How the New York Times Got It So Wrong

by Stan Pottinger

I represent women who as girls and adults were raped and sexually abused by Jeffrey Epstein and his friends. I have done this work for years. Without aggressive legal representation, these victims stand no chance of gaining a measure of justice against a dead man’s empire and the powerful men who were part of it. And who, in many ways, still are.

Winning cases where a woman’s account of her assault and her human dignity are routinely dismissed—even by the press—requires evidence, and yet, because sexual assault typically occurs in private, evidence can be hard to find.

For years, press reports claimed that Jeffrey Epstein secretly videotaped his rich and powerful friends in the act of assaulting female victims. Such evidence—if it exists, could be acquired, and could be proven to be forensically sound—would constitute a monumental step forward in proving our clients’ claims and obtaining for them a measure of long-overdue justice.

On Sunday, December 1, 2019, The New York Times published an article titled “The Hot List” about a mysterious source who claimed to have such videotape evidence, including Jeffrey Epstein and his cohorts having sex with non-consenting women, some of whom were under age. This source, a man who refused to use his true name but called himself Patrick Kessler, told me and a colleague in another law firm that he would provide us with this evidence to support our clients’ cases against the Epstein estate. (Epstein had died not long before Kessler contacted us.)

The Times article claimed that Kessler—whom the Times eventually concluded was a liar and a fraud—changed his mind about giving us the videotape evidence not because he didn’t have it (in fact, he did not), but, looking for an excuse he hoped the Times would buy, because he feared we lawyers would use the evidence to “extort” rich rapists rather than using it legitimately against our clients’ abusers in legal proceedings. This excuse is hogwash, but for good measure, Kessler also convinced the Times that he feared we would secretly put some of our clients’ money into a non-profit charity for sex abuse victims in general. (This would, of course, be impossible given that all financial matters, as required by bar rules, are disclosed to the client and disbursements made only with her or his knowledge and approval.)

This fabricated and illogical story, told by the Times with the help of an unidentified felon, is flatly wrong in several ways, the most important of which is its equating legal settlements with “extortion.” They are fundamentally different concepts, and yet the Times conflates them. In so doing, the paper attempts to de-legitimize settlements as a valuable tool by which some of our clients can finally get justice, privacy, and a measure of control. As for their legitimacy, settlements are the most common way cases close in America rather than with a trial in open court. Everything we did to pursue them was lawful, ethical, and in the interests of our clients.

Every step I took was taken according to the letter and spirit of the law in pursuit of justice for the Epstein victims I represent.

Here is what actually happened and, of equal importance, what did not. I know this to be true because, unlike the New York Times, I was there.

When “Kessler” contacted my firm shortly after Epstein died, claiming to have these videos, of course I listened. He said that as Epstein’s IT contractor, he had access to millions of files, including videotapes, and that contractual ownership of the tapes had passed to him upon Epstein’s death. He described himself as a thief, a convicted felon, a blackmailer, and, according to the New York Times reporters, a murderer (although he never said that to me). Neither I nor others knew the truth of these claims, nor did we have an easy way to find out. While obviously remaining suspicious of a self-declared criminal, what mattered most was not his record, but whether he had evidence our clients needed. I was not his therapist or moral judge, I was a lawyer for women whose abuse could be proven by the evidence he claimed to have. He would not be the first felon to have the goods on other felons, and I was not the first lawyer to go after them.

Given the enormous importance of the videos, I believed I had to exhaust all reasonable measures to see if they existed and to try to get them. When he showed some of us a few blurry black-and-white photos he claimed were screenshots of the videos, we were dubious; the images were of highly questionable value, and not forensically sound. Worse, Kessler said they represented the very best depictions of the faces and features we would see when we got the alleged videos. Still, we decided to investigate further.

I and my colleagues soon introduced Kessler to reporters at the New York Times. Despite having originally told us they were “amazed” at the prospect of the videos, the reporters’ story on December 1 put forth an entirely different narrative that failed to report key facts, ignored the truth, and contained a number of defamatory errors. Had the Times followed normal standards of journalism, it would not have published them or, for that matter, the story at all.

Here is the manner in which I proceeded with Kessler.

First, Kessler was examined by eight people—six lawyers and two reporters—before I or anyone else spoke to him seriously. While all of us had significant reservations about the man, his promised evidence and its critical importance to our clients kept us engaged.

We then, on our own initiative, introduced Kessler to one of the biggest non-secret institutions in the country, The New York Times. Kessler wanted to see if he could get the Times to write a story about a foreign political figure he considered a sex abuser. After showing his photos to the reporters (photos Kessler, again, promised were “screenshots” of some of the thousands of videos he possessed), Kessler immediately forwarded them to the reporters’ email addresses but, despite multiple requests by them and me, never produced a single video image or even a snippet of one.

What did these two static photos show? They were not described by the Times in its article, and yet their content is critical to understanding their value (or lack of it). They showed a man of undetermined identity in a sexually suggestive pose with a partially viewable woman (not including her face), although what, exactly, the two of them were doing was not altogether clear.

Most important, who was the man? Was he an alleged politician, as Kessler insisted, or someone he’d picked off the internet in hopes it resembled the man enough to trick the Times into using it? Despite Kessler’s adamant assertions that this was the man alleged, no one could tell. The Times took the photos from Kessler, sent them to the Times’ lab, and had them analyzed. The result, communicated back to me in a phone call from the Times, was that the photos were too blurry and of questionable quality to confirm the man’s identity. The Times did nothing with these particular photos. Neither did we.

Unknown to me, the Times reporters opened their own secret channel of communication with Kessler while pretending in calls to me that they did not know where he was, what he was doing, or whether he had sent any of his promised videos to me (he had not). Not expecting the reporters to be lying to me or double-dealing in this way, I took their fake calls to heart enough to urge Kessler to give them at least the videos he’d promised when introduced to them. (They must have had a good laugh when Kessler told them I was trying to help them.) The Times, of course, made no mention of its double-dealing in its story.

Overall, I received photographs of seven people from Kessler, only one or two of which merited a closer look in order to determine possible identity, but none of which was, in fact, confirmed. All were blurry black-and-white photos taken in a darkened place with a low-value, hidden, security “pinhole” camera. None of the subjects bore resemblances sufficient to pass forensic muster or serve as potential evidence. Some even had the Wikileaks watermark across their face. (When asked why photos supposedly taken from Epstein’s secret files had :”Wikileaks” written across them, Kessler gave a nonsensical reply.) He was lying here, as elsewhere, but the question remained: Did he have the Epstein videos?

I and my colleagues never presented any of those photos, or descriptions of them, or even their existence, to anyone—not even to the men accused by our clients as defendants in sexual abuse cases where notifying them of evidence would not only be appropriate but required. Nor did I have any intention or plan to do so with the videos—had they ever been produced– from which these “best facial features” screenshots were said to have been taken, unless and until the videos were proven to be true and accurate.

I did not owe this fraudster my loyalty; I owed that strictly to my clients. One premise of the Times’ article—that my texts were to be taken literally by later readers—is false. Sometimes I texted him in the casual manner people typically use in a months-long texting conversation; sometimes I told him what he wanted to hear to keep him true to his promises. My objective was not to use language intended for later publication, but to get the videos.

So in the course of pursuing possible evidence, I deliberately played ball with this man whom I and others suspected was a fraud. He was a “lying liar” who I was prepared to tell what he wanted to hear in order to get the evidence that would prove that our clients’ accounts were true. If he thought anything else might have been done with his promised videos and photographs, that was in his imagination, not mine. Nothing I did contradicts that.

I never asked Kessler about photos of any person who was NOT the subject of a valid and credible claim of sex abuse by a woman we represented (or, in one case, a witness who might have become a client). The list of persons of interest to me, whom Kessler said were among many sex abusers in his files, was composed only of those men against whom we already had existing (or in one instance potential) legal claims.

This is a critical, ethical standard that the Times either did not understand or willfully ignored. In other words, to present evidence to men against whom we had no clients with claims of abuse would be wrong. But to present evidence to men against whom we had clients with legitimate claims of sexual abuse would not only be right but ethically and legally required. It was only in the latter case that we pursued any videos from Kessler. To ignore this critical difference, as the Times did, is not only sloppy and misleading to readers, but defamatory.

The Times made an issue of a hypothetical answer I texted Kessler about how cases could be settled. Incomplete as that text was, its sole purpose was to get him to send me the servers containing the evidence which he said was literally ready to ship. The text was not intended to articulate a well-considered settlement policy, and it did not do so. (Shortly after sending it, after my having focused on it, I sent Kessler an email describing more carefully how we settle cases. [Click here to see the email] Despite my having given this clarification email to the Times, it failed to quote it or mention its existence. (The Times did accurately state that I told Kessler that the arrangement would have to be “consistent with and subject to rules of ethics.”)

More important, given my concerns about Kessler, I also alerted federal authorities of what I knew. I advised the U.S. Attorney’s Office of his existence and of his claim that he possessed videotapes from Jeffrey Epstein’s computers. I also advised that he possessed photographs he claimed were screenshots taken of those videotapes.

I also notified the FBI, reported Kessler in the same manner, and conferred with them about how to create a legal “safe harbor” in the event Kessler delivered videos that might contain illegal images or contraband. Kessler was not advised of any of the contacts I made with government officials.

Next, I contacted a nationally reputable IT company to process and analyze the purported “thousands” of videotapes that Kessler said he would deliver on three servers. Following the FBI’s advice, the IT company and I outlined the safe harbor procedures we would follow if the servers arrived. The company stood ready to accept the Epstein evidence, download what Kessler claimed were an astounding “millions” of documents (“25 to 30 terabytes”), organize their scattered digits so that they could be viewed coherently (“de-striping” them), and index them for transmission to the federal government, the press, the FBI, and the lawyers working cases. I do not know the exact number of executives and technicians who would have been involved in this enormous undertaking except that it was many, including executives and technical personnel I conferred with along with the general counsel of the company.

Thereafter, I called the general counsel’s office at the New York Times to advise them of this IT company’s procedure and to notify them that, in the event we received the promised evidence, some parts of it might relate directly to cases and clients we were handling. If so, that information might, at least for an indeterminate period of time, need to be held back from publication and used by us as evidence in our specific cases. Although this is a common practice with regard to legal settlements, the Times’ story says otherwise. At one point, in an interview, a reporter even said with great frustration, “How is it possible that you’re giving us everything and our publishing it won’t actually help your cases?”

The answer is this: What may be good for Times’ headlines may not be good for the courts, the FBI, or the pursuit of “live” investigations. Of equal importance, publishing lurid details is not always good for young woman whose public exposure is humiliating and extremely painful. I greatly admire women who have the nerve to disclose their sexual abuse publicly; they are the heroes of the #MeToo movement and the catalysts who are changing the law and society itself. But what the Times refuses to understand is that not all women want to withstand the hurt of having their sexual assaults revealed to the world. This kind of public exposure is the single greatest barrier that keeps victims from coming forward in the first place. It’s understandable. It should be respected. These victims should not be used by the press for its own interests, regardless of women’s right to privacy. They deserve their measure of true justice, not victimhood on parade.

As one victim described it in Vanity Fair: “My identity was outed in the press—the New York Times chose to publish my name against my consent. It shattered my world, wiped out my finances, and left me with PTSD. When your private traumas are made public, you walk into every room knowing that people have already decided who you are before meeting you. You are labeled a witness, or a whistle-blower, or a victim, or a survivor, and reduced to a headline. It was indescribably hard.” (click here.) For the Times to act more like a peeping Tom than a responsible news organization is a disgrace. For the Times to rely on a source they could not identify is an even bigger disgrace. One is hard pressed to find another national news organization that would have done this.

In fact, I discussed the Times’ article with the editors of three national newspapers. There is no way, all three editors said, they would ever run a story based on an unidentified and unverifiable source, much less one who admitted to being a fraud, a liar, and, according to the Times reporters, a murderer. The editors of these papers were frankly amazed that the Times had forsaken basic journalistic standards of ethics and accuracy to run this piece. Were it not for the possible protections of the Sullivan case, its reporters’ use of telephones to lie to me (and to some of our clients and witnesses) would make them guilty of wire fraud in addition to defamation. Indeed, it is possible that Sullivan does not extend its protections that far.

Finally, I retained a nationally known firm to conduct facial recognition of any videotapes or screenshots that were produced. Kessler’s phony “facial recognition technology,” which he attempted to convince us was legitimate, was not. I learned enough about facial recognition technically to know that his was fake.

By the time I reached my final effort to induce Kessler to produce the servers—he said they were in Boston ready immediately to be delivered in New York—there were many parties, including lawyers, aware and ready to help. (A partner of min in Florida was deliberately walled off from this work.)

This process of forensic validation, had the servers existed and come through, involved a small army of people examining the evidence and preparing its use in various realms. It’s hard to imagine this many lawyers, clients, government prosecutors, the FBI, the press, nationally known IT experts and facial recognition technicians waiting to receive the evidence and still imagine that, had it been delivered to the IT company as promised (not delivered, it should be noted, to me), its contents could have been secretly manipulated in an improper way. The Times’ implication here is fantasy.

On October 24, in response to my exhaustive texts requesting him to produce at least some videos, Kessler proposed to “post all video photos and documents online.” I replied on the record saying, “[S]houldn’t you consider sending directly to US Attorney? Or FBI?” The Times made no mention of this request..

While neither I nor any colleague of mine ever contacted any of the men Kessler said were portrayed in the photos, the New York Times actually did. As they themselves describe in the piece, Times reporters showed two photographs of females apparently being sexually assaulted to a man who formerly represented Epstein and who has been openly accused of assault, and asked the man if the one in the photographs was himself. The Times described him as dismissing the photos with a joke about how one does not do such things [i.e. sexually assault a woman] with one’s glasses on. In the midst of all this jocularity, not a single word was written by the Times about these victims or their humiliation and exposure. The Times also described a conversation they monitored between this man and Kessler as sounding “rehearsed,” and yet they published the conversation nevertheless. An astute reader would understand the Times to be implying that Kessler was a set-up working with this accused lawyer. One is hard pressed here, too, to find any other reputable news organization behaving this way.

Here is the bottom line:

I had no intention of taking action, and took no action, with Kessler’s photos in the names of our clients or otherwise. To the contrary, my sole aim was to obtain videotape evidence that would in turn assist lawyers and their clients in proving their claims as victims of rape and sexual assault.
I reported Kessler to the FBI and to federal prosecutors.
I never contacted any of the men Kessler said were portrayed in the photos. (Kessler, not I, gave his so-called screenshots to the Times, and the Times, not I, showed them to an alleged sex abuser.)
I never apprised any existing or potential defendant of the existence of Kessler or of the possibility that he might deliver videotapes revealing wrongdoing from Epstein’s files.
I asked Kessler for videos only of men against whom we had clients with credible allegations of sexual abuse, not of men “in general” who may have committed assaults. I never asked for, received, or knew about photos of men unrelated to our clients and their legitimate allegations.
Kessler was never my client, never signed a retainer agreement, never deposited funds into a client account, and never asked for or received legal advice. He claimed he had regular counsel of his own, a man he named in Pennsylvania from whom I never heard.

This is not the first time the New York Times has been duped by a fraud and gotten it wrong. Jason Blair stands out, but does not stand alone. The Times should be held to account for its gullibility and the libel that ensued. Even the First Amendment recognizes that mendacity has its limits. For the Times to seek a story aggressively is not surprising, but for them to lie to me and fellow lawyers in order to get it is inexcusable. It is not only a breach of journalistic ethics but of the law.

The newspaper is a big place, which means the quality of its reporters and editors will vary considerably. But the company is responsible for all of them, including the shoddy ones. In this case, the company, like its reporters, fell short.

Although Kessler turned out to be a fraud, the potential importance of the evidence he promised to deliver meant I had an ethical duty to my clients to pursue it. This is what lawyers who seek to root out all kinds of fraud, waste and abuse properly and aggressively do. Does that mean all our leads will pan out? Of course not. All of us have pursued leads that took us out on a limb. It’s part of the job.

That may be the boring end to a hopeful effort, but it is the truth. I only wish the Times had reported it.

Footnote:

“My identity was outed in the press—the New York Times chose to publish my name against my consent. It shattered my world, wiped out my finances, and left me with PTSD. When your private traumas are made public, you walk into every room knowing that people have already decided who you are before meeting you. You are labeled a witness, or a whistle-blower, or a victim, or a survivor, and reduced to a headline. It was indescribably hard.”

Lauren O’Connor interviewed in Vanity Fair, “Weinstein Accusers on What Justice Looks Like,” January 30, 2020.

https://www.vanityfair.com/news/2020/01/30-weinstein-accusers-on-what-justice-looks-like

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