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When Feds Demur, Judge Charges Ecuador Crusader Himself

August 13, 2019 ADAM KLASFELD

MANHATTAN (CN) – In the U.S. justice system, federal prosecutors typically have the exclusive power to charge people with crimes, but unknown to most of the public, there are a vanishingly small number of exceptions.

So learned environmental attorney Steven Donziger, who has been fighting for his life, livelihood and liberty in a decades-long battle to hold Chevron liable for oil contamination to the Ecuadorean Amazon.

“This is a serious, serious case, OK,” Donziger acknowledged last week during a bail hearing. “This is criminal. I get it. It is highly serious. I’ve been dealing with the civil up to this point.”

Though the case is captioned United States of America v. Steven Donziger, prosecutors from the Southern District of New York declined to take up the case, and so a federal judge drafted criminal contempt charges and appointed private counsel to lead Donziger’s prosecution on July 30.

The lead counsel for the “government,” Seward & Kissel partner Rita Glavin, declined to comment.

Courthouse News reached out to five former federal prosecutors —including veterans from the Southern District of New York, District of Alabama and the Northern District of California— seeking precedent for the maneuver.

Despite a combined total of more than 70 years of experience, only one ex-prosecutor contacted had ever heard of a judge-appointed private prosecution for criminal contempt. That case, filed by an Alabama judge against another crusading plaintiff’s attorney, was ultimately dismissed.

Highly unusual in every other respect, Donziger’s appearance last Tuesday had all of the trappings of a typical bail hearing.

With his wife supporting him in court, Donziger appealed to his family to avoid jail: “I have a son who is 13 years old who needs his father, and I want to be able to go places with him around the city — basketball, school, that kind of stuff.”

With several conditions — house arrest, a $800,000 bond co-signed by Donziger’s wife and a GPS-powered ankle bracelet — U.S. District Judge Loretta Preska ultimately gave Donziger permission to await trial from his Upper West Side apartment.

“Counsel, I do agree that this is a new type of proceeding, and although Mr. Donziger has appeared in the civil case, we are in a brave new world now,” Preska said at the hearing.

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