Donziger, Ecuadorians File Motion to Strike Testimony of Chevron's Star Witness

Gowen Group Law Office
Contact: Paul Paz y MiƱo: +1 510.281.9020 x302,

New York, NY – The testimony of Chevron's star witness in its New York RICO should be thrown out because he was bribed by the oil giant for his cooperation, according to a motion filed today before Judge Lewis A. Kaplan.

The motion details how Chevron has promised to pay the witness, former Ecuador Judge Alberto Guerra Bastides, roughly $326,000 in housing, salary, and other benefits at the time it was negotiating what he would say in court. Chevron also promised Guerra it would help him and several family members secure political asylum in the U.S., according to testimony he offered in New York federal court on Friday of last week.

"Even if Guerra were an upstanding citizen, his testimony would be so tainted by Chevron's payments and benefits that it would need to be thrown out," said the motion. "But Guerra is no upstanding citizen; he is an admitted liar, criminal, and con man.

"For two days last week, the federal courthouse was blighted as Chevron used it as a stage for this man's obviously corrupt testimony, in which he admitted to offering and accepting between 20 and 40 bribes throughout his career as a lawyer and judge," the motion continued.

Chevron's compensation package to Guerra is "stunning" and totals at least 50 times his last annual salary if one includes the value of the political asylum application, said Christopher Gowen, a lawyer representing Donziger. Obtaining political asylum for Guerra, his wife, two of his children, and four grandchildren is worth at least as much as the money he is being paid – a fact confirmed by Guerra in his testimony, Gowen added.

"We are talking about a package potentially worth over $1 million to an admitted criminal who was making $500 monthly in his last job in Ecuador," said Gowen, a legal ethics professor at The Washington College of Law at American University in Washington, D.C. "This is far beyond any standard of reasonableness ever accepted by a court in this country."

Gowen called the Chevron payments to Guerra "outright bribes" that violate both criminal laws and the ethical rules governing the legal profession. The motion to strike the testimony was based in part on the Federal Anti-Gratuity Statute, which outlaws paying anything other than reasonable expenses to fact witnesses for travel and their time.

The defendants also submitted an affidavit from Dean and Distinguished Professor of Law Erwin Chemerinsky that challenged the propriety of Chevron's payments under U.S. law and ethics rules.

Guerra testified he arranged for the plaintiffs in the Ecuador case to bribe the sitting judge, Nicolas Zambrano, to rule in their favor. Gowen called Guerra a liar and said he had no evidence to back up his assertion that he had such a discussion with Donziger or any other member of the plaintiff's team. Donziger denies such a meeting took place.

Undermining Guerra's credibility is that he recently discovered that he "lost" his daily calendar for the year (2010) he claims to have met Donziger, even though he had his daily calendar for later years.

Guerra testified that:

  • He bribed several Ecuadorian judges to rule in his favor when he was a practicing lawyer in the 1980s and 1990s.
  • That as a judge from 1995 to 2008, he accepted bribes as low as $200 to fix cases.
  • That he lied repeatedly to Chevron – claiming at one point the plaintiffs had offered him a $300,000 bribe – to improve his negotiating position with the company at exactly the same time he was preparing a sworn declaration in the case.
  • That he had no record of emails with lead Ecuadorian lawyer Pablo Fajardo because his computer crashed and he had to re-install his operating system.

Chevron's RICO case has gotten off to a halting start.

Two weeks before trial, the company dropped all damages claims to avoid a jury of impartial fact finders. It then convinced Judge Kaplan to bar any evidence of its environmental contamination and fraud in Ecuador. Its hoped-for remedy – an injunction barring enforcement of the Ecuador judgment – already has been ruled illegal by a New York appellate court. Gowen has called the matter "the trial to nowhere" that allows Chevron the "emotional payoff" of beating up publicly on Donziger, its longtime nemesis.

Curiously, Chevron's two main technical experts (Spencer Lynch and Robert Leonard) testified they did not perform an "authorship" analysis to determine who actually wrote the trial judgment in Ecuador even though they were capable of doing so. The lack of such an analysis suggests Chevron believes Nicolas Zambrano actually wrote the judgment as the defendants assert, despite the company's public statements to the contrary.

Chevron also dropped a key element of its RICO allegations – that two of its lawyers faced "bogus" criminal charges in Ecuador based on a sham environmental remediation – to avoid damning evidence proving there was a valid basis for a criminal indictment.

Judge Kaplan, long accused of being biased against Donziger and the Ecuadorians (see here and here), is doing his best to hold Chevron's case together by denying Donziger and the Ecuadorians the right to introduce key evidence in their defense, said Gowen. Donziger recently sent a letter to Kaplan expressing his concern that he is not getting a fair trial, but Kaplan thus far has refused to respond in writing and has not formally ruled on any of the issues raised.

Judge Kaplan also has been criticized for trying to act as a de facto international appellate court with the authority to pass judgment on decisions made by Ecuador's courts, which is the country where Chevron wanted the trial held. Almost all of the issues before Kaplan already have been decided by Ecuador's trial and appellate courts, and the underlying judgment is still under final review by Ecuador's highest court.

Proceedings in the RICO trial are expected to resume Thursday after a three-day hiatus. Zambrano is expected to testify next week, while Donziger will probably testify the following week.

Evidence presented to the Ecuador court shows Chevron dumped billions of gallons of toxic waste into the Amazon, decimating indigenous groups and causing an outbreak of cancer. For a summary of the evidence, see here; for a video about the case, see here and for a 60 Minutes segment on the case, see here.

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