Breaking: Judge Zambrano “Dismissed”

The Washington Post is reporting that Judge Nicolás Zambrano, the Ecuadoran judge who issued the $18 billion dollar judgment against Chevron, has been “dismissed for improperly freeing an alleged drug trafficker.” Ecuador’s Board of Judges found Zambrano “either deceitful or grossly negligent” in his handling of a case in 2009, when he and another judge allowed Cristian Suquisupa, suspect in a criminal investigation who had been “caught with a half ton of cocaine”, “to evade justice” by failing to order preventive detention. The Board recommended that Judge Zambrano “be placed under criminal investigation.”

How will this play in the Chevron/Ecuador case? It’s not clear. The optics are obviously bad for the Lago Agrio plaintiffs. Perhaps the news will put some political pressure on the Ecuadoran government to take more seriously the allegations of corruption Chevron has made. Indeed, Chevron’s press release today renewed Chevron’s request to the Ecuadoran government to investigate its allegations of fraud.

The actual legal effect of the new allegations is really unclear to me. There are two kinds of corruption Chevron may seek to prove. One is corruption in the Chevron/Ecuador case itself, the other is corruption in the Ecuadoran judiciary overall. I think the news about Judge Zambrano may actually weaken the case that Ecuador’s judicial system itself does not “provide impartial tribunals or procedures compatible with the requirements of due process of law” (UFCJRA § 4(b)(1)). No one would say, for example, that the United States judiciary does not provide impartial tribunals, even though there have been rare cases of judicial corruption. In part this is so because we also have mechanisms for rooting out judicial corruption, just as it appears that Ecuador has mechanisms for rooting out judicial incompetence.

But the news does strengthen Chevron’s case that the Lago Agrio proceedings themselves were corrupt: common sense tells us that if Judge Zambrano acted badly in one case, it is more likely than it otherwise would have been that he acted badly in another case. But it’s not clear that the type of misconduct alleged in the two cases is at all similar, and in any case, in general, “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character” (Fed. R. Evid. 404(b)(1)). (Maybe Chevron would try to prove that Judge Zambrano was so corrupt in his cases that his corruption was a “habit” that “may be admitted to prove that on a particular occasion [he] acted in accordance with the habit” (Fed. R. Evid. 406))?

A last thought: If, as Chevron says, the Ecuadoran judiciary is political through and through and changed from a model Latin American judiciary to a corrupt and pliable judiciary after Ecuador’s change in government, what does the news about Judge Zambrano say about the way the political winds are blowing in Ecuador for Chevron? I am not saying the premise of that question is right, but if it is, then if I were working for the Lago Agrio plaintiffs I would be worried indeed by this news.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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