# The Trial Begins: Jury Selection

An episode of [Drilled](https://invisiblenetwork.ai/podcast/1439735906), 10 Jun 2025, 37 min.

Audio: https://podtrac.com/pts/redirect.mp3/tracking.swap.fm/track/SxlTEPDY7xDg35RXkASs/pdrl.fm/3e5572/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/9a7ab5ee-ce11-48ff-a544-b3ec00ea9b1e/bbd6a248-7d84-4de2-9838-b3ec00ed5214/audio.mp3?utm_source=Podcast&in_playlist=7f82f371-6316-4ea6-a108-b3ec00ea9b2d

Alleen arrives in North Dakota for jury selection in the lawsuit targeting Standing Rock activists and is shocked watching it play out. Recording in the courtroom is prohibited and jurors who state their open bias against activists—or are even connected to the fossil fuel industry—are allowed to serve. See omnystudio.com/listener for privacy information.

## Transcript

[0:06] Speaker 1: And it's freaking early. It's six thirty eight. I wanted
[0:11] Speaker 1: to leave at six thirty, but that's fine, and I
[0:15] Speaker 1: am headed to the Martin County Courthouse. It's day one
[0:20] Speaker 1: of the Energy Transfer versus Greenpeace trial in Mandan, North Dakota.
[0:24] Speaker 1: The courthouse won't open until seven thirty, but I heard
[0:27] Speaker 1: there was very limited seating in the courtroom, and I
[0:29] Speaker 1: want to be sure to get in, even if it
[0:31] Speaker 1: means waiting outside the door until it opens. Last week
[0:35] Speaker 1: it was thirty below. Luckily, right now it's about thirty
[0:39] Speaker 1: six degrees, so if I'm standing around outside, I will survive.
[0:46] Speaker 1: It's important that I'm there to listen because no one's
[0:48] Speaker 1: going to get to record anything inside the trial. You know,
[0:53] Speaker 1: we had some pretty unfavorable rulings from the judge about
[0:57] Speaker 1: press access. I'm pretty irritated that I'm not going to
[1:02] Speaker 1: be able to bring anything except a pen and paper
[1:05] Speaker 1: in there. The judge is worried about witness contamination and
[1:11] Speaker 1: jury contamination, so he ruled that. So he ruled that
[1:19] Speaker 1: we can't even record on our cell phones for note
[1:26] Speaker 1: taking purposes. Drilled In several other media organizations filed a
[1:31] Speaker 1: request for a live stream of the trial. When the
[1:34] Speaker 1: judge said no, we asked to just be able to
[1:36] Speaker 1: record so we could get the quotes right. That was
[1:38] Speaker 1: a node too. Now we're waiting on the North Dakota
[1:42] Speaker 1: Supreme Court to respond to our appeal, but I'm not
[1:45] Speaker 1: feeling optimistic. I pull up to the courthouse. The parking
[1:48] Speaker 1: spots in front of the brick building are empty. Okay,
[1:52] Speaker 1: the sheriff's the only one here.
[1:53] Speaker 2: Me and the sheriff.
[1:57] Speaker 1: I parked the car and head in, leaving my recorder behind.
[2:01] Speaker 1: I did not need to get here this early, but
[2:03] Speaker 1: it gives me time to take in the scene. The
[2:06] Speaker 1: courtroom is humble. It could be an office space if
[2:09] Speaker 1: it wasn't for all the wood furniture. I sit on
[2:12] Speaker 1: a light colored wood bench that looks like a church pew.
[2:15] Speaker 1: In front of me, dark wood paneling frames the judges bench,
[2:18] Speaker 1: and the door to his chambers. Everything is laid out
[2:22] Speaker 1: exactly like you'd expect, with a jury box to the
[2:24] Speaker 1: judges left. A law enforcement officer wearing a tactical vest
[2:28] Speaker 1: observes from a corner of the room. Other observers sit
[2:32] Speaker 1: down around me. They're mostly green peace people. The judge
[2:36] Speaker 1: enters from behind the stand and we all stand up.
[2:40] Speaker 1: Judge James Gien is around seventy, with white hair and
[2:43] Speaker 1: a white beard and tired lines down his face. When
[2:47] Speaker 1: I look him up later, I'll learn that in his
[2:49] Speaker 1: spare time he plays guitar and harmonica. Used to play
[2:52] Speaker 1: in a country band called Dakota Gold. Welcome the potential jurors.
[3:02] Speaker 1: Around thirty file into the room, filling the reserved audience piece.
[3:06] Speaker 1: They're every day mid Westerners, dressed casually. Almost all of
[3:10] Speaker 1: them are life. Judge Gean greets the jurors with a
[3:17] Speaker 1: notable North Dakota accent. I want to congratulate you on
[3:21] Speaker 1: being chosen for jury duty because it is one of
[3:24] Speaker 1: the highest obligations and privileges of our democratic system. Only
[3:32] Speaker 1: eleven people will actually sit on the jury for this trial.
[3:35] Speaker 1: The lawyers for Energy Transfer in green Peace will spend
[3:37] Speaker 1: the next two days selecting them. Greenpeace has been trying
[3:41] Speaker 1: for years now to move this trial to a different county.
[3:44] Speaker 1: They say that Morton County residents are so biased against
[3:47] Speaker 1: the anti pipeline protesters that there's no way Greenpeace could
[3:51] Speaker 1: get a fair trial. Every judge in this district recused
[3:55] Speaker 1: themselves from the case because of conflicts. The court had
[3:58] Speaker 1: to pull judge Gean from rural western North Dakota for this,
[4:03] Speaker 1: but Green Piece is stuck with Morton County jurors. I'm
[4:06] Speaker 1: not even sure there will be any jurors left. After
[4:08] Speaker 1: Greenpeace weeds out the biased ones. The curtain is raised
[4:13] Speaker 1: and the trial is set to begin. It's scheduled to
[4:16] Speaker 1: last five weeks, but the next two days of jury
[4:19] Speaker 1: selection will be what decides Greenpiece's fate. In fact, maybe
[4:24] Speaker 1: it's already decided. This season of Drilled, we bring you
[4:28] Speaker 1: Slapped the story of an indigenous nation fighting for its water,
[4:32] Speaker 1: an environmental nonprofit facing extinction, and an energy giant using
[4:37] Speaker 1: the courts to punish protesters. I'm Ellen Brown. Jury selection begins.
[4:57] Speaker 1: Energy Transfers lawyer Trey Cox stands behind a little podium
[5:01] Speaker 1: facing the potential jurors. He's blonde and looks like a
[5:04] Speaker 1: high school football coach. He's got an intense energy, like
[5:08] Speaker 1: he's about to unleash something. Neither side is using their
[5:11] Speaker 1: staff attorneys for this case. An Energy transfer has hired
[5:14] Speaker 1: a real doozy of a law firm. Trey and most
[5:17] Speaker 1: of the other lawyers for the company come from Gibson,
[5:19] Speaker 1: Dunn and Crutcher. Maybe you don't know their name, but
[5:22] Speaker 1: you know their work. The firm argued the landmark Supreme
[5:26] Speaker 1: Court case Citizens United. That's the one that used the
[5:30] Speaker 1: First Amendment to get rid of limits on certain types
[5:32] Speaker 1: of political donations. Trey introduces himself with the subtle Southern accent.
[5:40] Speaker 1: He weaves in personal details I guess to sound relatable.
[5:44] Speaker 1: I'm originally from Shreveport, Louisiana, he says. I ended up
[5:49] Speaker 1: following not a girl, but the girl to Dallas, Texas.
[5:53] Speaker 1: When I look it up later, I'll see that Trey
[5:55] Speaker 1: is married to Aaron neely Cox, a former US prosecutor
[5:59] Speaker 1: appointed by Donald Trump. Trey begins asking the potential jurors questions.
[6:04] Speaker 1: Is there anyone uncomfortable or feel like they will struggle
[6:07] Speaker 1: to award a pipeline company like my client something in
[6:10] Speaker 1: the neighborhood of three hundred million dollars if the evidence
[6:13] Speaker 1: and law supported it. No one raises their hand. Greenpeace's lawyer,
[6:20] Speaker 1: Everett Jack takes his turn. He wears a tomato red
[6:24] Speaker 1: striped tie and parts his hair to the side. He's
[6:27] Speaker 1: lanky and his face looks a little warm. He tells
[6:30] Speaker 1: the potential jurors that his hometown is Portland, Oregon, and
[6:33] Speaker 1: that he's married with two daughters and three grandkids. Feel
[6:37] Speaker 1: like Everett Jack could be cast in the role of
[6:39] Speaker 1: Atticus Finch, the lawyer in the book To Kill a Mockingbird.
[6:42] Speaker 1: In real life, he's married to Fay Resnik, a recurring
[6:46] Speaker 1: guest star on the Real Housewives of Beverly Hills. Chris Jenner,
[6:50] Speaker 1: the matriarch of the Kardashian family, officiated their wedding. As
[6:55] Speaker 1: Everett begins to question the group of jurors, a pattern
[6:58] Speaker 1: emerges Dure after jur says that hearing about the standing
[7:02] Speaker 1: Route protests reminds them of what they call the disruption
[7:06] Speaker 1: in our community. One woman puts it plainly, I think
[7:10] Speaker 1: you'll have a tough time finding people completely unbiased on
[7:13] Speaker 1: that because it affected everyone. Everett Jack follows up, how
[7:18] Speaker 1: many of you feel the same way? All but a
[7:20] Speaker 1: handful of people raise their hands. Everett asks another question,
[7:25] Speaker 1: is there anybody that hurt a rumor that there were
[7:28] Speaker 1: paid protesters out at the protest site? Nearly all the
[7:31] Speaker 1: hands in the room go up. My mind wanders back
[7:35] Speaker 1: to those internal documents that had been leaked to me
[7:37] Speaker 1: years back by someone who worked with Energy Transfer's private
[7:41] Speaker 1: security contractor, Tiger Swan, back when I'd been interested in
[7:45] Speaker 1: what kind of spying Tiger Swan was doing for the
[7:47] Speaker 1: oil company. But going through the documents, I realized that
[7:51] Speaker 1: they were doing more than just surveillance. The files referenced
[7:55] Speaker 1: a social media campaign carried out by a guy named
[7:58] Speaker 1: Rob Rice. Here's Rob.
[8:01] Speaker 3: There's a new trend among anti pipeline protesters online. It's PayPal.
[8:06] Speaker 3: Last year Standing Rock, we saw one of twenty million
[8:08] Speaker 3: dollars raised by protesters who set up thousands of gofund
[8:11] Speaker 3: me accounts.
[8:12] Speaker 1: Tigerswan was paying Rob Rice to develop Facebook pages aimed
[8:16] Speaker 1: at local community members, like the ones in the jury pool. Now,
[8:20] Speaker 1: Rob posted videos where he posed as a news anchor
[8:22] Speaker 1: reporting on the protesters. He said that they were paid
[8:26] Speaker 1: outside agitators. He also said that they were working to
[8:30] Speaker 1: hide how they raised money. Ironically, Rob failed to share
[8:34] Speaker 1: in these videos that he himself was being paid by
[8:36] Speaker 1: Tiger Swan.
[8:38] Speaker 3: Now, paid protesters are switching their tactics. They're beginning to
[8:41] Speaker 3: use PayPal as their main method of raising money. Why
[8:44] Speaker 3: because you can't tell how much they've raised or what
[8:47] Speaker 3: they're using it for.
[8:48] Speaker 1: The paid protester will come up again and again as
[8:51] Speaker 1: the boogeyman of this trial. It's an old trope that
[8:54] Speaker 1: says that protests do not come from local communities with
[8:57] Speaker 1: serious grievances. Instead, they're driven by professional outsiders and people
[9:02] Speaker 1: making money off of disruption. Back in nineteen fourteen, the
[9:06] Speaker 1: Rockefellers and Standard Oil used this claim against a coal
[9:09] Speaker 1: miner strike. In recent years, the idea of the professional
[9:13] Speaker 1: protester has popped up more and more as mass protest
[9:16] Speaker 1: movements have grabbed headlines. And it turns out Energy Transfer
[9:19] Speaker 1: started pushing that narrative in Morton County nearly a decade ago.
[9:23] Speaker 1: Neither Rob Rice nor Tiger Swan responded to my requests
[9:27] Speaker 1: for comment, and I found no evidence that Tiger Swan
[9:30] Speaker 1: was specifically trying to influence a jury pool back then.
[9:33] Speaker 1: But what I do know is that Energy Transfer continued
[9:36] Speaker 1: to aim messaging at the local community. Before I flew
[9:45] Speaker 1: into town, I was looking through a website energy Transfer
[9:48] Speaker 1: had recently launched, called Taking Back the Truth. It's dedicated
[9:52] Speaker 1: to quote setting the record straight, not only on oil
[9:55] Speaker 1: and gas, the lifeblood of our modern society, but our
[9:59] Speaker 1: projects and our company. The pipeline company had also posted
[10:03] Speaker 1: photos on Twitter of North Dakodin's holding giant checks the
[10:07] Speaker 1: company donated to community groups. Even more bizarrely, last fall,
[10:13] Speaker 1: these weird newspapers started appearing at the doors of Warren
[10:16] Speaker 1: County residents. Sandwiched in between articles criticizing Kamala Harris or
[10:21] Speaker 1: analyzing the dangers of quote unquote illegal aliens were stories
[10:26] Speaker 1: describing negative things that happened related to the Standing Rock protests.
[10:31] Speaker 1: Those protests were a long time ago. These weren't articles
[10:34] Speaker 1: of normal newspaper would publish. According to their court filings,
[10:39] Speaker 1: Greenpeace uncovered a murky trail of funds that connects these
[10:42] Speaker 1: weird newspapers to Energy Transfer's board chair, Kelsey Warren. The
[10:47] Speaker 1: newspaper's publisher, Metric Media, didn't respond to our request for comment.
[10:52] Speaker 1: When Greenpeace's lawyer asks about the weird newspapers, one guy
[10:56] Speaker 1: pulls out a copy he brought with him. I thought
[10:59] Speaker 1: it was it's kind of weird that I got that.
[11:01] Speaker 1: He says, it brought back memories. I agree with it
[11:05] Speaker 1: that what happened down there wasn't good. As jury selection continues,
[11:10] Speaker 1: another potential jur tells the lawyers that she knows that
[11:13] Speaker 1: Energy Transfer donated money three million dollars actually to build
[11:17] Speaker 1: this shiny new library a few blocks from the courtroom.
[11:24] Speaker 1: From what I could tell, energy Transfers propaganda efforts haven't
[11:27] Speaker 1: slowed down much since the protests, and here in the
[11:30] Speaker 1: courtroom they're paying off. Before today, I would have thought
[11:35] Speaker 1: naked bias would be enough to make you ineligible for
[11:38] Speaker 1: a jury, but Greenpeace's lawyers are having a hell of
[11:41] Speaker 1: a time getting the judge to disqualify people. It turns
[11:45] Speaker 1: out a bunch of people in the jury pool have
[11:48] Speaker 1: financial ties to the fossil fuel industry. There's a guy
[11:52] Speaker 1: who works maintenance at the local refinery. A woman whose
[11:55] Speaker 1: family collects royalties from oil extracted on their landon works
[12:00] Speaker 1: at Dakota Gasification. Another works for Cool Creek Station. Everett
[12:06] Speaker 1: Jack asks the potential jurors to raise their hands if
[12:09] Speaker 1: this isn't the right case for them. Five people's hands
[12:12] Speaker 1: go up. One hand raiser explains, I work in the
[12:16] Speaker 1: petroleum industry. Juror fourteen says he would be uncomfortable ruling
[12:21] Speaker 1: against his industry, and he would be less likely to
[12:24] Speaker 1: believe green pieces witnesses than energy transfers. He's even got
[12:28] Speaker 1: a second layer of bias. He has a family member
[12:31] Speaker 1: in law enforcement who policed the protests. Energy Transfer's attorney,
[12:37] Speaker 1: Trey Cox, hits back with the question of his own,
[12:40] Speaker 1: one that he will repeat throughout the day. If the
[12:43] Speaker 1: judge instructs you that the law requires you to only
[12:46] Speaker 1: consider the evidence in this courtroom and to treat all
[12:49] Speaker 1: the parties fairly, are you able to follow the judge's instruction. Yes,
[12:55] Speaker 1: the man replies, it's funny that Trey asks that question.
[13:00] Speaker 1: He actually wrote a book on how to pick a
[13:02] Speaker 1: sympathetic jury. It's called Mastering Las Deer. That's a lawyer
[13:06] Speaker 1: word for jury selection. Trey and as co authors note
[13:10] Speaker 1: that people are often unaware of their biases. His book
[13:13] Speaker 1: says this may lead the juror to being dishonest with
[13:16] Speaker 1: herself as well as the court. A notable and common
[13:20] Speaker 1: example occurs when a potential juror says they can be
[13:23] Speaker 1: fair and impartial to both sides after revealing a predisposed
[13:28] Speaker 1: belief or opinion that renders them incapable of impartiality. Trey's
[13:34] Speaker 1: own book says questions like the one he's asking today
[13:37] Speaker 1: hide biases judge. Gian rules that Juror fourteen will remain
[13:43] Speaker 1: in the jury pool. Versions of this happen over and over.
[13:50] Speaker 1: A woman whose father works in oil and gas says
[13:52] Speaker 1: she got lost driving once around the time of the
[13:55] Speaker 1: protests and found herself in an area where pipeline opponents
[13:58] Speaker 1: were gathered, banging their hands on her car. Gian rules
[14:03] Speaker 1: that she remains in the pool. Another man says he
[14:06] Speaker 1: heard negative stories about the Standing Rock movement from a
[14:09] Speaker 1: friend who serves in the National Guard and was called
[14:12] Speaker 1: to respond to the protests. When Green pieces ever at,
[14:15] Speaker 1: Jack asks if he'd be able to disregard what his
[14:18] Speaker 1: friend told him. He replies, how can I erase or
[14:21] Speaker 1: ignore what was said? He adds, wouldn't that be impossible?
[14:27] Speaker 1: Gian rules that he stays in the pool. Midway through
[14:32] Speaker 1: day two of this, the moment arrives for the lawyers
[14:35] Speaker 1: to make their selections. They silently pass papers back and forth.
[14:42] Speaker 1: Those of us in the gallery observe anxiously, and the
[14:46] Speaker 1: jurors are announced that guy who said his work in
[14:50] Speaker 1: the fossil fuel industry means Green Piace would have a disadvantage.
[14:54] Speaker 1: He's on the jury. Another juror works at a gasification company.
[14:59] Speaker 1: A third oversees two power facilities. My job depends on
[15:04] Speaker 1: fossil fuels, he'd said during jury selection. The woman whose
[15:08] Speaker 1: family receives royalties for oil on their land, she's on
[15:12] Speaker 1: it too, And three others have had husbands with ties
[15:15] Speaker 1: to the oil and gas industry. One woman's husband also
[15:19] Speaker 1: worked for a security company hired by the pipeline, as
[15:22] Speaker 1: well as for the contractor that drilled under the river
[15:24] Speaker 1: for energy transfer. She said she didn't think he worked
[15:27] Speaker 1: at those places during pipeline construction, but still, by my count,
[15:32] Speaker 1: a total of seven out of eleven jurors and alternates
[15:35] Speaker 1: have economic ties to the fossil fuel industry, and no
[15:39] Speaker 1: one on the jury has identified themselves as indigenous. This
[15:43] Speaker 1: was the best green Peace could do. The organization's lawyer,
[15:47] Speaker 1: Everett Jack, makes one last motion to relocate the trial.
[15:51] Speaker 1: Judge Gian denies it. This doesn't seem fair, But maybe
[15:57] Speaker 1: I shouldn't be surprised, because there's something else I noticed
[16:00] Speaker 1: in those tiger Swan private security documents I mentioned earlier.
[16:05] Speaker 1: In addition to spreading propaganda about paid protesters, Tigerswan was
[16:10] Speaker 1: also helping energy transfer look into the money behind the
[16:13] Speaker 1: Standing Rock movement. They put together spreadsheets listing dozens of
[16:17] Speaker 1: crowdfunding pages and how much each raised. They were identifying
[16:22] Speaker 1: which cars showed up at certain protests, and they were
[16:25] Speaker 1: using an infiltrator to figure out what group's protesters belonged to.
[16:29] Speaker 1: They didn't seem to mention Greenpeace, although there are several
[16:33] Speaker 1: pages missing. Their emails showed that they were clear about
[16:36] Speaker 1: what all of this was for. As early as twenty seventeen,
[16:41] Speaker 1: Tigerswan was specifically helping energy transfer lawyers develop a racketeering
[16:46] Speaker 1: case a Rico. It was a different law firm that
[16:50] Speaker 1: actually filed Energy Transfers first RICO suit. Pips and Dunn
[16:54] Speaker 1: took over the case in twenty twenty three, but it
[16:57] Speaker 1: turns out they first got involved almost a decade ago.
[17:04] Speaker 1: Before the court clears for the day, I rush outside
[17:07] Speaker 1: to try to get people to talk to me about
[17:09] Speaker 1: what's happening. I wait at the courtroom doorway. Who My
[17:14] Speaker 1: fingers are very cold? Tree Cox and Energy Transfers other
[17:18] Speaker 1: lawyers exit. I shoot my shot, mister Cox, Can I
[17:21] Speaker 1: ask you a quick question? Okay, they don't want to
[17:25] Speaker 1: talk to me. Hey, are you guys able to share
[17:28] Speaker 1: a quick comment.
[17:29] Speaker 4: Nope, sorry, okay, neither.
[17:31] Speaker 1: Do people from Greenpeace, at least not with the trial
[17:34] Speaker 1: just starting, I'm going to have my work cut out
[17:36] Speaker 1: for me. I finally find someone who is down to talk.
[17:42] Speaker 1: Scott Badendock. He's a lawyer with the Environmental Law Institute
[17:46] Speaker 1: and he's part of a group called the Energy Transfer
[17:48] Speaker 1: Versus Greenpeace Trial Monitoring Committee. There are a group of
[17:52] Speaker 1: lawyers that came together specifically to watch this trial.
[17:56] Speaker 5: Trial monitors don't monitor trials because they want to. They
[18:01] Speaker 5: monitor trials because they feel they need to. And Bismarck
[18:05] Speaker 5: in end of February is definitely not my first choice.
[18:10] Speaker 1: Scott and the other trial monitors called us a slap
[18:13] Speaker 1: suit slap spelled slapp meaning strategic lawsuit against public participation.
[18:21] Speaker 1: The point of a slapsuit is not necessarily to win,
[18:24] Speaker 1: but to drain opponents of resources and discourage them from
[18:27] Speaker 1: speaking out. Slaps are meant to set an example. What's
[18:31] Speaker 1: in your notes? What really stood out to you?
[18:34] Speaker 5: It seemed like virtually every single juror was directly or
[18:37] Speaker 5: one step removed from the oil and gas industry. Then
[18:41] Speaker 5: when you combine that with the fact that they have
[18:43] Speaker 5: negative opinions about what happened there. Those two together sort
[18:47] Speaker 5: of combined to be a real problem.
[18:50] Speaker 1: Some of these trial monitors have run into Gibson Done
[18:52] Speaker 1: and Crutcher before. Gibson Dunn represented Chevron in a notorious
[18:56] Speaker 1: reco case against an environmental lawyer named Stephen Don. It
[19:01] Speaker 1: turns out Stephen is also in North Dakota. He's one
[19:04] Speaker 1: of the people who organize the trial monitoring committee. Steven
[19:11] Speaker 1: is tough to catch outside the courtroom. He's constantly belining
[19:14] Speaker 1: it to his car to look at his phone and
[19:16] Speaker 1: post updates on social media about what's happening inside the courtroom.
[19:20] Speaker 1: I make arrangements to meet him for an interview at
[19:23] Speaker 1: his hotel. For Stephen, this case is personal.
[19:27] Speaker 6: I really wanted to come and look those Gibson Done
[19:29] Speaker 6: lawyers in the eye and let them know of sitting
[19:31] Speaker 6: right there on the front row watching them, and I'm
[19:34] Speaker 6: posting about it, We're putting out statements about it, and
[19:37] Speaker 6: we're going to do a report about it.
[19:40] Speaker 1: To understand the trial here in North Dakota, you have
[19:43] Speaker 1: to understand energy transfers law firm Gibson, Dune and Crutcher.
[19:49] Speaker 1: They have a history of helping big corporations avoid accountability
[19:52] Speaker 1: for harming the environment or undermining indigenous people's rights. At
[19:56] Speaker 1: the end of Steven's clash with Gibson, Done and Crutcher,
[19:59] Speaker 1: he lost his law license and even his freedom. The
[20:02] Speaker 1: case harmed Stephen's clients too, indigenous Ecuadorians fighting oil contamination
[20:08] Speaker 1: in the Amazon. To really get to the bottom of it,
[20:12] Speaker 1: we have to go back to a case from the
[20:13] Speaker 1: early two thousands and a legal strategy that Gibson Dunn
[20:17] Speaker 1: developed back then. In two thousand and seven, banana workers
[20:21] Speaker 1: in Nicaragua won a multimillion dollar lawsuit in the US
[20:25] Speaker 1: against the fruit company Dole, for poisoning them with a
[20:28] Speaker 1: pesticide called DCBP. Dole hit back. They hired Gibson, Dun
[20:34] Speaker 1: and Krutcher to launch a full fledged attack against everyone involved.
[20:39] Speaker 1: Dole's general counsel at the time gave their strategy cute
[20:42] Speaker 1: name The Kill step Dole and the lawyers alleged a
[20:48] Speaker 1: vast conspiracy where the worker's attorney recruited fake banana workers
[20:52] Speaker 1: to use to go after the fruit company. There were
[20:55] Speaker 1: all kinds of holes in this story, but to the
[20:58] Speaker 1: American judge, it didn't really matter. The money that had
[21:01] Speaker 1: been awarded to the workers was taken back, and Dolan
[21:05] Speaker 1: Gibson Dunn didn't just go after the lawyers and the plaintiffs.
[21:09] Speaker 1: They went after the story that was being told. They
[21:12] Speaker 1: sued filmmaker Frederick Curtin, who made a documentary about the
[21:15] Speaker 1: banana workers called Bananas.
[21:18] Speaker 7: They create an angle and then everybody has to follow.
[21:22] Speaker 7: If he goes against the angle they created, you are
[21:26] Speaker 7: the radical, you know.
[21:28] Speaker 1: Eventually, Frederick forcetle to drop the lawsuit, and he even
[21:32] Speaker 1: won a countersuit. A court in California said that this
[21:35] Speaker 1: was a slap suit, that strategic lawsuit against public participation thing.
[21:40] Speaker 1: But Dolan Gibson Dunn had damaged Frederick's ability to tell
[21:44] Speaker 1: the banana workers story. He couldn't get his film distributed
[21:47] Speaker 1: in the US.
[21:49] Speaker 7: We had sold the US TV rights to ITVS, which
[21:52] Speaker 7: was a part of PBS, and they didn't dare to
[21:56] Speaker 7: broadcast it.
[21:57] Speaker 1: A few years later, Chevron hired Gibson Dunn Crutcher to
[22:00] Speaker 1: go after another lawyer, Stephen Donziger. Drill did a whole
[22:05] Speaker 1: season on Stephen's case, and I re listened to it.
[22:09] Speaker 1: The heart of the story was another horrible case of contamination,
[22:13] Speaker 1: this time in the Ecuadorian Amazon. The homeland of indigenous
[22:16] Speaker 1: Ecuadorians was destroyed, and Stephen helped them win a big
[22:20] Speaker 1: case against the oil giant Chevron Gears from Drilled Season five,
[22:25] Speaker 1: hosted by My Boss investigative reporter and editor Amy.
[22:28] Speaker 4: Westervelt, Chevron was ordered to pay more than nine billion
[22:32] Speaker 4: dollars to clean up waste pits of oil and refining
[22:35] Speaker 4: fluids left in the Ecuadorian Amazon by Texaco, the company
[22:39] Speaker 4: Chevron acquired in two thousand. But the case didn't end there.
[22:43] Speaker 4: Back in the US, Chevron took Donziger and the other
[22:46] Speaker 4: lawyers to civil court, filing a racketeering case against them,
[22:50] Speaker 4: otherwise known as a Rico case, and accusing them of fraud.
[22:55] Speaker 1: It was the kill step all over again. Stephen lost
[22:59] Speaker 1: the Rico case, and over the next few years Chevron
[23:02] Speaker 1: and Gibson Dunn kept going after him. He ended up
[23:05] Speaker 1: on house arrest for two years and in jail for
[23:08] Speaker 1: forty five days for a contempt of court charge.
[23:11] Speaker 6: The impact on me was profound, on my life, life
[23:14] Speaker 6: of my family. Chevron is still after me. I cannot
[23:17] Speaker 6: travel out of the country. They have taken most of
[23:20] Speaker 6: my money I live off basically philanthropy. People giving money
[23:25] Speaker 6: to my legal defense fund and helps pay my household expenses.
[23:28] Speaker 6: I mean, it's a crazy way to live. I'm sixty
[23:30] Speaker 6: three years old. I have nothing other than half of
[23:34] Speaker 6: my house, which Chevron has a lean on.
[23:37] Speaker 1: Perhaps even more troubling is that the indigenous Ecuadorians couldn't
[23:41] Speaker 1: collect the settlement awarded to them. Chevron had pulled its
[23:44] Speaker 1: assets out of Ecuador, and now a US judge had
[23:47] Speaker 1: said they couldn't collect in the US either. Just like
[23:51] Speaker 1: with the banana workers in Nicaragua, the victims of contamination
[23:54] Speaker 1: were left with no justice in this case too. They
[23:58] Speaker 1: went after a journalist, a guy named Joe Berlinger, who
[24:01] Speaker 1: directed a film about the contamination called Crude. Chevron and
[24:05] Speaker 1: Gibson Dunn forced him to hand over his unused footage
[24:09] Speaker 1: so they could use it as evidence against Stephen and
[24:11] Speaker 1: the others. Gibson Dun was effective at using the courtroom
[24:15] Speaker 1: to weaponize Stephen Donziger's missteps, and the legal drama also
[24:19] Speaker 1: distracted from the oil oozing through the Amazon rainforest. At
[24:24] Speaker 1: the heart of the kill step strategy is an attempt
[24:27] Speaker 1: to discredit the client's legal adversaries. But the kill step
[24:32] Speaker 1: is more than that. The bananas filmmaker Frederick Gerton calls
[24:36] Speaker 1: it the double kill, extreme legal aggression combined with strategic communication.
[24:42] Speaker 7: So they tried to take down my character. They tried
[24:44] Speaker 7: to take down the lawyer who represented the banana workers.
[24:48] Speaker 7: You can see that with the crew. They tried to
[24:51] Speaker 7: go after Joe Berlinger, and then they went after his lawyer,
[24:54] Speaker 7: and they with the lawyer of Steve Donziger. They were
[24:59] Speaker 7: really very successful taking down his figure, his public figure.
[25:04] Speaker 7: And I think that's what you are up against. That's
[25:07] Speaker 7: the that's the double kill in some ways, and it's
[25:11] Speaker 7: it's not a new thing, you know, because every whistle
[25:15] Speaker 7: blower in history has had it coming after. If you're
[25:18] Speaker 7: a factory worker and you you go and say, hey,
[25:23] Speaker 7: we are actually letting out poison in the chemicals in
[25:27] Speaker 7: the river, there will be a story first of all saying, oh,
[25:31] Speaker 7: you are risking the work of all your colleagues, and
[25:34] Speaker 7: then there will be a story he's probably beating his wife,
[25:38] Speaker 7: or he might be an alcoholic. You know, I heard
[25:41] Speaker 7: that he's hard on drugs. You know, you do everything
[25:44] Speaker 7: to make the whistle blower look like he's not somebody
[25:49] Speaker 7: you could trust. That's that's a very old technique, but
[25:53] Speaker 7: they used it. They infuse that technique with millions of dollars.
[26:03] Speaker 1: There's another threat that connects several of Gibson Dunn's most
[26:06] Speaker 1: well known cases, attacks on the rights of Indigenous nations.
[26:12] Speaker 1: Natalie Segovia is director of the Water Protector's Legal Collective,
[26:15] Speaker 1: which is represented pipeline opponents. She's Quetchua and is also
[26:19] Speaker 1: part of the monitoring group and is in town for
[26:21] Speaker 1: the trial.
[26:22] Speaker 2: Gibson Dunn has been involved in struggles against Indigenous peoples
[26:28] Speaker 2: and against indigenous justice for a long time.
[26:31] Speaker 1: She says the Stephen Donziger and Chevron case is one example,
[26:34] Speaker 1: but there's another that's even bigger.
[26:37] Speaker 2: They took up the case against the Indian Child Welfare
[26:40] Speaker 2: Act all the way up to the Supreme Court.
[26:43] Speaker 1: The Indian Child Welfare Act or IQUA, passed unanimously in
[26:47] Speaker 1: the nineteen seventies in response to the Indian Adoption Project
[26:51] Speaker 1: and the forced separation of Indigenous children from their families.
[26:55] Speaker 1: The law assures that if Indigenous kids are removed from
[26:58] Speaker 1: their parents or lose their parents, they have an opportunity
[27:01] Speaker 1: to be placed with indigenous family members and communities before
[27:04] Speaker 1: being adopted out. Equo went unchallenged for more than thirty years. Then,
[27:10] Speaker 1: beginning in twenty thirteen, a series of constitutional challenges were
[27:14] Speaker 1: filed against it by corporate law firms supported by a
[27:18] Speaker 1: whole ecosystem of right wing think tanks. In twenty fifteen, Gibson,
[27:23] Speaker 1: dun and Krutcher joined some of these cases, and by
[27:26] Speaker 1: twenty seventeen it became the main law firm taking on
[27:29] Speaker 1: the cases pro bono.
[27:31] Speaker 2: For a law firm to willingly step in and try
[27:34] Speaker 2: to overturn legislation that was meant to be restorative and
[27:38] Speaker 2: reparative in a form of reparative justice just kind of
[27:42] Speaker 2: tells you the kind of law firm that they are.
[27:45] Speaker 1: One of those cases went all the way up to
[27:47] Speaker 1: the Supreme Court in twenty twenty three, and Trey Cox,
[27:51] Speaker 1: the lawyer in the courtroom today, worked on it too.
[27:54] Speaker 1: His law firm at the time partnered with Gibson Done
[27:56] Speaker 1: on the case, and he joined Gibson Done soon after Gibson,
[28:00] Speaker 1: Dune and Crutcher lost the Supreme Court case attacking EQUA,
[28:04] Speaker 1: but the firm didn't move on. They already have another
[28:08] Speaker 1: constitutional challenge lined up. Tribal leaders across the US believe
[28:13] Speaker 1: that these cases are not about the welfare of Native
[28:16] Speaker 1: kids or adoptive families. The true target is Indigenous land rights.
[28:22] Speaker 1: And bear with me here because this one is even
[28:24] Speaker 1: more tricky. In the EQUA case, Gibson Dunn argued that
[28:28] Speaker 1: EQUA creates an unconstitutional race based preference. The thing is,
[28:34] Speaker 1: being Indigenous is not a racial identity. It's a political
[28:37] Speaker 1: one that means you belong to a nation that has
[28:40] Speaker 1: a treaty with the United States that affords you certain rights.
[28:44] Speaker 1: Rewriting Indigenous identity is racial would make it a lot
[28:48] Speaker 1: easier to attack Indigenous nations rights to decide what happens
[28:52] Speaker 1: on their land. Natalie Segovia from Water Protectors Legal Collective
[28:58] Speaker 1: says that energy transfers lawsuit against green Peace is also
[29:01] Speaker 1: about undermining Indigenous rights for corporate gain, because she says,
[29:06] Speaker 1: the true targets of this legal attack include members of
[29:09] Speaker 1: the Standing Rock Zoo Tribe.
[29:11] Speaker 8: This lawsuit was a proxy war against the Standing Rock
[29:14] Speaker 8: Szoo Tribe and against indigenous sovereignty.
[29:17] Speaker 1: In the months and years before we got to trial,
[29:20] Speaker 1: the impacts of this case went way beyond green Peace.
[29:24] Speaker 1: I asked her about Cody Hall and the fact that
[29:26] Speaker 1: he was still named an energy transfer's lawsuit up until
[29:29] Speaker 1: the trial began.
[29:31] Speaker 8: It's sort of like a scarecrow tactic, right, If you
[29:34] Speaker 8: put up a scarecrow, doesn't actually do anything to physically
[29:39] Speaker 8: protect your crops, but it might scare others that are
[29:44] Speaker 8: similarly situated from coming anywhere near this specific thing. You know,
[29:52] Speaker 8: they weren't just It wasn't just the named parties. There
[29:55] Speaker 8: were third parties that received subpoenats.
[29:58] Speaker 1: In the case, the organized that Natalie leads, which has
[30:02] Speaker 1: provided legal support to pipeline opponents, was one of them.
[30:06] Speaker 8: Water Protectively Collective received a subpoena in twenty twenty one.
[30:10] Speaker 8: We fought it for three years, and we were just
[30:13] Speaker 8: the first of many organizations that were subpoenaed throughout for
[30:17] Speaker 8: their work in proximity to Standing Rock, in part to
[30:20] Speaker 8: learn information is part of the discovery process, but also
[30:23] Speaker 8: in every slab suit there is this measure of intimidation,
[30:30] Speaker 8: chilling and a chilling effect on broader society and then
[30:34] Speaker 8: a broader subset in particular environmental and indigenous organizations.
[30:40] Speaker 1: As has been the case, was so many of Gibson
[30:42] Speaker 1: Dun's lawsuits. Rewriting the narrative, changing the story being told
[30:46] Speaker 1: about Standing Rock has been critical to the success of
[30:49] Speaker 1: this case, and yet again in the Energy Transfer versus
[30:52] Speaker 1: Greenpeace case, journalists have been targeted. The company sought to
[30:57] Speaker 1: force reporters with the media outlet Unicorn Riot to hand
[31:00] Speaker 1: over their footage to pick through for evidence. The pipeline
[31:04] Speaker 1: company lawyers took it all the way up to Minnesota
[31:06] Speaker 1: Supreme Court, where the state's shield law for journalists stopped them.
[31:10] Speaker 1: Gibson Dunn's pattern of going after journalists is important because
[31:14] Speaker 1: the firm has also used the media to build a
[31:17] Speaker 1: reputation for defending the First Amendment. Gibson Dunn has offered
[31:21] Speaker 1: its services pro bono or joined the boards of CNN,
[31:26] Speaker 1: Pro Publica, Reveal, and the International Women's Media Foundation. That
[31:30] Speaker 1: work is often carried out by a Gibson Dunn partner
[31:33] Speaker 1: named Ted Boutros. He's a First Amendment expert who also
[31:37] Speaker 1: happens to be Chevron's attorney in several climate cases, and
[31:42] Speaker 1: he worked on the Dole case where the firm developed
[31:45] Speaker 1: the kill step. Ted Buttrose would not talk to me
[31:48] Speaker 1: for this story. Back at the hotel. Stephen and the
[31:55] Speaker 1: other trial monitors are waiting for me to finish this
[31:57] Speaker 1: interview so they can go eat dinner. Well, I think
[32:00] Speaker 1: that's all I've got. Is there anything you want to
[32:02] Speaker 1: add that we didn't talk about, though, Let's go eat.
[32:07] Speaker 1: I reached out to Energy Transfer and Gibson Dune about
[32:10] Speaker 1: everything I talked about with the trial monitors. Gibson Done
[32:14] Speaker 1: declined to comment. Energy Transfer sent me this statement. Our
[32:19] Speaker 1: lawsuit is about recovering damages for the harm Greenpeace caused
[32:22] Speaker 1: our company. It is not about free speech. They're organizing,
[32:27] Speaker 1: funding and encouraging the unlawful destruction of property, and the
[32:31] Speaker 1: dissemination of misinformation goes well beyond the exercise of free speech.
[32:36] Speaker 1: We look forward to proving our case and we trust
[32:39] Speaker 1: the North Dakota legal system to do that. In the
[32:43] Speaker 1: lobby of Stephen's hotel, a commercial blairs on a big
[32:46] Speaker 1: TV surrounded by couches.
[32:49] Speaker 9: Tomorrow, millions of Americans will go to work and school,
[32:53] Speaker 9: some will go on vacation, and others will simply come home.
[32:56] Speaker 9: But America will move tomorrow because North Dakota works Today.
[33:01] Speaker 9: North Dakota produces more than one point one million barrels
[33:05] Speaker 9: of crude oil every day, with almost half of that
[33:08] Speaker 9: safely going through the Dakota Access pipeline.
[33:15] Speaker 1: With jury selection behind us, the real show is about
[33:18] Speaker 1: to begin, and I'm eager to hear how each side
[33:21] Speaker 1: will present their cases. Greenpeace has made a last ditch
[33:24] Speaker 1: attempt to relocate the trial the appeal to the North
[33:28] Speaker 1: Dakota Supreme Court, but I'm not so surprised when I
[33:31] Speaker 1: learned that the appeal is denied. Our request for better
[33:34] Speaker 1: media access is denied.
[33:36] Speaker 7: Too.
[33:38] Speaker 1: When I talked to trial monitor Natalie Segovia, she points
[33:41] Speaker 1: out something funny. One of the state Supreme Court judges
[33:45] Speaker 1: who weighed in on the trial relocation decision and the
[33:48] Speaker 1: media access decision previously recused himself from being judge in
[33:52] Speaker 1: this trial. He'd said before he had a conflict of interest,
[33:56] Speaker 1: but that didn't stop him from weighing in this time.
[34:00] Speaker 1: Everywhere I turn with this case, I run into another
[34:03] Speaker 1: ethical hiccup. When I reach out to the court clerk
[34:06] Speaker 1: for clarification about the recusal, the court refiles the decision,
[34:11] Speaker 1: this time without that judge. As I get ready to
[34:14] Speaker 1: listen to opening statements tomorrow, I want to believe these
[34:17] Speaker 1: jurors sincere pledges that they will listen to the evidence
[34:21] Speaker 1: and issue a fair judgment. But as an investigative journalist,
[34:25] Speaker 1: I'm also supposed to follow the evidence. I know the
[34:28] Speaker 1: makeup of the jury. I've read lawyer Trey Cox's own books.
[34:32] Speaker 1: This case is stacked against Greenpeace. I want to believe
[34:37] Speaker 1: that green Peace will only lose if Energy Transfer proves
[34:40] Speaker 1: its case. And I haven't really seen yet what kind
[34:43] Speaker 1: of dirt the pipeline company is dug up. But if
[34:46] Speaker 1: Energy Transfer didn't find a smoking gun, if Greenpeace loses anyway,
[34:51] Speaker 1: then I want to see how they pull this thing off.
[34:58] Speaker 1: Drilled is an original Critical Frequency production. This season was
[35:01] Speaker 1: reported and written by me Allen Brown. Our senior editor
[35:05] Speaker 1: is Audrey Quinn. Additional editing by Tristan Attone Et Grist.
[35:10] Speaker 1: Our producer and sound designer is Ray Payne. Mixing and
[35:13] Speaker 1: mastering by Martin Saltz, Austwick and Peter Duff. Fact checking
[35:18] Speaker 1: by Shilpa Jindia. Our first amendment attorney is James Wheaton.
[35:23] Speaker 1: Our impact producer is Lindsay Crowder. Marketing by Maggie Taylor.
[35:27] Speaker 1: Original artwork for this season was created by Victor Pascual
[35:31] Speaker 1: of Digital Navajo. Our theme music is by Dear Lady.
[35:35] Speaker 1: The show was created and executive produced by Amy Westervelt.
[35:39] Speaker 1: The Center for Median Democracy supported Document Review for the season.
[35:44] Speaker 1: For related stories and to support our work, check out
[35:46] Speaker 1: drilled dot Media To follow my work, check out my
[35:50] Speaker 1: newsletter Eco files at Allen Brown dot Ghost dot Io.
[35:54] Speaker 5: No che.
[35:57] Speaker 1: Chi Chimo chu Won, no jeweler Jee really Want, no
[36:08] Speaker 1: jeally one, no Joe, no jew Wan

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