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Speaker 1: In March twenty fourteen, Judge Lewis A. Caplan issued a

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Speaker 1: nearly five hundred page ruling against Donziger and the Lago

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Speaker 1: Augerdo plaintiffs, blocking the collection of the nine billion dollar

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Speaker 1: Ecuadorian judgment in the US. Judge Caplan cites in the

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Speaker 1: summary of his ruling the Cabrera Report, crude outtakes and

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Speaker 1: Gera's testimony. He writes that among the various objectives of

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Speaker 1: Donziger's pr campaign has been an effort to quote shift

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Speaker 1: the focus from the fraud on Chevron and the Lago

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Speaker 1: Augrio court to the environmental harm that Donziger and the

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Speaker 1: Lago Augda plaintiff's claim was done in the Oriente. There's

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Speaker 1: an accent on that last e in Oriente in Judge

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Speaker 1: Caplan's summary. That's a mistake, which is unford given how

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Speaker 1: many of the Ecuadorians we spoke with accused Caplin of

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Speaker 1: being racist and or too ignorant about their country, its laws,

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Speaker 1: and its language to oversee this case. But the sentiment

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Speaker 1: that Caplin expresses here is also really interesting. How dare

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Speaker 1: you shift the focus from the fraud committed against a

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Speaker 1: company to the damage inflicted on a community, Caplan says,

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Speaker 1: we shouldn't be quote unquote distracted by the pollution. Then

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Speaker 1: he writes, quote the court assumes that there is pollution

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Speaker 1: in the Oriente. On that assumption, Texaco and perhaps even Chevron,

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Speaker 1: though it never drilled for oil in Ecuador, might bear

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Speaker 1: some responsibility. And yeah, the accent mistake is there on Oriente.

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Speaker 1: Throughout this ruling, Caplin continues, quote. In any case, improvement

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Speaker 1: of conditions for the residents of the Oriente appears to

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Speaker 1: be both desirable and overdue. But the defendant's effort to

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Speaker 1: change the subject to the Oriente, understandable as it is

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Speaker 1: as a tactic, misses the point of this case. The

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Speaker 1: issue here is not what happened in the Odiente more

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Speaker 1: than twenty years ago, and who, if anyone now, is

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Speaker 1: responsible for the wrongs then done. It instead is whether

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Speaker 1: a court decision was procured by corrupt means, regardless of

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Speaker 1: whether the cause was just. An innocent defendant is no

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Speaker 1: more entitled to submit false evidence, to co opt and

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Speaker 1: pay off a court appointed expert, or to coerce or

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Speaker 1: bribe a judge or jury than a guilty one. So

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Speaker 1: even if Donziger and his clients had a just cause,

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Speaker 1: and the court expresses no opinion on that they were

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Speaker 1: not entitled to corrupt the process to achieve their goal.

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Speaker 1: Justice is not served by inflicting injustice. The ends do

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Speaker 1: not justify the means. This passage has really stuck with

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Speaker 1: me throughout this season and it raises some really big

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Speaker 1: questions that we're going to spend these last two episodes

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Speaker 1: grappling with what is justice? Where is the line between

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Speaker 1: the law and morality? Are there ends that justify means?

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Speaker 1: And if so, what kind of means? Welcome back to

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Speaker 1: Drill Season five, La Lucha Mangla. I'm Amy Westervelt and

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Speaker 1: this is episode ten, The Kill Step. We're going to

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Speaker 1: dig into what happened after the Rico judgment and all

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Speaker 1: these messy questions. Right after this quick break, I want

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Speaker 1: to tell you about one of my personal favorite podcasts.

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Speaker 2: It's called Behind the Bastards. You'll see why I love it.

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Speaker 2: I want to explain what it is. Behind the Bastards

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Speaker 2: as a twice weekly podcast series from Robert Evans and

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Speaker 2: iHeartRadio that looks behind the bad guys in history. There's

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Speaker 2: a reason the History Channel has produced hundreds of documentaries

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Speaker 2: about Hitler, but only a few about Dwight D. Eisenhower.

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Speaker 2: Bad guys and gals are eternally fascinating. Behind the Bastards

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Speaker 2: dives in past the cliffs notes of the worst humans

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Speaker 2: in history and exposes the bizarre realities of their lives.

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Speaker 2: Listeners will learn about the young adult novels that helped

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Speaker 2: Hitler form his monstrous ideology, the founder of Blackwater's insane

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Speaker 2: quest to build his own air force, the bizarre lives

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Speaker 2: of the sons and daughters of dictators, and Saddam Hussein's

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Speaker 2: side career as a trashy romance novelist. Host Robert Evans

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Speaker 2: has worked as a conflict journalist in Iraq, Ukraine, and Syria.

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Speaker 2: He has covered political unrest and violence across the United

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Speaker 2: States since twenty sixteen. He also hosts several other popular

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Speaker 2: iHeartRadio podcast the Women's War, It Could Happen Here and

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Speaker 2: Worst Here Ever episodes throughout every Tuesday and Thursday. Listen

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Speaker 2: to Behind the Bastards on the iHeartRadio app or wherever

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Speaker 2: you get your podcasts.

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Speaker 1: In the wake of its winds against Nicaraguan farmers on

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Speaker 1: Behalf of Dole and against the Ecuadorians on behalf of Chevron.

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Speaker 1: Gibson Dunn began referring to its approach on these cases,

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Speaker 1: using the US court system to declare a foreign judgment

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Speaker 1: fraudulent as the quote unquote kill step. It was sold

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Speaker 1: as an effective way to keep multinational corporations out of

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Speaker 1: trouble abroad and has this sort of scorched earth, winner,

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Speaker 1: take all, fight to the death feel about it. As

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Speaker 1: soon as the Rico verdict came down, Donziger and his

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Speaker 1: appeals lawyer, Dipa Kupta began working on an appeal. Just

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Speaker 1: as a reminder, we interviewed Donziger while he was on

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Speaker 1: house arrest this summer. He still is, and he would

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Speaker 1: often hang his head out the window while we were talking,

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Speaker 1: so if you hear some wind or background noise.

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Speaker 3: That's why we've contested the evidence every step of the way.

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Speaker 3: I mean, I've always proclaimed that this evidence was false. However,

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Speaker 3: and this is the rub on appeal. You can contest facts,

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Speaker 3: or you can contest law. But under the US appellate system,

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Speaker 3: it's usually futile to contest facts because they're almost never overturned.

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Speaker 3: The appellate judges don't like to revisit factual determinations by

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Speaker 3: a trial judge. So, given that Caplin had written five

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Speaker 3: hundred pages and there were dozens and dozens of findings,

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Speaker 3: we would have easily used up our entire allotment of

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Speaker 3: pages on the appellate brief, you know, formally disputing every

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Speaker 3: single one of his hundred findings.

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Speaker 1: Instead, Gupta decided to focus on the entire application of

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Speaker 1: RICO to this case as inappropriate.

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Speaker 3: So we chose to focus on that, but we contested

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Speaker 3: the facts every step of the way. We just didn't

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Speaker 3: formally ask for Kaplan to be overturned on the facts.

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Speaker 1: After the appeal had been filed, while the court was deliberating,

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Speaker 1: Garrett testified in front of the Arbitral Tribunal and admitting

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Speaker 1: to having lied in a few instances during his RICO testimony.

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Speaker 3: So when Gara admitted lying during the pendency of the

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Speaker 3: appeal of Caplan's decision, we immediately took this new information,

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Speaker 3: as evidenced by a transcript, and we submitted it to

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Speaker 3: the Federal Appellate Court to add to the record so

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Speaker 3: they could consider it because it was cut to the

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Speaker 3: core of one of our main arguments.

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Speaker 1: What Donziger's lawyer had argued in the appeal was in

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Speaker 1: part that a lot of the justification for bringing the

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Speaker 1: Rico suit in the first place had come from this

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Speaker 1: corrupt witness, which should never have been allowed.

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Speaker 3: They totally ignored it, They didn't even mention it in

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Speaker 3: their decision, and they completely affirmed Judge Kaplan without reviewing

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Speaker 3: any of his factual findings or his credibility findings of

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Speaker 3: this obviously corrupt line witness.

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Speaker 1: The second Circuit affirmed Captain's ruling in the Rico suit,

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Speaker 1: and that carried a lot of weight. Here's what Melissa Simms,

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Speaker 1: who gave us a primer on Rico earlier this season,

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Speaker 1: said about.

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Speaker 4: It from a legal standpoint. There was a judgment, and

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Speaker 4: the Court of Appeals, you know, affirmed the decision, so

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Speaker 4: you know it is what it is. It's final.

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Speaker 1: On top of what that meant for Donziger and the

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Speaker 1: Lago Agrio plaintiffs that they would not be able to

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Speaker 1: collect the judgment in the US and might also struggle

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Speaker 1: in other courts around the world, it also set a

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Speaker 1: new precedent in a few different ways.

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Speaker 5: To me, the biggest thing is how much the Rico

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Speaker 5: case has completely obscured who they are and what they're doing.

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Speaker 1: Lindsay O Fries is an anthropologist and documentary filmmaker who's

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Speaker 1: been studying the affected people in Ecuador since two thousand

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Speaker 1: and five.

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Speaker 5: The people who have been fighting in Ecuador and the

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Speaker 5: actual reality of the oil disaster have been completely obscured

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Speaker 5: from view, at least in the United States in other

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Speaker 5: powerful countries.

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Speaker 1: Ofrias is working on a documentary about how rico has

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Speaker 1: been used against activists in recent years.

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Speaker 5: I think it's important also to note that when we

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Speaker 5: talk about the Ecuadorian plaintiffs, they're not just people who

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Speaker 5: are involved in a legal battle. They're doing all kinds

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Speaker 5: of things. And so two of those people in Bertolpio

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Speaker 5: Guaffe and Carmen Zambrano, I went with them to Standing

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Speaker 5: Rock in twenty sixteen. Part of the idea was for

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Speaker 5: coalition building and also trying to think about what is

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Speaker 5: possible outside or beyond this whole vortex of the law

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Speaker 5: that kind of sucks everything into it. And so something

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Speaker 5: that I will always remember is that around the fire

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Speaker 5: went evening where you know, everybody would come and sit

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Speaker 5: around the fire and share stories, and Berto and Carmen

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Speaker 5: gave kind of like a warning about what they had

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Speaker 5: gone through, and you know that it was likely to

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Speaker 5: come to pass once again now that this RICO precedent

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Speaker 5: has been set, And indeed that's what happened. And we

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Speaker 5: can see so many many cases in which the RICO

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Speaker 5: law has morphed from its original intention of targeting the

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Speaker 5: mafia and white collar criminals to silencing protests to trying

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Speaker 5: to quell particular forms of political organizing.

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Speaker 1: Julio Gomez, the attorney who represented the Ecuadorian plaintiffs in

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Speaker 1: the RICO, also said the case stands as something of

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Speaker 1: a warning to attorneys who would take on a big

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Speaker 1: multinational corporation like Chevron.

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Speaker 6: If you will try to get involved in a case

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Speaker 6: like this or against another oil company, and you do

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Speaker 6: any research, I mean, the amount of information available online

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Speaker 6: about the history of this case and the damage it

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Speaker 6: has caused, the attorneys who have worked on it everywhere.

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Speaker 6: So anyone who's contemplating doing something like this and begins

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Speaker 6: to read about how difficult it is, I mean, even

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Speaker 6: hearing probably my own positions in this in this interview,

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Speaker 6: that certainly is not going to motivate people to take

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Speaker 6: on these kinds of cases. It's yeah, it's it creates

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Speaker 6: an enormous chilling effect, and that's again more of the

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Speaker 6: disadvantage for people who trying to see justice.

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Speaker 1: According to Sims, there has also been a surprise silver

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Speaker 1: lining for some plaintiffs attorneys.

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Speaker 4: Well, you know, I've been watching it since its inception

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Speaker 4: just because I felt so badly for the people in

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Speaker 4: Ecuador who face this environmental disaster, and so it's fascinating

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Speaker 4: watching it unfold, and I think, the Lord, I'm not

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Speaker 4: part of it at this point in time, but we

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Speaker 4: have a lot that we're learning from it. Plus we

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Speaker 4: have a lot of information that we're going to be

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Speaker 4: able to utilize and our cases going forth. So one

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Speaker 4: of the things that we're doing is a plane of

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Speaker 4: spar is. We're actually exercising the rights of these people

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Speaker 4: internationally to sue in the United States, because what we're

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Speaker 4: finding is that when we tell the courts how difficult

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Speaker 4: it is for these people to get compensation for their conduct,

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Speaker 4: and then we show what Chevron has done, how they

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Speaker 4: have been defending this judgment in the United States, and

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Speaker 4: how hard it is, that actually helps us in our

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Speaker 4: cases to prove that we have jurisdiction here in the

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Speaker 4: United States.

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Speaker 1: Meanwhile, the Equadorian plaintiffs are still trying to collect this

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Speaker 1: judgment elsewhere in the world. Donziger was working on the

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Speaker 1: case up in Canada when his recent troubles began. Chevron

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Speaker 1: asked Kaplan to file civil contempt charges against Donziger because

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Speaker 1: of his work. But before that, Donziger faced another challenge.

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Speaker 3: I'm a member of two different state bars, one in

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Speaker 3: New York and one in Washington, d c H. So

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Speaker 3: you know, the first inkling.

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Speaker 7: I got that the bar licensing process was going to

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Speaker 7: be used against me to try to disbar me was

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Speaker 7: a letter I received from the organization in the District

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Speaker 7: of Columbia that licenses lawyers.

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Speaker 1: Donziger says he remembers this letter vividly. Basically, it said

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Speaker 1: that they had heard about the Reco decision and were

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Speaker 1: concerned and wanted to hear his side.

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Speaker 3: So they didn't do anything. And a few months later

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Speaker 3: I got a similar letter, more hostile in tone, from

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Speaker 3: the New York Bar Manhattan Grievance Committee, that's the group

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Speaker 3: in New York City that monitors lawyers, and they asked

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Speaker 3: me similar questions, but the big difference was the referral

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Speaker 3: to the New York Grievance Committee came from several judges

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Speaker 3: on the federal bench who worked with Judge Kaplan on

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Speaker 3: the same court.

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Speaker 1: The letter argued that Donziger was a threat to the

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Speaker 1: public and should be immediately disbarred without a hearing. In

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Speaker 1: July twenty eighteen, he was suspended from practicing law.

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Speaker 3: I mean, I had my law license suspended without a hearing.

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Speaker 3: So let's go back in the Rico case. I was

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Speaker 3: denied a jury. Fast forward to my bar licensing procedure,

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Speaker 3: and they concoct this idea that I can't get a

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Speaker 3: hearing there. And by the way, those hearings are overseen

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Speaker 3: by very establishment lawyers that are appointed by the same committee.

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Speaker 3: So they didn't even want me to have that hearing.

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Speaker 3: So they deny my law life license, suspend it without

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Speaker 3: a hearing. But under the law, when you get a

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Speaker 3: property interest like a professional license suspended without a hearing,

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Speaker 3: you're entitled under the due process clause of our Constitution

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Speaker 3: to what's called a post suspension hearing.

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Speaker 1: Donziger got his hearing sort of.

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Speaker 3: And on that first day, no one knew what to do.

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Speaker 3: It was bizarre, like the hearing was like I don't

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Speaker 3: really know what this hearing is because they're telling me

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Speaker 3: you can't challenge anything, and I'm like, no, I have

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Speaker 3: to be able to challenge. That's the whole point of

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Speaker 3: a post suspension hearing is to allow the hearing that

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Speaker 3: could have taken place before to now happen. And they're like, no,

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Speaker 3: you can't use this to relitigate Caplan's findings, and I'm like, well,

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Speaker 3: then I'm not really getting a hearing.

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Speaker 1: The hearing officer got briefs from both the Grievance Committee

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Speaker 1: and Donziger about how, why, and whether this hearing should

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Speaker 1: really happen.

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Speaker 3: You know, the chevron kaplan strategy was to just keep

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Speaker 3: attacking me, distracting me, and if that didn't work, they

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Speaker 3: would just up the annie and upping the animant, locking

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Speaker 3: me up. And it's really scary.

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Speaker 1: It was in the course of the disbarment proceedings that

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Speaker 1: Donziger was charged with first civil and then criminal contempt.

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Speaker 1: He was put on pre trial house arrest for the

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Speaker 1: criminal contempt charge in August twenty nineteen, and he finally

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Speaker 1: got that bar hearing a month later in September. This

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Speaker 1: part of the story reminds me not only of the

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Speaker 1: whole kill step thing, but also of a quote that's

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Speaker 1: appeared in multiple stories about this case. In two thousand

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Speaker 1: and nine, Donald Campbell, a spokesman for the company at

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Speaker 1: the time, said this, We're going to fight this until

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Speaker 1: hell freeze is over, and then we'll fight it out

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Speaker 1: on the ice. When his bar hearing happened in September nine,

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Speaker 1: team Donziger had to request permission from the court to

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Speaker 1: leave his apartment. He showed up to the hearing with

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Speaker 1: his ankle bracelet on. Chevron's attorneys came.

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Speaker 3: To and I found it really creepy that they're there.

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Speaker 3: First of all, they hit in theory should have no

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Speaker 3: interest in what happens to me in a bar proceeding.

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Speaker 3: They're not a party.

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Speaker 1: Several lawyers spoke on Donziger's behalf, and a few months later,

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Speaker 1: the hearing officer recommended that Donziger keep his law license.

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Speaker 3: But he doesn't have the power to make the final decision.

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Speaker 3: It goes up to the same court that ordered him

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Speaker 3: not to consider Caplin's findings. Chevron lawyer Randy Mostro was

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Speaker 3: like quoted in the press saying, Oh, this is never

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Speaker 3: going to stand. It's totally going to be overturned. The

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Speaker 3: hearing officer didn't do his job properly.

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Speaker 1: According to Donziger, in the majority of these sorts of cases,

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Speaker 1: the hearing officer's recommendation usually stands.

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Speaker 3: But obviously this is a different situation.

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Speaker 1: Shortly before this season, law And We learned from Donziger

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Speaker 1: that the hearing officer had been overturned. He's been disbarred,

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Speaker 1: he filed an appeal in September, and now he's waiting

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Speaker 1: to hear back from the New York State Court of Appeals.

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Speaker 1: Next time, we're going to attempt to wrap up this

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Speaker 1: complicated story with some final thoughts on the case, how

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Speaker 1: it's been litigated, how it's been covered, and what's happening

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Speaker 1: today in Ecuador. Come back for that. Drilled is an

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Speaker 1: original production of the Critical Frequency podcast Network. The show

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Speaker 1: was created, reported, and written by me Amy Westervelt. My

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Speaker 1: co reporter this season is Karen Savage. Our editor is

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Speaker 1: Julia Ritchie. The show's editorial consultant is Rika Murphy. Mixing

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Speaker 1: and mastering by Mark.

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Speaker 8: Bush, original score by Bbman, fact checking by woodn Yan.

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Speaker 8: Our artwork for this season was done by the super

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Speaker 8: talented Matt Fleming. Special thanks to Trevor Gowan and Emily Gertz.

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Speaker 8: If you are a Patreon subscriber, thank you your money

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Speaker 8: is helping to make this season. And as a special.

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Speaker 2: Thank you to Patreon members who're providing a variety of benefits,

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Speaker 2: including bonus content and early access to episodes in this season.

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Speaker 2: If that sounds appealing to you, or you just want.

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Speaker 1: To support our work, go over to patreon dot com,

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Speaker 1: slash drilled and sign up. We also have some merch.

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Speaker 2: Associated with that. You can find stories, documents, and photos

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Speaker 2: related to this season on our website at drillednews dot com.

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Speaker 1: That's it for this time, Thanks for listening, and we'll

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Speaker 1: see you next week. I bet him him

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Speaker 5: H