NXIVM attorneys pressed criminal case

Details of inquiry into computer hacking case revealed through records filed in court recently

Albany Times-Union/October 10, 2015

By Brendan J. Lyons

Attorneys for the secretive NXIVM corporation were heavily involved in a State Police investigation that resulted in criminal charges against four people accused of hacking into the organization's computer system, according to court records.

Records from the two-year investigation, which began in April 2012, indicate the State Police's lead investigator in the case, Rodger Kirsopp, had contact dozens of times with NXIVM's attorneys, who pressured him to file criminal charges. The records show NXIVM officials, and their attorneys, also provided much of the evidence used by Kirsopp to build the unusual criminal case against the four defendants, all of whom were considered adversaries of NXIVM.

By the time the investigation ended in March 2014, three attorneys from the Albany law firm of O'Connell & Aronowitz, whose attorneys have represented NXIVM for years, had contact with the investigator more than 30 times, including attending interviews he conducted with NXIVM employees and delivering documents and other evidence, including computer records, to the investigator's State Police barracks in Clifton Park.

The details of the investigation were made public in recent court filings in which one of the defendants, Barbara J. Bouchey, who is a former NXIVM executive board member, accused Kirsopp of distorting facts to build the criminal case against her. In a motion seeking a dismissal of the felony charge against her, Bouchey also accuses NXIVM and two of its longtime leaders, Clare and Sarah Bronfman, of using court proceedings, including the criminal case, to punish Bouchey after she left NXIVM in 2009.

"NXIVM has maintained an enemy's list and over the years have attacked certain individuals who have chosen to leave their organization," said the pending motion filed by Pamela D. Hayes, one of Bouchey's attorneys. A judge has not ruled on the motion to dismiss the case.

Bouchey claims an audio recording of her telephone interview with Kirsopp shows the investigator attributed statements to her that she never made, including an allegation that she accessed proprietary materials in NXIVM's website. Her attorneys, to buttress their position that Bouchey did not hack into NXIVM's computer servers, also filed a copy of an email sent to Bouchey by a NXIVM technician who gave her the sign-on and password for another former student and instructed her to "give it a try." It was Bouchey's use of that sign-on information, in January 2014, that was used to charge her with a felony computer trespassing count.

The criminal probe by Kirsopp, who did not respond to a request for comment, centered on allegations that multiple people, including two journalists, used accounts and passwords assigned to former NXIVM students to gain access to the organization's secure, password-protected website. NXIVM's representatives, in court filings, claim the computer access was not authorized and that some of the materials viewed — including clients lists and training manuals — were proprietary trade secrets. The journalists, former Times Union reporter James Odato, and Suzanna Andrews, a freelance journalist who has written about NXIVM for Vanity Fair magazine, were not charged in the criminal case but were named as defendants in a related federal lawsuit filed by NXIVM in 2013. The lawsuit was thrown out last month by a federal judge in Albany.

The NXIVM organization's penchant for secrecy is widely known. In 2012, the Times Union published a series — Secrets of NXIVM — in which one expert referred to the organization as "an extreme cult." The organization's leaders also have been accused of using litigation to punish their adversaries and critics.

Bouchey, in her court filings, has accused NXIVM or its officials of dragging her into 13 court cases, including suing her seven times. She alleges the criminal complaint against her, which was filed by Clare Bronfman, who with her sister is an heiress to the Seagram's liquor fortune, is part of NXIVM's effort to punish her for defecting from the organization.

Kirsopp's investigative files detail the extraordinary level of interaction he had with NXIVM officials and three of its attorneys from the law firm O'Connell & Aronowitz: Stephen R. Coffey, Pamela Nichols and Michael P. McDermott. The attorneys' assistance included enlisting private investigators and computer experts to help gather information that was then turned over to Kirsopp.

In a statement Friday, Coffey defended his firm's role in the computer trespassing investigation.

"We zealously advocated on behalf of a client who had been repeatedly victimized, as evidenced by the ultimate admissions and guilty plea of John Tighe," Coffey said, referring to the conviction of a former Saratoga County blogger who pleaded guilty to computer trespass charges last year.

Still, the State Police records indicate Kirsopp presented the case to multiple agencies, including the state attorney general's office, which declined to prosecute the allegations. Kirsopp, in his investigative report, said that Jesse L. Ashdown, an assistant district attorney in Saratoga County, told him in December 2012 that the state attorney general turned the case down, "citing problems with the prosecution of the case, i.e. placing suspects at the computers at the time of the unauthorized access to the computer materials. This information was passed along to Attorney Pam Nichols."

A month later, the case was presented to the Albany County district attorney's office. But Kirsopp didn't first present it to that office. According to Kirsopp's investigative notes, McDermott, a former Albany County assistant district attorney who joined O'Connell & Aronowitz in 2007, called David Rossi, a chief assistant district attorney, and asked him to take the computer trespassing case. Kirsopp said he learned of that contact when Rossi called him and told him their office, citing a conflict of interest, would not take the case but would refer it to a special prosecutor.

During the first nine months of the investigation, Kirsopp had worked with the Saratoga County district attorney's office, which used subpoenas to gather information on people accused of hacking into NXIVM's computers. It's unclear why that office didn't pursue the case. Saratoga County District Attorney Karen Heggen did not respond to a request for comment.

Kirsopp made notes of his many contacts with the attorneys, who accompanied NXIVM's members, including its founder, Keith Raniere, during their interviews with the investigator.

"I met with Atty Coffey at SP Clifton Park who inquired on the status of this investigation and whether there would be search warrants of the suspects computers prior to or at the time of arrest," states an entry Kirsopp wrote on Aug. 6, 2012, three months into his investigation. The investigator said that Coffey requested that the suspects be arrested, rather than being issued appearance tickets, because he wanted them to be arraigned in court and subjected to orders of protection.

A month later, Kirsopp was contacted by McDermott, who expressed concern about delays in making an arrest.

"I received a call from Atty McDermott who requested action by 9/10/12 in case the offense only rises to misdemeanor level due to the statute of limitations," states a report Kirsopp filed on Aug. 27, 2012.

Three weeks later, Coffey went to Kirsopp's office and told him someone left feces on the front steps of the residence of his colleague, Nichols, who also had numerous contacts with Kirsopp throughout the investigation. That same day, Coffey gave Kirsopp "a packet of paperwork" from the former employer of Joseph O'Hara, a NXIVM associate who was one of the targets in the investigation.

The packet included paperwork between O'Hara and his former employer regarding "banking matters."
"At this time, it is unclear how this material is relevant to this investigation," Kirsopp noted in his report.

The case landed with a special prosecutor in Albany — where NXIVM's computer servers were located — after officials at the Albany County district attorney's office cited a conflict because their office handled a prior criminal case involving O'Hara in 2006.

The four defendants in the criminal case include three former NXIVM members: Bouchey, who was involved with NXIVM for nine years; O'Hara, who is in federal prison for an unrelated criminal conviction; and Toni F. Foley, who was previously Raniere's girlfriend. The fourth defendant, Tighe, who pleaded guilty last November to felony computer trespass, wrote critically of NXIVM on his former blog, Saratoga in Decline.

Tighe pleaded guilty as he was facing unrelated charges of possession of child pornography. He is serving five years and 10 months in federal prison on those charges. The illegal materials were unexpectedly discovered on his computer after State Police seized it during their investigation of the computer trespassing allegations. In the state case, Tighe was sentenced to a year in jail and is serving that term concurrently with his federal sentence.

For O'Hara, it's the second time he has been the target of a criminal case filed as a result of allegations made by NXIVM officials. In 2007, an Albany County grand jury indicted O'Hara on a charge of grand larceny for allegations that he stole funds from a nonprofit organization associated with NXIVM, according to the prosecutor who handled the case. The case was controversial because Keeffe, who was a longtime legal liaison for NXIVM, spent several weeks in the Albany County district attorney's office helping a prosecutor build the case. A judge later threw out the case against O'Hara, citing insufficient evidence.

In a telephone interview Friday from a federal prison in Brooklyn, O'Hara, who is serving three years on an unrelated bribery conviction, said he was troubled by the extraordinary input that NXIVM officials and their attorneys had in Kirsopp's investigation. He characterized it as "extreme pressure."

"When you look at the number of meetings, the number of phone calls, you began to wonder who's running the investigation and that's what it looks like from my side of things," O'Hara said. "I think that goes beyond the bounds of advocacy."

The special prosecutor, Holly Trexler, a former Albany County assistant district attorney, has not responded to requests for comment. As of April, she had been paid $8,800 for her work on the case, according to county records.

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