How the New York Times Got It So Wrong

admin Posts

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, rumors and 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 deeply flawed 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, not with a trial.

Here is what actually happened and, of equal importance, what did not. 

When “Kessler” contacted my firm shortly after Epstein died, claiming to have these videotapes, 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.  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 I thought mattered was not his record but the evidence.

If Kessler had such tapes, I needed them for my clients.  Given their enormous importance, 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 videotapes, everyone who met him was dubious; the images were of highly questionable value, and certainly 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 videotapes.  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 videotapes, 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 critical and 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 kept us engaged.

We then 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 videotapes he possessed), Kessler immediately forwarded them to the reporters’ email addresses but, despite multiple requests by them and me, never produced a single videotape or even a snippet of one. 

What did these two static photos show?  They were not described by the Times, and yet their content is critical to understanding their value (or lack of it).  They showed a man of undetermined identity in a 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 well 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 to me not to know where he was, what he was doing, or whether I had received any of his promised videotapes (I had not).  Not expecting the reporters to be double-dealing, I took their fake calls to heart enough to urge Kessler to give them at least the videotapes he’d promised when introduced to them. (They must have had a good laugh when Kessler told them about that.)  The Times made no mention of this 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.)

I and my colleagues never presented any of those photos, or descriptions of them, or even their existence, to anyone—not even to men accused by our clients as defendants in sexual abuse cases.  Nor did I have any intention or plan to do so with the videotapes—had they ever been produced– from which these “best facial features” screenshots were said to have been taken.

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 had existing (or in once instance potential) legal claims. 

In the course of pursuing possible evidence, I deliberately played ball with this man whom I and others suspected was a fraud.  I did not owe this fraudster my loyalty; that I owe 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 that 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 videotapes.  The Times made an issue of a hypothetical answer I texted Kessler about how lawyers might settle cases.  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 either to quote it or mention its existence.  The Times did report, however, 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 contacted federal authorities.  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 called 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 videotapes that might contain illegal images or contraband.  Kessler was not advised of any of the contacts I made with government officials.

I next 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), index them so they could be located for examination, and organize them in files or “silos” 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 four 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 lawyers in our 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 your giving us everything and our publishing it won’t actually help your cases?”  

The answer is this:  What may be good for Times circulation may not be good for a young woman whose public exposure is humiliating and extremely hurtful.  I greatly admire women who have the nerve to disclose their sexual abuse publicly; they are the true 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 pain of having their sexual assaults revealed to the world.  In truth, this kind of public exposure is the single greatest barrier that keeps victims from coming forward.  Nevertheless, they, too, should not be abandoned but have their measure of justice.  (Update: For a description of the damage caused by the Times’ outing of a victim against her consent, see footnote below or click here.)

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 me 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, ready to help.  (A colleague 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 planned (not delivered, it should be noted, to a law firm), its contents could have been secretly manipulated in an improper way.

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

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 tell it, they showed two photographs of females apparently being sexually assaulted by a man who formerly represented Epstein and who has been openly accused of assault.  The Times described him dismissing the photos with a joke about how one does not do such things 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. 

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 rapist.)
  •  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 videotapes 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, knew about or used 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.

Although Kessler turned out to be a fraud, given the potential importance of the evidence he promised to deliver I believe I had an ethical duty to my clients to pursue it.  This is what lawyers pursuing all kinds of fraud, waste and abuse properly and aggressively do. 

We have all had leads that did not pan out.  This one took me out on a limb.  So be it.  Lawyers who fight for victims often find themselves there.  For the mistakes I have made in good faith during my long career, I have never hesitated to apologize.  But for the effort I made here, mistakes included, I do not.  At no point did I depart from acceptable legal and ethical procedures and norms.  That may be a boring end to a hopeful pursuit, 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