OA540: The Bizarre Case of Steven Donziger

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello, and welcome to Opening Arguments. This is episode 540. I'm Thomas. That's Andrew Torrez, Esquire. How you doing?

0:01:24 Andrew: I'm fantastic, Thomas. How are you?

0:01:26 Thomas: I'm good, but I'm also an Esquare. I just, I mean, I was hoping you would say I was an Esqire, too. Do you mind?

0:01:28 Andrew: Oh, good. Yeah. You already said I'm Thomas. So you could have said I am Thomas Smith Esquire. And I would have said, oh,

0:01:37 Thomas: Yeah, but it means more when you do it, is all.

0:01:39 Andrew: OK. Well, you know, it comes from 13th century Saxony. You you could be my squire. That would just mean you have to, you know, attend to my armor.

0:01:47 Thomas: Carry your sword? Yeah.

0:01:48 Andrew: And yeah, exactly.

0:01:51 Thomas: I Oh, guess it's not going great based on election news. Right.

0:01:54 Andrew: Yeah, well, that's that's not great.

0:01:56 Thomas: Here's the main takeaway, though, from these elections. Andrew is whatever I already thought and was saying before the elections. These elections proved that to be true, I think, is the main. Takeaway.

0:02:06 Andrew: Yeah, it It definitely means that, uh, both the progressive wing of the Democratic Party is killing their electoral chances, and also, if only we'd nominated more progressive candidates, that, that, that we would have won. Um, yeah, no, the elections are perfect opportunities for pundits to kind of like come in and black box, and it's, you know, like I, I heard on MSNBC, I, I think it with Steve Schmidt, the right, ex-McCain guy who's now at the Lincoln Project, uh, know, say like, well, you know, this is proof that Democrats can't win when they're talking about, you know, these woke issues or whatever. And it's like, right, but you would say that no matter what happened, right?

0:02:17 Thomas: Yeah. Yep.

0:02:44 Andrew: Like, and and so I think, I think that's a really good point. Now, something One thing I will say, no matter what happened, but is nevertheless true, is think either of us foresaw how bad the result was going to be. But but both of us saw potential issue coming in terms of lack of Democratic engagement. Right. And that's of these races would have been handily in our column if the base was more motivated. Now, the question is, how do you motivate the base? Right. And so I think like progressives are totally right about Virginia. Right. Like Terry McAuliffe is a garbage monster. Know, Right, he's like a Clinton era centrist fundraiser, clown horn. He's terrible. And I think I agree with the people who say, like, well, you know, if we elected a more progressive candidate, you nominated a more aggressive candidate, they probably would have won more in northern Virginia. That's probably true. I don't think that explains an incumbent in New Jersey, though, guys.

0:03:04 Thomas: Yeah.

0:03:41 Thomas: Yeah. Well, there's a socialist who lost, too. I mean, there is. It's a mixed bag. That's always the thing is like if you look at all of the elections together, it's a a completely mixed bag and it actually doesn't tell the story you want to tell. But if you focus in on conveniently whichever one tells the story you want it to tell, then you can just do that.

0:03:45 Andrew: Yeah. Yeah. Right. Yeah. I mean, look, I think what does tell the story is we are moving to I have two takeaways, and tell me what you think, or if this is, uh, know, manufactured pre-, pre-election night, because I, uh, fair criticism. Um, and I think those stories are: number one, we are moving to an era in which the top line election, or the top line evaluation of the performance of the president, is always on the ballot. And so Joe Biden being at 43% approval absolutely dragged down, you know, both the, the Virginia and New Jersey gubernatorial candidates. And that's, a, that's an extension of 2020, where, with the exception of the inexplicable Susan Collins, nobody won a Senate race went opposite how the state voted for president.

0:04:51 Andrew: Right. Even in races that we thought we had good candidates, it was like if the state went for Trump, your Republican won. If the state Went for Biden, your Democrat won, except again in Maine. And so I think kind of point one is entirety of the Democratic Party down ballot But. Rises and falls with how Biden is doing in a way that is much tighter than than previous elections. That's true even in, you blue districts.

0:05:15 Thomas: Like, Think about how, what that means. I think what that actually means is it has to do with the motivations of select groups of people who are kind of in the middle and voted either because they're extremely negatively motivated or extremely positively motivated. So like either hatred of Trump was, we know that hatred of trump was a lot of Biden's vote. You know, it just was like, we knew that, you know, hopefully it wouldn't be too big a chunk, but that was what motivated a lot people.

And I know that that that's so hard for people like you and I in our audience who are supremely engaged to think about, but honestly, I think it comes down down to whether or not they get over that threshold of like, oh, yeah, I got to vote. Is that the is it today was the election? Oh, yeah. We have a governor thing. That's how like most people think about politics. I'm not even joking.

Like you try talking politics with any just your, you know, hairdresser, your whatever, just anybody you see in a daily basis. More times than not for me, they're like, oh, what's was there? What's their thing? Was there a did we do a thing? And this is not insulting them. They have lives.

0:05:15 Andrew: Right? Mm hmm.

0:06:20 Andrew: No,

0:06:20 Thomas: They got stuff to do.

0:06:20 Andrew: No, no. No.

0:06:21 Thomas: And so, like, I think we all cast it into these terms of, like, well, you see the voters didn't like that the Build Back Better package didn't include that. No, that has nothing to do with that. I'm sorry, that's just not what it is. Like, it's if they were enough motivated to get out of bed and actually remember that there was an election and all that. And these, these swings in these elections are, you know, they can be sizable sometimes, but when you talk about the number of people that is on the middle, I think, if anything, I mean, we have to wait and see. But But I think there's a core engaged group of voters who are probably pretty consistent on either side. And then it's the people who, for whatever reason, you know, they aren't motivated enough in a current election. And I think Trump would have brought out a bunch of people, both for and against him. And it's it kind of depends on a weird, you knows, stew of which of those people are still motivated for this particular election in an off year or not.

0:07:11 Thomas: And I don't think we should read too much into it. It's also just really hard to get for the incumbent party on you on off your elections. That's always true. I another thing that I think is so funny is people being like, well, this is there you go. Democrats not passing the build back better. And this is what you get for Joe Manchin. It's like, yeah, we I know we all know that. Do you think we all. Oh, this was our plan for Joe manchin and Kyrsten Sinema to totally F us. That was our play. Man, weird that that's not working like we all knows. That already. There's nothing. I mean, I guess people are angry and I get it. I'm angry too. I want, uh, cinema and mansion to see those results, but the thing is they don't care. So there's nothing we can do. We're stuck at ourselves over something we can't change.

0:07:19 Andrew: Yeah.

0:07:51 Andrew: Agree with all of that, the two things that I would pull out of which does not, predate the election and one of which does is 2022 is going to be rough and keeping, keeping and firing up Democratic enthusiasm, I think, is going to be sort of job one of anybody who does not wind does not want us to be looking up November 8th with a Republican House and Senate. Right, because that's what would happen if those if the results from yesterday were replicated, we would get wiped out in the 2022 midterms. Right. Like this was a D plus 16 and a D Plus 10 state, the D plus 10 getting flipped and the D plus 16 coming down to the wire. So, we need to figure out how to get Democrats, especially progressives, to to get motivated.

0:08:43 Andrew: And the second thing that that definitely comes from my observing the results that I didn't know is, um, the racist, bigoted QAnon uh, clown horn contingent of of Trump's base, uh, will come out even if you don't have a Marjorie Taylor Green kind of candidate, right? Like, you know, there's been a lot of analysis, uh, in Virginia, you know, about, you know, well, you know, how much did Youngkin play footsie with the Trumpers and all of that. But the one I thing I think everyone could agree on was he was not an explicitly pro Trump candidate. He was not Marjorie Taylor Greene. He wasn't a pro Trump. Worrisome. Yeah.

0:09:26 Thomas: Did they?

0:09:27 Andrew: Uh, the, the rural County results, uh, in kind of rural counties in Virginia, uh had Youngkin exceeding Trump's numbers. Right. And those are counties that went, you 85, 15 for Trump went 90, 10 for Youngkin, you

0:09:41 Thomas: Yeah. I think the, the turnout was good, which is the most alarming thing to me. Like I would it have been a little more or less worried, I suppose, if it was like, well, low turnout, we lost, you know, because then it's like, yeah, the other side's more motivated and off your elections when they're not in power. But yeah, it seems to be a high turnout and we lost which is weird. I'm not used to that. I will say so, you know, Virginia was plus 10 for Biden in 2020. But like in 2016 was only plus five for Hillary. So it's I don't know. I did this with 2018 too. After the 2018 midterms, which were historic, especially in certain areas where it's like turnout was just through the roof for Democrats in certain áreas. And then we take that and we're like, well, that's the baseline. Okay. 2018, that was the baseline, so this district Is like plus 800 Democrat.

And the then the next election it's like super close, like I don't know what happened, Democrats must have lost it with their message, they must have done, and you're like, no, that's just, we, we got really energetic when we had no power in 2018 and we had a lot of stuff going on then and motivating us, and Republicans didn't, like, it when I did that analysis back then it was like Democratic turn, turnout matched in 2018, basically matched like 2016, which, which, which is amazing for a midterm election.

Like they're never that high and Republicans was just low, you know? So it's like, it's hard to keep in mind. And I don't, I don't know a lot of people in the punditry business who actually use the evidence to the full extent and make claims that that are consistent with the evidence, you know, and it just, it drives me a little nuts.

0:10:30 Andrew: Off

0:11:18 Thomas: And here's another thing. I think a big motivator, it seems like when you look at the biggest swing in Virginia seem to be white women. And did you see that demographic?

0:11:28 Andrew: I did.

0:11:29 Thomas: You know, again, it's hard to know for sure, but it really seems like the school issue and the critical race theory bullshit is playing into that. And I would just like to remind ourselves before we, you beat ourselves over the head with how failure of Democrats and all this stuff, that the critical race theory moral panic is a completely consciously made up and admitted moral panic by Christopher Ruffo, as we've covered on the show, with full awareness that it's completely made up bullshit. And it still works like they still moral panic about it. What do we suppose? Do you think it's because we didn't put child care in the build back better plan, which obviously we should, you know, like, but do you think that's really going to break through? Like, like they believe in a fake thing about what, you knows, race stuff they're teaching in schools.

0:12:17 Thomas: It's totally fake, all that crap. And they don't want to teach actual history to their kids. Do you really think it's just going to be, as long as we get the right provisions in our $1.9 trillion bill and move it from 1.9 trillions to like 2.3 trillion like that, that would have done it though. That would have broken through.

0:12:33 Andrew: I, I couldn't have said it better myself. I mean, you know, it don't take campaign strategy advice from a podcast. But, you if I had been running the McAuliffe campaign, literally, like, to me, the way you go on the offense when they have a manufactured moral panic is, you Know, the question at the debate or at a press conference is, what about teaching critical race theory in schools. And you look over and you go, well, I'll tell you a theory I'm critical of the idea that the election was stolen in 2020.

0:13:01 Andrew: And, You know, who hasn't answered whether they think Joe Biden is legitimately president of the United States? Glenn Youngkin. So tell you what, I'll answer that question when Glenn Youngkin tells us definitively he believes the president of the united states is actually president of the united states. Right. Like, and just hold the feet to the fire on these guys so that you force that that division between, you know, sensible Republicans, that's with scare quotes, uh, and the Q Anon caucus. And now look, if the QAnon caucus decides to get to back people anyway and say, like, well, look, he's secretly on our side, but you know, he's gonna have to say to get past the liberal media, then I don't know what you can do, right? Like, it, it

0:13:00 Thomas: Yeah. Yeah, well, and again, that's that's in that's assuming that anyone's even listening to what McAuliffe is saying. You know, I just don't I don't think here's here's the counterfactual I want to bring up. And look, I want To be totally clear, I am mad about cinema and mansion. And I want them like I want the Bernie Sanders version of the Build Back Better plan. A hundred percent. That's what we should be doing.

0:13:49 Andrew: Yeah, well, that's that is true. Yeah, we all do.

0:14:05 Thomas: I bet you I would be willing to buy. I wish I had, like a, a portal gun or something, so I go observe another universe. I bet you if we pass the Build Back Better already with everything that Bernie Sanders and I and you want in it, I bet she, this would have gone the exact same way. It would, maybe it would tick us up a percent, but people, the reason Biden's, you know, approval is so low again, people are really worried about inflation and critical race theory is the, but like, and those, those are things that aren't, don't have anything to do. If anything, you could argue that spending, you know, three or four trillion instead of the two, one point nine trillion might be worse for inflation. Those are, I think we have to grapple with the fact that the country is just not as lefty as we all want it to be. And people are susceptible to right wing messaging about the president and the party.

0:14:48 Andrew: And I think that I think and I think the corollary of that is we have to keep making that case. We have to Keep Affirmatively making the case for why those left wing policies are good. Yeah. I mean, I the last thing I would add that layers on top of that is that, you know, the two concerns that showed up really high on the Virginia ballot were, you know, price of gas and supply chain. And again, right. I mean these are these are things that you.

0:15:06 Thomas: Yeah. Yeah. Well, remind you both of that stuff that he has nothing to do with. Like this is a such a bad, huh?

0:15:21 Andrew: Yeah. Right. It is.

0:15:26 Thomas: It's an insane system, yeah.

0:15:26 Andrew: Look, you just moved. Right. I've tried to order a table. Right. And I've been told like, well, you'll get that table in three months. Right. Like you just move. So I

0:15:32 Thomas: I think you were told, well, see, the governor of Virginia has decided you won't get your table, Andrew, so it has nothing to do with it. Think about how, again, this is why this is so ridiculous on all ends of it. The build back better, all that crap that happening, why should that have anything logically to do with the Virginia governor's race anyway? You know, like, it's all, so we're all trying to figure out just everybody's irrational behavior and then assign our rationality onto it, like, well, if we'd made the big back build back better package a little bit better, then the Virginia governorship would have changed. What does that have to do with anything if they're not involved in it? I, yeah, I get it's overall party sentiment, but I still, I just, I just think there's more going on. I think it honestly, um, I think the first thing you said about the candidate, it might be, might carry the day. I mean, a lot of this has to do with the individuals in question and McAuliffe, not a great candidate,

0:15:39 Andrew: Know.

0:16:23 Andrew: Yeah, yeah,

0:16:24 Thomas: All right. Well, we've got a show to get on. It's just, uh, all well, let's get to it.

0:16:29 Clip: Down the law, down the law.

0:16:33 Thomas: Okay. Rittenhouse judge. I have millions of updates. Take us through it.

0:16:38 Andrew: We do. Yeah. So a lot going on. And remember, official position here at Opening Arguments is we're trying to figure this judge out. It is the, the media, especially left wing sources, has already said, "Oh, he's in the tank for, for Rittenhouse." There, are a lot of plausible views. So let's kind of go through what's happened. Opening, opening statements are today. So I know a little bit about that, those, but were breaking as we're recording the show. So, number one, yesterday, apparently the judge went on a little bit of a rant about the media coverage of the case at the start of the conclusion of jury selection. Jury was not in the room when the rant was made. Don't blame it.

0:17:23 Andrew: Let's, you know, here's what he said. Quote, "There are people in the media on reputable sites that are saying things that are totally bizarre." The judge then specifically referenced a CNN report in which two legal analysts questioned his ruling, right, that we discussed on 08-538, including one who described it as incomprehensible. According to CNN.com, legal analyst Areva Martin made the comment.

Legal analyst Jeffrey Toobin, whom Schroeder specifically singled out by name, called it a, quote, "really unnecessary and unfortunate beginning to this really important case." Yeah, that's bad legal analysis by CNN. I'm with the judge on this one, you know, if you, if you listen to episode 538, know, should a judge maybe not use the beginning of War Deer as an opportunity to say, "I'm kind of pissed off at the way CNN is covering me," you know, maybe not.

But by the, but you know, by the same token, like I were 75 on the bench and I made a totally normal ruling, and then I wake, wake up the next day to find out that, know, everybody, you from Jeffrey Toobin to Rachel Maddow was calling me a Kyle Rittenhouse hack. Like I'd probably be a little pissed off, too. So

0:18:28 Thomas: Yeah.

0:18:29 Andrew: Whatever that's worth, that's kind of point one on the good news side. A juror was dismissed yesterday for telling a grotesquely inappropriate joke, which then got back to the to the prosecutor. I don't know if you saw that.

0:18:44 Thomas: I just saw the headline Was the, like, "I hope this person did it," in open court? Like, "All right, everybody hold on, I gotta say something"? Interrupt the trial.

0:18:45 Andrew: Um, uh, the, the prosecutor said that they heard it. Yeah. It would be like Pauly Shore jury duty, right? Um, except, uh. This level of humor is, is probably a sub of Pauly Shore here. The

0:18:52 Thomas: Yeah.

0:19:03 Thomas: Wow, that's, oh, my god, okay, well, I don't want to know what this joke was, I'm

0:19:07 Andrew: Prosecutors said he heard it firsthand. So this was not in open court. But it's, again, an illustration of how the system works. You know, the juror said, "Why did the Kenosha police shoot Jacob Blake seven times?" And the answer is, "Because they ran out of bullets." Um, immediately, uh, Thomas Banger, the prosecutor, uh, went to the judge and said, "Judge, you got to get this, sure, that the hell off the jury."

0:19:32 Thomas: Actually confused about in which sense this joke is intended. Oh, okay, yeah, because, like, I I honestly was taking it the other way. I, like, yeah, no, that makes sense, they would, they would shoot as much, they're racist, so they would shoot him as much as they physically could.

0:19:37 Andrew: I think the everything I've read about it was intended in the racist sense, right, like, yeah, yeah, yeah, right, that's you've got you've Got the more pessimistic

0:19:52 Thomas: Yeah, yeah, And Then I just realized that that's not, like, most people are not that anti as anti-police as I am, I guess, I don't know.

0:19:53 Andrew: Right, anti-police view now. This, this is right.

0:20:01 Andrew: Yeah. So then what happened was the juror was brought into court and the judge questioned him on the record. And so he said, I was told that while you were being escorted to the car the other day, you began to tell a joke about the shooting of Jacob Blake. And I wanted to see if that was accurate or not. And then he said mumble, mumble. And then the judge says, oh, it is.

Are you comfortable repeating the joke or do you just want to leave it alone? And the juror is like, I am not going to repeat the joke. And then the judge said, OK, well, then I'm going to dismiss you from the jury pool under the circumstances. And then the jury said that the jurors said, well look, you know, my feeling was it had nothing to do with the case. It wasn't anything to do with Kyle and his seven charges, end of quote.

And then the judge said, look, yeah, but I've got to make judgments here. And the operative rule is appearance of partiality or bias. You don't have to prove that a juror definitely will come in and vote to acquit Rittenhouse. You just have to say, "Well, this doesn't seem like somebody with an open mind." And The Judge said, "I try to confine my judgments to the things that I have to judge. I don't want to get into whether it has anything to do with the case. The public needs to be confident that this is a fair trial. At the very most, it was bad judgment to tell a joke of that nature." And then he said, "Wait, wait, wait, I mean at the very least, it was bad judgment"

0:20:53 Thomas: Hmm, oh,

0:21:24 Andrew: To tell a joke about, of that nature, uh, and so, uh, right, why, did, how many times, yeah, it, that is

0:21:24 Thomas: He's like, damn, it, I have to dismiss myself now, there's a, I messed it up, I mean, this just makes me nervous, you know, it's like, yeah, we, we want juries full of quiet racists, not out and out racists. I'm just, I worry, but every time we talk about voir dire, I wonder about that. Is it like, okay, which side got seven and which side God five is, am I too cynical? Is that not what it is?

0:21:44 Andrew: Certainly worrisome. But, I think it's I think you're too cynical. I have more faith in juries than that. And from folks that I've talked to who have served on juries and in looking at even, you intensely political, right, those allegations were made about the Manafort jury. But, you know, nevertheless, like they convicted on 10 of 16 counts like it.

0:21:59 Thomas: Okay.

0:22:17 Thomas: You're right.

0:22:18 Andrew: I'm a happy optimist.

0:22:18 Thomas: I, you know what? I got to go back to my, uh, what I just be consistent with what I said earlier that hopefully, hopefully most people aren't as political as we are. And a lot of people might just be average everyday folks who are willing to decide a a case without politics playing too big a role, I hope.

0:22:33 Andrew: Yeah. And then this is the big one. Folks have been pestering us about questions, did the judge lecture the jury about the Bible for a long period of time, uh, here's what actually happened, this was again another motion in lemonade, uh, the lead prosecutor, uh, again, Thomas Binger, uh, said that, uh, what he wanted to do was, uh, during his opening statement, play a video that contained an audio track. The video is from the Rundown Live and the narrator says, as they're showing what's going on, I'm here with, quote, "a bunch of militia in Wisconsin." Right. And, you know, since we've talked about the characterization of, you can you call the victims victims? Can you call them rioters, looters, whatever?

0:23:20 Andrew: Well, you know, can you call the folks who showed up of whom Kyle Rittenhouse was a part? Can you call them a bunch of militia? Defense counsel said, "Yeah, look, like that's improper editorialization, you said you want to keep that out."

0:23:34 Thomas: You call them a well-regulated militia?

0:23:35 Andrew: Yeah. Right, he, look, uh, you guys both agreed that the, uh, recording was authentic, right, to the, to the chain of custody issues, um, and so what I want to do then is I want to explain for the jury, right, about hearsay and in terms of believing anything that's on the videotape, because again, the videotape is hearsay, without the person who recorded it present in the courthouse for cross-examination. The judge did then was give kind of a very, very long explanation of the hearsay rule to the jury, which says it, which kind of right. Like the first part of that, he said, look.

0:24:17 Thomas: Did an opening arguments Tuesday deep dive on it. Prosecutors like, all right, this is a lightning round. Come on, come on, lightning round!

0:24:25 Andrew: But first, the first part of it was explaining the difference between exclusions from the hearsay rule and exceptions to the hearsay rule. And, and he said, I thought this was a very opening arguments the kind of statement, so some things that may seem to the untrained ear to be hearsay or not, and some things don't seem like it, are hearsay. Is a statement of a non-testifying person cannot be offered to prove the truth of the matter which is asserted in the statement, statement

0:24:53 Thomas: Wait, can I get the audio on this? Actually, this will help me with the bar exam. I kind of need a lecture on hearsay and now

0:24:59 Andrew: Introduced into evidence has to be under oath, it has to, to be subject to cross-examination. And that's not true of statements made by somebody who is not here while testifying as a witness. So is the last of the quotation. The person who's describing this is not subject to the rules of court, and therefore the statements, right, that a bunch of militias cannot be used as evidence. And then that's when came the Bible instruction. Instruction. Quote, this is actually referred to in the Bible. St. Paul, when he was put on trial in, I think it's Caesarea, well, it was over in Palestine, Israel, he was accused of some activity and he was a Roman citizen, which is not common, but he happened to have been a Roman citizens. So he had rights that we now have as Americans. And when they tried to put him on trial with evidence from, which was being repeated by somebody and who wasn't there and wasn't under oath, he said, "Where are the witnesses against me?

0:25:53 Andrew: I am a Roman and I have the right to confront my my accusers, they should be here. And that led to actually his voyage to Rome to have his case heard before the emperor. So so it's an ancient rule. It's strictly, strictly enforced by the criminal courts for very obvious reasons.

0:26:08 Thomas: I'd like to thank our Hall of Famers, our all-time greats over on patreon.com/law, a

0:26:14 Andrew: That got a lot of People wondering, is the hearsay rule really derived from the the Bible? Was this like kind of crankery? You know, what's what's going on? The answer is, I was going to do this. I swear to you, I Was going to Do This. Answer is I would look to for sort of the seminal texts on the development of the law of hearsay. I would would look to two things. The Right. First is a 1904 law review article called The History of the Hearsay Rule, like the show notes, I have read, which every lawyer just just sort of like, again, this is a landmark law review particle. There was also a 2014 if you're not into, you 1904. There's a 2014

0:26:28 Thomas: Full deep dive on the hearsay rule in the Bible.

0:27:02 Thomas: Oh.

0:27:02 Andrew: Law review article called The Mold That Shapes Hearsay's Law. OK. Neither of those sources reference Acts 25 or Paul or the Roman governor Festus or any of that stuff. However, there is a Supreme Court decision that that does. That decision is called Coy versus Iowa. And Thomas, not for bar credit. When do you think that that opinion was was written?

0:27:27 Thomas: It's not for the bars, I don't care, I only perform, I don't get out of bed for anything less than a bar exam question. Point, year, 1897? Oh.

0:27:35 Andrew: Uh, Turns out 1988, yeah. I know, uh, immediately, when I saw there's, you know, the Supreme Court has endorsed, the, you know, it goes back to Acts, I was thinking, right, yeah, from some, like, 1834, you know? Nope, 1988. And now, for double or nothing, if I tell you it's a, a 1988 opinion, can you tell me who wrote It, it is, of course, Antonin Scalia. Um, so here's what Scalia said in Coy versus Iowa, and tell me if this doesn't sound pretty much exactly like, almost word for word, like what Schroeder said. Uh, the Sixth Amendment gives a criminal defendant the right to be confronted with the witness against him. This language comes to us on faded parchment with a lineage that traces back to the beginnings of Western legal culture. There are indications that a right of confrontation existed under Roman law.

The Roman governor Festus, discussing the proper treatment of his prisoner, Paul, stated, "It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face to face and has been given a chance to defend himself against the charges." Acts 25:16. And then it goes on, and there's a, there's a secular citation for, you know, those of you from Shakespeare, from Richard II.

0:27:57 Thomas: Wow, is it Scalia. Was

0:28:51 Andrew: Shakespeare was thus describing the root meaning of confrontation when he had Richard II say, then call them to our presence face to face and frowning brow to brow. Ourselves will hear the accuser and the accused freely speak. By the way, that case, This is this is this is kind of an extension of an issue we talked about obliquely on the Q&A audio out for patrons. And if you don't come to Q&As, you're missing out a lot. But we talked about confrontation. We talked about precisely this right to face your accuser. This Coy versus Iowa case involved a criminal defendant who was accused of sexually assaulting two 13 year old girls. And what they did at trial was put up these kinds of one way screens so that the effect was that the girls, when testifying, could not see him at all, but he could sort of see their outline through the screen.

0:29:49 Andrew: Right. And the idea was, I think, a very sensible and well-motivated idea of, hey, let's not have, you know, a 13 year old girl testify while having to stare at the the guy who who sexually assaulted her. But the Supreme Court said that's not good enough. You have a right to, to face to face, face your accuser. So, of that is to say, as much as I want to be annoyed with a long biblical analogy from the bench to the jury, you're a trial court judge essentially quoting from a Supreme Court opinion on, on hearsay and confrontation, I can't find fault with it. Right?

0:30:08 Thomas: Jesus.

0:30:34 Thomas: So basically Scalia did this to us.

0:30:35 Andrew: Yeah. It did, and that could be, are the shows, you know, if we ever do a colon, "Opening Arguments" colon, "Basically Scalia did this to us."

0:30:40 Thomas: Yeah. Yeah, God. Not sure anyone has done more damage to the law. Well, let's see is early in the Trump court.

0:30:45 Andrew: Yeah. Yep. And then I was going to talk a little bit about opening statements, but, given time, I think, I think I'll pass. Let's, uh, let's talk about that next week. I will say this, I thought that in kind of going back and forth, uh, I've been impressed with, with what Bingham has been doing in this case, uh, and I think that the, the defense theory was sort of adequately anticipated, uh, by Binger, uh, one of the things that, that struck me was, you, the idea that, oh, you, he's there to defend the businesses. After the police moved the barricade and pushed all the demonstrators past, Binger says, quote, "Does the defendant stay there?

Does he decide he's done what he set out to do and it's time to go home? No. The evidence will show that the defendant and another individual in the group decide to venture out into the crowd and walk amongst this group of hostile protesters," protesters, um, and I, I thought that was really, really smart, right, like, to kind of, in your initial statement, not knowing what's coming out next, uh, to, to block out that argument of like, well, you know, I'm, I'm just here because I have close ties to this community, that's in a, a

0:31:11 Thomas: Yeah. I was

0:31:56 Andrew: State I don't live in, yeah.

0:31:56 Thomas: Gonna say like couldn't He be like, yeah, also, as you say, he doesn't live in the state and he doesn't own any of the businesses, case closed. I mean, is there, do we really, I know this country is a corporate capitalist nightmare, but do we really think that, like, a business has a right to life, the above and beyond, like, people that may be protesting? I mean, I don't, I don't understand it, yeah.

0:32:13 Andrew: Well, No, but but but It anticipated what Rittenhouse's defense council, uh, Richards, Mark Richards, uh, spent a significant chunk of his opening statement saying, which was that Rittenhouse was somebody who had very close ties to Kenosha, Wisconsin, and just wanted to lend a hand to the community, and, you know, you you, it, when you're able to anticipate what the other side is going to say and kind of plant a seed of doubt, that, to me, that strikes me as effective. So there you go. We're going to follow, uh, trials that only expected to take two weeks, um, so, you, we'll obviously keep following

0:32:32 Thomas: Okay.

0:32:43 Thomas: Points for the prosecutor, yeah.

0:32:56 Thomas: Show is brought to you by Talkspace. There are many reasons that some people don't go and seek help with their mental health. Whether it's the stigma involved or the fear of opening up to a stranger or the thought of of friends and family judging you or treating you differently. But meeting with a therapist to is just as helpful as hiring a personal trainer to work on your physical health. And the positive impact can be just as life-changing, if not more, I think. Talkspace makes it possible to speak with a licensed therapist right from your phone, tablet, or computer. And unlike traditional therapy, you can message your therapist anytime via text, video, or voice. It's 100% secure and stigma-free, the way therapy should be. I don't, therapy has great, because we all need to talk to somebody.

0:33:42 Thomas: And oftentimes I think there's this attitude like, oh, I can talk to my friends or my family or my spouse or whatever. And the two problems with that. For one, it might be a ton to put on them that they might not be properly equipped to handle. And two, they might not always give you the best advice or an unbiased opinion, the way that a therapist can. And I think that's pretty mandatory if you really want to make progress, to to be able to have that unbiased observer that you can really trust. And at Talkspace, privacy and security are their number one priority. The app puts you in a private room with just you and your therapist. You can send messages 24-7 and get replies throughout the day. No need to wait for a weekly appointment. Talkspace's encryption and added security features keep your conversation fully protected.

0:34:28 Thomas: Whether you struggle with anxiety, depression, depression, self-doubt, or anything else, Talkspace gives you access to the help you need to move forward. So, join Talkspace today and start moving forward with a single message. Visit Talkspace.com and get $100 off your first month when you use the promo code OPENING at signup. That's $100 off at Talkspace dot com promo code opening. Show is brought to you by Green Chef, and I know what you might be thinking. You've heard us advertise with HelloFresh before, and here's the thing, Green Green Chef is now owned by HelloFesh and and there's something for everyone. I myself switch between them sometimes, depending on what the recipes are for the week, things, because I'm always trying to find the best vegetarian option. So here's why I love Green Chef.

0:35:15 Thomas: Green Chef has a meal plan for every healthy lifestyle. That means keto, paleo, plant-powered, or even if you want to just have delicious but balanced dishes. And as always, they curate every recipe with over 30 meal choices per week and the flexibility to switch plans, so you'll never have to sacrifice taste for nutrition. You can enjoy restaurant-quality dishes in the comfort of your home. I'll tell you, I. I cannot live without Green Chef. This is the kind of thing where I can't imagine before we had it because it just takes away that added burden of having to meal plan and not only plan out what you're going to make, try to vary it up, you know, so it's not the same thing every night. And then also after you've done that, you got to buy all the ingredients in the right proportion so that stuff doesn't go bad in the fridge, which is like my biggest pet peeve.

0:36:01 Thomas: I like, I hate when stuff goes bad in the fridge. Never have to worry about that again with Green Chef because they give you nutritious and new recipes each week that are perfect for you and the whole family. And they are pre-portioned with easy to follow recipes delivered right to your door. So you never have to worry about meal planning or shopping for dinner again. Again. So go to greenchef.com slash OA125 and use code OA125 to get $125 off, including free shipping. Wow, $125. That's a ton. If you want to get that, once again, go to greenchef.com slash OA125 and use code OA125 to get a hundred and twenty five dollars off, including free shipping. Go find out why Green Chef is the number one meal kit for eating well.

0:36:48 Clip: He who questions training, only trains himself at asking questions. What?

0:36:57 Thomas: Let's talk about the case that we get, I don't know, an email or two a day about, um, Donziger.

0:37:00 Andrew: Do We do, yeah, this is attorney Steven Donziger. And it is about his representation of villagers in Ecuador, specifically in the Lago Agria region, where he and his law firm brought a lawsuit that resulted in. In now this is both of these numbers are in the court documents, so I don't know how to evaluate that. Alternatively described as an eight point six billion dollar judgment or a nine point five billion dollar judgment, against Chevron. Now the parent company of Texaco. I don't know if you even remember Texaco as a gas company. Yeah, there you go. For in the Lago Agrio region. Right. Right. So

0:37:39 Thomas: I Do Yeah. Already. How, it seems weird that you would have two different numbers, like that would seem like the most basic information that the court documents Would have, right? Is this abnormal?

0:37:51 Andrew: That's Yes. And we'll get into it. So, look, it is unquestioned that Texaco dumped waste in Ecuador. Right. It is unquestioned that their behavior is awful. But, and there's always a but, this is an area where the reason that folks are interested in this case has to do with arguments that go, are being made by by Stephen Donziger, that go beyond the court documents. So what I can do is I can tell you what the background court documents say. I can tell you what Donziger's claims are. Uh, and then in evaluating kind of that gap, right. Media sources, right. Investigative journalism really is going to be better than a lawyer supposition. Um, but let's go through this. Okay. So that, that verdict, that let's call it a $9 billion dollar verdict, was procured

0:37:55 Thomas: Okay. Yeah. Hold.

0:38:46 Andrew: In 2011 in Ecuador. OK, and then Chevron immediately sued Donziger personally in federal court in New York later that year, claiming that what Donziger did was pressure the presiding judge in Ecuador and procure that judgment by fraud. So in 2014, there was a bench trial and U.S. District Court Judge Lewis Kaplan at the end of that seven week bench trial. Right. So not not a short trial these findings. He refused to enforce the judgment Against Chevron, saying that it had been secured through bribery, fraud and extortion. Extortion.

0:39:36 Thomas: So we're saying that the bazillion dollar oil company, that that what happened was actually the plucky lawyer was the one who bribed and, like, whatever, pressured, you know, the judge to decide against the poor innocent little oil company? Yeah.

0:39:52 Andrew: That's, that's right. And, and look, this is part of, I think, what makes this such an appealing story, right? Because A lot of the things that I'm going to describe from the court documents are counterintuitive, so yeah, you've, you've hit on kind of number one, which is really the plaintiff's lawyer outspent you guys in Ecuador, huh? Okay, um, if it's for sale, you'd think Chevron would be the highest bidder. I agree with you. Now. OK. So in that, at the end of that 2014 trial, the judge issued an injunction, said you cannot enforce this judgment in any court in the United States because it's a fraudulent judgment. We're not going to let you collect billions of dollars from, from Chevron that you got by, you know, hiring out this yokel in, in, in Ecuador, and it imposed a constructive trust for the benefit of Chevron. Right. Said we also want

0:40:00 Thomas: It'll

0:40:47 Andrew: Any property, right, including money that you have received or may receive anywhere in the world that is traceable to the Ecuadorian judgment or its enforcement, has to be surrendered to the court, placed into trust. And then I will figure out how best to

0:41:03 Thomas: Go To scholarships For young Oil companies That want to go Police to murder The world, wow.

0:41:05 Andrew: Yeah, right. Exactly right. That's what the trial court rules in 2014. Lewis A. Kaplan, by the way, Clinton appointee. We have discussed him on the show he's in the Southern District of New York. He has had some of the critical rulings. In connection with the subpoena of Trump's taxes in in the finance cases. And Right. No indication.

Right, that in any other respect, you know, that this is a, you know, right wing friendly corporate hack, you Know, came out ruled, you Know, with respect to the subpoena against Deutsche Bank that that Deutsche Bank had to turn over the information Just to just a slide piece of information So that judgment, 2014, goes up to the Second Circuit, again, liberal circuit, which affirms the judgment.

And it's from the Second circuit that that I want to to go through and talk kind of sketch briefly the allegations against Donziger, which, again. Now have been upheld by the Second Circuit, the U.S. Court of Appeals for the Second circuit. And, know, the Supreme Court denied cert. Right. So this is the final ruling by a court on the merits. The allegations are really bad. Right? They are that Donziger pressured Ecuadorian judges. The way Ecuador's trial system works is you only spend a limited amount of time with the case. And so as it drags on, Judge A gets replaced by Judge B, gets replaced by Judge C. That can happen.

0:42:31 Thomas: Makes life of a briber difficult, oh. I got another One, yeah.

0:42:33 Andrew: Yeah, I know You would think Chevron would be able to get in there, right? The gravamen of the allegations. Allegations surround a person named Richard Cabrera,, who was selected to be the court's omnibus expert. And right, the allegations are that he was, in fact, in the pocket of the plaintiffs and that his report was essentially written by the plaintiff's and thus designed to pressure Texaco into settling the case. So now I'm going to read to you directly from the Second Circuit opinion. This is page 117. I'm sorry, this is 112. 117 comes next. In the last analysis, the facts concerning the Cabrera report are crystal clear. Cabrera, again, this is the expert, was not even remotely independent.

0:43:22 Andrew: He was recruited by Donziger. He was paid under the table out of a secret account above and beyond the legitimate court-approved payments. He was promised work on the remediation for life if the plaintiffs won. The plaintiffs gave him an office and life insurance, as well as a secretary who was a girlfriend of one of the plaintiff team members. Plaintiff's expert wrote the overwhelming bulk of his report and his responses to Chevron's objections. And in accordance with Donziger's plan to ratchet up the pressure on Chevron with a supposedly independent recommendation that Chevron be be hit with a multi-billion dollar judgment, Cabrera repeatedly lied to the court concerning his independence and his supposed authorship of the report. That's real bad when a second circuit says that about you.

Yeah. More on page 111. The district court found that the plaintiffs bribed the sitting judge, Zambrano, to allow them to write the judgment in the Lago Agrio Chevron case. Now, we have the final summary on page 117. And again, I gave you some context on the specific details. Here's the top line. Having found that Donziger and the Ecuadorian lawyers he led in representing the plaintiffs corrupted the Lago Agrio case by inter alia, that means including including submitting fraudulent evidence, coercing one judge to use a single supposedly impartial global expert to make an overall damages assessment for the judge, handpicking and illegally paying an expert who would totally play ball with the plaintiffs in making such a damages assessment of the judge.

0:44:06 Thomas: Yeah.

0:44:57 Andrew: And by the way, those words are in quotes because they come from documents submitted to the evidence, right? Coercing that judge to appoint Donziger's handpicked expert as the court's global expert, paying a Colorado consulting firm secretly to write all or most of the global expert's report, falsely presenting the work, the report as the work of the court appointed and supposedly impartial expert. Fraudulently having the Colorado firm write supposed criticisms by the plaintiffs of the expert's report that the firm had written for the plaintiff's to cause it to appear that the expert was impartial and his report neutral, rather than, as in fact it was, written by agents of the plaintiffs. Right. So, in other words, sock puppetry, half truths or worse to U.S. courts in attempt to prevent exposure of that and other wrongdoing, Having the plaintiffs team write the court's judgment themselves and promising five hundred thousand dollars to the then presiding judge in exchange for his agreement to rule in the plaintiff's favor and sign their judgment. Those are astonishingly horrible facts. Right.

0:46:00 Thomas: Just to remind us, you're saying this was a Second Circuit decision? So this is reflected, this isn't just like in Ecuador or whatever, this is a Second circuit here looking over it?

0:46:04 Andrew: Yep. Yeah. So this is he won in Ecuador. Chevron files suit in the Southern District of New York. The Southern District of New York says, yeah, after a seven week bench trial. Yeah, you Have successfully proven that that Donziger procured this verdict by fraud that then was appealed by Donzigger up to the Second Circuit. And I was reading to you from the Second circuit's opinion. Right now, is it fair to say, right, that factual findings are reviewed only for clear error on appeal? They are. But if there was clear error that should have been raised. Right. Like if I did not bribe the judge, that's the kind of thing you would say on appeal. Instead on appeal. You say, yeah, the the the district court was clearly erroneous when it said I bribed the judge. Judge. Here's all the evidence that I never bribed the judge.

0:47:02 Thomas: Well, But also, why would that district court be so wrong about that? I mean, you mentioned it was a seven-week bench trial and they are doing nothing but reviewing the facts, right? But

0:47:11 Andrew: Donziger's argument is that Kaplan and and the subsequent judge that he appointed to oversee the criminal contempt proceedings are in the pocket of Chevron. A

0:47:24 Thomas: Why a seven-week bench trial, don't you think It would, yeah.

0:47:26 Andrew: You would. Yeah, I can do is tell you what the documents say. Right. So and I can try. And again, I'm doing my very best to give the benefit of the doubt to those arguments and to say where I can and can't evaluate them. So the Second Circuit noted that Donziger did not, quote, "without challenging the sufficiency of the evidence to support any of those factual findings." Donzinger challenges the district court's judgment, arguing principally that the action should have been dismissed on the ground that Chevron lacks Article III standing and or that the judgment should be reversed on the grounds that it violates principles of international comity and judicial estoppel.

0:47:39 Thomas: I was Actually gonna ask you about that, like Is this a normal action that you can take, like, if some, let's say, just as a pure hypothetical, someone goes to some other country and gets a bogus judgment against me just and it's clearly like, oh, this is totally bogus, maybe, maybe it's a corrupt country, whatever, again, just hypothetical. Do I have some sort of action or claim in the U.S. of, like, hey, no fair, don't enforce this?

0:48:09 Andrew: You. Yeah.

0:48:33 Andrew: You do. And that's what and that's what Chevron did here In the United States, because what you have to do with a foreign judgment is get it enrolled, right, in a court of competent jurisdiction that can then issue relief that, you know, that court is capable of issuing. And here it looks like Chevron sort of beat Donziger to in the race to the courthouse to to file their lawsuit first. Right. They certainly could have just waited for him to try and enroll the judgment in the United States. Instead, they came over here and they said, look, Donzinger is going to try and enroll this judgment. We want injunctive relief because it was procured by fraud.

0:48:36 Thomas: Cool.

0:49:13 Thomas: And then you got to prove that, right?

0:49:14 Andrew: Right. That's exactly right. And then the district court said, yep, we agree with you. This was procured by fraud. We are going to enjoin Donziger, his law firm, anybody from trying to enroll this judgment because it's we we think that it's not valid.

0:49:29 Thomas: If we're trying to evaluate this again, because there's crazy claims here of both ways, really, who Who would need to have been bribed by Texaco Chevron for this district court to, you know, under that, under that theory, who was, is it just one judge that's handling the trial that would, you would need to get to?

0:49:34 Andrew: Yep.

0:49:48 Andrew: Well, you would bribe the trial judge, Lewis Kaplan. But then what happened was Donziger appealed to the Second Circuit and you would need to bribe the three judge panel of the Second Circuit that affirmed. And again.

0:49:58 Thomas: Right. Yeah. You're looking at your your bribery budget, you're like, don't be on bunk. Don't be unbunked.

0:50:11 Andrew: And, and again, so let me parse out, you know, that that bit of legalese there. His appeal to the Second Circuit, Donziger did not contest the facts underlying the district court's opinion after the trial. What he, what he did was raise two legal arguments. He said, number one, you have a foreign judgment, and so principles of international comity mean that you should not, that you should not issue a ruling that is contrary to that foreign court's judgment, which, by the way, is is a true legal principle if it has not been procured by fraud. It. And number two, and he actually argued these in opposite order, Chevron lacked standing to bring the case in the United States. And I'm not going to get into the merits of that argument, but again, the Second Circuit rejected both of those procedural arguments.

0:50:59 Andrew: It is fair to say, so again, now I want to go back pro-Donziger side, it is fair to say on appeal, you stand a better chance with legal arguments than factual arguments for the reasons that we've talked about. Right. Legal arguments are evaluated de novo. You just have to win them. Factual arguments are evaluated on the clearly erroneous standard, which is hard to prove. But if you didn't do it, I would think I would tell you in any case where I represented someone, you would absolutely the facts that the lower court got wrong.

0:51:12 Thomas: Right.

0:51:29 Thomas: Again, under the theory that the judge at the district level was bribed into just completely delivering a false verdict. I think you would probably try to challenge those facts, right?

0:51:36 Andrew: Right. I would think you would. And that did not happen. So court then issued injunctive. Again, remember, the district court issued injunutive relief. We've quoted that that that prevented Donziger from enforcing that judgment also that constructive trust that we talked about. That's going to be important in a minute. Required Donzigger to turn all property he has received that is traceable to the judgment into a trust for the benefit of Chevron. And spoiler, he did not do that by his own admission. So that's 2016. At this point, that leads to an attorney bar grievance complaint. Right. An investigation. If you've got a lawyer who is allegedly bribed a court in Ecuador, that's the kind of thing the attorney grievance committee would like to know about. Right. So, in 2018, he was referred for disbarment for that behavior and he was disbarred from the practice of law in 2020.

0:52:23 Thomas: Yeah. Wow. You would also think they would probably look at the evidence, right.

0:52:36 Andrew: Would think.

0:52:37 Thomas: Because for them, it's like, imagine if this guy is telling the truth about the whole corruption thing. I would think during that disbarment hearing or investigation you'd be like no look I got the bad end of the stick here's the evidence you know like I come on

0:52:38 Andrew: Yeah, you would think instead they and I will link the bar opinion in a in the show notes. The one relevant paragraph is respondent has been found guilty of egregious professional misconduct, namely corruption of a court expert and ghostwriting his report, obstruction of justice, witness tampering and judicial coercion and bribery, which he steadfastly refuses to acknowledge and shows no remorse for. So. OK, so that's the disbarment proceedings possible.

0:53:19 Thomas: Oil company also got to them damn it

0:53:22 Andrew: There are also civil contempt proceedings that get initiated against Donziger in 2019. Why does this happen? Because he has violated the injunction. And so in particular, right, in 2019, same judge, Lewis A. Kaplan. So, you know, you get a twofer for your money found Donziger in contempt of the injunction for having raised more than $1.2 million by selling interests in the Ecuadorian judgment to six investors. OK, let's break that up a little bit. But you have a court judgment, right, says Chevron is going to have to pay asterisk nine billion dollars. This would be, I think, likely illegal under U.S. law, but apparently not illegal under Ecuadorian law to then go to outside investors and go, hey, when judgment is bad, how would you like to buy this at a discounted rate? You're

0:54:13 Thomas: Have a structured settlement and I want cash now

0:54:17 Andrew: Right. And again in, in the United States, right. That's, that's champerty. You can't do that I believe, I mean, I could be wrong that the law of champerty is not a thing with which I am super well versed. So if it's Andrew was wrong, please, please do. I would love to hear from our champerdy experts among our listeners. I'm serious about that.

0:54:34 Thomas: That's the best word thus introduced on the show like champion and liberty combined it's it's two great American things

0:54:40 Andrew: It is. He off some of his interests in in the judgment, but also some of His personal interests in His contingent fee. And raised, like I said, over a million bucks. And you might recall that that that injunction said, may not.

0:54:59 Thomas: It's all got to go into the scholarship for young young oil companies who want to pollute the world

0:54:59 Andrew: Yeah. All the assets have to go. Right. Right, right. So Kaplan found him guilty of civil contempt and ordered him to pay $3.4 million in Chevron's attorney's fees and $666,476 in sanctions, uh, that's a multiple of, uh, the money he raised for himself, uh, by selling off parts of the judgment? Again, Donziger appealed up to the Second Circuit in 2021, different panel of the of the Second Circuit. And the Second Circuit largely affirmed the the civil contempt. The one thing they they ruled in Donziger's favor was, OK, maybe there was some ambiguity with respect to the selling off parts of the verdict.

0:55:50 Andrew: Right. Because that's not, that wasn't your property at the time. And there was a question about, right, like it's a super technical argument. But but they said, look, we're going to give Donziger the benefit of the doubt. We're going to reverse on this part. And because we're reversing on that part, that $666,000 figure has to be recalculated, right? Court has got to figure out how much was due to the sanctions that we've upheld and how much is due to the part that we reversed. Do need to read, this is from page 212 to 213 of of the Second Circuit's opinion, they were very, it's hard to get more clear than this.

Lest this opinion be taken as somehow vindicating Donziger, it is important to put our holding in context. Our ruling today has no effect on and does not in any way call into question the district court's thorough and fully persuasive fact findings and legal conclusions, which we have already affirmed in full, establishing Donziger's violation of law and ethics that added up to a pattern of racketeering in violation of the RICO statute. Nor does it question in any Anyway, the district court's conclusions that Donziger acted in contempt of the injunction that resulted from the RICO judgment in numerous ways.

Indeed, except with respect to the very specific alleged violation of the injunction discussed in this opinion, Donziger does not even attempt to challenge the district court's findings of his contumacious conduct. I could read more. But yeah, there's... there's like three pages of don't look, don't get us wrong. We are not saying that that we approve of his conduct in any way. So that was 2021 affirming the civil contempt. Finally, at the same time, 2019 were criminal contempt charges brought by Judge Kaplan. Those criminal contempt changes stem from Donziger's refusal to do things that the court told him to do.

0:56:27 Thomas: Wow yikes what

0:57:36 Andrew: OK. And this is kind of the last step of right that any judge has for, hey, I told you to do X and and you said, no, I'm not going to do that. Court Right. Tells me we want you to, you know, produce X documents by Saturday. And Right. I don't produce them by Saturday, I can expect that court to then say what gives. And then, you know, maybe I say, OK, I worked all through the weekend and we tried really hard and now we're going to get it done by Monday. Right. But ultimately, if if I just refuse to do it, if the courts like give us the documents and I go, I think not. That the remedy that a judge has is criminal contempt. Right? Right. Is to say we've we've instructed you to do a thing and you've willfully refused.

0:58:23 Andrew: Right. This is the exact same procedure. Right. As Congress and Steve Bannon. You can't just not listen to what a court tells you to. With the civil contempt Which is directed towards breaking the court's injunction. Right. And to which the benefit of the relief goes to Chevron were criminal contempt proceedings. And here's how you get you wind up with that. Right? That is when the court asks you to do something and you repeatedly refuse to do it. Right the end of the day. I'm thinking about this as kind of the the the judicial analog to, you Steve Bannon just telling Congress, OK, well, I'm not going to show up.

Well, the remedy to OK, I're not listening to a an appropriate legal authority is all right. Well, then we're going to put you in prison. Right. We're going To bring criminal charges that that's why Steve Bannon should be in prison. But this is not Steve Bannon. This is Steve Donziger. And Steve Donziger was ordered to do a bunch of things right to turn over his laptop, his phone. He was ordered to surrender his passport. He was ordered to do things in connection with the judgment that I think are not really, you know, important to get into.

But but there are six categories of things that he was instructed to do to which his answer to court was, I'm not going to do that. So the court issued the judge himself drew up criminal contempt charges. And here's another area where if we want to take Steve Donziger's argument, is very unusual. They say it's very unusual for a judge to do that. It is absolutely very unusual for a judge to do. The U.S.

0:59:14 Thomas: That's why Steve Bannon is now in prison yeah

1:00:03 Andrew: Attorneys declined to prosecute. And so Judge Kaplan brought in an outside firm, Seward and Kissel, and they have been prosecuting the criminal contempt charges. It is very unusual to do that. That's right, another Donziger argument that that we need to, we need to flag. There is an argument that Donziger makes in which he says Seward and Kissel represented Chevron several years ago. And so, you know, they're also, the implication is, so they're in on the conspiracy. And we've talked about that before. There was absolutely no indication. Chevron and Kisel has 160 lawyers. There's no indication that they haven't walled off, uh, the lawyers who represented Chevron. If they hadn't, we would have seen in this case what we saw and documented in the Activision case, right?

I'm a hundred percent confident of that, if there was a real conflict of interest, you, that's easy to paper, we've seen the blueprints of of how you paper that up, um, exactly what Activision did and, uh, Donziger would have done that. So I don't have any reason to think that that Seward and Kissel didn't wall off the lawyers who represented Chevron. And, you know, if you want to make, a Chevron as an important client to the firm, you can make that argument. Right. Again, as I point out, the arguments on the other side, not, I'm just saying that they're not, they're not a thing that I can adjudicate from reading court documents.

1:01:27 Thomas: I'll judge them, they seem a little thin yeah

1:01:28 Andrew: Well, That's you, you, that's on you then, so, uh, on July 26, 2021, uh, he was adjudicated guilty of criminal contempt, uh, by the judge, uh, that Lewis Kaplan had assigned this matter to, um, that judge is a George W. Bush appointee, so again, uh, have been criticisms directed at that judge as as well. Not something that seems immediately clear to me, you know, that you are, know, passing this over to, you know, your super secret best friend or I don't know, but in any event, Donziger requested time served in connection with the criminal contempt because he had been on house arrest for two and a half years while subject to the civil contempt proceedings. And no, he got six months in jail. So then he also requested bail and that was denied.

1:02:16 Andrew: And so what we just got a couple of days ago was the Second Circuit's ruling on the bail motion, which was also denied. So the merits of that criminal contempt go to the the Second Circuit. Donziger's brief is due November 5th, which is tomorrow. The appellee's brief that's going to come from Seward and Kissel, November 15th. And then Donziger's reply is due three days after that, November 18th. Then the appeal will be calendared immediately after that. We will be seeing more Donzinger stuff in the month of November. But there is your legal landscape. I guess I want to end with sort of the the the last of the policy arguments.

1:03:01 Andrew: Donziger says don't typically take people who have been charged with class B misdemeanors and place them under house arrest. That is true. You don't generally imprison lawyers for criminal contempt. Contempt. That's true. His last argument is I'm not getting enough media coverage, which, you know, given that Roger Waters showed up for his contempt here, like, I, I don't think that's the case. This is a hugely popular case, particularly in left wing media right now, because, you know, it sort of fits into the narrative of lawyer gets a huge judgment against the oil company and then big bad oil company goes all Church of Scientology and like makes his life miserable. Um

1:03:40 Thomas: I I think there's good reason to be suspicious of the oil company at every turn here, of course. But this feels a little Avenatti-esque to me, a little bit.

1:03:47 Andrew: I I got some of those vibes, right yeah

1:03:54 Thomas: It's hard to believe that that court, the district court reviewing the facts, the circuit court, you possibly could have adjudicated those facts, but didn't, you know, like hard for me to believe. And the bar too, the bar investigation, it's, the, Occam's razor, like that takes a lot of moving parts for Donziger to not be full of crap here, and for Donziger to be full of crap here it takes one moving part

1:04:10 Andrew: It it I Again, I agree with that assessment on the basis of, you know, sort of what we've been able to read, and this is part of why, you, we've been hesitant to to cover the case until there were sort of actual legal developments. Right. Because what folks wanted us to weigh in on for the past six months was, you how terrible it is that he was under house arrest for three years. Well, look, that's terrible. And that is not typical in a civil contempt case, that, don't know what else you want me to say. Be on it. Right. Like that, that doesn't seem to me to adjudicate kind of the core claim that, you know, that the Donziger side is advocating. Right, which is, not I'm not guilty of any of this. And it, it's all, you know, part of an unfair conspiracy.

1:05:03 Andrew: And I will say this. If there is any legal document that, that sets forth a dispute in any way whatsoever to the facts that were decided as a matter of law by the Second Circuit, I'd love to see that. But, right, the appellate brief to the Second Circuit didn't challenge those facts. Right. So I have, I've got nothing. Right. Know, maybe there was some contestation, it was a seven week trial. So, you obviously he said something before Judge Kaplan. But those documents are not part of the record. Right? Right. What I, what I have access to is brief to the Second Circuit. I don't have any basis to say that that that seems like that judgment is inappropriate. And and more critically, argument was not raised by Donziger. So, so, there you go. That's Steven Donzinger.

1:05:48 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:05:55 Thomas: Now it's time for T3BE, uh, here we go. Can I string two wins together? Let's find out.

1:06:00 Andrew: A defendant is on trial for a robbery that recently occurred at a department store. Witnesses saw two men fleeing the scene, but no one got a good look at them. Two days after the robbery, a co-conspirator went to the police station. No longer able to keep his secret, he said he needed to tell the officers something. The lead investigator took the co-conspirator into his office, the co-conspirator said, "I can't take it anymore. The defendant and I committed the robbery." The defendant was subsequently arrested. The co-conspirator has not said a word since making that statement and refuses to testify at any hearing or trial. The prosecutor asks the lead investigator to testify regarding the statement made by the co-conspirator. The dependent moves to suppress the statement. Is the co-conspirator statement likely to be admitted

1:06:52 Thomas: We replay that judge's uh lecture on hearsay in the Bible real quick, so wait, is the defendant Roman or I'm

1:06:54 Andrew: I the most apropos T3BE question ever at number 250. Anyway, a yes, as a statement by a co-conspirator. B, yes, as statement against interest. C, no, because it would violate the defendant's constitutional rights. Or D, no, because the statement is hearsay and does not fall under any exception.

1:07:23 Thomas: This is obviously hearsay. It just is a hearsay that's covered by an exception or not. That's usually the hearsay question. I think since he's not a part, part the trial. He's not, he's not like a co-defendant or something, for some reason. I don't know if that's normal or not, but whatever. Don't think it's a statement against interest, exactly. Now, there is the thing that's like, you know, when you're arrested, anything you say can and will be used against you in a court of law kind of thing. So I'm trying to think how that, that would fit into this. Like I feel like the police don't know, it feels like relevant information, stuff people say to the police when they're arrested or whatever. This, forget everything else, forget every, you know, proper noun involved in the question, just generically, someone walks into a police office and says, me and this other guy committed, committed a robbery, and then leaves and is never seen again. Forget everything of the question.

1:08:20 Thomas: I feel like that shouldn't be allowed because you have no way. Just go back to the Bible. It goes back tothe Bible, actually. I don't know if you know that. Back in biblical times, he would have no way to interrogate this at all. Yes, he could, you know, hypothetically, the officer could, you relay the words, you here's what was said to me, but there isn't really any way to get at who this person is in the trial, or what, how they would know. How, you know, we can't interrogate that at all, so it feels like, feels like, no, because the statement is hearsay and doesn't fall under any exception. A, yes, is a statement by a co-conspirator. Now, that's interesting, because I've never heard of that exception, but that could almost make sense as a thing. How would you even prove that it's a co-conspirator? Wouldn't you have to have some sort of, I

1:08:27 Andrew: All

1:09:12 Thomas: Don't know, wouldn't she have to be able to like look into this person and ask them questions and find any evidence? I don't, could the police, could the police confirm that somehow? I don't know, this is feeling weird. B is a statement against interest. I think that's out, because it's not, God, I always forget whose interest it goes against to count.

1:09:31 Thomas: C, no, because it would violate the defendant's constitutional rights, is interesting. But I feel like D, no because the statement is hearsay and does not fall into any exception. You know, I'm going to do something weird. Here's what I'm gonna do. I'm to do between A and D. I've never heard of yes as a statement by a co-conspirator, but it kind of makes a weird amount of sense. He doesn't, I feel like he's gotta testify in the trial, I think he has to, but I'll leave in A just in case. I don't think statement against interest is right because he's not a defendant or anything, and it's not, I mean, I guess it's technically against his interest, but not, I donno And so I'm going between A and D, I'm gonna pick D, I just think this is hearsay and doesn't fall under any exception, but I'ma leave in as the second chance option, and let's see what the coin things. The coin disagrees, so the coin's for once is going to go with A, uh, and I'm going with D, final answer.

1:10:20 Andrew: Right, and if you'd like to play along with Thomas in the coin, you know how to do that, just share out this episode on social media, include the hashtag T3BE, include your reasons therefore, we will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortunate not guaranteed.

1:10:33 Clip: And thank you, Let's go!

1:10:34 Thomas: Now it's time to thank our new patrons at patreon.com/law. They enjoyed the Q&A, got to ask uh patron questions, and also we have a Law'd Awful Movies, we'll be back at you in around a week, week, a little bit more than a week. Finally, back at last. Andrew won't be on a boat. We'll be watching something awful. Cop Rock. Who knows what it'll be. But I'll just thank these handful of new patrons. Thank you, Matt Gleeson, Claire. It is time for a centrist party.

The far left and the far right are tearing the US apart. In the middle, oh boy, that's nonsense. How can I purchase the OA intro music for my playlist? Maybe someday. Need carpet cleaning in the area of Cedar Rapids, Iowa? Contact Pioneer Cleaning Systems to get steam cleaning at a great price. Yeah, no, that carpet cleaning, having, having moved out of my old house, that's a, that's a wonderful thing. I'm gonna, I, I'm going to do more carpet cleaning on, on the new house, because like you could just do it like every once in a while, it's not even that expensive, is what I've realized. So you should do that. Uh, and if you're in Cedar Rapids, Iowa, contact Pioneer Cleaning Systems

1:11:35 Thomas: Apparently and

1:11:35 Andrew: And statistically speaking, some of you are

1:11:38 Thomas: That's our show, thanks so much for listening, thanks so for the deep dive as always, Andrew, and thanks most of all to our patrons for making the the show happen. We will catch you next time.

1:11:47 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:12:20 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.