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Andromeda: i look forward to each of your thoughts.
Hoags Object: I loved the opportunity to hear directly from Donzinger. I appreciated the readings as well because it gave me more of a visual reference to what's been going on in his case. I still lack a bit of understanding of what is next for him and what public opinion is about him/if public opinion about him can offer him any support in the eyes of the judge sentencing him next
Kashyyyk: I too appreciated Donziger sharing his thoughts. Thank you for this unique opportunity. I would love learning about prevalent issues in evidence law. What are some practices that you think we should abolish, what are some we should include, what are some we should improve? Is there room for reforms?
Whirlpool: I’ll lead by saying that I am Team Donziger. Whether or not Judges Kaplan and Preska are truly in cahoots with Chevron, it’s apparent that, by pursuing justice for the afflicted Ecuadorians and the environment, Donziger himself has suffered numerous injustices. Further, I truly appreciated the opportunity to hear from him personally, it was a valuable and enlightening experience. That being said, I sense that his success fighting in the court of public opinion has blinded him to the stark procedural and, to some extent, substantive realities of his fight in the courts of law. As we’ve discussed, the questionable bribery finding was of central importance to J. Kaplan’s RICO judgment. We know that judgment has withstood challenges with the bribery finding; it’s unclear that the judgment would have weathered those challenges without it (J. Kaplan’s strong assurances about the sufficiency of his “other findings” notwithstanding). But we’ll never know, because Donziger unfathomably failed to appeal the bribery finding. He knew it was in the judgment. He knew it carried substantial weight. He knew it was supported by a house of cards. And yet he chose to attack the judgment solely on legal grounds? So, none of what transpired next is really that surprising. Once Donziger was procedurally foreclosed from appealing the bribery finding, it was etched in stone as a fact of the case. Why would the appeals court overturn a judgment against a lawyer convicted of bribing a judge? Why wouldn’t the New York Bar disbar an attorney convicted of bribery? And why woudn’t Judge Preska find him guilty of contempt, given the facts supporting conviction on each count? For present sentencing purposes, I think his continued focus on the public opinion battle is misguided. J. Preska will not be swayed. She took pains to distance her contempt findings and conclusions from the underlying Ecuadorian case. Based strictly on the evidence before her, Donziger plainly failed to comply with numerous legal orders issued by J. Kaplan. With the bribery finding and RICO judgment in tact—after numerous appellate challenges—she had no need to question the propriety of those orders. My guess is that she’s more concerned about the esteem of her judicial peers than the public. In her view, she made a sound legal ruling. In fact, she likely believes that it would have been egregious for her to find Donziger not guilty of contempt. When we spoke with Donziger, I heard a strong individual, committed to his principles, ideals, and clients. But I also felt the toll that this lengthy saga is taking upon him and his family. And I sensed the fire raging in him towards those that have wronged him. He wants his story to be heard. He’s convinced of his version of events, and we may be, too. But Judge Preska is not. And so I think any approach at sentencing that is not 1) geared towards sympathy and leniency for him and his family on a human level only, devoid of any appeal to justice writ large, or 2) taken with an eye towards appealing the sentencing or an eventual Rule 60 motion, will miss the mark. He most certainly would be wise to avoid attacking J. Kaplan and especially J. Preska.
Callisto: I think Whirlpool makes some good points. As discussed in last week’s class, the fact that Donziger’s attorney failed to appeal the decision might make Donziger’s ability to argue his case more difficult from the public opinion perspective. If most members of the public only ever see the headlines of this case, it might be harder for them to appreciate the different factors that went into the decision on whether to appeal.