In March twenty fourteen, Judge Lewis A. Caplan issued a nearly five hundred page ruling against Donziger and the Lago Augerdo plaintiffs, blocking the collection of the nine billion dollar Ecuadorian judgment in the US. Judge Caplan cites in the summary of his ruling the Cabrera Report, crude outtakes and
Gera's testimony. He writes that among the various objectives of Donziger's pr campaign has been an effort to quote shift the focus from the fraud on Chevron and the Lago Augrio court to the environmental harm that Donziger and the Lago Augda plaintiff's claim was done in the Oriente. There's an accent on that last e in Oriente in Judge
Caplan's summary. That's a mistake, which is unford given how many of the Ecuadorians we spoke with accused Caplin of being racist and or too ignorant about their country, its laws, and its language to oversee this case. But the sentiment that Caplin expresses here is also really interesting. How dare you shift the focus from the fraud committed against a company to the damage inflicted on a community, Caplan says,
we shouldn't be quote unquote distracted by the pollution. Then he writes, quote the court assumes that there is pollution in the Oriente. On that assumption, Texaco and perhaps even Chevron, though it never drilled for oil in Ecuador, might bear some responsibility. And yeah, the accent mistake is there on Oriente. Throughout this ruling, Caplin continues, quote. In any case, improvement of conditions for the residents of the Oriente appears to
be both desirable and overdue. But the defendant's effort to change the subject to the Oriente, understandable as it is as a tactic, misses the point of this case. The issue here is not what happened in the Odiente more than twenty years ago, and who, if anyone now, is responsible for the wrongs then done. It instead is whether a court decision was procured by corrupt means, regardless of
whether the cause was just. An innocent defendant is no more entitled to submit false evidence, to co opt and pay off a court appointed expert, or to coerce or bribe a judge or jury than a guilty one. So even if Donziger and his clients had a just cause, and the court expresses no opinion on that they were not entitled to corrupt the process to achieve their goal. Justice is not served by inflicting injustice. The ends do
not justify the means. This passage has really stuck with me throughout this season and it raises some really big questions that we're going to spend these last two episodes grappling with what is justice? Where is the line between the law and morality? Are there ends that justify means? And if so, what kind of means? Welcome back to Drill Season five, La Lucha Mangla. I'm Amy Westervelt and this is episode ten, The Kill Step. We're going to dig into what happened after the Rico judgment and all
these messy questions. Right after this quick break, I want to tell you about one of my personal favorite podcasts.
It's called Behind the Bastards. You'll see why I love it. I want to explain what it is. Behind the Bastards as a twice weekly podcast series from Robert Evans and iHeartRadio that looks behind the bad guys in history. There's a reason the History Channel has produced hundreds of documentaries about Hitler, but only a few about Dwight D. Eisenhower.
Bad guys and gals are eternally fascinating. Behind the Bastards dives in past the cliffs notes of the worst humans in history and exposes the bizarre realities of their lives. Listeners will learn about the young adult novels that helped Hitler form his monstrous ideology, the founder of Blackwater's insane quest to build his own air force, the bizarre lives of the sons and daughters of dictators, and Saddam Hussein's
side career as a trashy romance novelist. Host Robert Evans has worked as a conflict journalist in Iraq, Ukraine, and Syria. He has covered political unrest and violence across the United States since twenty sixteen. He also hosts several other popular iHeartRadio podcast the Women's War, It Could Happen Here and Worst Here Ever episodes throughout every Tuesday and Thursday. Listen to Behind the Bastards on the iHeartRadio app or wherever you get your podcasts.
In the wake of its winds against Nicaraguan farmers on Behalf of Dole and against the Ecuadorians on behalf of Chevron. Gibson Dunn began referring to its approach on these cases, using the US court system to declare a foreign judgment fraudulent as the quote unquote kill step. It was sold as an effective way to keep multinational corporations out of trouble abroad and has this sort of scorched earth, winner,
take all, fight to the death feel about it. As soon as the Rico verdict came down, Donziger and his appeals lawyer, Dipa Kupta began working on an appeal. Just as a reminder, we interviewed Donziger while he was on house arrest this summer. He still is, and he would often hang his head out the window while we were talking, so if you hear some wind or background noise.
That's why we've contested the evidence every step of the way. I mean, I've always proclaimed that this evidence was false. However, and this is the rub on appeal. You can contest facts, or you can contest law. But under the US appellate system, it's usually futile to contest facts because they're almost never overturned. The appellate judges don't like to revisit factual determinations by
a trial judge. So, given that Caplin had written five hundred pages and there were dozens and dozens of findings, we would have easily used up our entire allotment of pages on the appellate brief, you know, formally disputing every single one of his hundred findings.
Instead, Gupta decided to focus on the entire application of RICO to this case as inappropriate.
So we chose to focus on that, but we contested the facts every step of the way. We just didn't formally ask for Kaplan to be overturned on the facts.
After the appeal had been filed, while the court was deliberating, Garrett testified in front of the Arbitral Tribunal and admitting to having lied in a few instances during his RICO testimony.
So when Gara admitted lying during the pendency of the appeal of Caplan's decision, we immediately took this new information, as evidenced by a transcript, and we submitted it to the Federal Appellate Court to add to the record so they could consider it because it was cut to the core of one of our main arguments.
What Donziger's lawyer had argued in the appeal was in part that a lot of the justification for bringing the Rico suit in the first place had come from this corrupt witness, which should never have been allowed.
They totally ignored it, They didn't even mention it in their decision, and they completely affirmed Judge Kaplan without reviewing any of his factual findings or his credibility findings of this obviously corrupt line witness.
The second Circuit affirmed Captain's ruling in the Rico suit, and that carried a lot of weight. Here's what Melissa Simms, who gave us a primer on Rico earlier this season, said about.
It from a legal standpoint. There was a judgment, and the Court of Appeals, you know, affirmed the decision, so you know it is what it is. It's final.
On top of what that meant for Donziger and the Lago Agrio plaintiffs that they would not be able to collect the judgment in the US and might also struggle in other courts around the world, it also set a new precedent in a few different ways.
To me, the biggest thing is how much the Rico case has completely obscured who they are and what they're doing.
Lindsay O Fries is an anthropologist and documentary filmmaker who's been studying the affected people in Ecuador since two thousand and five.
The people who have been fighting in Ecuador and the actual reality of the oil disaster have been completely obscured from view, at least in the United States in other powerful countries.
Ofrias is working on a documentary about how rico has been used against activists in recent years.
I think it's important also to note that when we talk about the Ecuadorian plaintiffs, they're not just people who are involved in a legal battle. They're doing all kinds of things. And so two of those people in Bertolpio Guaffe and Carmen Zambrano, I went with them to Standing Rock in twenty sixteen. Part of the idea was for coalition building and also trying to think about what is possible outside or beyond this whole vortex of the law
that kind of sucks everything into it. And so something that I will always remember is that around the fire went evening where you know, everybody would come and sit around the fire and share stories, and Berto and Carmen gave kind of like a warning about what they had gone through, and you know that it was likely to come to pass once again now that this RICO precedent
has been set, And indeed that's what happened. And we can see so many many cases in which the RICO law has morphed from its original intention of targeting the mafia and white collar criminals to silencing protests to trying to quell particular forms of political organizing.
Julio Gomez, the attorney who represented the Ecuadorian plaintiffs in the RICO, also said the case stands as something of a warning to attorneys who would take on a big multinational corporation like Chevron.
If you will try to get involved in a case like this or against another oil company, and you do any research, I mean, the amount of information available online about the history of this case and the damage it has caused, the attorneys who have worked on it everywhere. So anyone who's contemplating doing something like this and begins to read about how difficult it is, I mean, even hearing probably my own positions in this in this interview, that certainly is not going to motivate people to take
on these kinds of cases. It's yeah, it's it creates an enormous chilling effect, and that's again more of the disadvantage for people who trying to see justice.
According to Sims, there has also been a surprise silver lining for some plaintiffs attorneys.
Well, you know, I've been watching it since its inception just because I felt so badly for the people in Ecuador who face this environmental disaster, and so it's fascinating watching it unfold, and I think, the Lord, I'm not part of it at this point in time, but we have a lot that we're learning from it. Plus we have a lot of information that we're going to be able to utilize and our cases going forth. So one of the things that we're doing is a plane of
spar is. We're actually exercising the rights of these people internationally to sue in the United States, because what we're finding is that when we tell the courts how difficult it is for these people to get compensation for their conduct, and then we show what Chevron has done, how they have been defending this judgment in the United States, and how hard it is, that actually helps us in our cases to prove that we have jurisdiction here in the United States.
Meanwhile, the Equadorian plaintiffs are still trying to collect this judgment elsewhere in the world. Donziger was working on the case up in Canada when his recent troubles began. Chevron asked Kaplan to file civil contempt charges against Donziger because of his work. But before that, Donziger faced another challenge.
I'm a member of two different state bars, one in New York and one in Washington, d c H. So you know, the first inkling.
I got that the bar licensing process was going to be used against me to try to disbar me was a letter I received from the organization in the District of Columbia that licenses lawyers.
Donziger says he remembers this letter vividly. Basically, it said that they had heard about the Reco decision and were concerned and wanted to hear his side.
So they didn't do anything. And a few months later I got a similar letter, more hostile in tone, from the New York Bar Manhattan Grievance Committee, that's the group in New York City that monitors lawyers, and they asked me similar questions, but the big difference was the referral to the New York Grievance Committee came from several judges on the federal bench who worked with Judge Kaplan on the same court.
The letter argued that Donziger was a threat to the public and should be immediately disbarred without a hearing. In July twenty eighteen, he was suspended from practicing law.
I mean, I had my law license suspended without a hearing. So let's go back in the Rico case. I was denied a jury. Fast forward to my bar licensing procedure, and they concoct this idea that I can't get a hearing there. And by the way, those hearings are overseen by very establishment lawyers that are appointed by the same committee. So they didn't even want me to have that hearing. So they deny my law life license, suspend it without
a hearing. But under the law, when you get a property interest like a professional license suspended without a hearing, you're entitled under the due process clause of our Constitution to what's called a post suspension hearing.
Donziger got his hearing sort of.
And on that first day, no one knew what to do. It was bizarre, like the hearing was like I don't really know what this hearing is because they're telling me you can't challenge anything, and I'm like, no, I have to be able to challenge. That's the whole point of a post suspension hearing is to allow the hearing that could have taken place before to now happen. And they're like, no, you can't use this to relitigate Caplan's findings, and I'm like, well, then I'm not really getting a hearing.
The hearing officer got briefs from both the Grievance Committee and Donziger about how, why, and whether this hearing should really happen.
You know, the chevron kaplan strategy was to just keep attacking me, distracting me, and if that didn't work, they would just up the annie and upping the animant, locking me up. And it's really scary.
It was in the course of the disbarment proceedings that Donziger was charged with first civil and then criminal contempt. He was put on pre trial house arrest for the criminal contempt charge in August twenty nineteen, and he finally got that bar hearing a month later in September. This part of the story reminds me not only of the whole kill step thing, but also of a quote that's
appeared in multiple stories about this case. In two thousand and nine, Donald Campbell, a spokesman for the company at the time, said this, We're going to fight this until hell freeze is over, and then we'll fight it out on the ice. When his bar hearing happened in September nine, team Donziger had to request permission from the court to leave his apartment. He showed up to the hearing with his ankle bracelet on. Chevron's attorneys came.
To and I found it really creepy that they're there. First of all, they hit in theory should have no interest in what happens to me in a bar proceeding. They're not a party.
Several lawyers spoke on Donziger's behalf, and a few months later, the hearing officer recommended that Donziger keep his law license.
But he doesn't have the power to make the final decision. It goes up to the same court that ordered him not to consider Caplin's findings. Chevron lawyer Randy Mostro was like quoted in the press saying, Oh, this is never going to stand. It's totally going to be overturned. The hearing officer didn't do his job properly.
According to Donziger, in the majority of these sorts of cases, the hearing officer's recommendation usually stands.
But obviously this is a different situation.
Shortly before this season, law And We learned from Donziger that the hearing officer had been overturned. He's been disbarred, he filed an appeal in September, and now he's waiting to hear back from the New York State Court of Appeals. Next time, we're going to attempt to wrap up this complicated story with some final thoughts on the case, how it's been litigated, how it's been covered, and what's happening today in Ecuador. Come back for that. 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 Bbman, fact checking by woodn 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 Patreon subscriber, thank you your money is helping to make this season. And as a special.
Thank you to Patreon members who're providing a variety of benefits, including bonus content and early access to episodes in this season. If that sounds appealing to you, or you just want.
To support our work, go over to patreon dot com, slash drilled and sign up. We also have some merch.
Associated with that. You can find stories, documents, and photos related to this season on our website at drillednews dot com.
That's it for this time, Thanks for listening, and we'll see you next week. I bet him him
H