Private Feds Cash In On Unusual Contempt Case
Above photo: Steven Donziger poses for a photo in Lower Manhattan in 2013. Courthouse News photo/Adam Klasfeld.
Manhattan — With trial still months away, taxpayers have paid more than a quarter-million dollars to a private law firm deputized by a federal judge to convict an environmental attorney of misdemeanors.
That is only one of the many oddities of United States v. Steven Donziger, a criminal contempt case against a lawyer defending a more than $9 billion verdict that he helped Ecuadorean villagers obtain against Chevron for oil contamination in the Amazon rainforest in 2011.
“So — the punchline is: The government has spent $254,930 to date prosecuting a misdemeanor,” Donziger’s attorney Zoe Littlepage summarized in an email to her co-counsel and her client. “There has been 1,001 hours of work done.”
Obtained exclusively by Courthouse News, billing records from Donziger’s unusual criminal prosecution show how much the white-shoe law firm Seward & Kissel has collected since being appointed as the “government” roughly a year ago in lieu of the Department of Justice.
Those bills, for professional services rendered from August 2019 through the end of May this year, have not come with traditional government rates.
The firm already has billed nearly 75 times more than the maximum a court-appointed private criminal defense attorney can collect for defending indigent clients facing misdemeanor allegations, and the private prosecution’s billable hours show no signs of abating.
“DOES ANYONE ELSE FIND THIS UNBELIEVABLE,” Littlepage exclaimed in the email dated Monday.
Spanning nearly three decades and continents, the legal saga over Ecuadorean pollution has been filled with surprises. Donziger helped rainforest residents and indigenous groups stun much of the world nearly a decade ago with the defeat of Chevron in Ecuador, and the oil giant’s relentless counterattack took unexpected turns in a quest to discredit that verdict as a product of fraud and racketeering.
U.S. District Judge Lewis Kaplan, who ruled for Chevron in 2014, presided over what began as a civil dispute before personally demanding the creation of a criminal one. The Clinton appointee drafted the charge sheet and handpicked the prosecutors. In this next stage, however, it is U.S. District Judge Loretta Preska, the former chief of the Southern District, who reigns.
Calling himself a “corporate political prisoner,” Donziger has spent almost a year under house arrest fighting allegations that he flouted court orders to turn over more evidence to Chevron. Donziger argues that complying with those orders, now under appeal in the Second Circuit, would violate his duty to his clients.
How Donziger’s fortunes have changed can be symbolized by one of his new lawyers: Ron Kuby, the legendary criminal defense attorney known for his flamboyant and passionate defense of political icons like Malcolm X to, more recently, the woman who climbed the Statue of Liberty to protest the Trump administration’s family-separation policy.
One of two celebrity attorneys name-checked when a protagonist got in trouble in the Hollywood film “The Big Lebowski,” Kuby expressed admiration for his newfound client.
“I had admired and respected Steven’s work for many, many years, and I had followed the David-versus-Goliath contest in various courtrooms around the world,” Kuby remarked in a phone interview. “And I noted that David appeared to be losing, at least in the American courts.”
When the Southern District of New York declined to prosecute Donziger, Judge Kaplan appointed Seward & Kissel to pursue the case on July 30, 2019, almost exactly one year ago.
“Private prosecutions are rare in America and have been rare for pretty much since the beginning of the republic, and the reason for that is obvious enough: You don’t want interested private individuals having state power against defendants,” added Kuby.
Facing six federal charges, Donziger could spend as many as six months behind bars and will have spent more than twice that time confined to his house wearing an ankle bracelet before trial begins.
Donziger connected his for-profit prosecution to his tough treatment in a phone interview.
“If this were handled by a normal professional prosecutor acting in the public interest that did not have an economic incentive to take a hard line, and continue the case so they could continue billing, I don’t believe this would have gone down this way,” Donziger asserted. “I don’t think I’d be detained.”
The $800,000 bond keeping Donziger out of jail is higher than the one imposed on three of the four Minneapolis officers charged in the death of George Floyd.
For Donziger’s attorneys, Seward & Kissel’s role as his prosecutors means more to the firm than simply billable hours.
“To be known in the oil and gas industry as the person who took down Steven Donziger is a source is a potential source of tremendous revenue, mind-boggling amounts of revenue,” Kuby said.
After eight months of litigation, Donziger’s attorneys forced Seward & Kissel to disclose that Chevron had been their client as recently as 2018, an omission that the defense argues poisons the case.
“I don’t understand why Seward & Kissel was appointed when there are hundreds of disinterested former prosecutors in this district that could have done the prosecution,” Donziger said. “I see that as a deliberate move by Judge Kaplan to align the case with Chevron’s interest.”
Currently seeking to disqualify Seward & Kissel from the case in a pretrial appeal, Donziger’s legal team won a ruling last week forcing the firm to open up its ledgers. The heavily redacted records reveal little information other than billable time and fees, with rates ranging from $300 and $428 per hour.
That might not be much for attorneys of Seward & Kissel’s stature. Its partner Rita Glavin is acting as the case’s lead prosecutor, but those rates far exceed the going rates for federal attorneys under the Criminal Justice Act, which standardizes compensation for high-quality legal representation for indigent defendants.
So far as the court-appointed defense bar goes, those rates currently cap at $152 hourly and a maximum of $3,400 total to represent a client accused of a misdemeanor.
“You have rich people’s justice on the prosecution side and poor people’s justice on the defense side,” Kuby said. “It’s absolutely indefensible.”
Glavin did not respond to an email requesting comment, and Chevron declined to comment.
Representing Donziger in an emergency appeal to the Second Circuit, Kuby is challenging the prosecution on the grounds of his prosecutors’ alleged conflict of interest.
If that appeal fails, Donziger will go to trial on Sept. 9, in a case commanding increasing international attention. The European Parliament invited Donziger to appear for proceedings via a video conference last June, later appealing to multiple congressional committees on his behalf. Bar associations and advocacy groups from Canada, Ireland, France, Israel and beyond have written letters in his support, as have nearly 30 Nobel Prize winners.
In any criminal prosecution, there is always the possibility of plea negotiations, but Donziger revealed that his prosecutors have remained uninterested in that sort of resolution.
“Despite multiple conversations initiated by my counsel, there has never been any offer made to resolve this prior to trial, other than plead to all six counts and throw yourself at the mercy of the court when I believe I’m innocent,” Donziger said. “And have incredibly strong defenses.”
To Donziger, the private prosecution’s “intransigence” is more evidence that it is structured, not to serve the public interest, but to achieve a desired outcome.