Friday, July 18, 2014

Closing Comments

When I first started writing about the lacrosse case, at a joint historians’ blog called Cliopatria, I did so in reaction to the Group of 88 statement. Then (and now) I considered the statement an indefensible betrayal by professors of their own school’s students, an action that contradicted many of the basic values on which American higher education rests.

Absent the Group statement, I doubt I would have noticed the case at all—in spring 2006, I didn’t even know that Duke had a lacrosse team, much less know any of its members. But as I remained interested in the case, the editor of Cliopatria suggested I spin off into a focused blog. When I did so, in August 2006, I envisioned a six-week effort, which would perhaps provide background for people interested in the case from the 60 Minutes broadcast, which I had heard was scheduled for early October. Instead, a flurry of events—the delay of the broadcast, then the November 2006 election, the Meehan hearing, the Nifong ethics charges, the culmination of the criminal case, and the two Nifong hearings—sustained the blog on a daily basis (the blog had more than 1000 posts during its first 14 months) through September 2007.

I stopped daily posts in fall 2007, and since then have averaged only about a post a week. I extended the blog to follow the civil cases, which struck me as likely to establish important precedents. (They did so, though in ways that trouble me—suggesting that in the 4th Circuit colleges have no obligation to enforce the student bulletin or faculty handbook, at least in cases where disfavored groups of students are targeted by powerful faculty interests on campus; and victims have no grounds for a federal civil rights lawsuit when prosecutors and police conspire to frame innocent people, provided the police are internally candid about their lack of evidence and the prosecutor obtains a grand jury indictment.) The civil cases dragged on for much longer than I had anticipated, largely due to Durham’s high-risk, but ultimately high-reward, strategy of filing multiple interlocutory appeals to avoid any discovery.

This delay, ironically, meant that the blog remained active during two unanticipated but important events.

The first came when Duke employed the civil suit discovery process to try and obtain my private correspondence with confidential sources for the book and blog. For reasons neither the university nor its attorneys ever explained, I was the only person who covered the case to receive such a subpoena; even UPI co-author Stuart Taylor wasn’t targeted by Duke. Thanks to excellent representation from my attorney, Patrick Strawbridge, and assistance from the Reporters Committee for Freedom of the Press, I resisted the subpoena. A limited setback before a Maine magistrate judge evaporated in the courtroom of Maine district court judge Brock Hornby, who peppered the Duke attorneys with questions, eliciting the extraordinary statement that Duke would be happy for its professors to live under the same standards the university expected of me. (Unsurprisingly, no member of the Brodhead administration ever informed Duke faculty members of this new policy, which would decimate the freedom to research controversial topics at Duke.) In the aftermath of the hearing, and after the Carrington settlement, Duke withdrew its subpoena before Hornby could render a decision. The magistrate judge’s decision subsequently was vacated.

The second significant event occurred with publication of the revisionist book by William D. Cohan. In his up-is-down opus, Cohan portrayed Mike Nifong as victim, “crucified” by the efforts of an amorphous conspiracy that included defense attorneys, the State Bar, some members of the media, Judge Osmond Smith, the Disciplinary Hearing Commission, families of the lacrosse players, senior prosecutors in the North Carolina attorney general’s office, and Northeastern lawyers whose identities he declined to reveal. Cohan reached this startling conclusion not by interviewing any members of the alleged conspiracy, but instead by speaking to Nifong at length, and then uncritically accepting the version of events offered by his chief source, a convicted liar. The result: a book praised by many of the papers who got the story wrong at the start, and sharply criticized by virtually every reviewer who knew anything about what occurred in Durham.

With the Carrington and Evans lawsuits having concluded, and with the Cohan book consigned (to borrow Judge John E. Jones, III’s recent usage of Ronald Reagans famous line) to the “ash heap of history,” it seems like an appropriate time to bring the blog to a close.

Before doing so, however, allow me to offer three general reflections:

The Academy

Higher education is perhaps the only product in which Americans spend tens or even hundreds of thousands of dollars without having any clear sense of what they are purchasing. Few parents, alumni, legislators, or prospective students spend much (if any) time exploring the scholarship or syllabi offered by professors at the school of their choice; they devote even less effort to understanding hiring patterns or pedagogical changes that have driven the contemporary academy to an ideological extreme on issues of race, class, and gender. At most, there seems to be a general—incorrect—impression that while colleges have the occasional “tenured radical” who lacks real influence on campus, most professors fall well within the ideological mainstream.

But while most outsiders have neither the time nor the inclination to challenge faculty on scholarly or curricular matters, the lacrosse case was different. Here, the relevant facts were public knowledge. The event was high-profile, and the more evidence that emerged, the less likely it appeared that a crime occurred. At the least, it was clear by 1 May 2006 that at least one innocent Duke student (Reade Seligmann) had been indicted.

And yet for dozens of Duke faculty, this evidence appeared irrelevant. Eighty-eight of them rushed to judgment, signing a statement (whose production violated Duke regulations in multiple ways) affirming that something had “happened” to false accuser Crystal Mangum, and thanking protesters (“for not waiting”) who had, among other things, urged the castration of the lacrosse captains and blanketed the campus with “wanted” posters. As the case to which they attached their public reputations imploded, Group members doubled down, with most issuing a second statement promising they would never apologize for their actions. (Only three Group members ever said they were sorry for signing the statement, and two of that number subsequently retracted those apologies.) For months, the Duke administration was either in agreement with the faculty extremists or cowed by them—or some combination of both.

The lacrosse case provided a rare opportunity to glimpse inside the mindset of an elite university—and the look was a troubling one. There is no evidence of any accountability at Duke: the university has the same leadership and the same hiring patterns it had in 2006. Several members of the Group of 88 have gone on to more prestigious positions, their efforts to exploit their students’ distress causing them no problem in the contemporary academy.

Nifong

In this respect, Duke isn’t exceptional: if the lacrosse case had occurred at another elite university, something like the Group of 88 probably would have formed there, as well. (Hypothetical Groups at other schools might not have been quite as large—the effects of ex-president Keohane and ex-provost Chafe on maximizing race/class/gender hires did have some additional effect.) Nifong, on the other hand, was unusual.

Prosecutorial misconduct is a blight on the American justice system, but few prosecutors violate quite as many ethical rules in a single case as did the disgraced former DA. Of course, Durham’s particular circumstances accounted at least to some degree for the extent of Nifong’s perfidy: he had to violate ethical guidelines to create “evidence” of a “crime” that never occurred; and then he had to violate more ethical guidelines to create “evidence” to point to the “perpetrators” of this non-existent crime.

It’s worth remembering, however: lots of people seemed quite untroubled with Nifong’s actions. He did, after all, win the primary election—the day after Durham voters saw on their TV screens a video of Reade Seligmann at an ATM machine at the time Nifong claimed a rape was occurring. And he did win the general election—even after Durham voters were exposed to massive evidence of his ethical improprieties, thanks to reporting from the N&O and 60 Minutes. Moreover, Nifong almost managed to bring the case to trial. The State Bar vote to go ahead with the prosecution before the end of the case passed only by one vote, with the chair of the relevant committee casting the tie-breaking ballot. If not for the brilliant cross-examination from Jim Cooney and Brad Bannon, plus the inability of Dr. Brian Meehan to carry off the conspiracy, would the Bar have acted when it did?

Despite his apologists’ best efforts to rehabilitate his reputation, Nifong’s behavior might have had one salutary effect: he now personifies the position of rogue prosecutor. Journalists, legal commentators, and the public at large now have a reference point when they hear defense attorneys speak of the importance of due process, or caution against prosecutors violating ethical norms. And DA’s inclined to ignore ethics to advance their political careers will (hopefully, at least) recall Nifong’s fate.

Media

Excellent coverage of this case came from some quarters of the traditional media—from the 2006-2008 staff of the Duke Chronicle; from Joe Neff at the N&O; and nationally from 60 Minutes and ABC’s Law and Justice Unit. But the terrible traditional coverage—from the New York Times, the Herald-Sun, op-ed commentators such as Selena Roberts and Eugene Robinson, and other outlets in the early stages of the case—was terrible indeed.

The bad work suffered from two problems that reinforced each other. The first comes from the media’s general ideological biases. While not as left-wing as the typical elite school’s faculty, the media obviously leans left, especially on issues of race and gender; and in spring 2006, the facts offered by Nifong seemed for too many too good to be false. So rather than challenging Nifong’s presentation of the case, the Times, the H-S, and politically correct commentators and authors served as de facto stenographers for the prosecutor, uncritically passing along whatever version of events he happened to be offering at the time.

The second general problem exposed by the case was the media’s poor coverage of procedure and procedural issues. It’s no coincidence that the best reporter on this case—Neff—was comfortable with procedure, and that the worst—Duff Wilson and self-described “serious investigative journalist” William D. Cohan—appeared clueless on procedural matters.

For the media as a whole, covering procedure can be difficult—it’s often technical, and it doesn’t exactly sell newspapers. But as the lacrosse case demonstrated, explaining the role of procedure in policy and legal matters is a critical role that journalists play in society. And while there’s been some progress in this regard (consider, for instance, the Washington Post partnering in its blogs with Volokh Conspiracy or Radley Balko), as a whole, the media tends to do a poor job at illustrating procedural matters. Jim Fallows’ laments about the mainstream newspapers’ frequent failures to explain the Senate’s filibuster process is a good example of the broader problem.

-----------------

DIW was a blog of a particular time and place. If the lacrosse case had occurred a few years earlier, the blog likely never could have been launched. In the initial months, I relied heavily on primary source material posted by others (the N&O and WRAL for discovery documents; the State of North Carolina for various ethics and election items; Duke and electronic resources for academic matters). As recently as the late 1990s, this type of material often was not available online, so initially covering the case from New York or Maine (as I did, most of the time) would not have been possible—meaning that I never would have developed the local sources whose willingness to answer questions from me (and not infrequently provide me with tips) helped the blog to break stories.

If the lacrosse case occurred today, on the other hand, the blog’s reach almost certainly would have diminished; the blog’s biggest readership days (over 100,000 each day) occurred during the live-blogs of the Nifong ethics proceedings; most of that information would now be communicated via twitter, not through live-blogs, which have become passé.

It might well be—as any number of commentators have contended—that blogs, at least of this type, will be much less common in the future. (I’ll still be writing on higher-ed matters, at the Manhattan Institute’s Minding the Campus, and readers can follow me on twitter; obviously my academic work is still on my homepage.) That said, many of the strengths of a blog—namely, the sense of community from readers and commenters—aren’t easily replicable on twitter or in other forms. Moreover, the structure of the blog certainly aided me; over the course of the case, I learned a lot about criminal procedure, legal ethics, the nature of journalism, and North Carolina issues, courtesy of exchanges with readers, commenters, and other bloggers.

To DIW’s readers and commenters, my thanks.

Sunday, July 13, 2014

The Group of 88 & Wikipedia

Some interesting comments in a Wikipedia discussion thread regarding efforts to remove mention of their membership in the Group from Wikipedia bios of Group of 88 members. The evidence regarding Cathy Davidson, author of the infamous N&O apologia for the Group, is particularly troubling, in that the editor/whitewasher was traced to a CUNY IP on the same day that Davidson began her CUNY service.

I welcome insights from any Wikipedia editors in the comment thread.

Friday, July 11, 2014

Howard Update

Anne Blythe reports in the N&O that Judge Hudson has said he wants to grant bail to Darryl Howard, whose prosecution, writes Blythe, the judge described “as one of the most 'horrendous' prosecutions he had seen in his 34 years on the bench.” The prosecutor in the case was, of course, disgraced ex-DA Mike Nifong.

As he has deemed Nifong as honorable and quite credible, author William D. Cohan has yet to comment once on the Howard case.

Monday, July 07, 2014

Gottlieb News

WRAL's Julia Sims is reporting that former Sgt. Mark Gottlieb died on Saturday, apparently of suicide. He had, according to WRAL, been living in DeKalb County, Georgia, where he had worked as a paramedic after leaving the Durham Police. I will post more information if and when it becomes available.

Checking in with the Group of 88

As I wind down the blog after the resolution of the Evans and Carrington lawsuits (I’ll have a closing post next Monday), I thought it might be useful to check in on some members of the Group of 88. An utter lack of accountability within the academy for those faculty members who abandoned due process (and, in some cases, appeared to violate Duke regulations) was apparent almost from the start in the case, and remains so today.

No fewer than nine Group members were hired away from Duke, often for more prestigious positions, despite (because of?) their activism in the Group. Cathy Davidson—author of the Group apologia that invented a spring 2006 that never existed—was the latest, having just joined the faculty at the CUNY Graduate Center. She joins Grant Farred (Cornell, which got a taste of the contempt for students he had demonstrated at Duke); Houston Baker (Vanderbilt); Charles Payne (University of Chicago); and Rom Coles (Northern Arizona, endowed chair) in moving onto greener pastures. Meanwhile, three signatories who were members of the University Writing Program received full-time, tenure-track positions—Jason Mahn at Augustana, Matthew Brim at the College of Staten Island, and Christine Beaule at the University of Hawai’i—while a fourth (Caroline Light) was appointed to an administrative-teaching position at Harvard’s women’s studies program.

Several other Group signatories advanced at Duke. Srinivas Aravamudan currently serves as Duke’s dean of the humanities. Lee Baker is dean of academic affairs at Trinity College. And Paula McClain is dean of the graduate school, and vice provost for graduate education. Clearly the role of their behavior in causing a multi-million dollar settlement was no barrier in the Group members’ standing at Duke.

Imagine if the lacrosse case had featured a race-baiting DA, on behalf of a white false accuser, going after African-American students to advance his political career. Does anyone believe that professors who abandoned due process to stand shoulder-to-shoulder with the DA, affirming that something “happened” to the false accuser, would not have faced professional repercussions in the contemporary academy?

And then there’s the principal author of the Group statement, Wahneema Lubiano. Those waiting for her perpetually “forthcoming” books (Like Being Mugged by a Metaphor: “Deep Cover” and Other “Black” Fictions; and Messing with the Machine: Politics, Form, and African-American Fiction) continue to wait; 15 years after Lubiano advertised their coming appearances, the books remain nowhere to be found.

Lubiano, befitting someone who believes that she participates in what she calls “public intellectualism,” has sporadically shared her insights via twitter. In February, for instance, she revealed that she has spent her “entire adult life addressing the US public’s murderous imagination when it comes to the lives of black Americans.” As always, temperate analysis from the tenured professor.

Lubiano hasn’t tweeted in a few months. She doesn’t appear to be academically active, either. According to her departmental CV at Duke, the Group of 88 leader has a grand total of . . . one . . . academic publication in the past six years, an article entitled, “Affect and Rearticulating the Racial ‘Un-sayables.’” The four-page essay appeared in the journal Cultural Anthropology.

(Lubiano appears to be comfortable with this length; her previous publication, subtitled “An Interview with Wahneema Lubiano,” also spanned four pages.)

In the event, Lubiano’s recent publication builds off her work in teaching a first-year seminar at Duke, “Prison, the U.S., and the Citizen.” The course, according to the Group leader, explores “the inability of general public discussion—what my students are aware of in abundance but which they understand as ‘natural’—to accommodate elaborated and unelaborated discourses for cathected critical engagement, e.g., white supremacy and its connection to prison.” Lubiano lamented that, in the class, she often ran “up against the difficulty of moving our students from that hegemonic subjectivity to something more specifically critical.”

The Duke professor expressed her concern that “what I have in the classroom” could “best be described as a fierce (albeit inarticulate) obedient state subject who resists a critique of the state and of prison, a resistance that might be described as white supremacist common sense.” [emphasis added] Lubiano further contended that “because of [her students’] resistance to the basics of empathy with regard to mass incarceration, they’ve taken up the position of aestheticized white supremacist subject instead.” In other words: parents can spend $50,000 a year to have Duke faculty suggest that their son or daughter exhibits “white supremacist common sense.” You’d almost think that Lubiano is a fiction, invented by David Horowitz or another right-wing critic of the academy to discredit the entire higher-ed enterprise.

As a reminder: Lubiano was hired by Duke on the basis of two “forthcoming” books that, to date, have never appeared.

Tuesday, July 01, 2014

Cohan's Trials

Now that his publicity tour appears to have ended, I thought it might be worthwhile to have two short concluding comments on the work of William D. Cohan. (You can read all of my Cohan-related posts here.)

First: a mantra of Cohan’s tour was the author’s purported intention to have the book function as a trial in the case. He described the book in this odd manner on Morning Joe, WNYC, WAMC, C-SPAN, the Michael Smerconish Show, and the Diane Rehm Show.

Leave aside, for a moment, the obvious: in the United States, political trials of the type that Cohan seems to have wanted don’t occur. Instead, when prosecutors (in the lacrosse case, Jim Coman and Mary Winstead, and through them Attorney General Roy Cooper) believe that the defendants are actually innocent, the prosecutors have an ethical obligation to dismiss charges.

But, again, leave aside basic rules of legal ethics. In a sexual assault trial, at a bare minimum four people speak: the judge, the prosecutor, the accuser, and the defense attorney. (Obviously in most cases, more people than four speak.) The defendant might or might not take the stand; in many cases, for various reasons, the defendant doesn’t testify.

In Cohan’s model of the book-as-trial, author Cohan functioned as the judge, and he certainly spoke (as, for instance, when he praised Nifong’s defense, which the State Bar wholly rejected, as “cogent”). Accuser Crystal Mangum was given the opportunity to speak, in a jailhouse interview in which she told still more tall tales (that medical staff had to pull wooden shards from her, that one of the students she falsely accused carried her to the car). And Nifong was allowed to speak. And speak. And speak. And speak some more, virtually always without challenge—even though in a real trial, a prosecutor who bore false witness would be silenced by the judge.

But in William D. Cohan’s “trial,” Judge Cohan never asked the defense attorneys to speak. He solicited no interviews from Brad Bannon, Jim Cooney, Joe Cheshire, Wade Smith, or Doug Kingsbery. Nor, when Nifong became the defendant, did Cohan seek to interview the men and women who prosecuted him, either before the State Bar or in the contempt trial. The author never explained this curious editorial decision, either in the book itself or in his myriad post-publication interviews. Indeed, to the best of my knowledge, he never was asked, in any interview, why he deliberately did not solicit interviews from such key figures in the case.

In this manner, Cohan imitated the conduct of his book’s protagonist, when Nifong notoriously refused to speak with multiple groups of defense attorneys before the indictments. This approach was one of the many ways in which the line between Cohan and the disgraced prosecutor blurred to such an extent as to be almost invisible.

Second: consider one element from Cohan’s presentation of the ethics hearing, courtesy of the “honorable” and “quite credible” Mike Nifong. Discussing Reade Seligmann’s testimony during the proceedings, Cohan wrote the following, mostly consisting of quotes from his interviews with Nifong (p. 554):

“‘They [the State Bar prosecutors] were very surprised to find that Reade Seligmann came across very well, even though some of what he said might not have been true. And actually, he did come across very well . . . . [ellipsis in original] Not everything he said was true, but he did come across very well.’ Nifong was reluctant to specify what exactly Seligmann had said in his testimony that wasn’t true. ‘Some of the things that he said about the party, we had other things to show otherwise,’ [Nifong] continued. ‘There’s no point in getting into any of that. I’ve already talked to you [Cohan] about how his actions after the party indicated that in leaving he showed that he knew that there was something about that that he had to distance himself from. There were some other things that I pointed out that he said, about [how] [brackets in original] he was going to get married, which, of course, is exactly what Crystal Mangum said about the person she identified as Seligmann.’”

In the critiques of Cohan book, this passage hasn’t received much attention, presumably because the allegations are bizarre even for the reality-challenged Nifong. But the passage is revealing about the deeply troubling editorial standards that Cohan employed in his book, which Scribner’s editorial and legal staff tolerated.

In this passage, Cohan allows Nifong, unchallenged, to make three points:

(1) The State Bar prosecutors were “very surprised to find that Reade Seligmann came across very well”;

(2) Seligmann committed perjury on the stand during the proceedings, regarding “some of the things that he said about the party”;

(3) At some point in the case, Seligmann “said” something “about [how] he was going to get married.”

The first claim is based on Cohan’s inexplicable strategy of attempting to glean the State Bar prosecutors’ legal strategy not by interviewing them, or by interviewing their witnesses, but instead by interviewing the defendant in the case, Mike Nifong.

State Bar prosecutor Doug Brocker (to whom Cohan did not speak) confirmed to me that the Bar prosecution team was not in any way surprised by Seligmann coming across well. No sentient person could have been “surprised” that Seligmann came across well—his coming across well had been a major theme of the case by this time.

It remains unclear why Cohan printed something that he must have known was untrue. It also remains unclear why Cohan apparently made no attempt to verify Nifong’s counterintuitive assertion with the Bar prosecutors before including it, unchallenged, in what Scribner’s has termed the “definitive” account of the book.

The second item in the passage raises even more serious concerns about Cohan’s integrity. Could it possibly be that Nifong and his attorneys knew that a powerful witness against them had lied on the stand, and yet elected not to confront him with this information at the hearing? What possible rationale could they have had for such a course?

They had, naturally, no such rationale, because Seligmann didn’t lie on the stand. Indeed, on the stand, his only discussion regarding “things . . . about the party” involved material related to his alibi, as previously presented both in a defense motion and then to the special prosecutors, and verified through electronic evidence along with the statements of two other people. As with the first false statement in this passage, I confirmed with Doug Brocker that the Seligmann testimony contained nothing untruthful.

In this instance, however, Cohan wouldn’t have needed to have interviewed Brocker to have discovered that Nifong was lying. While Cohan didn’t attend Nifong’s disciplinary hearing, on page 619 of the book, he did imply that he watched the video of it: “There is also a treasure-trove of contemporaneous video recordings—from WRAL-TV in Raleigh—of events and press conferences as they unfolded.” At the least, he was aware that a video of Seligmann’s testimony existed. That video is embedded below.



Given the video’s contents, there are only two explanations for the second element of the passage above:

(1) Cohan unknowingly printed Nifong’s false allegation that Seligmann hadn’t told the truth on the stand. Cohan did so because he elected not to take one hour to investigate Nifong’s claim—even though he understood that his book’s chief source (Nifong) is a convicted liar.

(2) Cohan had, in fact, viewed the video of Seligmann’s testimony, and therefore knew that Nifong’s assertion was false. But—blinded by his partisanship for Nifong, his disdain for the falsely accused students, or some combination of the two sentiments—he printed the allegation anyway.

Either explanation would—at the very least—demand that Scribner’s issue a public retraction of this section of the Cohan book.

And then there’s the third section of the passage, in which Nifong reminisces that Seligmann had said “he was going to get married, which, of course, is exactly what Crystal Mangum said about the person she identified as Seligmann.”

The inclusion of this item, unchallenged, is nothing short of extraordinary. At no point in the case did Seligmann ever say something to the effect that “he was going to get married”—because, of course, in 2006 he wasn’t “going to get married.” He didn’t say anything to this effect in the Bar testimony, as Cohan could have confirmed if he had looked at the video of Seligmann’s testimony. Seligmann also didn’t say anything to this effect in any interview he gave on the case, or in any available document from the discovery file (which Cohan, despite his self-described credentials as an “investigative reporter,” seems not to have obtained).

Why, then, did Cohan print Nifong’s false assertion without any challenge or factual context?

(1) Cohan didn’t know the allegation was false, because he elected not to take one hour to confirm the veracity of Nifong’s claim, and because the book’s reporting limitations had denied him access to case-related documents that likewise had no substantiation for Nifong’s assertion.

(2) Cohan, in fact, knew that Nifong’s assertion that Seligmann said something about getting married was false. But—blinded by his partisanship for Nifong or his disdain for the falsely accused students or some combination of the two sentiments—he printed the allegation anyway.

Either explanation would—at the very least—demand that Scribner’s issue a public retraction of this section of the Cohan book.

Cohan’s willingness to publish serious allegations that he either knew were false or would have recognized as false with a minimum of reporting speaks volumes as to his goals in producing the allegedly “definitive” account of the case.

Hat tip: K.

Monday, June 16, 2014

Credibility & Commentary

I have a piece over at Minding the Campus on the issue of accountability, in this instance regarding the approach of the commentariat to the current war on campus due process.

One of the people I looked at was retired Penn anthropology professor (specialist in Women's Studies, Southeast Asia, Anthropology of Gender, Multiculturalism, Sexual Culture, Public Interest Ethnography/Anthropology) Peggy Reeves Sanday, whose final book, published in 2007, was an updated version of her earlier Fraternity Gang Rape.

NYU Press blurbed the book in the following manner: “Sanday updates the incidences of fraternity gang rape on college campuses today, highlighting such recent cases as that of Duke University and others in the headlines.” Of course, there was no “gang rape” in the lacrosse case, and the lacrosse players weren’t part of a fraternity. Otherwise, Sanday seemed right on target.

As part of a Cohan-esque book tour, Sanday defended her work with a March 2007 column placing the “Duke case in perspective”—in which she proclaimed that she would not address “whether a sexual assault took place at the party” or “whether the district attorney botched the investigation.” Nonetheless, she deemed it “noteworthy that the sexual offense and kidnapping counts have not yet been dropped.” Of course, one month later, the charges were not only dropped but the falsely accused were declared innocent.

In the book itself, Reeves Sanday offered the following . . . analysis . . . of the case: “one can only imagine” that the goal of the lacrosse players’ party was to create an event that “actively promotes if not abets non-consensual sexual behavior.” (p. 202) It’s not clear why Reeves Sanday based an item in what was an academic publication on her imagination.

Why bring these items up now? As many DIW readers know, we’re in the midst of a high-profile public debate about whether due process for students accused of sexual assault should be eroded. (To my dismay, the Obama administration and a coalition of “activists” have pushed strongly for weakening due process protections.) The move has also attracted support from politically correct journalists, such as NPR blogger Barbara King. In a post celebrating a California bill requiring students to obtain (and, presumably, find a way to record) “affirmative consent” any intercourse, King cited—of all people—Sanday. The Duke “expert” affirmed rejoiced that the California bill would help “to make campus sexual cultures more equitable and by so doing change the broader understanding of the meaning of sexual equality.”

The politically correct don’t need to worry about false predictions costing credibility.

On the issue of what it takes to lose credibility when the thesis is a politically correct one: consider the latest (perhaps the last?) review of the Cohan book, coming from Matt Storin, the (well-respected) former editor of the Boston Globe. Storin went on to work in the Notre Dame Communications Office, and his review was published in Notre Dame Magazine.

Continuing the pattern of praising a book that doesn’t exist (seen in the Economist and Newsday reviews, in particular), Storin gushes that Cohan “interviewed so many of the key people, and so well, that it is mostly captivating.” Among the “key people” that Cohan didn’t try to interview: the major defense attorneys; the State Bar prosecutors; Nifong’s primary campaign manager; the judge; the DHC chairman and panel; the special prosecutors in the criminal contempt trial; and the senior prosecutors in the AG’s office who oversaw the office’s investigation. Indeed, as I’ve noted previously, Cohan appears to have interviewed only five people (Mike Nifong, Nifong’s attorney, Crystal Mangum, Bob Steel, and Ryan McFadyen) for the book.

Why Storin considers this meager list to constitute interviewing “so many of the key people” in the case he doesn’t say. Nor does he reveal why he considers Cohan’s penchant for virtually never challenging Nifong’s assertions to exemplify a reporter interviewing “so well.”

I grew up reading the Globe; I don’t recall the paper regularly covering criminal justice issues through its reporters not even trying to interview the defense attorneys, as Cohan did in the sections of the book dealing with the criminal case in 2006, or the prosecutors, as occurred in the book’s coverage of Nifong’s ethics and criminal contempt proceedings. Storin doesn’t explain in his review why he held Cohan to a lower standard than that expected from first-year Globe reporters.

Storin also came away from the book concluding that “you probably have to give a nod to the defense attorneys.” Those would the same defense attorneys who Cohan didn’t try to interview and who he recently claimed (without presenting any substantiation) want to see Nifong “literally dead in the ground.”

Storin praises Cohan (who, again, didn’t try to speak to more than a dozen “key” players who tangled with book protagonist Nifong in the courtroom) for reporting “meticulously and fairly about the whole sorry episode.” That would be the same Cohan whose “something happened” thesis depends on police investigator Ben Himan lying about the AG’s evidence, coupled with a wide-ranging conspiracy of the defense attorneys, the Bar, the AG’s office, and unidentified Northeastern money to prevent the truth from coming out. And, of course, the same Cohan whose . . . meticulous . . . research uncovered no new evidence about the criminal case, other than Mangum’s false assertions about wooden shards and who carried her to the car.

In the end, Storin rejects the book’s basic thesis when he describes the lacrosse players as “falsely accused.” He doesn’t say if he agrees with Cohan that Nifong, a “quite credible” and “honorable” man, was “crucified.” Perhaps that’s the type of meticulous analysis that Storin found so appealing.

Monday, June 09, 2014

Cohan: "Defense Attorneys" Want Nifong "Literally Dead in the Ground"

Author William D. Cohan recently departed a columnist’s position at Bloomberg View for one at Huffington Post (which generally does not pay its columnists). Cohan then used his first HuffPost piece to lash out at the free speech rights of his critics.

Huffington Post also provided what likely will be Cohan’s final promotional appearance for his book. As with each of his interviewers other than WUNC’s Frank Stasio, the HuffPost Live asked no meaningful questions about Cohan’s revisionist thesis. Cohan, even so, came across as noticeably more ill-tempered than in his initial interviews about the book; at times, he seemed almost unhinged when talking about his critics and (especially) the defense attorneys.

Cohan, Unhinged

Cohan was asked who had suffered the most in the case. The answer supplied by the passionate Nifong apologist would come as little surprise. But then the author seemed to lose touch with reality.

COHAN at 13.30: “So you ask who, who came out the worst in all of this, who suffered the most: I think, obviously, Mike Nifong, the prosecutor, suffered the most. He’s the only one who spent any time in jail, he spent a day in jail. He lost his job, he was disbarred as a lawyer. He filed for personal bankruptcy. I mean, there are—of course, the defense attorneys would say, ‘That’s not good enough for him, that’s too good for him, and he should be, you know . . .’ They won’t be happy until he’s literally dead in the ground. And they’re doing everything they can to try to put him there!”

For those whose browsers have Google audio capability, the sound is below:


Incredibly, the HuffPost host made no comment, no request for substantiation, as her guest made this wild assertion.

Since the criminal contempt trial, the defense attorneys have had no dealings with Nifong. The idea that they’re “doing everything they can” now to place him “literally dead in the ground” is nothing short of bizarre.

It should go without saying that while Cohan offers such a crazy claim, he never even tried to interview any of the attorneys he now claims want Nifong “literally dead.” So how he reached this determination about their thoughts must remain a mystery.

Seligmann, Finnerty, and the Party

Early in the interview, Cohan offered what appears to be a new description of the party.

COHAN at 1.53: “In this situation, you had three students, accused of sexual assault, and rape, after all day of partying, and drinking, when they thought it would be a great idea to invite strippers to their house, off campus.” [emphases added]

By this point, it’s beyond clear that Cohan simply doesn’t know very much about the topic on which he wrote. But could he actually now have come to believe that Reade Seligmann and Collin Finnerty lived with the three captains? That they were at the house “all day” during the day of the party? That strippers were invited to “their” house? His statement makes no sense otherwise.

The Nifong Apologist

The host asked, without providing specifics, if Cohan had a response to criticisms that the book sought to rehabilitate Nifong:

COHAN at 3.06: “I really find it humorous [at this stage in the video, Cohan looks anything but amused] and counterintuitive . . . To be criticized for talking to one of the principal players in this drama, no pun intended, the prosecutor, Mike Nifong, who brought this action, [voice rising] to be criticized for actually giving him a chance to tell his story, by other journalists who criticize me—many other journalists [voice rising again] have criticized me for allowing Mike Nifong to have a microphone!”

Given that a bit later in the interview, Cohan would lament Nifong’s suffering, present him as the major victim in the case, and wildly claim that defense attorneys were trying to leave him “literally dead in the ground,” the denial about his status as a Nifong apologist rings a bit hollow.

In the event: to the best of my knowledge, no one has criticized Cohan for speaking to Nifong. I certainly haven’t. The criticism—made by the first person to publicly comment on the matter, Joe Neff, and echoed by me after I got to read the book—has been that Cohan uncritically accepted the version of events presented by a convicted liar, that instead of functioning as an “investigative journalist,” Cohan saw his role as a pro-Nifong propagandist.

Nothing Cohan has said or done at any point in his publicity tour has refuted this criticism.

Math Lessons from William D. Cohan

COHAN at 4.00: “So you’ve got a 620-page book, 600 pages of which are incredibly critical of everything Mike Nifong did along the way, and 20 pages of it are Mike Nifong explaining why he did what he did, and also to some extent admitting many of the things his critics ascribe to him, and basically saying if he could have done it differently, he probably would have, and yet also defending many of his actions!

I addressed this very strange argument previously. At this point, Cohan’s repeating the assertion suggests either that he hasn’t read his own book or he possesses an almost casual willingness to make demonstrably false statements.

Cohan and His Enemies

COHAN at 4.22: [increasingly passionate as he proceeds] To somehow ascribe to me motives, as if I were trying to rewrite this story [recoils, as if horrified], or to give Mike Nifong a platform he doesn’t deserve, to me is so ridiculous, and so absurd, that I was absolutely—I wasn’t shocked by it, but I couldn’t believe that people who consider themselves to be professional, responsible journalists today, and who have gotten space in some of our most well-respected publications like the New Republic [Stuart], and Commentary [me], and the Wall Street Journal [Dorothy Rabinowitz], to make their, you know, vitriolic cases against me. One of their main criticisms would be that I gave air time to Mike Nifong and Crystal Mangum, two of the principal uh, uh, actors in this drama, is patently absurd.

Cohan has already made clear that whether his critics deserve free-speech protections is an open question. The criticism that Cohan gave “air time” to Nifong and Mangum appeared nowhere in any of the reviews that Cohan mentioned.

Notice that amidst his self-professed horror, Cohan nowhere in the interview addresses the actual criticisms of his book. At this point, I think it’s fair to say that his silence regarding the substantive critiques speaks volumes.

Proper Procedures for Prosecutors

The host clearly knew very little about the case. But she did know that Nifong was disbarred, and six minutes into the interview, she tried to get Cohan to explain precisely what Nifong did. The guest wasn’t interested.

COHAN at 5.51: “[Nifong] was disbarred by the State Bar, . . . then he was found in contempt of court and spent that 24 hours in jail . . . all for doing what prosecutors are supposed to do: which is, if they believe a crime was committed . . . You know, and prosecutors can believe a crime is committed for any number of different reasons—they believe the witness, they believe the police investigation, they looked at, you know, the documentary evidence and the DNA evidence, they talked to the nurse that examined Crystal Mangum on the night this supposed, uh, felony was committed. For whatever reasons that he believed a crime was committed, his job as a prosecutor is to take that evidence . . . forth into a trial.”

It’s terrifying that Cohan believes that a prosecutor who lies to a judge, withholds exculpatory evidence, violates ethical guidelines regarding public statements amidst an election campaign, and orders the police to run a photo array that violates their own guidelines was just “doing what prosecutors are supposed to do.”

Beyond that point, take a look at the remainder of Cohan’s statements and apply it to this case. Nifong first made his public statements that he had come to “believe a crime was committed” early in the afternoon of 27 March 2006. At that point, he hadn’t spoken to the witness, the police investigation had uncovered nothing, he hadn’t looked at the documentary evidence, there was no DNA evidence, and he hadn’t talked to the nurse that examined Crystal Mangum on the night this supposed felony was committed.

But don’t take my word for it. Here’s Cohan’s protagonist, Mike Nifong, admitting as much during the ethics hearing.

 

So is it Cohan’s conclusion that a prosecutor can “believe” a crime occurred, and thus take a case to trial, for any reason at all?

The Nifong Record

COHAN at 6.58: “Well, this was a situation in which this prosecutor was not allowed to bring this evidence to a trial. By the way, this was a guy who had been in the Durham DA’s office for 28 years, and before this he was generally thoroughly well-regarded as a very strong prosecutor . . .”


At no point in a 15-minute interview did Cohan ever say that Mike Nifong made ethically improper public statements in the hopes of bolstering his election campaign, or that Mike Nifong improperly withheld exculpatory DNA evidence, or that Mike Nifong lied in open court to a judge. Instead, he said that Nifong made unspecified “mistakes.”

Enemies of the “Truth”

COHAN at 8.57: “I dug up as much as I could that raised some serious questions about what happened. Of course, any time you say this, there’s an established narrative out there—there’s an established narrative out there that the people are very, very wedded to (the parents of the kids, the kids themselves [he’s describing here people in their late 20s or early 30s], their attorneys, and their powerful allies in the media) who don’t want anybody bringing this up, and would go to whatever length they could—for them, this is a war. This is a war that began in 2006, and it’s going to continue until, uh, you know, until it can’t continue anymore. Until all the principal people are no longer alive! And by me taking an objective look at what happened, seven or eight years after it happened, it apparently, you know, something that they’re having a real trouble dealing with.”

Cohan might, at some point, want to consult a dictionary to determine the meaning of “objective.”

That said, consider the oddity of Cohan’s first sentence. With regards to the criminal case, the only thing that Cohan “dug up” was the revelation that as his ethical misdeeds were exposed, Nifong confined his reading to the New York Times. None of his lengthy interviews with Nifong brought any new facts about the criminal case. His shorter jailhouse chat with murderess Crystal Mangum did dig up two new items, but both (that medical personnel had to remove wooden shards from her, that Reade Seligmann carried her to the car) were demonstrably false.

Has Cohan now conceded that all that his book “dug up” about the criminal case was precisely . . . nothing?

Media Expert

COHAN at 3.20: “The job of the investigative reporter is to go back to Ground Zero of the story, accumulate all the information that he possibly can, all the documentary evidence, and talk to as many people as possible who would talk to him.”

Author Cohan fulfilled the task of seeking to “talk to as many people as possible who would talk to him” by not seeking to talk to (among many others): any of the defense attorneys, any of the senior prosecutors in the AG’s office, the Bar prosecutors, Nifong’s primary campaign manager, the DHC chair and members, Judge Smith, the criminal contempt prosecutor, and (it appears) 43 of the 44 unindicted members of the 2006 lacrosse team.

It would seem, therefore, that Cohan failed the “job of the investigative reporter,” at least as he defines it.

“Rush to Judgment”

The host—who at several points in the interview seemed a bit startled by the passion that Cohan brought both to his defense of Nifong and to his attack on the falsely accused players—noted that from the standpoint of the falsely accused, there was a rush to judgment. Cohan responded:

COHAN at 12.17: “Everybody rushed to judgment, including the prosecutor, Mike Nifong. But he did, you know, believe that a rape had occurred, and he was going to make it his duty to bring it to a court of law, which is his job, to either prove it or not prove it.

If it’s possible to get beyond Cohan’s claim that the defense attorneys want Nifong “literally dead,” this was clearly the oddest statement of the interview. If, as Cohan now admits, Nifong “rushed to judgment,” how, possibly, could it have been proper for him to have sought charges based on his rush to judgment? That question, unsurprisingly, was one that Cohan showed no interest in answering.

Contempt for the Falsely Accused

COHAN at 12.36: “Uh, you know, the kids, from their point of view—I mean, people are accused of crimes, you know, all the time. Uh, either they did them, or they didn’t do them. Either they could be proved in a court of law they did them, or they didn’t do them, and you know, there are plenty of cases where there are people who are wrongfully convicted [like Darryl Howard], who spend, you know, 18, 20 years in prison [like Darryl Howard], and get out based on new evidence, or new DNA evidence [like Darryl Howard], and they get, you know, whatever, $20,000 a year for their pain and suffering. I mean, these three kids didn’t spend a day in jail, there was no trial, and they ended up with $20 million each. [No, they didn’t.] This party cost Duke $100 million, all told, with legal fees and settlements, etc.” [No, it didn’t.]

The Attorney General

COHAN at 8.35: “There was a secret investigation done by the state attorney general [no criminal investigation in North Carolina is conducted in the open], who declared them innocent at the end of that 4-month investigation, and he won’t be interviewed about it [untrue: Roy Cooper did a press conference, and then was interviewed by Lesley Stahl], and he won’t allow his investigatory filed to be viewed [because it’s the law] . . .

COHAN at 14.01: “We’ll never know what really happened . . . The State AG won’t open his investigatory files. I have sued in North Carolina to force him to open those files. I’m sure I’ll lose, and he won’t have to.

I hope that representatives of the North Carolina attorney general’s office take notice of this comment, which essentially features plaintiff Cohan admitting that he has filed a frivolous lawsuit.

Cohan’s Publicity Tour Is (Literally) Cut Off

COHAN at 14.22: “This is just sort of one of those incredible anomalies of justice that’s occurred in our society, that if you even have the temerity to talk about it, you get, you know, eviscerated by—

At that point, the host appeared to have had enough with Cohan’s pity party, cut the author off, and ended the interview.

Due Process and False Charges                                                                   

Cohan also offered his typically bizarre interpretation of the legal system, suggesting that even though the prosecutors from the AG’s office and the defense attorneys both believed the players were innocent, they nonetheless should have faced a trial:

COHAN at  7.12: “In our system of jurisprudence, the prosecutor brings cases before the jury, the people decide whether he’s right or he’s wrong, the people are not guilty or guilty, and that’s the way the system works. Here was a case—whether these kids were not guilty or guilty, they were ultimately declared innocent by the state attorney general. Our justice system was subverted in this case. And I think that is the most profound uh, uh action to come out of this whole incident. That our system of justice was subverted by very clever, deep-pocketed defense attorneys who exploited every mistake that the prosecution made and that the principal witness made.

A good response to this basic misunderstanding of our legal system came from one of these “deep-pocketed defense attorneys,” Brad Bannon, during the Nifong ethics hearing:

  

Needless to say, this was another section of Bannon’s testimony that never found its way into Cohan’s book.