The law does not reflect morality so much as it reflects power.
This can be seen firstly in the uneven application of it-where the enforcers of it are deployed, what punishments are applied to what people, and who is protected from its grasp. Consider the case of
Anna Chronis. In 2015, Chronis went to the University of Illinois Mile Square Health Center for a pap smear. Afterwards, she experienced pain and bruising. She claimed that she attempted to get in touch with the doctor she had seen, but could not get the Health Center to return her calls or let her make a follow-up appointment. So, like a normal person, she filed a complaint with the Health Center’s grievance committee “requesting $332 for the expenses that she incurred because of the injury.” The committee denied her claim, because of course they did. But she didn't give up. She wrote to the Centres for Medicare and Medicaid Services, part of the Department of Health and Human Services, which parially funded the Health Center, requesting assistance in gaining “restitution” and attaching 60 pages of documents showing her correspondence with the Health Center. Unsatisfied with the responses she had received-and the lack of $332-Chronis sued under the Federal Tort Claims Act.
The Seventh Circuit panel found that Chronis’ case needed to be dismissed on the grounds that she "hadn’t followed the correct procedure"-because her letter to CMS had not explicitly said that she wanted $332, referring only to “restitution." This meant she had not demanded a “sum certain.” Therefore, in court's eyes, she had not exhausted her “administrative remedies,” so she could not come to court. They conceded that Chronis could have had no idea she needed to do this, because Chronis was operating “pro se” (without an attorney) and “even an experienced medical malpractice lawyer” might not have realized that under the Federal Tort Claims Act, CMS themselves might have legal liability for the actions of the University of Illinois Health Center. But even though Chronis could not have known what the procedure was, she violated it, therefore her case needed to be dismissed.
I believe it is necessary to quote the dissent here.
Judge Ilana Rover wrote:Chronis, a pro se plaintiff, knew little about the complicated legal world of suing the federal government. She was simply looking for a solution to her problem. She alleged that she had been harmed during a medical appointment at a health center that receives federal funds. She looked for a solution by repeatedly telephoning the doctor whom she alleged harmed her, but that doctor did not help, and indeed did not return any of her numerous calls… She made calls to employees at the health center that employed the doctor, but they would not help… She made several written complaints to the health center’s grievance committee, but it would not help… She filed an appeal with the Illinois Department of Healthcare and Family Services, but it did not help… She mailed a submission to the Centers for Medicare and Medicaid Services (CMS), a federal administrator of the Medicaid Program, but it simply referred her to the Illinois Department of Financial and Professional Regulation… She filed a professional regulation complaint with the Illinois Department of Financial and Professional Regulation, but there is no record of any response… She filed a malpractice claim in state court, but the United States told her that was the wrong place too, and removed the case to federal court. And then, finally, the federal court told Chronis that, after all those calls, steps, letters, claims, and complaints, she had not given the government notice in the proper manner and it too would not help. [...] Modern litigation contains so many traps and barriers that it is near to impossible for non-lawyers to successfully navigate it. Despite Chronis’ valiant and persistent efforts, the majority finds that she failed to say the magic words in the correct format and in the correct place, and therefore the sophisticated steam shovel rolled right over her, as it will other injured pro se plaintiffs who cannot afford to hire lawyers to recover small sums.[...] According to the government, and now the majority opinion, however, this was not enough: Chronis did not ask in the proper way.6 She did not state that she sought “money damages” in a sum certain. Instead, she said “I re‐quest your assistance … in receiving the restitution.” And the amount of that restitution that she sought was not in the letter itself, but in an attachment to the letter
The morality of this case, to me, appears clear.
But that's not what I want to talk about. Rather, it is the way that law is constructed and construed to protect powerful interests from any hint of challenge. This was not a landmark case, there was nothing of "state secrets" involved. It was one woman in Illinois who wanted $322 because of a bad gynecologist.
For that matter, understand the way in which the enforcers of the law act in
the interest of corporations.Donziger is a human rights lawyer who, for more than 27 years, has represented the Indigenous peoples and rural farmers of Ecuador against Texaco—since acquired by Chevron—which was accused of dumping at least 16 billion gallons of toxic waste into the area of the Amazon rainforest in which they live. Cancer is now highly prevalent in the local population. Some have called it the "Amazon Chernobyl." They first filed suit in New York in 1993, but Texaco lobbied, successfully, to move the proceedings to Ecuador. In 2011, the team of Ecuadorian lawyers Donziger worked with won the case, and Chevron was ultimately ordered to pay $9.8 billion.
But for Donziger, that was nowhere near the end. Chevron, a $260 billion company, went to a New York federal court to sue him under a lesser-known civil—non-criminal—provision of the Racketeering Influenced and Corrupt Organizations (RICO) Act. They later dropped their demands for financial damages because it would have necessitated a jury trial. That is something Donziger has been unable to get. Instead, Judge Lewis A. Kaplan, a former corporate lawyer whose clients included tobacco companies, became Donziger's judge-and-jury in the RICO case. He heard from 31 witnesses, but based his ruling in significant part on the testimony of Albert Guerra, a former Ecuadorian judge whom Chevron relocated to the U.S. at an overall cost of $2 million. Guerra alleged there was a bribe involved in the Ecuadorian court's judgement against Chevron. He has since retracted some of his testimony, admitting it was false. But Kaplan, who refused to look at the scientific evidence in the original case, ruled the initial verdict was the result of fraud. And he didn't stop there. He ordered Donziger to pay millions in attorneys fees to Chevron and eventually ordered him to turn over decades of client communications, even going after his phone and computer. Donziger considered this a threat to attorney-client privilege and appealed the ruling, but while that appeal was pending, Kaplan slapped him with a contempt of court charge for refusing to give up the devices. When the U.S. Attorney for the Southern District of New York declined to prosecute the case, Kaplan took the extraordinary step of appointing a private law firm to prosecute Donziger in the name of the U.S. government. The firm, Seward & Kissel, has had a number of oil-and-gas clients, including, in 2018... Chevron. Kaplan bypassed the usual random case-assignment procedure of the federal judiciary and handpicked a judge to hear the contempt case: Loretta Preska, a member of the Federalist Society, among whose major donors is... Chevron. Preska has, like Kaplan, rejected Donziger's requests to have his trial heard by a jury of his peers. Both judges declined Esquire's request for comment on Donziger's cases, citing court policy.
At this point, the details of Chevron's conduct in the Amazon are very far in the rearview. So are the allegations against Donziger with respect to his conduct in the initial case, though he has been disbarred based on Kaplan’s ruling. (A "special referee" appointed by the Supreme Court of New York, John Horan, found his law license should be reinstated, although the Appellate Division rejected those findings and that matter is still on appeal.) The question at hand is whether he should have an ankle bracelet on. On March 10, 2021, he went before a three-judge panel to argue for his release from pre-trial detention before the same appellate court that has largely rejected his prior appeals in the case. Their ruling on the pending appeal could come down any day now. In the meantime, in a conversation below edited for length and clarity, this is Donziger's side of the story.
In a lengthy statement emailed to Esquire, a Chevron spokesman said the company is not involved in the pending criminal case against Donziger and disputed his narrative about the case in Ecuador as well as the legal proceedings that have followed. Chevron noted that Judge Kaplan’s finding that the judgment against it in Ecuador was obtained by fraud was affirmed by the federal court of appeals and that the Supreme Court also declined to overturn the finding. “As he has for decades, Donziger is trying to shift attention away from the facts,” the spokesman said. [...] So first of all, they refused to pay the judgement, right?
As the case was coming to an end in Ecuador, Chevron's lawyers and executives made it clear they would never pay the judgment. They sold their assets in Ecuador, so the Ecuadorians would have nothing to collect. They threatened the Indigenous peoples with “a lifetime of litigation” if they didn't drop their case. They also started to attack Ecuador's judicial system. And they got a witness up to New York, who accused you of fraudulent behavior in relation to the case?
Chevron knew that the evidence against them was overwhelming, and they were going to lose the Ecuador case. So they tried to come up with a strategy to block enforcement of the Ecuador judgment against their assets in other countries. To do that, they needed to somehow allege that the judgment in Ecuador was the product of fraud. The way they did that is they paid a former Ecuadoran judge, moved his family to the United States, paid his income taxes. Their lawyers coached him for 53 days. And ultimately he came into federal court and testified I approved the bribe of a trial judge in Ecuador.
And he’s since recanted this?
He has recanted most of his testimony. He's admitted that he has repeatedly lied in U.S. federal court. He admitted under oath. He's thoroughly discredited. However, the U.S. judge who Chevron took the case to, without a jury, has credited his testimony. But no other court has. The overwhelming majority of courts around the world that have heard the case have validated the Ecuador judgment. That includes Ecuador's supreme court, Ecuador's Constitutional Court. They have all validated the judgment, either on the merits or for enforcement purposes. The only public judge in the world who has ruled the case was a fraud was a U.S. trial judge named Lou Kaplan. However, in his case there was no jury, and he clearly was biased against me and the Ecuadorians. He also refused to consider any of the environmental evidence that the Ecuadorian court relied on to find Chevron liable. So he was purporting from his Manhattan trial court to overrule Ecuador's supreme court, without even looking at the evidence that Ecuador's supreme court relied on to uphold the judgment.
He issued a judgment against me and my clients claiming that the judgment in Ecuador was obtained by fraud. He then barred us from trying to enforce that judgment against Chevron in the United States. But I mean, Chevron operates in a hundred countries, so that doesn't solve Chevron's problem. The judgment is being enforced in other countries outside the United States. Not by me, but by other lawyers. Once he ruled you behaved improperly in the initial case, is that when he moved to demand your computer and phone?
Kaplan ruled in 2014 that the judgment was obtained by fraud. In the meantime, six other appellate courts in other countries like Ecuador and Canada ruled that it was valid. That then became a battle between Kaplan's judicial authority and the judicial authority of Ecuador and Canada. When the Canadian Supreme Court ruled in our favor in 2015, Chevron, I think, felt real financial risk in Canada, where the company has billions of dollars of assets. So they came back to Kaplan, and he imposed millions of dollars of cost orders on me without a jury. Basically forcing me to pay Chevron's court costs for this unjust prosecution. And when I couldn't come up with the money, they then got him to order me to turn over my computer and cell phone to Chevron on the theory that they were going to look through my devices to see if I was hiding any money, which they knew was preposterous.
That implicated my ethical responsibilities to my clients to preserve privilege issues, so I appealed that order. Judge Kaplan, after I appealed it, charged me with criminal contempt for not complying with the order. This is very significant. There's never been, as far as my team can tell, a single lawyer in U.S. history who's ever been charged with criminal contempt for doing what I did, which is basically disputing a discovery order. Never happened before.
Now, once he charged me, he was obligated by law to take the charges to the U.S. Attorney's Office for the Southern District of New York. They declined to prosecute me, which I think is very notable and telling.[...] So Kaplan, rather than let it sit, then appointed a private law firm to prosecute me in the name of the public. The law firm had a client relationship with Chevron, as well as extensive financial ties to the oil and gas industry. I learned this seven months later. In the meantime, on the first day of the case, when I came in to appear without a lawyer, they put me on an ankle bracelet. It's a misdemeanor charge. I'm the only person in the entire country held on a misdemeanor pre-trial. Misdemeanors with no record never get prison time in America. Especially now, during COVID.
So it's really an extraordinary situation that's unprecedented. One day turned into two turned into 100. I'm now, [on March 11, 2021] at 583 days, in a case where a maximum sentence is 180 days if I were to be convicted, and I have not had a trial yet.
Not only would it be unusual for you to get a bracelet and a sentence if you were convicted, you haven't actually been convicted. You haven't had a trial.
That's exactly right. Judge Kaplan also bypassed local rules requiring random assignment of cases, and he appointed the judge. The judge is a woman named Loretta Preska, who's a proud and prominent member of the Federalist Society, to which Chevron is a major donor. She's denied me a jury trial. She has signaled that she thinks I'm guilty, even though we haven't had a trial yet, which is why she's locking me up. I simply cannot get a fair trial. I’m facing prison, and I cannot get a jury of my peers.
And for those who abuse their power, there is nothing.
A prosecutor can
hide evidence to get an innocent man imprisoned for 18 years-and not only will the state fight to prevent compensation after innocence is proven, it will appoint the prosecutor to the State Supreme Court. A prosecutor can
falsify a confession, and see no penalty. Judges can run an
illegal bail profit scheme for decades-despite having been found to have violated both state and constitutional law-and their penalty will be passed on to the county where they work. Prison guards can
split a man's skull with a meat cleaver, stomp on him while he's unconscious, and then attack him again while he's handcuffed in a wheelchair in the prison hospital-and the price they pay
is having to wear bodycams.But these are all outcomes of law. Courts and governments invent whole doctrines out of cloth in order to protect the interests of the powerful and sanitize it in fancy language. "Abstention", "sovereign immunity", "absolute immunity", "qualified immunity", "mootness", "standing", "state secrets"-these are never created in defense of the poor or even the average citizen. They're created to prevent the state (and its enforcers) from being held accountable by their victims in the only manner of redress they have.