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By Nancy Gertner and Mark Bennett

For years, we have independently followed the long-running dispute between Chevron Corp. and human rights attorney Steven Donziger over a $9.5 billion judgment obtained in Ecuadorian courts. As retired federal district trial judges, we are deeply troubled by the latest twist in this case: highly unusual criminal contempt charges brought against Donziger by a federal trial judge in the U.S. District Court for the Southern District of New York.

As background, the 2011 judgment won by Donziger and his colleagues against Chevron has been validated by three appellate courts in Ecuador, including the country's highest court. Canada's Supreme Court also ruled that the Ecuadorians have a right to enforce their judgment. Chevron disputes these outcomes.

Chevron convinced an SDNY judge to find that the Ecuador judgment was obtained by fraud. Donziger and his legal team dispute this decision, as do courts in Ecuador, where Chevron accepted jurisdiction. We offer no opinion on the substance. The issue that concerns us is what happened after the Ecuador case ended.

After the SDNY trial judge denied a jury trial and ruled in Chevron's favor, at Chevron's request, he instructed Donziger to turn over his computer and phone to be searched. Donziger refused to do so, citing a pending appeal, his ethical obligations to his clients and his own constitutional rights.

The trial judge then drafted criminal contempt charges, and asked the U.S. attorney for the Southern District of New York to prosecute. That office refused to prosecute the case. The trial judge then invoked Federal Rule of Criminal Procedure 42 to appoint private practice lawyers of his choosing to act as prosecutors in the name of the government.

While the district judge had the legal power to reject the decision by the U.S. attorney and initiate criminal proceedings, the U.S. Supreme Court has repeatedly emphasized that courts must be extremely careful in exercising the contempt power. That is because when a court initiates contempt under Rule 42, it exercises authority that has a legislative (defining the crime) and executive (appointing the prosecutor) flavor, in addition to its typical judicial role (deciding the case).

In other words, without the exercise of due care, one judge could be playing the role of prosecutor, judge and jury in the same case — something that would put due process of law at grave risk.

In addition to this important concern, the court in a contempt case is wielding a self-made power to vindicate its own authority. Therefore, appearances are very important. If a court is going to proceed with an extraordinary Rule 42 prosecution outside of the guardrails provided by a normal prosecutor's office, it should triple-check the details to make sure that the public has no reason whatsoever to question the impartiality and integrity of the proceedings.

The Donziger case raises concerns. In March, esteemed law professor Ellen Yaroshefsky, one of the leading experts on legal ethics, filed a declaration stating that the appointed prosecutors at the law firm Seward & Kissel LLP had a disqualifying conflict of interest, because of their indirect ties to companies related to Chevron. 

Only after this declaration was filed did the prosecutors at Seward & Kissel reveal that in fact they had a direct tie to Chevron, which had been a client of the firm as recently as 2018. This revelation came seven months into the contempt case. 

Yaroshefsky notes that when prosecuting lawyers "whose disinterest is reasonably questioned [are selected] to serve as a special prosecutor … the legitimacy of the Rule 42 process and, ultimately, the criminal justice system may be undermined." We fully agree. 

Had we been the judges in this case, we would have been deeply troubled if we had not been told about a potential conflict of interest. If we had been informed in a timely fashion, we would have sought to have the chief judge of the district select and appoint a prosecutor, so that no concern over favoritism or neutrality might arise.

Another troubling aspect of this case is the fact that the trial judge chose another judge of the same court to preside over the criminal contempt charges, rather than using the normal random selection process. Clearly, the appearance of greater fairness would have been served by using random selection. 

We also find it unusual and concerning that this judge put Donziger in home detention, where he has remained for 10 months while he awaits a trial, currently scheduled for September. As far as we can tell, he is the only lawyer in the U.S. ever held in confinement, pretrial, on a contempt charge. Unfortunately, the decisions of the trial judge outlined above have drawn negative international attention to our legal system, with 29 Nobel laureates recently condemning Donziger's unfair treatment. 

Finally, the Donziger case raises questions about when the resort to criminal process is appropriate, and when it is not. The remedies of civil contempt and related coercive sanctions provide plenty of tools for a judge to manage situations like this. In fact, Donziger was very clear with the court that he was prepared to be held in civil contempt so he could properly resolve the important constitutional issues at stake, given the dangers faced by his clients in Ecuador. 

He also made clear that he would comply with the judge's orders if his legal position was not upheld by the appellate courts. We have never heard of criminal charges being initiated under circumstances in which the lawyer, in apparent good faith, was seeking more judicial review, as opposed to openly flouting the court. 

To protect both the court's contempt power and the purpose of criminal sanction, criminal contempt should be reserved only for acts so grave and abhorrent that they amount to an offense not just against the presiding judge, but one that has potential for undermining public confidence in the authority and dignity of our courts. Donziger, at a minimum, should be released from his extraordinary pretrial detention so he can continue his work on behalf of his clients, while the critical issues raised by his criminal contempt case are reviewed by an appellate court. 

Nancy Gertner is a retired U.S. district judge and a senior lecturer on law at Harvard Law School.

Mark W. Bennett is a retired U.S. district judge and director of the Institute for Justice Reform & Innovation at Drake University Law School.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.