The Implications

Here’s a great article by Anthony Sebok, Professor at Cardozo School of Law, on the significance of the verdict: Chevron Wins an Alien Tort Statute Case – But the Victory May Be Less Important than It Might Seem

VERDICT: CHEVRON FOUND NOT LIABLE

Around 2:30 this afternoon the jury read their verdict and exonerated Chevron on all claims. While we don’t know what informed this decision, it was clear that the plaintiffs faced multiple hurdles in making their case against the Chevron parent companies.

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.

Day 17 Part IV Plaintiffs’ Rebuttal & Last Remarks

Dan Stormer returned to the podium for a half hour to respond to Bob Mittelstaedt’s closing argument for Chevron. At first, I was a bit disappointed with the rebuttal. Following Bob Mittelstaedt’s tightly organized presentation, Stormer seemed to jump willy-nilly from issue to issue. Whereas Stormer’s closing argument had focused on narrative, his rebuttal dove back into the battle for details. So I was disappointed at first.

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

Day 17 11.25.2008 Closing Argument for the Defendants

“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.”

Day 17 11.25.2008 Closing Argument for the Plaintiffs

“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.”

Day 17 11.25.2008 Closing Arguments Part 1

Today we heard closing arguments from both the plaintiffs, Bowoto et al., and the defendants, Chevron USA et al. The day began with Judge Illston reading the 66 pages of jury instructions to the jury. These poor jurors will have to contend with a complex thicket of cascading agency relationships and vying theories of liability.  How they will sort through it without a lawyer’s help, I do not know.

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.

Day 15 11.20.2008

Witness: David Schools

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.

Looking Back on Week Four

The end is nigh: Chevron’s defense announced that they will rest their case on Monday. Judge Illston is expected to read the jury instructions–which by her hand gesture appear to be as thick as a phone book–on Tuesday. Closing arguments will begin Tuesday and should be concluded by Wednesday. Then it’s up to the jury.

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.

Day 14 11.19.2008

Witness: Michael Browne

Yesterday we heard the videotaped deposition of Michael Browne the “hook up superintendent” aboard the CBL-101 barge in May 1998. Browne’s deposition concluded this morning.

Mr. Browne offered further testimony from the perspective of the expatriate workers aboard the barge during the Ilaje’s occupation. Today, Browne described the boarding of the barge as a rowdy affair with Ilajes screaming and pushing workers around.  It was reported to Browne that a Chevron operator was slapped in the face when he tried to lock a security gate barring access to the Parabe platform from the barge. According to Browne, the Ilaje screamed menacing commands at him and the other expats:

“They said: we want you to lay on your backs with your faces in the sun. I responded: we’re not going on the helideck.  It made them angry. They were shouting: you’ll do what we tell you.  They threw bottles all over the helideck. They were running round the halls screaming. They took over the radio room and just tore the door off the hinges.”

Browne explained that the Ilaje ordered a work stoppage and as a result a service tank filled up and started dumping oil into the sea.

By his account, the Ilaje were anything but peaceful protesters. He saw them wandering around the barge carrying tools like a “sharp-pointed spud wrench”.

Sharp-pointed Spud Wrench

In cross-examination, the plaintiffs’ lawyers homed in on the issue of diesel.  Remember that Jason Daniels–among others–testified that the Ilaje poured diesel all over the barge and threatened to set it afire. According to Michael Browne, the diesel fuel was stored in very large tanks under the deck.  Apparently it was difficult to remove the fuel, and required pumping.  He never saw anyone pump fuel during the occupation, although he said his men reported smelling diesel and that he himself smelled diesel when he returned to the barge the day after the military raid.

Eventually, the plaintiffs stumbled on a revelation. Browne had confused the dates of when a worker on the barge was evacuated for stomach pains.  In his deposition, he stated that it happened in May.  Referring to his daily log-book–which documented both the Itsekiri occupation of March 1998 and the Ilaje occupation of May–plaintiffs’ counsel showed Mr. Browne an entry describing this worker’s evacuation in March. “I suppose I was incorrect.”

Suddenly, his testimony began to unravel. Browne was asked to read from his March 1998 diary:

“[T]he first group came scattering out over barge, screaming and shouting. They were out of control at this point and coming upstairs. They began kicking down the door of the radio room. Others grabbed the captain and four others, saying they wanted to take them ashore.”

Mr. Browne was testifying that the exact same events occurred in the March and May occupations–even down to the invaders attacking an expat with a glass bottle.

“Mr. Browne, do the May and March incidents run together in your mind?
“Sometimes they do, yes.”

We know the Itsekiri were armed in March 1998, Browne’s March log entries tell us so. And yet, in Browne’s May 25th log entry, he makes no mention of screaming. Nor does he mention pushing. Nor does he mention brandishing weapons.

By all accounts, Browne and perhaps the other expats were getting the two occupations mixed up in their memory.

Witness: Scott Davis

Next we heard live testimony from Scott Davis, CNL Operations Manager, and the chief of the Crisis Management Team that eventually called in the Nigerian Navy.

Bob Mittelstaedt started in with the direct exam, asking a smattering of unlinked questions:

“If you needed armed security what were options?”
“Government security forces were the only ones allowed to bear arms in the country.”

“How did you resolve Itsekiri situation?”
“We got Policy Government Public Affairs [Deji Haastrup’s group] involved.  We had an agreement within 24 hours.”

Mr. Davis then recounted what had been reported to him via the radio during the Parabe incident.  Throughout, he communicated almost exclusively with David Parkin, CNL’s representative on the barge. Thus, his understanding of the events aboard the barge was filtered through Parkin’s observations.

He ran through the usual laundry list: the Ilaje were brandishing broken bottles, slapping and pushing and shoving, issuing threats, pouring diesel on the deck. At one point, CNL ordered a helicopter to fly over the barge and platform to ‘test’ the villagers’ response. According to Davis, a riot ensued. Parkin told him that the Parabe helipad was blocked with chemical drums. On the barge helipad, hostages were put up as ‘human shields.’ Parkin also allegedly informed him that the villagers had radioed back to the mainland requesting “more men and more arms.”

Helicopter at Parabe Helideck

Later on, Davis spoke about Deji Haastrup’s trip to negotiate with Ilaje elders in Ikorigho. Haastrup reported that the Ilaje were demanding 10 million Naira in money and jobs and 20 million for environmental reparations:

“That was a huge sum of money and precedent setting for us in Nigeria. This was an impasse. If it was going to be about those sums of money, this would drag on for a long time. I told him I had 100,000 Naira for emergency – I could give them that.”

[Nota bene: we have yet to hear accurate exchange rates for 1998, but this is estimated as roughly $1,000 USD.]

In recent days, Dan Stormer seems to have roused himself to deliver some pretty effective cross-examination. His treatment of Scott Davis was particularly sharp. Using Davis’s diary entries from the March Itsekiri occupation and the May Ilaje occupation, Stormer blew some holes in Davis’s live testimony.  In fact, the Ilaje did not fully leave the barge for two and a half days-hardly the 24-hour turnaround Davis had described.

In his March 1998 diary, Davis wrote: “everything calm except for occasional death threats and outbursts.”

“That didn’t alarm you?”
“Well, yeah I suppose we were alarmed.”

Regarding the two CNL operators who were allegedly beaten and later evacuated, Stormer asked Davis if he was aware that the Chevron employee who had flown out to bring this men off the barge made no mention of them being injured in his testimony.

Another line of questioning:

Stormer: You learned there were no weapons?
Davis:  I heard there were no guns.
Stormer: But you had no information that they had weapons?
Davis: That’s correct.
Stormer: And they were peaceful and no looting?
Davis:  Well, no looting.
Stormer: Then let me refer to your diary, quote: “They were peaceful, no looting.” Is that correct?
Davis: Yes.
Stormer: So unlike the Itsekiri who came the first day and made death threats, the Ilaje were peaceful and not looting?
Davis: Correct.

Without skipping a beat, Stormer moved on to attack Dave Parkin’s credibility. Parkin had informed Davis that the Ilaje had taken the tug to discharge passengers. This was false.  Davis claimed he heard reports of a riot. Did he ever learn if it were true? No. Wouldn’t this have been important in forming his decision to call in the military? Yes.

Davis had stated that the Ilaje promised to leave if Deji came to Ikorigho.

Stormer: Wasn’t the actual agreement that if Deji came without soldiers and armed guards they would leave barge?

Davis: No

Stormer: So Deji’s testimony on the stand was not accurate?

Davis’s contradictions are too many to mention. In the end, I think his credibility took a beating. Stormer left us with the following observations. In Davis’s note he stated: “the village had sent representatives to get our offer. I offered 100,000 which of course they refused.”

Stormer pointed out that Davis said CNL’s production was approximately 140,000 barrels per day in 1998 – at $20 per barrel.  Why then could Davis only offer 100,000 Naira as a counter-offer? [approx. $1,000]

It sounded like Davis was offering the Ilaje the petty-cash from his desk drawer, “which of course they refused.”

Witness: Johnny Ogunjobi

[Ogunjobi’s testimony was read in by a young Jones Day associate who helpfully removed his tie to get into character.]

Ogunjobi was the Pan African Airlines pilot who flew a Bell helicopter for CNL. He transported the Nigerian security forces to the CBL-101 barge for the May 28th raid. He dropped off the first six military men and then flew off. Apparently, they fired of tear gas immediately upon hitting the helideck.

Ogunjobi later flew the wounded Larry Bowoto to Escravos and then flew the dead bodies of the men killed on the barge to the General Hospital mortuary in Akure.

Witness: Bamidele Bolaji

Next we heard from Bamidele Bolaji, the nursing supervisor at CNL’s Escravos Tank Farm.  He testified on seeing Larry Bowoto when he first arrived at Escravos, bleeding and lamenting that he had been shot and then his people had been attacked.

He then testified on accompanying the corpses of the decedents to the mortuary where they were embalmed.

Witness: Patrick Origbe

Next up was a brief deposition of a CNL security coordinator working for Mike Uwaka. Mr. Orgibe testified that CNL, like many other companies, paid for Nigerian security forces – both spy police and General Security Forces-to carry out security duty.

Finally, we heard the beginning of the much-anticipated videotaped deposition of David Schools, captain of the tugboat Cheryl Ann. I will treat Schools’ deposition in its entirety tomorrow.

And incidentally, Chevron’s defense team was allowed to pass out their photo packets to the jurors wherein an Ilaje slaughters a sea turtle on the deck of the tugboat. The audience never got to see the actual photos-which maybe isn’t so bad, since I really love sea turtles.

I will update on Schools’ testimony tomorrow. Chevron’s case seems to be leaning on his account, so this should be interesting…

Day 13 11.18.2008

Oh the beautiful unreliability of witness testimony: yet another day of gaping holes and glaring contradictions.

Witness: Tim Browne

The day began with the videotaped deposition of Tim Browne, an expatriate worker aboard the CBL-101 barge in May 1998. In a rich accent (Texan perhaps?) Mr. Browne gave his account of the Parabe occupation. Browne’s version of the events were a marked departure from previous testimony; he described a frightening violent takeover of the barge and platform.  What should have been clear to all was the difference in perspective of Browne and the expatriate workers who testified today and the Nigerian workers who testified a few weeks ago.

Browne described the scene on the barge as a wild jostle where Ilaje villagers pushed and shoved expatriate workers and waved objects around menacingly.  Browne never saw placards or heard the Ilaje singing. Nor for that matter did he hear them identify themselves as peaceful protesters.

Instead, he stated that a pair of ‘channel locks’ – large pliers were wrested from his tool belt by an Ilaje and brandished as a weapon.

Channel Locks

He claimed that he observed Ilaje pantomiming pouring chemicals into empty bottle and “planning to use it as a bomb” and even saw–presumably from a window several storeys above the barge deck–an Ilaje pointing out locations to target with this would-be bomb. When asked how he could discern the meaning of these pointing fingers, he answered that the villagers were miming lighting the bottles and throwing them.

He also described the Ilaje making piles of bottles and metal spools on the deck. He said the expats felt nervous and feared for their lives, although he never observed the Ilaje actually threaten anyone.

In one incident, he reported that a CNL operator was struck in the head and had his glasses knocked to the ground.

Browne hid in his quarters with fellow expats when the heard the helicopters arrive on May 28th. Driven out when tear gas entered the room, he saw two bodies lying on the ground. He claimed to recognize one as the man who had taken his channel lock, though his memory was fuzzy and he later stated that someone else had told him this was the same man.

Browne testified that when he returned to the barge after the attack on May 29th, he was responsible for cleaning up diesel which had been poured on the deck.  He observed 6 or 7 razor blades with crude wooden handles and everywhere bottles and bolts and debris. He stated that the barge has been torn apart.

On cross-exmination, parts of Browne’s testimony seemed to crumble.  First of all, it was revealed that entire paragraphs of his and brother’s written declarations were nearly identical.  He admitted that they consulted with each other before preparing them. Certain of his statements were well dissected: In his declaration he stated, “on 5-28 intruders got really aggressive…actually threatened to kill us.” In the deposition however, he stated that he interacted with no Ilaje on the morning of the 28th and stayed in the expat quarters. How then did he know that the aggressors got really aggressive that morning?

Similiarly, his deposition was alive with dramatic descriptions of villagers pouring diesel on the deck and helipad of the barge and threatening to light it.  Yet in his written declaration, he made no mention of diesel fuel.

“Did you personally observe the Ilaje pouring diesel?”
“No.”

Mr. Browne never saw an Ilaje with a razor blade-despite his discovery of them strewn about the barge on May 29th-nor did he see anyone with a machete. Nor did he see anyone stuffing rags into a bottle. Nor did he see anyone pouring diesel on the ground. It would seem there is a wide gulf between what Tim Browne actually saw and what he said.

Witness: Wayne Hawkins

Mr. Hawkins is a sharp African-American gentleman in his early 70’s. With a concise and precise manner that wasted no words, he offered his account of the Parabe occupation. Hawkins worked as site safety advisor and medic for the French company that ran the barge. A Vietnam veteran and experienced Naval hand, Hawkins’ spoke in the manner of a debriefing and delivered what I believe to be the most reliable testimony of the day.

Like Tim Browne, he described the boarding of the barge by the Ilaje as disorderly. He heard no singing and saw no placards. He did not believe that he was witnessing a peaceful protest. Instead, he described a large number of people milling about an already crowded work area – this overcrowding seemed to be a source of stress.

Hawkins also saw a CNL operative who was attempting to lock a security gate be accosted by an Ilaje and receive a slap to his head that knocked off his glasses.

Due to Judge Illston’s order barring the admission of testimony on juju, Hawkins was only presented with questions on a man shaking a tree branch–the meaning of which was left up in the air.

Mr. Hawkins conveyed the stress and anxiety that gripped the expatriate workers, and we have no reason to doubt his impression. For most of these international workers-American, Europeans, Lebanese-the events must have been confusing and frustrating. However, aside from the above altercations, Hawkins did not witness the Ilaje threatening anyone’s life. Nor did he see them armed with weapons.

He did testify that when the helicopters unloaded the Nigerian security personnel on the 28th, a small group of Ilajes ran towards the soldiers, shaking sticks and pieces of piping.

I must confess that with the constant reference to tree-branch shaking and stick brandishing, I can’t help but picture the spear-shaking natives from an Indiana Jones film. I wonder how much of the expatriates’ perceptions of the events around them were colored by their own predisposition to ‘fear the native’.

But I digress. On cross-examination, Dan Stormer was able to tease out a few significant contradictions. Under direct, Hawkins testified that the soldiers would not have had a clear line of fire to shoot down at the protesters from the helipad; they would have struck the barge superstructure. On cross, Stormer walked him through a photo of the helipad to demonstrate that they would in fact have had a clear line of fire as they descended the stairs from the helipad.

What’s more, Stormer caught onto a major gap in chronology that undermines a key claim for the defendants. Hawkins testified that he left his quarters on the 29th “neat as a pin” and that the crew’s cabins and offices were left in perfect, professional order. And yet, when he returned to the barge on the 29th, he found them ransacked with personal belongings missing and debris strewn about. He saw razor blades and bottles lying helter-skelter around the barge.

He never saw razor blades aboard the barge before the shootings on the 28th. Nor did he ever see any diesel fuel on the deck before the 28th.  And between the 28th and the 29th, when he returned to the barge, the barge was under military control and no one but the military and barge officials were allowed aboard.

So how was the barge ransacked after the Ilaje had been forcibly removed? How did the diesel fuel which Tom Browne scrubbed on the 29th get spilled on the deck? And by whose hands?

Witness: Jason Daniels
Deposed 04.04.2008

In the darkened courtroom, we see a photograph of a helipad, overexposed and washed out in the tropical light. A chopper sits at rest. A lone figure stands erect, his feet planted on the white painted landing circle. A group of men appear to be lifting a body on a stretcher onto the helipad. In the background the green sea.

The photograph was taken by the expat worker Jason Daniels: we are seeing the medical evacuation of Larry Bowoto.

Both the preceding witnesses stated that Daniels–a young man from Texas whose father went to the same church as the Brownes– spent much of the Parabe protest in tearful agitation. Given that set-up, it was little surprise that his testimony bore the wild exaggerations and distortions of high emotion.

Daniels described the Ilaje as fearsome and menacing to a man. In Daniels’ eyes, every exchange with the Illajes is a fight; every communication a threat. “I saw them fighting as they passed the Chevron guy. They hit him upside the head with a bolt, hit him with their fists. They beat this man, trying to push through to the other side of the helideck.”

Every moment seemed to bring the threat of death:

“Were you able to leave the barge?”
“The only way to leave was to swim and we would have died swimming.”

Not only did Daniels see villagers pour diesel on the barge, he saw them pour it from three different 55 gallon barrels. He saw them pour it deliberately. He described it as menacing, dangerous.  He said men were smoking right by the fuel.  He feared for his life.

Did they have weapons? They had pipe wrenches, machetes, monkey wrenches, bolts, long pipes. Three or four of them had machetes with blades 14″ long and 6″ wide

Although he testified that the Ilaje wouldn’t allow anyone to make phone calls and even said they tore about the radio room and destroyed the telephones, he was able to hide under a desk and telephone his father:

I told him our worst fears had happened. That I was scared. I told him we’d been taken hostage. I said this would probably be the last time I would talk to him.  So I cried, I told him I loved him.

“Every second of every day” he thought of himself as a hostage.

Not only was the CNL operator who lost his glasses slapped–as the others said–he was grabbed by the chest and thrown overboard, only saving himself by grabbing onto a rail.

Not only did Daniels see villagers with weapons: they were all armed.

“Everybody on that barge had a weapon. How is that hard to understand?”

“So almost all the people on the barge had weapons in their hands on May 25th?”
“Yes.”

To my eyes, Jason Daniels exaggerated every single observation he made. While it was hard to pick up his affect–as the deposition was read-in by an actor in a flat monotone–it should have been clear that Daniels’ testimony came from a seriously traumatized person. Daniels saw bogeymen everywhere.

Witness: Michael Browne
The day ended with the videotaped testimony of Michael Browne, brother of Tim Browne.  Tomorrow, we will hear another hour of Browne’s testimony, so I will summarize his deposition in its entirety then.