The case of an American human rights attorney who won a multibillion-dollar judgment against one of the world's largest oil companies and has been under house arrest for the past two years prompted a pair of Democratic senators to raise questions and concerns about the use of private prosecutors in federal court on Thursday.
Senators Ed Markey (D-Massachusetts) and Sheldon Whitehouse (D-Rhode Island) announced on Friday that they wrote a letter (pdf) to Judge Roslynn R. Mauskopf, head of the Administrative Office of the United States Courts, inquiring into the practise and federal standards of criminal process.
"Recently, the case of environmental lawyer Steven Donziger has gotten a lot of attention, and it's put a spotlight on private prosecutions of criminal contempt charges," the senator said. "These prosecutions are very rare, and they raise serious concerns about our criminal justice system's inherent fairness."
Over the last five years, Markey and Whitehouse want to know how often federal judges have charged people with criminal contempt under Rule 42 and how often the government has declined to prosecute, resulting in the appointment of a private prosecutor.
"Are there differences in dismissals, convictions, plea bargains, or penalties in public-prosecutor contempt cases vs private-prosecutor contempt cases?" they wonder.
Markey and Whitehouse also want to know more about how private prosecutors are chosen. They inquired about possible tests that judges must use to determine whether a private prosecutor is "disinterested," citing the United States Supreme Court's 1987 decision in Young v. United States ex rel. Vuitton et Fils, as well as whether private prosecutors appointed under the rule must disclose conflicts of interest and how the court avoids such conflicts.
The senators wanted to know about the ethics regulations that control private prosecutors, as well as if they varied from those that oversee public prosecutors and those that govern judges who appoint private prosecutors. "Should there be a pool of private prosecutors from whom random selection is made?" they questioned.
"What further procedural protections are necessary to guarantee fair prosecutions for criminal contempt under Rule 42?" Markey and Whitehouse asked Mauskopf as their final inquiry.
Their letter contains important facts regarding Donziger's situation, since he has been under house arrest for almost 700 days. His situation has sparked anger throughout the world and calls for investigations.
Donziger was found guilty of six counts of criminal contempt of court by U.S. District Judge Loretta Preska on Monday. "No sentencing date has yet been scheduled," Gizmodo reports, "but he might be required to serve six months or pay a fine of up to $5,000."
In the early 1990s, Donziger joined a team of attorneys and scientists researching the health and environmental effects of oil sector operations in Ecuador's Amazon. In 2011, he won billions of dollars in reparations for thousands of individuals harmed by Chevron's pollution in the region, a verdict confirmed by Ecuador's Supreme Court.
Chevron filed a Racketeer Influenced and Corrupt Organization (RICO) case against Donziger in New York City after the original decision in 2011. The Ecuadorian decision was declared unlawful in 2014 by U.S. District Judge Lewis A. Kaplan of the Southern District of New York, a former corporate lawyer with links to Chevron.
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