team on it, and there was absolutely no evidence of the verdict being on Judge Gara's home computer none. So then they bought from him every jump drive he could find, every jump drive in his house, and they found no evidence of the verdict.

So when they came back to him and said, you know, look, this is kind of disappointing.

We don't have any support for what you've been telling us, he said, oh no, now I remember, ah, I went by bus all the way to Lago Agrim. I actually, now remember I got on a bus and I drove hour after hour after hour all the way to Lago Agriam. When I got there, I went to Judge Sombrano's apartment and I stayed with.

Him over the weekend.

Now, the first story said he never sold so Brono over the weekend here now he's staying at Judge Sombrano's house. He worked on it on a laptop that Judge Sombrano gave him that he believed belonged to one of the Ecuadorian plain his lawyers, and that's why he couldn't produce it.

Because it wasn't his, it belonged to someone else. He didn't put it on a jump drive. He worked on it on the computer. He left it on the computer.

He had dinner together with Judge Sombrano in the evenings, and that's how.

The verdict came about.

Well, I mean, those stories are so completely different that that witness under any rule of law would have zero credibility, I mean just zero credibility. And even more amazing, there had been an article in the Quito newspaper about a judge being busted for having a plaintive's lawyer give him a proposed verdict on a jump drive that he then put into his computer, changed a couple of the words and printed it anditied it.

As his own. And the jump drive had been found.

So here we have a man that we know right in the news about verdicts on jump drives came to Chevron with a story about working on this verdict on a jump drive that Judge Sombrano gave him at the airport in Quito, and when he could support none of that, he made up a whole new story about traveling by bus across the country into the Frontierra to Lago Agria to live at Judge Sombrano's house while he typed up this verdict on a different computer.

Completely. So it was so comical.

I mean, when I first got into the case, Rick Friedman had asked me if I would handle Judge Ghira, the cross examination of Judge Gehra and that sort of whole timeline. And when I started reading it and I saw, you know, Chevron was recording their conversations with Judge Gira, and he would say things like how much gold do you have for me?

The best story brings the best gold.

Just incredible things on these tapes, and I thought, okay, this is a right. I mean, no American court would allow this person to even come testify. I mean, they are the epitome of perjuring witness. And then the amount of money that had been paid to this fact witness was so absurd, and yet none of that counted.

It's true. Ultimately none of it counted. Judge Kaplan ruled against Donzenger and the Ecuadorians throughout the case and eventually did find them guilty of fraud. His ruling barred them from collecting the Ecuadorian judgment in the US. That verdict came down in twenty fourteen. But that wasn't the end of this story either. Next time on Drilled.

And Gerta and Carmen gave kind of like a warning about what they had gone through. You know that it's like to come to pass once again now that this RICO precedent has been set, And indeed that's what happened.

Drilled is an original production of the Critical Frequency podcast Network. The show was created, reported, and written by me Amy Westervelt. My co reporter this season is Karen Savage. Our editor is Julia Ritchie. The show's editorial consultant is Rika Murphy. Mixing and mastering by Mark Bush, original score by b Beeman, fact checking by Dan Yan. Our artwork for this season was done by the super talented Matt Fleming. Special thanks to Trevor Gowan and Emily Gertz. If you are a