The Supreme Court of the United States has rejected a review petition by environmental lawyer and indigenous rights advocate Steven Donziger against a 2021 ruling by a federal judge convicting him of contempt. The decision to reject the petition was delivered on Monday, March 27, based on a split verdict with two of the nine justices dissenting with the decision.
Donziger was held guilty of six charges of criminal contempt by senior district judge Loretta Preska of the US Southern District Court of New York in July 2021. In October 2021, he was sentenced to six months in prison, even after having spent more than two years in court-imposed detention that was deemed illegal by the United Nations High Commissioner for Human Right (OHCHR).
Currently disbarred from practice since 2014, Donziger argued that the judicial process violated his constitutional rights, since it was a court-initiated prosecution, overriding the district prosecutor’s decision. He also argued that the appointment of private prosecutors by the presiding judge in a separate lawsuit that he was fighting against Chevron was unconstitutional.
The petition argued that this violated the cardinal principle of separation of powers as outlined in the US Constitution, whereby prosecutions are usually led by the executive, through either the District Attorney or the US Attorney General, and not the judiciary. Despite irregularities galore throughout the contempt proceedings, the Supreme Court ruled against his petition, with only justices Neil Gorsuch and Brett Kavanaugh dissenting.
Interestingly, Gorsuch and Kavanaugh are Trump-era appointees and conservatives, while the three justices appointed under Obama and Biden administrations to the court were part of the majority decision.
The Court’s decision upheld a 2022 decision by the Second U.S. Circuit Court of Appeals in New York in response to Donziger’s appeal against his contempt petition. The 2022 decision, arrived again by a split verdict of 2-1, held that courts have the authority to prosecute individuals under certain circumstances in the manner they deem fit.
In his dissenting opinion, Justice Gorsuch pointed out the inaccurate application of a tenuous judicial precedent by the appeals court, and went on to state that the Constitution “does not tolerate what happened here.”
“However much the district court may have thought Mr. Donziger warranted punishment, the prosecution in this case broke a basic constitutional promise essential to our liberty,” read the dissenting opinion. “In this country, judges have no more power to initiate a prosecution of those who come before them than prosecutors have to sit in judgment of those they charge.”
The contempt charges are related to Donziger’s legal battle representing thousands of indigenous Ecuadorians in a landmark lawsuit on corporate pollution in Ecuador. In 2011, over 30,000 inhabitants of Lago Agrio in Ecuador won billions in damages against Chevron, for the large-scale pollution of the town and its adjoining forest by one of its subsidiaries Texaco.
Also Read: How a US lawyer’s attempt to make Chevron pay for pollution landed him a jail sentence
Contempt case where court is both “accuser and decisionmaker”
A notable argument in Gorsuch’s dissent is how the appeals court’s decision “allowed the district court to assume the “dual position as accuser and decisionmaker”—a combination that “violat[es the] due process” rights of the accused,” which effectively echoed Donziger’s argument.
Senior Judge Lewis A. Kaplan of the Southern District Court of New York had initiated the prosecution against Donziger in 2018. Kaplan was the presiding judge in the lawsuit by Chevron, which in 2014 held Donziger guilty of bribing Ecuadorian judges based on a witness who later admitted to falsifying his testimony.
Kaplan’s decision not only blocked the execution of the Ecuadorian Supreme Court ruling that demanded USD 9.5 billion in damages to inhabitants of Lago Agrio, but also ordered Donziger to pay USD 800,000.
In 2016, after losing an appeal against the judgment, Donziger was ordered by Kaplan to surrender all his electronic devices to Chevron, which he refused and tried to appeal against, over concerns of surrendering confidential data about his clients in Ecuador. For refusing to comply with the order, Kaplan held him in contempt of the court and referred the matter to the district attorney.
In turn, the district attorney for Southern District Court of New York “respectfully declined” Kaplan’s referral to prosecute Donziger. However, overriding the prosecutor’s decision, Kaplan took the unprecedented move to not only prosecute him but also to appoint a private law firm.
The law firm Seward & Kissel was later found to have worked closely with Chevron just months before they were appointed to the case. Kaplan also reportedly handpicked Preska to preside over the case, instead of allowing for the case to be assigned randomly as per the rules of the court.
Donziger, nevertheless, served his prison sentence, much of it under house arrest. He spent a total of 45 days in prison and 993 days under house arrest before being released on April 25, 2022.