Thanks for the response, which I can relate to and I see where you are coming from. It will be interesting to see where it goes from here. I do believe there is some mileage in it for the LAPs RICO appeal, as these proceedings have cast doubt on the corroboration that Judge Kaplan relied on.

Peter, thanks for the note. I guess my point has three parts. First, the Second Circuit reviews the record in the SDNY, not evidence from another proceeding. So this new testimony won’t be considered on appeal. You can bring a motion to expand the record, but I’m not sure why that would be appropriate here. (But Deepak Gupta and Burt Neuborne are very smart guys, so I am sure they will think of something!)

Second, if I recall, Donziger’s brief does not ask the Court to reverse Judge Kaplan’s findings of fact. They say, “ask and you shall receive,” and the converse, in the law of appeals, is “don’t ask and you can’t receive.” On the other hand, as you say, Donziger’s brief does focus a lot of attention on the perceived problems with the judge’s factual findings.

Third, it was already clear in the RICO trial that Guerra was a liar. So I don’t know that “this changes everything.” As I note in the post, the piece of testimony that the plaintiffs and Donziger have been trumpeting is Guerra’s admission that he lied about the amount of the bribe he was offered. But that’s just icing on the cake—it doesn’t change the fundamentals of his earlier testimony, as far as I can tell.

I’m not guaranteeing this is right, but it’s how I see things, anyway!

You state in the second paragraph ‘He (Guerra) is the witness whose testimony led Judge Kaplan to conclude that the plaintiffs had ghostwritten Judge Zambrano’s judgment.He is a big deal.’ I don’t think many would disagree. So why do you conclude that this will make little difference to the RICO appeal?

You say that ‘Donziger is not really claiming on appeal that the judge’s findings of fact were clearly erroneous’ and admittedly I’m able to find very little in his appeal other than the line ‘To be clear, Mr. Donziger vigorously contests these allegations’. However, he has always denied wrongdoing, and I put his appeal strategy down to it being very difficult to overturn findings of fact. That is, however Donziger might feel about the findings, the second circuit were more likely to be persuaded by technical arguments of standing, unavailability of injunctive relief, comity etc than by the prospect of finding that Kaplan was wrong in his findings.

But that was then, and surely this changes everything. The star witness has admitted he lied, and his corroboration has just vanished. He has also admitted that the government never intervened, shooting another hole into Judge Kaplans findings of fact. Could Kaplan have made the same findings had the cross examination revealed all this in his courtroom? If not, surely the appeal court must take note.

Thanks Michael—I appreciate the encouragement!