One year ago, a US judge sent me to prison for daring to challenge the fossil fuel industry

My 993-day detention shows how entrenched interests — when threatened — are capable of using outright corruption to maintain their privileges

Outside the courthouse on October 1 of last year just before my sentencing.

This weekend is the anniversary of something extraordinary in my personal life and in my work as an environmental justice lawyer. It marks one year since I became the first lawyer in US history sentenced to prison by a US judge on a misdemeanor charge of contempt of court. It is my opinion and that of many other professionals (including my lawyers Ron Kuby and Marty Garbus) that this happened in retaliation for my role over many years helping Amazon communities in Ecuador win a historic $9.5b pollution judgment against Chevron — a judgement confirmed unanimously by the Supreme Courts of Ecuador and Canada. The photo above captures a moment just before I left my family to enter the courtroom fearing I might not ever be a free man again.

Of course, the judges who imposed the sentence would disagree with me.

Judge Loretta Preska, the judge who directly sentenced me, regularly tried to mask her decisions in the technical esoterica of the law. She tried to make it all appear legal and perfectly normal. But it was actually an abuse of the power and part of a wholesale assault by Chevron and elements in the judiciary to both blow up the Ecuador case and undermine the very idea of environmental justice lawyering in the process. It is worth understanding the intricate way in which this actually played out so we can do our best to ensure it never happens again.

The contempt case against me was based on my challenge to an unprecedented civil order from NY federal Judge Lewis Kaplan (a close colleague of Preska) that I turn over my computer and cell phone to Chevron. That order came down in 2017 after I helped my clients in the Amazon not only win the underlying environmental case in 2013, but later win a second important lawsuit in 2015 in Canada. The second win was a unanimous decision by the Supreme Court of Canada that recognized the Indigenous peoples of the Amazon had the right to try to force Chevron to give up its Canadian assets to force the company to comply with the Ecuador judgement. Chevron’s executives had vowed never to pay the judgement and had invested in 60 law firms and 2,000 lawyers to try to make good on its threat. “We will fight this case until hell freezes over and then fight it out on the ice,” Chevron’s top lawyer had said.

My immediate compliance with the civil order that I give Chevron my electronic devices would not only have helped Chevron end the case for the Indigenous peoples of Ecuador by disclosing confidential information about strategy, it would have put many lives in Ecuador at risk given Chevron’s history of harassment and use of the corporate espionage firm Kroll to spy on our team. Kroll had already tried to bribe an American journalist to infiltrate our team in Ecuador. Six operatives were following me and my family around Manhattan. Our lawyers were being videotaped in Quito and the Amazon. Death threats to our team were a fact of life in Ecuador.

To be clear, I did not ignore the civil order about my computer. I appealed it to a higher court, just as numerous lawyers over the course of our nation’s history had done when serious constitutional issues arise during the course of a civil trial. None of these lawyers ever had been charged with a “crime” for doing such an appeal — that is, for doing what lawyers are obligated to do which is fight to protect the interests of their clients without the parameters of the rule of law.

Both Judges Kaplan and Preska had long histories of pro-corporate bias and were willing to engage in what looked like a judicial power grab to carry out their agenda to destroy the Ecuador judgment and protect an American oil company from a foreign court judgment. Kaplan had been a leading tobacco industry defense lawyer for years before being appointed to the bench by President Clinton. Both judges are stalwarts of the right-wing Federalist Society (to which Chevron is a major donor) and Kaplan had financial ties to Chevron via his investment portfolio. It was a shock to me that such conflicted judges could get anywhere close to a case involving Chevron.

The next stage of Chevron’s long-running plan to bring me down was simple. Chevron had spent years trying to demonize me; Kaplan now tried to turn me the human rights lawyer into a criminal as the culmination of that effort. He charged me with criminal contempt of court after I appealed his discovery order over the computer. Personally, I think he was petrified that his own role in facilitating Chevron’s highly questionable evidence in the civil case — including letting Chevron present false testimony from Alberto Guerra, an admitted liar paid at least $2 million by the company and coached for 53 days by Chevron lawyers — would backfire by exposing this entire sordid affair in foreign courts. I believe his plan was to detain me so I could no longer travel, meet with my clients in Ecuador, raise money to pay case expenses, or help my clients enforce their judgment against Chevron’s assets in other countries.

Kaplan asked the US attorney in Manhattan (the regular federal prosecutor) to take the criminal contempt case. That regular prosecutor looked at the charges and rejected the case. So Kaplan then did two things that appear unprecedented and I believe patently illegal: he assigned the case to Preska, violating court rules requiring random assignment of criminal cases. He also named a private corporate lawyer who worked for Chevron law firm Seward & Kissel to prosecute me in the name of the US government. On top of that, Kaplan also refused to recuse himself and clearly was coordinating with Preska from behind the scenes (Preska refused our repeated requests to take discovery on these issues). I basically had a two-headed judge that had it out for me. And Kaplan’s refusal to recuse himself essentially make him the grand jury, prosecutor, and jury in the same case — clearly a violation of the rule of law and something no lawyer I knew ever had seen before.

This is how I became the target of the first corporate criminal prosecution in US history. When Preska locked me up at home after I arrived in court in August 2019 to face Kaplan’s contempt charges, I became in my view a corporate political prisoner in the United States of America. Chevron essentially held the keys to my freedom after I won a historic pollution case against the company. The private prosecutor named by Kaplan, Rita Glavin, not only worked for Chevron law firm Seward but also was openly coordinating with Chevron lawyers at a second firm that had targeted me for years in the demonization campaign. It was clear those lawyers from the Gibson Dunn firm were drafting and editing many of her court filings in the criminal case against me and were being paid directly by Chevron to do so. On top of that, Glavin was a classic Chevron-style grifter: she and two colleagues (Sareen Armani and Brian Maloney) along with their partners were paid more than $1 million of taxpayer dollars for the legal work involved in going after me, locking me up, taking my passport, and otherwise violating my human rights. (Glavin and Armani later went on to “earn” much more representing former New York Governor Andrew Cuomo by personally attacking several courageous woman who came forward with allegations of sexual harassment and assault against Cuomo.)

We went back to Preska repeatedly to demand my freedom pending trial. She always refused, claiming I would leave my wife and son and flee to Ecuador to become an international fugitive even though I had no passport and no way to get there. She ended up keeping me locked at home for two years and two months prior to a trial where she denied me a jury. This happened despite the fact the maximum sentence for the charge was six months in prison. In fact, I had spent over four times that length of time detained by the time my trial started in May of 2021. And I am the first lawyer (and maybe the first person) locked up prior to trial on a misdemeanor charge, the lowest level charge in the federal system that almost never results in even a day of prison time for somebody with no prior criminal record. As for the “risk of flight” allegation, I later ended up driving myself to prison.

With Kaplan and Preska at the helm and Chevron prosecutor Glavin doing their bidding, I could not get a jury of my peers; I could not put on my full defenses; I could not get a fair trial; I could not get out of detention. When the trial finally happened, Preska was caught reading the newspaper during witness testimony. All the main witnesses were the same Chevron lawyers against whom I had been litigating in the underlying case. It was clear the entire result had been cooked before the show even started. Preska later sentenced me to the maximum term of 6 months in prison on top of the 26 months of house arrest I endured prior to trial. In all, I served 993 days in detention at home or in prison when the longest previous sentence ever imposed on a lawyer for the same offense was 90 days of home confinement.

My criticism of this process is based on my own experience, but others with far greater independence than I came to the same conclusion. A group of international trial observers, led by US Ambassador on War Crimes Stephen A. Rapp, released a report concluding that I did not get a fair trial and that the process violated multiple provisions of international law. The United Nations Working Group on Arbitrary Detention (WGAD) concluded I was the victim of a wrongful detention and called for my immediate release, also based on multiple violations of international law by the US judicial system. Both of these reports by respected jurists were utterly ignored by Kaplan, Preska, Attorney General Garland, and President Biden. On other occasions, when the WGAD demanded the release of wrongfully detained prisoners in countries adverse to the United States (such as Iran), the Biden Administration demanded compliance with its recommendation. In my case, there was silence.

Given how obviously flawed the process had become — with Chevron taking outright control of a the prosecutorial machinery of the US government — I feared that once in prison I might not get out. Really bad stuff can go down in prison; there is a near-total loss of control. What was to prevent Chevron and Kaplan from orchestrating another unprecedented charge against me to keep me there indefinitely? I had confidence I could get through the experience of prison and even grow stronger from it, but part of me feared it could go terribly wrong.

The day I was sentenced was emotional. My wife Laura, son Matthew (then 15), sister Susan, and many supporters were in court. Preska, after deeply disrespecting court rules and legal precedent, used her judicial power to excoriate me from the bench in front of my family as a man who needed to be “hit in head by a proverbial two by four to engender respect for the rule of law.” The violent imagery was shocking but entirely consistent with the tone of the proceedings. It appeared she intended to lock me up that very day to force me to serve my entire sentence before my appeal even could be heard. That way, even if I won my appeal, she and Kaplan would have succeeded in ensuring my full “punishment” anyway.

Judge Preska then announced in court she would not let me remain “free” (meaning locked up at home with an ankle bracelet) pending my appeal which is itself extraordinary on a misdemeanor case. However, she allowed me to walk out that day to return to my home jail cell on the condition that I file a quick appeal of her decision to order me to jail even though my appeal of her conviction was pending. She later issued an order that I report to prison within 24 hours. That day was October 27 of last year – the day I drove myself to the Danbury prison (about a 90-minute drive from my apartment in New York City) to check in. When I got there, some relatively gracious prison guards looked me up on the computer system. They told me they never had seen a person convicted of a misdemeanor in that prison and wondered why I was there. Literally everyone in the entire prison other than me had been convicted of a felony offense.

In the end, Judges Kaplan and Preska and Chevron prosecutor Glavin were able to keep me detained for almost three years for appealing a civil discovery order which is not a crime. I spent 45 days in Danbury and then (due to the risk of COVID) allowed to spend the rest of my sentence locked up at home with the black claw still on my ankle. It all "ended" on April 25 when the claw was cut off, although they still won't return my passport or law license.

Make no mistake: the industry is watching what happens to me closely. It is a test case to see what they can get away with in terms of manipulating the law to silence a human rights advocate.

I think there are three main lessons. First, it is clear that the fossil fuel industry feels if it can get away with my wrongful detention in my case, they will be able to use the same playbook to try to target other lawyers and activists with private prosecutions. Already, the fossil fuel industry has pushed through criminal laws and sentencing enhancements in 17 US states to target peaceful protestors at oil facilities, including refineries and pipelines. In their eyes, we are the “terrorists” far more than anybody who took part in the storming of the government on January 6. The fossil fuel industry has created a special legal category for itself that essentially outlaws peaceful protest just for its physical infrastructure. They are trying to outlaw protest of themselves in clear violation of the Constitution.

Second, the most effective way to deal with these attacks is to walk into the fire and not be intimidated. While detained, I worked daily to build support and solidarity. That included getting the support of 68 Nobel Laureates who demanded my release. More than 120 NGOs, including Amnesty International and leading human rights groups, demanded President Biden block my prosecution or issue me a pardon because of judicial and corporate corruption of our court system. The reality is that because of my detention our campaign to hold Chevron accountable for the systematic dumping of cancer-causing oil waste into the Amazon is stronger and has more support than ever. Literally tens of millions of people have learned about this case through social media and independent media outlets.

Third, we need a mechanism to hold US federal judges who receive lifetime appointments accountable so they are sanctioned or removed when they abuse their power or fail to comply with ethical obligations. The federal appeals court in New York repeatedly refused to block Kaplan and Preska from detaining me or using a private Chevron prosecutor. There is no independent body in this country that can adjudicate complaints against federal judges who abuse their power. Judges police themselves and then tend to protect themselves. There is virtually no way to remove them from power. That needs to change.

I vow to do what I can so those responsible for my illegal detention are held accountable by laws that in my opinion they never respected themselves. Although I live in the US, sometimes it feels like my situation is akin to what often happens in another country like China or Russia that we associate with systemic human rights abuses. That said, I am undaunted. I'm going to celebrate the anniversary of this experience knowing I'm stronger and far better positioned to continue my human rights work on behalf of the Ecuadorian communities than I was before.

Let’s move forward, learn from the experience, understand the connection between democracy and climate justice, and continue to fight to protect the freedoms that allow us to hold this planet-destroying industry accountable. Onward. 🙏👍❤️

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