San Francisco, 14 June 2010 – On Monday, lawyers for a group of Nigerian environmental activists argued an appeal before the Ninth Circuit in Bowoto v. Chevron. This landmark case was the first human rights civil suit against a corporation to be tried before an American jury. Plaintiffs argue that the District Court made four significant errors during trial: the jury instructions on battery claims involved mistakes of law, the finding that the Death on the High Seas Act (DOHSA) preempts claims under the Alien Tort Statute was unsupported, irrelevant and prejudicial evidence was admitted, and the ruling that the Torture Victims Protection Act (TVPA) does not apply to corporations was in error. A case pitting oil giant Chevron against Nigerian villagers has predictably piqued the interest of activists and corporate counsel around the world, and Monday’s arguments were the latest installments in this closely-watched situation.

Background: Nigerian “Kill and Go” Squads Raid Niger Delta Protesters at a Chevron Oil Platform

With counsel from EarthRights International, the Center for Constitutional Rights, Traber & Voorhees, and Hadsell & Stormer, four Nigerian plaintiffs sued Chevron for its complicity in brutal attacks against nonviolent demonstrators who were protesting the economic and environmental harm resulting from Chevron’s oil production in the Niger Delta.

The tragic circumstances of the attack on the demonstrators are relatively uncontested. Chevron Nigeria Ltd. (CNL) hired and transported Nigerian security forces to the platform after the demonstrators had already negotiated an agreement to leave that morning. These security forces, supervised by CNL and transported in a company helicopter, opened fire on the protestors, shooting four of them. Larry Bowoto was shot but survived, Arolika Irowarinun was shot and killed, Bassey Jeje was attacked and injured, and Bola Oyinbo was detained and tortured.

Plaintiffs seek compensation for victims and their families. They have brought claims for torture and cruel, inhuman, and degrading treatment under the Alien Tort Statute (ATS), a U.S. law that permits foreign citizens to bring civil suits in the United States courts for human rights violations committed outside the U.S. Plaintiffs also brought claims for wrongful death and assault and battery under both Nigerian and California law. Plaintiffs appealed this case after the jury found in favor of defendants on all charges. Read more on the jury trial here, here, and  here.

Monday’s Arguments

Theresa Traber, counsel for plaintiffs, began her argument by noting the serious error of the district court’s jury instruction on the battery claims under Nigerian and Californian law. The three-judge panel, comprised of Judges Schroeder, Bybee (yes, that Bybee, and Panner, also focused most of their questioning to plaintiff and defense counsel on these issues. Plaintiffs argue that Chevron-supervised Nigerian forces are guilty of assault and battery because they used unreasonable force against the protestors. Originally, the District Court Judge ruled that under Nigerian battery law, defendants had the burden to prove their affirmative defenses (such as self-defense) beyond a reasonable doubt. At the jury instruction conference, however, the District Court Judge changed her position, ruling that plaintiffs had the burden to prove unreasonable use of force. No documentation exists to explain the District Court’s changed position. Listening to Monday’s appeals arguments, Judge Schroeder seemed particularly frustrated by the lack of explanation for this shift: was it a well-reasoned decision or a mistake of law?

A similar burden of proof issue arose under California battery law, where an exception relieves police officers of the burden to prove their use of force was reasonable in certain circumstances. Plaintiffs argue that the issue relied on the extent to which Nigerian security forces were acting in their official capacity as police officers, or in a private capacity as security guards for CNL—a question that the District Judge failed to present to the jury. Furthermore, plaintiffs note that the exception in Californian law only applies when police officers use force while arresting or detaining an individual. Since Nigerian activist Bola Oyinbo was already held in custody, the reasonable force exemption would not apply.

Judge Bybee hinted at a desire to avoid a second lengthy jury trial when he asked plaintiffs’ counsel to describe scenarios that would result if the court should reverse on the grounds of Nigerian or Californian law. While the interpretation of Nigerian battery law would concern all four plaintiffs, only one would be impacted by the decision on Californian battery law. A reversal on the California battery claim, then, would result in a less complicated retrial—an attractive option for the Court.

The third issue raised in arguments turned on whether the claim for Irowariun’s shooting death at the hands of Nigerian forces flown in a Chevron helicopter was properly raised as a violation of international law under the ATS, or whether the DOHSA governs all wrongful deaths at sea. At trial, the District Court held that the plaintiff could not bring extrajudicial killing claims under the ATS, because the DOHSA provided the only cause of action for such a death. The Plaintiffs argue that Congress never intended the DOHSA to supersede international law claims brought under the ATS. They maintain that DOHSA was passed to address the absence of any remedy for wrongful death on the high seas, and that without a clear intent to displace international law claims, both remedies should be given full effect. Chevron disagrees, conveniently arguing that the DOHSA overrides the ATS. Upon questioning from Judge Bybee, counsel for Chevron maintained that DOHSA would even preempt claims based on piracy. This assertion seems doubtful, given that piracy was clearly one of the original violations of the “Law of Nations” contemplated by the First Congress when it passed the Alien Tort Statute as part of the Judiciary Act of 1789. Indeed, in Sosa v. Alvarez-Machain, the U.S. Supreme Court noted the prohibition of piracy as a model for the type of specific, universally-accepted norms of international law that fall within the scope of the ATS.

Issues surrounding the Torture Victim Protection Act (TVPA) received little attention in either defendants’ or plaintiffs’ argument. The District Court adopted a strict interpretation of the term “individual” in the TVPA to exclude corporations, thereby exempting Chevron from plaintiff’s wrongful death claim under the statute. District courts are divided on the inclusion of corporations, and Appeals Courts have demonstrated reluctance to come down on either side. It is likely that the judges will dodge this decision by adopting defense counsel’s argument that the dismissal of the TVPA claim is irrelevant since the jury rejected wrongful death claims with lower evidentiary standards than is required by the Act.

The final issue on appeal is plaintiffs’ assertion that admission of certain evidence of violent acts was wrongful, irrelevant, and unfairly prejudicial. Admitted evidence included photographs of protestors butchering a sea turtle for dinner, prejudicial hearsay statements from two individuals not present during the incident, discussion of incidents that occurred on a tugboat after the plaintiffs had already been shot or detained, and evidence of four unrelated kidnappings. Plaintiffs’ dispute the relevance of this evidence because these incidents did not involve plaintiffs and occurred long before or shortly after the attack and therefore should not be viewed as probative of intent or purpose. They argue that the relevance of this evidence is substantially outweighed by unfair prejudice and should have been excluded under the Rule 403 balancing test. While these issues were thoroughly discussed in both parties’ briefs, they were not addressed in depth at the hearing. The District Court’s decision to admit evidence is reviewed with considerable deference.

It seems likely that the case will be overturned partially. Judges Schroeder and Bybee both exhibited interest in plaintiffs’ arguments on the battery law instructions and posed challenging questions to defense counsel. A ruling in favor of plaintiffs would lead to a retrial on the battery claims: for all four plaintiffs—should the Court reverse on the grounds of Nigerian law, or for one plaintiff—should they opt to reverse under Californian law. There is little clue how the judges will rule on the other three issues on appeal since they were barely discussed during the arguments. The judges did not say when they would issue a decision. That said, a number of U.S. corporations with operations overseas are sure to be anxiously awaiting the decision, as it is likely to influence similar cases pending against them.  See here and here.

Stay tuned for an update when the 9th Circuit Court of Appeals issues its decision.

Even if the jury found that Nigerian security forces had violated international law and committed common law torts in their May 28th, 1998 raid on the Parabe platform, they would still unanimously have had to find that Chevron Nigeria Ltd. either aided and abetted or conspired with the Nigerian security forces–or that the those forces were the agents of CNL. Then, even with that second hurdle surmounted, the jury would have had to find that CNL was under the control of the parent companies, and thus that the parent companies could be vicariously liable for the actions of CNL and the Nigerian military.

That’s a tall order. Even though certain of the claims only required a lesser burden of proof — a “preponderance of evidence” as opposed to proof “beyond a reasonable doubt”– I think that Chevron’s attorneys planted sufficient doubt in the minds of at least one juror to overcome the plaintiffs’ claims.

Where we do go from here? Attorneys for Larry Bowoto and co-plaintiffs will file an appeal with the 9th circuit court. This is not over.

Even if today’s ruling is a bitter disappointment for the Nigerian plaintiffs, their lawyers, and the many activists who have worked diligently to bring this case to justice, the persistence of those involved has helped raise awareness of corporate responsibility in human rights violations.

For now the record stands; there has yet to be a judgment against a corporate defendant in an Alien Tort Statute case. It still remains to be established in law whether the ATS provides a cause of action for aiding and abetting liabilty. But with numerous other suits filed against corporations alleging indirect liability for human rights violations, this key issue is likely to be resolved in the coming years.

Not to pile on the bad news, but it doesn’t bode well that the current nominee for Attorney General, Eric Holder Jr., has argued against this very application of the Alien Tort Statute. (See his brief in the Doe v. Chiquita case here.) His memorandum notwithstanding, an argument made in defense of a client should not necessarily be viewed as a foreshadowing of Justice Department policy.

The case law for these corporate Alien Tort claims still needs to be established incrementally, so every pending case is crucial.

With that in mind, we should remember that in Bowoto v. Chevron, the jury’s ruling was based on the facts presented; they were not making a judgment on a matter of law. That’s why the appeals process will be so important in this case. In a perfect world, the future would’ve looked like this: the jury finds for the plaintiffs; Chevron appeals on an argument that indirect liability is not a justiciable violation of international law and thus not subject to ATS claims; the 9th circuit denies the appeal; and corporate liability for human rights violations is one step closer to solid case law.

Unfortunately, that didn’t happen.

But let’s keep perspective here–10 years of work on this case has not been wasted. The fact that the case withstood years of legal challenges and made it this far is a testament to the growing power of human rights litigation in the United States.

In the words of Michael Watts, professor at UC Berkeley:

“Regardless of the verdict, the Bowoto v. Chevron case represented a watershed in terms of corporate accountability. The details of the Nigerian case – of human rights abuses in the global operations of the oil and gas industry – can be replicated many times over in different industrial sectors in different parts of the world. Now communities around the world know that they have recourse to legal mechanisms to bring corporations that violate their human rights to justice.”

You can read co-counsel EarthRights International’s statement here.

But on reflection, I think Stormer’s rebuttal may have been more effective than I had thought. His main theme: Did they honestly and directly address the issues before you?

They did nothing but create distractions, he argued. The first thing the defendants did was take a few words from Stormer’s opening argument out of context-the bit about Chevron’s parent/subsidiary relationship being inappropriate. But, he argued, he had stated that it was the defense’s claim of independence between the corporate entities that was inappropriate. And he expanded on this motif:

“They’ve made up a story and covered it with distractions. They sent in people who were notoriously vicious. Then they said it was to drive them [the Ilaje] onto the platform-the same platform that was supposedly so unsafe and unstable that it posed the original security concerns that made them go in there.”

Stormer was getting visibly emotional-not in the mawkish sort of way you might expect in a trial for damages, but in genuine outrage: now he was railing against the cover-up.

Concerning Mittelstaedt’s law enforcement reporting privilege:

“This wasn’t reporting. This was hiring their own private army to go in there and evict people, without any back-up plan other than deadly force.”

Concerning Chevron’s lack of intent to hurt anyone: it’s a red herring, he argued, there’s no mention of intent in the negligence or reckless disregard instructions.

Concerning Mittelstaedt’s claim of ignorance for Chevron USA’s false media statements:

Mittelstaedt: “They didn’t know about payments to the military. How could they know?”

Stormer: “Mike Browne himself had the responsibility to report all payments made to military personnel. They had documented all the payments. They knew.”

Concerning Mittelstaedt’s assertion that the plaintiffs gave no argument of unlawful detention:

“Of course there is. The very basis of this claim is that they were held, they were unlawfully tortured and beaten, on the water, on the land, from the barge to the prison in Akure.”

Throughout the rebuttal, Stormer’s key assertion was this: we know Chevron lied to the media, how can we trust them now? Every claim he challenged, every detail he rebutted returned to this question.

In the end, I think Stormer’s closing argument and rebuttal helped the plaintiffs case a lot, reversing some of the damage inflicted by the past week of testimony from the defense’s witnesses. Will it be enough?

I thought Mittelstaedt’s close–though impeccable–was far less effective than his opening argument, and now that the credibility of Chevron’s witnesses has been questioned, the plaintiffs definitely have a fairer shake at winning. But to do so will require a unanimous verdict. Chevron only needs to convince one juror that this really was sea piracy and that Chevron Nigeria was right to fly in the military. Or that the military was firing in self-defense. Or that Chevron Nigeria was not acing as an agent of Chevron USA and the other parent entities.

As you can guess, there are a number of points on which unanimity will be difficult to achieve. Difficult but not impossible.

After the jurors left to begin their deliberation, there was I thought a moving scene in the court. With the crowded rows all standing at attention and the two legal teams on their feet, Judge Susan Illston descended from the bench. “I want to shake hands with everyone,” she said. “Not the lawyers, but the real people”. And with that she approached the benches where the Ilaje villagers were standing. She shook hands with the Nigerians and she shook hands with the Ilaje interpreter-thanking him for his services-and she shook hands with Chevron’s counsel who had observed the trial for the defendants. It was a very human moment, and a reminder that whatever the verdict and whatever the course of appeal that will inevitably follow, this has been an historic case and a test of bringing global justice into the U.S. justice system.

I’m glad I was able to observe the trial and document it here.

Thanks,
Scott Gilmore

“No one from any Chevron company wanted anyone to be hurt or injured in any way…What Scott Davis and Deji Haastrup did during those three days was designed to reduce the risk.”

Yesterday, Bob Mittelstaedt pleaded Chevron’s case and, like everything Mittelstaedt has done in this trial, his close was tightly structured and watertight-90 minutes of cascading bullet points, rounded off with a neat summary and a restatement of key points. As I took notes, it looked like I was reproducing on the page the exact same outline that Mittelstaedt would have prepared. So for organization, thoroughness and clarity, Mittelstaedt scored some points.

And yet something crucial was missing. Mittelstaedt never produced a master narrative to dislodge the simple frame that Stormer had hung around the case. Instead, he rattled off point-by-point each piece of evidence. He countered, one-by-one, each of the plaintiffs’ claims. There’s nothing wrong with being thorough-but Mittelstaedt was addressing a jury whose eyes had started glazing after 66 pages of jury instruction and an hour of Dan Stormer’s closing, all with only two short coffee breaks and no break for lunch. Given the circumstances, walking us through the labyrinth of detail might not have been the best approach.

Chevron’s defense boils down to these lines, stated early on in the closing:

“Here’s the essence of this case when you step back and think about it: it’s a claim by people who held hostages [...] against the victims of that crime. They’re saying that the victims of the crime-Chevron Nigeria, representing the barge workers-should not have reported this to the law enforcement authorities, should not have called for a rescue mission, and instead should have paid whatever money they were asked.”

The strategy has been consistent all along: put the plaintiffs on trial. Show that the criminal conduct, the wrongful conduct, was committed by the plaintiffs and that the Nigerian military, and thus Chevron Nigeria, and thus-if you travel one of the routes of vicarious liability-Chevron USA and co-defendants have done nothing wrong.

Mittelstaedt’s key assertions are by now familiar:
a)   that the Ilaje’s grievances were overstated
b)   that the Ilaje had a violent history
c)   that the Parabe incident was not a peaceful protest but a violent and unlawful invasion
d)   that the alleged commandeering of the tugboat Cheryl Ann, following the shooting incident, indicates the criminal intentions of the Ilaje
e)   that the photographs of the sea turtle being butchered on the tug indicate that the Ilaje had access to weapons
f)    that Chevron Nigeria Ltd. had a duty to report crime and a right to notify the proper law enforcement authorities
g)   that Chevron Nigeria Ltd.’s primary concern was the safety of those aboard the barge
h)   that Chevron Nigeria Ltd. had no intent to harm, much less kill the “invaders”
i)    that CNL negotiated in good faith and
j)    that the negotiations had definitively broken off by the night before the military raid
k)   that there was nothing improper about the parent/subsidiary relationship between Chevron Nigeria Ltd. and the parent corporate entities (i.e. the defendants)

Those are the main points, fleshed out with the detailed testimony of the expat barge workers, the chief negotiator Deji Haastrup, the crisis management team leader Scott Davis and the tugboat captain David Schools.

In his closing, Dan Stormer asked the jurors to watch closely and see if Mittelstaedt addressed the main issues. And did he? I thought he made strong arguments on some of the points at issue. For instance, Mittelstaedt pushed hard on the notion of the duty to report. Crimes against Nigerian law had been committed, he argued: hostage taking, unlawful seizure of platform, unlawful seizure of ship. In those circumstances, CNL had no legal duty to negotiate with the hostage takers or persons seizing the facility-CNL could have requested a rescue from day one. Instead, it took caution-
out of concern for safety-and negotiated. This is a good negligence defense, as well as a privileged duty defense, which speaks to some of the points at issue.

To shore up his central assumption-that this was in fact a hostage situation-Mittelstaedt relied heavily on the testimony of the witness who likely did the most harm to the plaintiffs’ case: Hugh McGowan, the expert in hostage negotiation. I don’t know if McGowan was insufficiently coached before testifying, or if it was just his temperament, but he absolutely cracked under John Cline’s masterful November 3rd cross-examination and the defense is still collecting dividends. McGowan began adopting Cline’s terminology-referring to the workers as hostages, and reinforcing the defendants’ version. As Mittelstaedt stated yesterday: “Even their witness ended up supporting Chevron’s position.”

So yes, Mittelstaedt’s close did address some key issues, but for the most part, his arguments veered off into distraction just as Stormer had warned the jury. To defuse the damning evidence of Chevron’s memos written on May 27th stating that the situation was calm, Mittelstaedt tried to suggest that the time-stamp was slightly off, that the original document had been re-faxed to the US embassy a few hours after it was originally sent. But any evidence he had for this assertion was muddled.

I thought the fact that Mittelstaedt spent so little time on the expat depositions was a tacit admission that their testimony was riddled with errors and obvious exaggeration.  He breezed through a few of them: Billy Burnham’s: “I was scared they were going to cut me up in little pieces.” This only shows that the man was scared, not that there was any substance to his fears. Idem for Jason Daniels’s “I thought of myself as a hostage every second of the day.” This shows his state of mind, sure, but beyond that what does it prove? Idem for David Schools’ testimony and the turtle photos.

For weeks, this jury has been awash in contradictory claims, paradoxical details and abundant hearsay: none of which adds up. I think it was incumbent on Mittelstaedt to provide a plausible, understandable narrative that the jurors could carry away with them. I’m not sure this jury had the attention span left for more minutiae. Instead, Mittelstaedt did the equivalent of tossing a bowl of noodles on the wall and seeing what sticks. The closest he came to a frame was his restatement of Chevron’s ex ante claims-not to toot a horn, but I think I predicted as much on Huffington Post last week.

After summarizing his argument in good lawyerly fashion, Mittelstaedt wrapped up with these lines:

“This case is about the right and duty of a company to protect its workers. Finally, this case represents the right of everyone to call on law enforcement when you are faced by crime here in the Unites States, or anywhere in the world.”

Chevron’s attorneys have been doing their job and doing it well: defending their clients. I have great respect for their work and for the attorneys themselves-in fact, I’ve been following another major trial, U.S. v. Holy Land Foundation, in which John Cline from Jones Day defended a Palestinian-American philanthropist now convicted of financing terrorism through his support for Hamas. Read about the case here and full coverage here. Mr. Cline is an ace at cross-examination and it would have been great to see him at work in that case.

So I’d like to thank both legal teams for their work and for keeping things interesting.

Lastly, there’s another reason why we should thank the Jones Day attorneys for their work. The legal terrain of the Alien Tort Statute is still undiscovered country; when these cases get subjected to a vigorous defense, human rights lawyers learn more about how such claims operate, what defenses will be raised against them, what unforeseen rules or doctrines can be brought to bear on them. In order for the case law to be solidified, it has to be tempered in the adversarial process. So thank you adversaries…

“Members of the jury, our system of justice is a model for the world. It is a system that has allowed the democratic process to succeed.  And it’s fitting that our clients have come 8,000 miles from a foreign land to come before you to seek justice, just 36 miles from San Ramon, where the defendants have their headquarters.”

It was a perfect pitch beginning for Dan Stormer’s closing argument. After a long trial that–like any trial–has often bogged down in minutiae, Stormer restored to the proceedings a sense of the broader meaning of the case.  Once the first few novel days had passed, we’d been left with the sometimes myopic, sometimes suffocating environment of a civil trial. Stormer’s closing was a respite from all that.

There was one thing the plaintiffs needed to do in closing–simultaneously control a week’s worth of damaging testimony from the defense’s witnesses and reinscribe the plaintiffs’ central narrative into the minds of the jurors. I think Stormer succeeded.

Last week, the defense’s case presented a fragmented account of the events: all of the expat witnesses gave wildly different accounts; after cross-examination and impeachment, the Ilaje witnesses seemed sometimes confused and sometimes less than credible. But I think that was part of Chevron’s strategy: turn everything into a confusing jumble and then repeat Chevron’s easily digestible but largely irrelevant counterclaims. Dangle a little juju and David Schools’ adventure stories, but bypass the actual allegations.

Since the facts had degenerated into that mess, Stormer refocused his argument on what was not in dispute: that the oil extraction industry had ravaged the Niger Delta, that Nigeria’s military dictatorship in 1998–which formed a joint venture with CNL–was at its most brutal and darkest hour under Sani Abacha.

Stormer then went on to reframe our image of the Concerned Ilaje Citizens–the group that carried out the Parabe protest. Countering Chevron’s relentless vilification campaign, Stormer reasserted the Ilaje perspective:

“We know that Larry Bowoto, Bola Oyinbo, Arolika Irowarinun, and Bassey Jeje were all a similar age. They were a new generation.  They started life in a thriving indigenous culture that supported their community. Then the seawater came in from the dredging and killed the fish, killed the mangroves, killed the reeds, it killed the animals. There was no timber, no drinking water. There was massive erosion, oil spills, gas flares. They even lost their graves…[B]ut this group had a new idea. They were going to address not just stay-at-home jobs. They wanted to address the environment, schools, and their future. And they had a more expansive agenda-using Scott Davis’s terms, they were an out of control group because they couldn’t be controlled by Chevron.”

Stormer then walked us through the sequence of letters sent by the CIC to CNL requesting that they meet to address these grievances–letters which apparently Chevron never bothered to read until after the incident. He stressed this point–for all of the defense’s insistence on the ‘sea piracy’ language as proof that CNL was dealing with a violent group, CNL hadn’t even read the CIC’s letters at the time and thus couldn’t have felt threatened by the letter-writers’ diction.

The plaintiffs made good use of the projector as they showed the room direct quotations from the memos, logs, and emails written during the 3 days of the occupation:

May 25th Scott Davis: “Peaceful so far”
May 26th “All quiet on the barge”
May 27th Thomas Schull email to COP/CUSA: “villagers unarmed, situation calm since arrival. Still in negotiation.”

Stormer also derived a key point from Scott Davis’s testimony: Davis insisted there was an impasse because the Ilaje demanded 10 million Naira for logistics and a large sum for environmental reparations. “If this would involve those sums of money, this was going to drag on for a long time.” Then he made the decision to call in the military. Contrary to the defense’s assertion, Scott Davis never cited rescuing the hostages as the reason he called in the guns: his goal was to evict the invaders.

As we got into the gravamen of the case against Chevron, Stormer ran through a series of damning quotes from internal memos that indicated that Chevron Nigeria Ltd. and the parent company were well aware of the brutal reputation of the military and the “kill and go” mobile police. They even declared the mobile police “a greater threat to our people than the communities” and “a threat to Chevron staff and contractors.” This certainly seems to speak to negligence.

Stormer drove on with his uncontested points: We know that the military was paid, fed, housed and supervised by Chevron. {Speaks to agency} We know that Chevron leased helicopters and paid pilots to fly out army, navy, and kill and go personnel to Parabe–to evict invaders. We know they carried their rifles at port arms–as Wayne Hawkins vividly described. We know their orders were to shoot tear gas to drive the protesters off the barge and onto the platform–the platform that Chevron repeatedly insisted was so unstable and unsafe.

This was their plan. There was no back up plan other than using deadly force. What else could the security forces do? They were simply dumped on the platform, with no boats for evacuating the hostages or the protesters for that matter. What could one reasonably expect an armed force with a “notorious reputation” {Chevron’s words} to do in such a situation?

Stormer then started landing the body blows: a graphic and gripping description of the torture and beating of Bola Oyinbo and the other detainees–which, as he would later point out, constitute the core of the claims of unlawful arrest, torture, and cruel, inhuman and degrading treatment which fall under the scope of the Alien Tort Statute.

From this devastating testimony, Stormer moved to the most impeaching evidence against Chevron USA and  co-defendants: a series of false media statements issued in 1998 that were deliberately intended to cover up the wrongful acts of the Nigerian military and Chevron Nigeria Ltd. Here’s a sample:

In the LA Times: “Bottom line of it all is Chevron has not been involved or connected in any internal police activities in Nigeria.”

In the Wall Street Journal: “Chevron didn’t pay for troops to come to Parabe rig.”

And this came right after we heard Judge Illston read a jury instruction stating that the defendants can be found liable if-after the fact-they ratified, adopted, or approved the primary agent’s wrongful conduct, even if it was originally unauthorized. The instructions explicitly state that false media statements and false statements regarding the ownership of boats and helicopters can be considered an attempt to cover up the wrongful conduct, and are thus evidence of ratification.

I will deal with the jury instructions later, but this is definitely a strong point for the plaintiffs.

With that, Stormer brought out a central theme of his argument: Chevron’s distraction strategy. Stormer asked the jury to see if Chevron will actually defend itself on any of the issues at stake because it hasn’t so far. Instead, it has thrown up a smoke screen of distractions at the jury in an attempt to mislead them. Thus the long irrelevant tugboat testimony-involving none of plaintiffs and occurring after the shooting.  Thus the preposterous and at times obviously fabulated testimony of the expats. Thus Tim and Mike Browne’s obviously cribbed statements. Thus Burnham’s videotaped deposition where he gives one response and is then coached into another by Chevron’s counsel. Thus the ridiculous juju theory. [Stormer didn't mention it-he didn't need to.] Thus the turtle incident. Thus the pantomimed Molotovs.

In the end, I think the plaintiffs recovered a lot of ground via the closing argument. I confess that I too was feeling bogged down in the details and had lost the big picture. Stormer’s narrative was a corrective: compelling, plausible, and most importantly simple. It was something for the jurors to hold onto-a frame to hang around the case. Will it be enough to sway every juror? Who knows.  At the very least the plaintiffs can be satisfied that their case was made.

With his last lines, Stormer tied in the defense’s strategy in the courtroom with the Chevron P.R. wing’s disinformation campaign back in the 1990s:

“They didn’t want to be held accountable by the press in 1998, so they lied. They don’t want to be held accountable now. But you–through our system of justice–can hold them accountable.”

I’ve got my own worries though — how to do justice to the massive amount of argument and law presented today.

Ok here’s my plan–there’s a lot of material to cover and I want to give both closing arguments their due.

Tonight I will try to cover Dan Stormer’s closing argument.

Tomorrow I will cover Bob Mittelstaedt’s close and Stormer’s rebuttal.

Then, I will try to see if I can map out my understanding of the theories of liability and the various charges the jury will have to consider.

For the time being: the jury has begun deliberating. My hunch is that we won’t hear a verdict until post-Thanksgiving. I’ll do my best to keep you all posted as soon as I hear any news.

Yesterday and today we watched the videotaped deposition of David Schools, captain of the tugboat Cheryl Ann. In many respects, Schools testimony seems to be the centerpiece of Chevron’s case. They’ve been using his account in their press statements and on their websites which appears to have been Google-bombed back into the top spot on B v. C searches.

Part of me wonders why. Most of Schools’ testimony speaks to events that took place after the shooting aboard Parabe. In the fallout from the military raid, the tugboat was commandeered by the Ilaje and brought to shore. Captain Schools and crew were then taken back against their will to the Ilaje villages. After several days, Chevron Nigeria Ltd. eventually brokered their release with the Olubo-the Ilaje king.

While Schools’ story makes for good pulp fiction–being marched along plank ways through eerie marshes, watching village women dance strange “victory dances” along the water’s edge, catching dysentery and being cured by drafts of the Ilaje’s home-brewed kai-kai liquor–I’m not sure how it clears Chevron of liability in this case.

Aside from more Heart of Darkness material, Schools’ testimony gave Chevron’s legal team a chance to show the jury scary photos of the Ilaje slaughtering a sea turtle on the deck of the Cheryl Ann.  While the audience couldn’t actually see the pictures, we were informed that the Ilaje had taken a large butcher knife from the ship’s galley–called a lamb-splitter–and used it to butcher the turtle. The defense presented the turtle incident as a brutal act of intimidation against the tugboat crew, but on cross-examination it looks like the villagers might have had a different goal in mind:

“Do you know if the Ilaje eat sea turtles?”
“Well, they ate that one.”

“Do you know if any of your crew ate the sea turtle?”
“I don’t know–I know I personally didn’t.”

Throughout the deposition Schools referred to the Ilaje as pirates. Chevron’s attorney Ms. Mitchell, joined him in the use of the term, so that the jury was exposed to over three hours of

The pirates did this…then the pirates did that…

On cross, plaintiffs’ counsel challenged this:

[In your meeting with defense counsel before the deposition] “Was a decision made to use the word pirate as opposed to insurgent or invader?”

“Yes, I used the term and Ms. Mitchell asked me if I felt comfortable to continue using that term and I agreed.”

And so much for the exclusion of juju. Although the word itself was never mentioned, we were treated to this colorful passage:

“On Thursday morning he was holding some kind of ritualistic gathering. And they had the fire-axes and the lamb-splitter and various and sundry other implements.  This fella was wearing a bandanna. Others were wearing shells in a bandanna thing.  This fella had sprinkled some kind of red powder on these tools.

“I was gonna sneak a picture of it but their apparent frame of mind suggested to me that I better not aggravate them.”

Witness: John Stapleton

Stapleton was the Meren Platform Field Supervisor. His videotaped deposition spoke to the process by which information on events happening on the barge during the occupation were relayed to CNL’s crisis management team in Escravos.

Aside from his misuse of the words “apprise” and “appraise” which even infected Ms. Mitchell’s questioning, Stapleton’s testimony was remarkable for showing how CNL’s line of communication during the crisis was literally a game of telephone.

Stapleton received calls from Steve Peace aboard the barge. He then reported Peace’s speech to Randy Hervey, the CNL North Offshore Area Superintendent in Escravos. The thing is, Steve Peace’s phone calls consisted of recounting what other expats aboard the barge had said. In other words, Stapleton was reporting reported speech to CNL management. Hearsay upon hearsay.

As the speech worked it’s way up the chain, we got dramatic accounts like this:

Steve Peace said that the people [...] were spreading diesel all over the CBL 101 barge. Said it was intense on the outside of the barge that they could smell it inside and that people were starting to think they would lose their lives.

He also said that chanting was going on and that they were going to set the 101 on fire. He said they were lighting matches and putting them out with their fingers.

He said that a lot of people were starting to scream and yell inside the barge that they wanted to get out and jump in the water. They thought they were going to get burned up.

Witness: Randall Hervey

Hervey’s testimony focused on the speech reported to him on the situation aboard the platform.  He also spoke about the production status of the Parabe platform: it’s a hub, collecting all of the oil from the North area well jackets.

Hervey stated that his only source of information from the barge was Dave Parkin – CNL’s representative.

“The climate that was passed on was that people were scared. There seemed to be a lot of confusion from the community folks.”

A telling moment in the cross-exam:

“Do you if Dave and Steve left their offices or if they gathered all their information from inside their offices?”

“I don’t know”

Witness: Derek Mackey

A piping contractor from Texas, Mackey gave testimony on the occupation of the barge and platform by the Ilaje.

First of all, Mackey corroborated accounts that the Ilaje rushed the CNL operators who were attempting to lock the gate to the platform from the barge.  However, it was difficult to separate what he had actually seen and what he had heard reported to him from others. Mackay did clarify that the expatriates were ordered to stay in the living quarters area by Mike Browne, not by the Ilaje.

When asked if he felt his movements constrained, he recounted an incident where he left his room-where he spent most of the 3 days-and tried to walk up the steps to the roof of the radio room to get some sun. He claimed that right outside the galley, he saw two Ilaje drinking clear liquid and holding knives. They stopped him and ordered him to return to his quarters, their breath stinking of alcohol. That was the only occasion he could report of Ilaje carrying knives.

Mackey also reported that he personally saw Ilaje pouring diesel from 55-gallon barrels onto the barge deck, while he stood on a walkway, 40 feet above the deck.

“How did you know that what was being poured from the barrels was diesel?”
“I guess I knew just from working on the barge and knowing what’s in those barrels.”

This observation was of course passed on to Mike Browne, the other expats, and eventually on to CNL’s crisis team. Mackey’s assumption about the barrels presumably blossomed into the hysterical accounts of expats ready to throw themselves into the sea to avoid being burnt.

Mackey also testified on the arrival of the Nigerian military personnel and the shooting of the protesters. In his version–unlike in previous testimony–an Ilaje raised a large dummy spool (large metal piping) over his head and rushed towards a military man when he was shot. Previous accounts claimed that the Ilaje wrested a gun away from a soldier before being shot.

On cross it was revealed that Mackay had reported to Mike Brown that he saw two Ilaje rushing towards the soldiers with dummy spools raised above their hand, but his deposition stated that he saw one Ilaje already lying dead on the ground while another one raised the dummy spool.

With numerous discrepancies like these, it was hard to know what to make of Mackay’s testimony.  He contradicted other expats’ accounts on numerous details: never heard Ilaje threaten anyone’s life, never heard them say they were “prepared to die”. He never saw broken bottles, never saw razors. Most glaringly, Mackey entered the radio room after the military raid occurred.  He didn’t see any damage to the door and said the room was all in order.

So what, with all these contradicting reports, actually happened on the barge?

The day ended with the beginning of Billy Burnham’s videotaped deposition. I will treat it in its entirety on Monday, 11.24.08.

After the fourth week of trial, I must confess that Chevron’s case seems stronger than I had first thought.  It’s probably inevitable that the balance would shift as the defense’s evidence accrues. That’s not to say that things won’t swing back in the plaintiffs’ favor by Wednesday.

Chevron’s case is built on the testimony of the expatriate–i.e. American–barge workers and supervisors aboard the CBL-101 barge at Parabe. While there have been major contradictions between the witnesses’ accounts, certain repeated elements seem to suggest that the Ilaje might not have been as peaceful as their testimony had indicated.

But then again peacefulness can be in the eye of the beholder.  Each of Chevron’s witnesses denied that the Ilaje were non-violent. When asked why he believed this, nearly every witness explained that the workers felt confused and didn’t have control over the situation. None of them produced the straightforward response I would expect: Because the Ilaje used physical violence.

So the perception that the Ilaje were violent seems based more on the workers’ state of mind–no doubt they saw themselves as hostages held by dangerous Africans–rather than on the observed conduct of the Ilaje villagers.

We’ve heard grossly exaggerated accounts of the expats’ ordeal. All that was missing was a cauldron to boil them in and a witch-doctor–oh wait a minute.

But we also heard relatively restrained versions. What’s common to all is the massive amount of hearsay. “I heard they ripped a door off the hinges.” “I heard they poured diesel all over the deck and lit matches.” “I heard they started a riot.”

So here’s my hypothesis as to what happened–and we’ll see how this compares to the plaintiffs’ closing argument.

I believe the crew was already slightly traumatized by the Itsekiri occupation in March 1998. Based on past experience and a foundation of rumour (and perhaps centuries of colonialism), the expat workers were predisposed to fear any native Nigerian who invaded their workspace. Thus the shock and dread they felt as they watched a swarm of dugout canoes approach the barge and saw Ilaje men scramble aboard the barge-even if CNL’s security team was standing calmly by. Nearly all of the witnesses stated that the boarding itself was violent–not because the Ilaje carried arms or attacked anyone–but because it was disorderly. They didn’t follow procedure and sign-in to the logbook. They didn’t board in a single-file.

Perhaps there was some shouting and maybe some shoving–although according to the witnesses, the Ilaje were constantly shouting for three days. Here, I wonder if the workers didn’t misperceive normal Ilaje speech as shouting.

There seems to have been some sort of confrontation at the gate to the platform, but what exactly happened is hard to say. From that point on, the expats–15 or so men–locked themselves in the living quarters and never went on the deck, only circulating in the offices, walkways and in the galley. As the hours passed they seemed to relay reports to each other, some of which were completely fabricated fantasies–seeing the Ilaje pantomime the assembly of Molotov cocktails–others were likely transferred memories from the March 1998 Itsekiri occupation. Still others were likely based on real observation.

All of this information–the product of a group of men lock inside, stewing in their own fear–was then radioed to Scott Davis’s crisis management team. The reports were all filtered through CNL’s representative on the barge, David Parkin, and given his imprimatur.

So Chevron’s crisis team based their decision on the frightened hearsay of men locked in a room for three days. Faced with supposed riots, razor blades, long knives, petrol bombs, diesel fuel all over the deck, natives playing with matches, men ordered to lie in the sun, men lifted in the air and held over the sea, Chevron Nigeria Ltd. (with Chevron’s approval) went and called in the Navy and mobile “Kill and Go” police.

I would say that herein lies the negligence: Scott Davis failed to verify David Parkin’s reports. He failed to consult the other men on board; he failed to compare the eyewitness perspectives to test their veracity; he even failed to confer with the captain of the barge. He made the same error when he failed to test Deji Haastrup’s perception of the negotiation process against those of Haastrup’s assistant negotiator; both should have been debriefed.

Anyhow, if I had to confront Chevron’s counsel’s evidence, that’s probably the line I would take. But I’m just a student.  Let’s see how the pros handle it.