Posts Tagged ‘Defense’

Day 17 11.25.2008 Closing Argument for the Defendants

In Trial Notes on November 26, 2008 at 3:35 pm

“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.”


Looking Back on Week Four

In Commentary, Trial Notes on November 20, 2008 at 5:14 pm

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.