Chevron v. Donziger: Judge Guerra's Tale

, The Litigation Daily

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(Editor's Note: The American Lawyer's Michael Goldhaber is filing regular dispatches from the Manhattan federal district court bench trial in Chevron Corp. v. Donziger. For background on the case, the parties, and what it's all about, see the Litigation Daily's preview here.)

Week Two of Chevron Corporation's mega-tort countertrial completed the testimony of its star witness, Alberto Guerra, a former Ecuadorian judge who is now living in an unprecedented private witness protection program funded by Chevron. Chevron alleges that Guerra arranged for Ecuadorian environmental plaintiffs and their U.S. lawyer to bribe a judge in return for a bogus $19 billion judgment in February 2011. Chevron's opponents—who are now battling Chevron's fraud claims in federal court in New York—say that it's Guerra's story that's bogus.

Guerra testified on Thursday that his former judicial colleague Judge Nicolas Zambrano was eager to preside over the pollution case against Chevron, aiming to milk it for all it was worth. Guerra repeated that Zambrano first directed him to test Chevron's willingness to pay bribes. After being rebuffed by Chevron, Guerra said, he tried the Ecuadorian plaintiffs and had much better luck.

Guerra said that around September 2010 he met with Steven Donziger, Luis Yanza and Pablo Fajardo of the Ecuadorian plaintiffs' team and offered to let them write their own judgment in return for a $500,000 bribe to Zambrano. Guerra said that Donziger expressed worry that the plaintiffs might be "swindled" and did not strike a deal that day. However, Guerra said, Judge Zambrano later told him that the "plaintiffs' lawyers" had agreed to their proposal, so long as the bribe was to be paid after enforcement of the judgment. Adding a new detail to his previous testimony, Guerra said that he was to receive 20 percent.

Guerra testified that he edited the judgment written by the plaintiffs over the weekend of Jan. 28–29, 2011, to "fine-tune it" and "make it look as if it were written by a judge in the court." Guerra said that he did the edits on Fajardo's laptop in Lago Agrio, and that Fajardo personally handed him a "memory aid" on Saturday evening, which he belatedly found stuck to some other personal papers early this year and shared with Chevron.

In other supporting evidence, Chevron submitted a deposit slip showing a $300 payment from Zambrano to Guerra, as well as entries in Guerra's diary noting several payments consistent with Guerra's alleged salary as Zambrano's ghostwriter. Finally, Chevron submitted an email from Guerra to Donziger asking for U.S. immigration law help for his daughter, and promising: "I will support the matter of Pablo Fajardo so it will soon come out well."

Chevron counsel Randy Mastro of Gibson, Dunn & Crutcher ended with a cascade of five questions that simultaneously served as theater, as a summation, and as an inoculation against the hostile questioning to come. "At the time you were being paid $1,000 a month to ghostwrite Zambrano's civil cases, did you understand you were violating Ecuadorian law? … At the time you were receiving $1,000 a month to ghostwrite Zambrano's orders in the Chevron case, did you understand you were violating Ecuadorian law? … At the time you solicited bribes from Chevron's attorneys, did you understand you were violating Ecuadorian law? … At the time you solicited a bribe of $500,000, in exchange for which the plaintiffs wrote a judgment in their own favor, did you understand you were violating Ecuadorian law? … At the time you edited a judgment you knew was ghostwritten by the Lago Agrio plaintiffs, did you understand you were violating Ecuadorian law?"

After each question Guerra barely whispered: "Yes sir."

In Friday's cross-examination, Donziger defense counsel Zoe Littlepage of Littlepage Booth stressed the differing accounts that Guerra had given to Chevron investigators and in his deposition. Initially, Guerra had maintained that he edited the judgment in Quito on his own computer, rather than in Lago Agrio on Fajardo's computer. Before trial, he claimed to have received Fajardo's memory aid by email (at an Internet cafe) rather than in person.

"I said many things to the representatives of Chevron," he replied, "and many of those I was exaggerating because I wanted to improve my [bargaining] position." What Guerra meant is that he wished to make his computer hard drive sound as valuable as possible at the moment when he was auctioning it off to Chevron. As for how he got the memory aid, Guerra said it was a trivial detail, and he had initially remembered it wrong.

Two discrepancies noted by Littlepage seemed to be artifacts of transcription errors, and at least three struck the judge as nonissues. "Here we go again," cracked U.S. District Judge Lewis Kaplan at one point.

The task of attacking Guerra's motives fell to Julio Gomez of Gomez LLC, who defends the Ecuadorian litigants in New York. Guerra presented a fat target in light of Chevron's admitted financial support for the former judge. Not only is Chevron paying Guerra $48,000 for his evidence, but the oil company has agreed to relocate his extended family to the United States for their security and support their applications for asylum, and it is paying him $12,000 a month with generous benefits for at least two years in order to make him available for testimony. (Click here to read Chevron's agreement with Guerra.)

In reply to Gomez's questions, Guerra estimated that he had given 10 to 20 bribes in his career as a lawyer, and taken 10 to 20 bribes in his career as a judge—including throwing one case for as little as $200. "It doesn't take very much, does it?" said Gomez. By contrast, Gomez noted, Guerra had asked Chevron to "add a couple of zeroes" to the $18,000 it was offering for his first batch of evidence. (Guerra said he was joking.)

Gomez kept saying that Chevron had paid Guerra "in exchange for cooperating," and the lawyer got Guerra to adopt the locution. That's a bit dangerous, as professional rules generally forbid paying a fact witness for testimony—except for reasonable expenses incurred in testifying, or reasonable compensation for time lost. The propriety of Guerra's arrangement may present yet another appeal issue, as it went well beyond cab fare.

Asked about his love of family, Guerra acknowledged that he and his wife had missed their son and daughter who were already in the U.S., and that they had been worried over time about their immigration status. When asked to weigh the value of asylum and money, Guerra ventured that asylum in the U.S. was even more important.

Judge Kaplan wrapped up the week in dramatic style by asking the disgraced ex-judge from Ecuador two questions. As he spoke, the U.S. judge's eyes focused on the papers and screens in front of him (and perhaps on the appellate record).

"Have you told the truth in this courtroom?"

"Yes sir."

"Do you understand that you could be subject to prosecution for perjury and a jail term?"

"I know that sir."


Of related interest:

Chevron v. Donziger: A Dickensian Cheat Sheet

Chevron v. Donziger: Day One

Chevron v. Donziger: The Money Man

Chevron v. Donziger: Looking for Miracles in Ecuador

Chevron v. Donziger: The Scientists

Chevron v. Donziger: The Miracle Maker

Chevron in Ecuador: The Tapes the Plaintiffs Don't Want You to See

The Global Lawyer: Closing in on Truth and Justice in the Chevron Ecuador Case

The Global Lawyer: Kindergarten Lessons from Chevron in Ecuador

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