Wednesday, April 23, 2014

Cohan & Mangum's Credibility

William D. Cohan’s book tour has featured a full-throated defense of prosecutorial misconduct. The prosecutor who withheld exculpatory evidence in violation of North Carolina law is, instead, “honorable.” The district attorney who lied in open court to a judge is, instead, “quite credible.”

But another, less-noticed aspect of the publicity tour has been Cohan’s deeming credible convicted murder Crystal Mangum. (After citing Mangum’s belief that a crime occurred, Cohan proclaimed, “And I believe something happened in that bathroom,” at 3.05.) Cohan now appears to believe that as long as an accuser and “somebody like” William D. (“I’m-not-a-lawyer”) Cohan want a case to go to trial—even if the prosecutors in the case believe the defendants are innocent—the case must proceed to trial. He has referenced Mike Nifong and Tara Levicy believing earlier versions of the Mangum tales as well.

This vision of justice would reconfigure the judicial system, giving the accuser a near-absolute discretion on deciding when and how to try cases. But it reflects the stated conception of Cohan’s guide on what constitutes appropriate prosecutorial behavior, Mike Nifong, who justified his behavior in the lacrosse case by asserting, “If she says, yes, it’s them, or one or two of them, I have an obligation to put that to a jury.”

In the event, it might have been expected that at some point in his publicity tour Cohan would have been asked the obvious question: “Which of Mangum’s myriad, mutually contradictory tales do you find credible?” Perhaps the interviewers (not unreasonably) have assumed that Mangum has basically told the same story throughout the case. In fact, she’s never told the same story twice, and has offered seven radically different versions of events. It remains unclear which of these seven Cohan finds credible, although it appears as if leans toward Version #7, presented in a jailhouse interview around six years after the alleged events and after versions 1 through 6 had been decimated by inconsistencies and exculpatory evidence.

A note: especially in the first night to various police officers and medical officials, Mangum also told many incomplete versions of what occurred, including suggestions that 20 people raped her. At one point, she also claimed that there were four, not two, dancers. Altogether, Mangum has told more than a dozen different stories.

Pre-Indictment

In addition to these various segments of a story to Durham police officers and Durham Access officials, Mangum gave three versions of attack (her session with SANE-nurse-in-training Tara Levicy; her original interview with Gottlieb and Himan; and her official statement) before the indictments. In each session, there were three attackers named Adam, Brett, and Matt. In her official police statement, moreover, Mangum mentioned a fourth attacker, “Dan,” who at an earlier stage had been an attacker who used a pseudonym. But neither police nor Nifong considered the claim credible, since by that point Nifong had given myriad interviews asserting there were three attackers. A month from the primary, he couldn’t have suddenly changed the number of attackers from three to four.

Who did what varied widely in the three stories:
  • A green X corresponds to the story that Mangum told Tara Levicy on March 14, 2006.
  • A blue Y corresponds to the story that Mangum told Gottlieb and Officer Ben Himan on March 16, 2006.
  • A red Z corresponds to the story that Mangum provided in her April 6, 2006 official statement.

Oral
Anal
Vaginal
Married
Matt
X
YZ
XZ
X
Brett

YZ
YZ

Adam
XY
X

Z

Mangum, in short, described three quite different “attacks.”

Mangum provided her most detailed contemporaneous descriptions to Himan two days after the alleged attack; two of the three “attackers” did not even remotely resemble any of the charged students. On an elite Division I athletics team, Mangum had one of her attackers as short and chubby and a second weighing 260-270 pounds.

For credibility purposes, moreover, file away three items: (1) In her first two recapitulations of the “attack,” Mangum claimed that one or more “attackers” ejaculated in her mouth, something that would be rather difficult to do if her attackers wore condoms or used an object; (2) Mangum repeatedly suggested that one of her attackers was going to get married—a claim that might have made her more believable if the event were a bachelor party (as she thought it was) but which instead served as a tip-off she was lying; (3) In none of these early versions (nor in her fragmentary tales on the night of 14 March) did Mangum suggest that her attackers used an object.

Post-Indictment

Mangum’s next story came less than a week after the revelation that Nifong and Dr. Meehan had conspired to withhold exculpatory DNA evidence. In this version (provided in a one-on-one interview with Linwood Wilson), Mangum said she couldn’t recall if her attackers penetrated her (even though she had originally claimed two had ejaculated in her mouth). Dave Evans was suddenly described as performing acts Mangum previously had attributed to three different people (Matt, Brett, and Adam); the number of attackers was just as suddenly reduced from three to two. The story changed in other critical ways as well, all seemingly to conform to or explain away exculpatory evidence released between April and December 2006, and the bombshell DNA testimony in the Meehan hearing.

Special Prosecutors

Mangum told yet another story to the special prosecutors (the people Cohan falsely reported were “blindsided” by the declaration of innocence). Here, Mangum bumped the number of attackers back up to three. For the first time, she asserted that the assault occurred while she was being held in mid-air by her “attackers.” She now, for the first time, claimed that she also had been tossed onto the back porch and kicked in the neck by all three attackers. And she offered a variety of new claims about the timeline that contradicted unimpeachable electronic evidence, including moving the time of her arrival up by an hour. She bizarrely claimed that Duke (for reasons and through methods unknown) altered the time-clocks on the cameras used to provide a time-line of the night.

For good measure, and contrary to photographic evidence, Mangum claimed that Evans and Finnerty placed her in Kim Roberts’ car.

The Mangum Opus

Magnum provided a sixth significant version in her long forgotten book, which Cohan amazingly labels a “must-read” on the case. In that document, she asserted (for the first time) that one of her attackers deliberately ejaculated on the floor, apparently to manipulate her story to account for the DNA of an unindicted lacrosse player found in the bathroom. She claimed that her attackers used racial epithets inside the house, a claim never made by Kim Roberts and one only inconsistently made by Mangum. She for the first time suggested that despite a photo showing her locked out of the house, she actually had been locked inside the house. She speculated about secret DNA evidence.

The book also completed a whiplash-like role for Kim Roberts in the case, who transitioned from accomplice in the rape to neutral bystander to fellow victim back to accomplice.

William D. Cohan

Finally, in a jailhouse interview with author Cohan (pp. 518-520), Mangum provided a seventh version of events. She now asserted that the attack had occurred with a broomstick—a claim she had never made before—and that it had left wooden shards, which medical officials needed to remove from her body. No such evidence was recorded, even from the always-eager-to-oblige Tara Levicy. Though Cohan has treated Levicy’s report as virtually unimpeachable in virtually all other respects, he has been willing to entertain Mangum’s jailhouse assertions.

In the book, perhaps at the insistence of fact-checkers, Cohan conceded that Levicy’s report did not mention wooden shards. Yet in his publicity appearances, freed from whatever constraints that Scribner’s imposed upon him, Cohan has gone out of his way to imply that Mangum’s newest story is reasonable. Gone have been the mentions of Levicy’s report contradicting Mangum’s claims, replaced by lines like this one, from the Diane Rehm Show, when Cohan was directly asked (at 11.22) if medical evidence corroborated the new storyline: “I mean, there was discussion about a broomstick and the threat of using a broomstick.”

Indeed, Cohan told Rehm and her listeners (at 11.21) that the Mangum broomstick tale was “fact [emphasis added] number one” about the case.

In Version #7, Mangum also returned to a claim that at least one of her attackers ejaculated in her mouth, undercutting the Levicy/Nifong theory that the attackers might have used condoms. But she now conceded that “it’s a possibility that I may have picked the wrong people,” suggesting that two of her attackers were behind her and implying for the first time that she never really saw their faces. This statement alone expands author Cohan’s theory of criminal justice to the following situation: when the prosecutors believe the defendants are innocent, and when the accuser changes her story multiple times and admits she may have picked the wrong people, those people still must stand trial.

Regarding two constant-inconsistencies in the Mangum tales, to Cohan she appeared to have dropped the claim that one of her attackers was about to get married. (Now that she knows she was not dancing a bachelor party, the assertion serves no purpose.) And Kim Roberts, initially an attacker, then a neutral party, then a fellow victim, then back to an accomplice, by Version #7 returned to a status of neutral observer, waiting outside in the car as Mangum was attacked.

For good measure, and contrary to both photographic evidence [two unindicted players] and what she had told the special prosecutors [Evans and Finnerty], Mangum told Cohan that Seligmann (on video an an ATM machine at about this time) in fact had placed her in Kim Roberts’ car. She had never offered that assertion before.

So which of these seven versions of events does Cohan think the prosecution should have taken to trial?

Tuesday, April 22, 2014

Cohan Does C-SPAN

Sunday evening, author William D. Cohan made the longest appearance (a full hour) of his book publicity tour, on C-SPAN’s Q&A. Cohan continued his aggressive defense of the book’s twin theses: (1) that “something happened” of a nature of justify a trial; and (2) that Mike Nifong was unfairly targeted/prosecuted for his ethical misdeeds.

Lots of what he said in the exchange mirrored his earlier public statements, or was simply redundant. Nonetheless, the appearance was worth a fisking, given the fact-challenged nature of many of Cohan’s statements. Excerpts from relevant portions of Cohan’s remarks, with my comments, below:
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COHAN:  … And there was never a trial in this case and I wanted this book to be the trial that never happened. I was surprised at how few people wanted to talk about this.

Comment: Cohan’s conception of a “trial” evidently is one in which the convener of the trial (in this case, Cohan), makes no effort to speak with the defense attorneys.

Since Cohan didn’t even try to interview the defense attorneys, the State Bar prosecutors, the judge in the case, the State Bar panel, the prosecutor in the criminal contempt trial, or the senior prosecutors in the AG’s office who handled the case, it takes some chutzpah for him to complain about people not wanting “to talk about this.”
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COHAN:  Each of the boys [Cohan is describing people in their late 20s or early 30s as “boys”] – each of the three indicted players got $20 million each from Duke. 

LAMB:  Is that known publicly? Or is that something you found out?

COHAN:  That’s something I found out. I was told that repeatedly. I think one of the players had some publicity about this a few years ago, received a tax bill from the IRS that was written about in a Detroit paper. And if you do the math, the arithmetic you can quickly get to the idea that he was being taxed based on something like a $20 million payment. This has since been confirmed to me and that was of course – so that’s $60 million right there.

Comment: It’s not clear who “confirmed” “this” to Cohan, but whoever did so was almost certainly wrong: the well-connected Bernie Reeves reported several years ago that the figure was actually around a third of Cohan’s total, and I have no reason to doubt Reeves’ ballpark figure.

In one respect, the difference is irrelevant: in either case, Duke made an eight-figure settlement, presumably recognizing the university’s massive legal liability. In another, however, the correct amount weakens Cohan’s frayed credibility, since the author himself attaches so much importance to the $60 million figure.

The since-resolved IRS issue, which was unrelated to the settlement, occurred after the IRS erroneously communicated with an attorney who wasn’t Seligmann’s lawyer; moreover, Cohan has asserted that the settlements were $20 million, exactly. How does Cohan’s amateur tax calculations of “something like a $20 million payment” get him to $20 million exactly?

After listing the Pressler and unindicted players’ settlements (which he estimated as less than $3m combined), Cohan reasoned that the cost is “basically” $100 million—suggesting that (even starting from his flawed report on the settlement amount) Duke’s legal fees total around $37m. As I’ve noted before, Duke’s attorneys are no friends of mine. But the idea that they’ve charged Duke $37m in fees strikes me as very hard to believe.
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COHAN:  So, Ryan [McFadyen] was one of the sophomores on the team. He’s one of the players there he was never, you know, in or near the bathroom. He was never accused of anything. He was just, you know, doing, you know, the usual underage drinking that’s so prevalent.

Comment: Really? Cohan has asserted—time and again—that we’ll never know what happened in the bathroom, and that no one can know other than those who were there. If “we’ll never know,” how does he know that McFadyen was “never, you know, in or near the bathroom”? Indeed, a few minutes later in the interview, Cohan muses that Reade Seligmann and Collin Finnerty might have been misidentified. Perhaps McFadyen was the real rapist!

I should note: All evidence suggests McFadyen wasn’t in the bathroom and that he is innocent, since no crime occurred. But it’s very, very interesting that—relying on the exact same evidentiary base—Cohan has exonerated the one member of the team who spoke to him, while casting a cloud of suspicion on the other 45 white members of the team.
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COHAN:  …And I think this incident frankly, the paying of the $100 million, has unfortunately corrupted the university a little bit.

Comment: Again, there’s no evidence that Duke paid $100 million to anyone. But an argument could be made on this point—that a university whose conduct was so legally troublesome that it had to make an eight-figure settlement with its own students, but then kept the same leadership team in place, has been “corrupted.” That’s not a line of argument, however, that author Cohan is willing to explore.
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LAMB:  How did you approach doing this?

COHAN:  Completely dispassionately.

Comment: Given what we’ve seen from him, such as his labeling Stuart Taylor as among “the haters” for having the temerity to question him, imagine what a “passionate” William D. Cohan would have looked like.
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COHAN:  …I wanted to be able to look back, thanks to these lawsuits that, one of which is still ongoing, there’s been a lot more documentary evidence that’s come to light then ever existed before. I was able to talk to a number of people who had never spoken up before and I’m an investigative reporter.

Comment: For his book, Cohan appears to have interviewed five people on the record: Mike Nifong, Crystal Mangum, Anne Petersen (Nifong’s attorney), Bob Steel, and Ryan McFadyen.

Contrary to Cohan’s statement to C-SPAN, each of those people had “spoken up before.” Nifong spoke to dozens of journalists, testified before his disciplinary hearing, and testified in his criminal contempt trial. Magnum published a book, did at least one public appearance, spoke to the N&O, ABC-11, and the Discovery Channel. Steel spoke to Stuart (for UPI) and Peter Boyer of the New Yorker. McFadyen spoke to me for the blog and for UPI. Nifong’s attorneys spoke a lot during the disciplinary hearing and his criminal contempt trial, and to the press at that time.

It’s true that Nifong gave Cohan his first post-disbarment interview for publication. But that’s very different than what Cohan told C-SPAN viewers.

As for the civil lawsuits: except for two Ekstrand filings, virtually no discovery from the lawsuits has surfaced, and Cohan badly misrepresented the most significant discovery item (Brodhead’s Primal Fear email) he mentioned in the book, to minimize the guilt-presuming nature of Brodhead’s beliefs. Cohan doesn’t delve into the Duke or Durham court filings in any degree; I’d estimate that at most 3-4 pages (or around 1/200th of the book) comes in any way from “documentary evidence” related to the civil suits.

There was no follow-up from Lamb regarding these brazen claims about the book’s sources.
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COHAN: … I thought for sure as the President of Duke University, my Alma Mater, knowing my reputation as a serious investigative journalist, he would have at least have the courtesy to meet with me.

Comment: The statement speaks for itself.
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COHAN:  And just as quickly, just as quickly as people prejudged these kids, they then prejudged Crystal Mangum the victim who then became known as the accuser. They quickly prejudged Mike Nifong, the District Attorney who had been a well-respected attorney in the prosecutor’s office in Durham for 28 years before he became the District Attorney. Overnight he suddenly becomes this evil conspiratorial individual who’s out to get these three Duke students.

Comment: According to Webster’s, prejudging means “to form an opinion about (someone or something) before you have enough understanding or knowledge.” Nifong was found culpable on 27 of 32 counts of ethical misconduct. He was also found guilty of criminal contempt, for lying in open court to a judge. Such behavior—except, it seems, to serious investigative journalists like William D. Cohan—is not consistent with behaving as “a well-respected attorney.”

Note also that Cohan, yet, again, favorably classifies Nifong’s service as a prosecutor during the time that he likely sent an innocent man to jail, through procedural chicanery, in the Howard case.

It is not clear which people Cohan believes prejudged Nifong.
                                                                                             -------------         

COHAN: Roy Cooper never talked to me. Now it’s his right not to talk to me, he’s the Attorney General of the State of North Carolina. He’s probably got other things he needs to do. But if he’s going to declare these kids innocent, I would think that he should spend time with a serious investigative reporter who’s doing a serious fair and balanced portrayal of what happened.

Comment: “Fair and balanced”!!
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COHAN:  Reade Seligmann was the only one of the three indicted boys who reached out to me.

Comment: Cohan is describing an individual in his late 20s as a “boy.”
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COHAN:  You know, he had – you’d have to give him – he had a pretty airtight alibi about where he was at various points in the evening including, you know, calling a cab, going to an ATM machine, having his picture taken at the ATM machine, taking money out and then going to a restaurant and getting some food, you know 12:30 – 12:45 in the evening and then going back his dorm. You know, he had an affidavit from the cab driver who, you know, basically testifying that Reade Seligmann was in his car during the time that supposedly this incident occurred. Now, you know, I asked Mike Nifong about that. What do you think about the Reade Seligmann alibi and, you know, he made his points where he thought it was could very well have been a manufactured alibi. He had his doubts about the alibi. And he points to the fact that when Reade Seligmann asked for the cab to come pick him up, instead of picking him up at that house which is no longer in existence at 610 North Buchanan Boulevard he had the cab go to house around the corner. Which Mike Nifong thinks is a very strange behavior. [ed.: Imagine if the taxi had picked up Seligmann at the house. Nifong would be labeling that behavior suspicious as well.] Why would you do that? Obviously he wanted to get away from that house. I have a suspicion and Mike Nifong has this suspicion and Crystal Mangum has a suspicion that, you know, something untoward did in fact happen in that bathroom. It may not have happened with Reade Seligmann or Collin Finnerty or David Evans, although there is questions about David Evans that are stronger than questions about the other two. But one does get the sense that something happened that none of us would be proud of.

Comment: “You’d have to give him” an alibi? It could “very well have been a manufactured alibi”? This passage shows Cohan—so “besotted” with Nifong, to use Joe Neff’s word—has entered into a kind of fantasy world. Sure, the author’s implication seems to be, the accused person has an unimpeachable electronic alibi (which includes him making phone calls at the time the “attack” was allegedly getting underway, something Cohan has refrained from mentioning in his public appearances), and sure the accused person has two people (including one he had never met before) placing him somewhere else at the time the rape allegedly was occurring.

But he might be guilty anyway, because Mike Nifong says so. Or maybe Crystal Mangum just picked the wrong people when she identified Seligmann with 100% accuracy as her attacker—three weeks after she said he wasn’t an attacker, and she was only 70% certain she recognized him as even attending the party. But Seligmann should have stood trial anyway—because “somebody like” William D. Cohan says so. Utterly fantastic.
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COHAN:  … One of the interesting things, Crystal Mangum, an unanswered question in my mind is Crystal Mangum said there was a struggle. She struggled for her life in that bathroom. She was wearing fake fingernails. She said during that struggle the fingernails popped off. Those fingernails were later found and on one of those fingernails – on one of those fingernails was David Evans DNA with 98 percent certainty. Which seems pretty high to me, but I guess sometimes DNA experts say that two percent probability means that it’s not related at all. But, his attorney’s basically said it got through transference, and Roy Cooper the Attorney General in North Carolina said it got there through transference. In other words that he picked up those fingernails and put them in the trash. Which very well could have happened, except Matt Zash is the one that picked up those fingernails and put them in the trash, not David Evans. And Matt Zash another one of the co-captains who lived in that house said in his report that he did that. And even the police wondered why if (Matt Zash) was the one who picked up the fingernails and put them in the trash why David Evans DNA with 98 percent certainty was on that fingernail.

LAMB:  So, it sounds like at this point you think David Evans was guilty.

COHAN:  I can’t say that, because we’ll never know what happened, you know, as Donald Rumsfeld has said famously this could be one of those unknown, unknowns. There was never a trial. I’m not going to be the one to say that he’s guilty of doing something. There are just questions that I would like answers to that we’re never going to get answers to. Because Roy Cooper is not opening up his files and of course David Evans is not talking to me. That’s for sure.

Comment: Let’s start with the obvious. If Cohan were so interested in Evans’ case, why didn’t he seek to interview Evans’ attorneys? And if Cohan were so interested in the AG office’s handling of the case, why didn’t he seek to interview Jim Coman and Mary Winstead? For such a “serious investigative journalist,” Cohan seems to have been remarkably non-curious.

Cohan’s discussion of DNA is almost comical. Here’s Brad Bannon’s quick summary on the precise role of DNA case; Cohan, on the other hand, seems to suggest that a test that couldn’t match a single lacrosse player while being so precise as to positively match a cell from lab director Brian Meehan nonetheless can and should be interpreted as a sign of guilt. In the course of researching his “definitive, magisterial” book, did Cohan speak to a single DNA expert? If so, why didn’t he quote from this person?

Cohan (likely reflecting Nifong’s beliefs) also seems puzzled by the principle of transference. Zash transferred the false fingernails into Evans’ trashcan. In Evans’ bathroom. Where they sat for more than a day. So why does Cohan attach such importance to the fact that Zash placed the false fingernails; and why did he refuse to inform C-SPAN viewers that the trashcan was Evans’? It’s almost as if author Cohan wanted to mislead the audience. Or perhaps he believes that the typical college student keeps a pristine bathroom, and ensures that his bathroom trashcan never has anything in it, thereby allowing the false fingernails to sit undisturbed for more than a day.

The Cohan theory of the crime, as suggested to C-SPAN: Mangum was subjected to a brutal assault, in which one or two attackers ejaculated in her mouth. The attackers, she said at the time, didn’t use condoms. The assault was so brutal she was struggling for her life, so much so that her false fingernails popped off.

Yet these false fingernails contained no skin residue. Two of her attackers left no DNA trace. The third left no DNA trace in any item from Mangum’s rape kit, but magically might have had a trace DNA match (or might not have) on a false fingernail that was conveniently deposited, for more than 24 hours, in a trashcan that contained items with his DNA. But his possible DNA appeared on the false fingernail not through transference but through the accuser lashing out during the attack.

Recall that a few minutes before muttering this case-according-to-Nifong fantasy, Cohan had asserted that he approached his task “completely dispassionately” and in a “fair and balanced manner.”
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COHAN:  So, he’s obviously – rightly, you know, gone on with their lives as they should, you know, unless of course they got away with something. Which, you know, we’ll never know.

Comment: McCarthy-ite insinuations. A dispassionate journalist at work.
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COHAN:  I don’t know that we’re ever going get to the bottom of this until – unless and until some of the people who really know what happened, who aren’t completely discredited, I don’t think they’re discredited but everybody else thinks Crystal Mangum is discredited. They say, “Oh, she’s now a convicted murderer in jail for 18 years for murdering her boyfriend,” which is true. She is in jail now. And they think Mike Nifong is the antichrist so of course nobody wants to hear what he has to say. 

Comment: The obvious follow-up: “If everybody else thinks Crystal Mangum is discredited, and she’s now in addition to her case-related credibility problems a convicted murderer, why do you find her credible; and what does your finding her credible say about your objectivity?” Of course, Mangum was deemed non-credible because she told non-credible tales, culminating in her story to the special prosecutors of the rape occurring while she was suspended in mid-air.

It’s unclear to whom Cohan was referring with his “they think” line. It’s my sense that lots of people are interested in what Nifong had to say—I’ve written several posts on the comments that Nifong made to Cohan. Unlike Cohan, however, I don’t find Nifong, a convicted liar who violated multiple ethics rules during the case, to be “quite credible” or “honorable.”
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COHAN:  She was one of the two exotic dancers that the boys [even in time-context, Cohan is describing college students as “boys”] hired for $400 each to dance for them for two hours. I can’t imagine what they were going to do in those two hours. But the dance ended such as it was, the dance ended within about five minutes and, you know, at that point, you know, they racial epitaphs thrown…

Comment: In fact, the only people who claimed racial epithets were “thrown” inside the house were Crystal Mangum (in some of her stories) and Duff Wilson (in his August New York Times story, misrepresenting the evidence). Kim Roberts had never made such a claim. By offering it here, Cohan—like his ideological forerunner, Wilson—places Seligmann and Finnerty at the scene of racial epithets. According to the version of events offered by Kim Roberts (no friend of the lacrosse players), the racial exchanges occurred at the very end of the affair, after Seligmann and Finnerty had left.
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LAMB:  Where is [Kim Roberts] today?

COHAN:  I have no idea. She…

LAMB:  Did you try to find her?

COHAN:  I did, but I didn’t even know where to look.

Comment: A “serious investigative journalist” in action.
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LAMB:  You’ve mentioned Crystal Mangum several times. Let’s take a look at her. This is after she was found guilty of murdering her [boyfriend] . . .

COHAN:  She I believe is in a prison in North Carolina. I don’t know exactly which prison. I’ve never been able to figure out exactly which prison she’s in.

Comment: Less than a minute on the web revealed that her “current location” is the North Carolina Correctional Institution for Women.

Again, this is a self-described “serious investigative journalist.”
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LAMB: Do you have any idea how much money the boys families spent on legal fees?

COHAN: What I say in the book is that they spent upwards of $3 million . . . it’s probably more at this point. It could have been more at the time. It’s, again, it’s something that’s just sort of a figure that’s been thrown out there. [emphasis added]

Comment: Yet again, this is a self-described “serious investigative journalist,” who readily admits to including a piece of data in his book based on “a figure that’s been thrown out there.

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COHAN:  Well, there was Mike Nifong’s state Bar hearing through the spring of 2007 that went even beyond the declaration of innocence from Roy Cooper. So, there was all sorts of documentation that was made public as part of that. Then in addition to that two sets of the players, who were the non-indicted players have filed major lawsuits against Duke and there was a lot of discovery as a part of that and a lot of depositions, and a lot of documentation came out of that as well. That was made available. What was not made available was Roy Cooper’s investigation, which was the basis for which he said they were – he declared them innocent. There was like a 20 page report that sort of skimmed the surface of what happened, but he, you know, he certainly would not let me or anybody else see his investigatory files.

Comment: If “a lot of documentation came out” from the civil suits, it didn’t appear in the Cohan book. It’s true that lots of material came out in Nifong’s Bar hearing (and in his criminal contempt trial, which Cohan seems to have conveniently forgotten on C-SPAN), but to the extent Cohan used this material, his chief goal seemed to be to discredit it, explain it away, or minimize its significance.

Cohan neglected to mention that under NCGS § 132-1.4, criminal investigative files are not public documents. That said: based on their reporting, several reporters (Joe Neff at the N&O, Stuart Taylor, 60 Minutes, likely ABC’s Law & Justice Unit) had access to the discovery file. The New York Times claimed it did. Even a college professor (me) had access to the file.

Don’t “serious investigative journalists” like William D. Cohan keep digging for the material they need, if they are unable to obtain it from the first government official that they ask? Instead, in this instance, Cohan appears to have simply given up. A cynical person might suggest that Cohan’s chief interest was not obtaining the discovery file (whose contents would not advance his “something happened” thesis) but instead creating a dispute that would allow him to suggest a government-defense attorneys-State Bar conspiracy to deny him the “truth.”
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COHAN:  [Cooper] found them innocent, Brian. Which is basically not in the legal lexicon. In other words you get to a trial and somebody’s either guilty or not guilty. The concept of innocent doesn’t even work – doesn’t even kind of exist in our Justice system. So he took it way out of that, in fact Mike Nifong told me that on the morning that he declared them innocent he was told by his two – by Cooper’s two investigators that he was just going to say they’re not guilty. Not this idea of innocence. And so that was a complete shock to Mike Nifong as well. As well as, you know, the other – the defense attorney’s, it was a shock to everybody. Because using the word innocent is not something that is usually used in a legal context. 

Comment: Here’s the link to the North Carolina Innocence Inquiry Commission—the very state about which Cohan wrote. It seems as if the “concept of innocent” exists there.

The most remarkable element of this passage, however, is that Cohan basically repeats—with a slight modification, to the point where now it’s just Nifong being blindsided by the innocence declaration, leaving only the implication that the AG’s prosecutors were as well—the first of the many items discredited in the book. In this instance, Joe Neff actually interviewed Jim Coman, which Cohan did not, and Coman said the book’s claims regarding the innocence declaration were “figments of [Nifong’s] imagination.”

That Cohan is unwilling to admit errors is not too surprising. But that he’s willing to simply go out and repeat (or very slightly modify) Nifong stories that have already been disproved?
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COHAN:  . . . And by the way their defense team did an extraordinary job of defending these kids. You know, whether these kids got away with something or not we’ll never know but they did an amazing job of exploiting every mistake that Mike Nifong made. They made it – did an amazing job of getting the state bar to attach Mike Nifong and go after him and file a complaint against Mike Nifong, which forced him to recuse himself from the case and turn it over to Roy Cooper, where we know now that he declared them innocent.

Comment: It’s striking how—in a one-hour interview—Cohan never mentioned that the key ethics charge against Nifong involved his improperly withholding DNA evidence from the defense; and then lying about it to a judge. This information, upon which the case turned, wasn’t important enough to squeeze into a 60-minute discussion?

Instead, he left C-SPAN viewers with a vague statement about defense attorneys exploiting unnamed Nifong mistakes, and the State Bar, for unknown reasons, filing a “complaint” against Nifong.
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LAMB:  So, is there a bigger lesson to learn in all this that goes beyond Duke to other colleges? Is there a lesson of the law, the legal aspect of this to learn?

COHAN:  Well, I mean to some extent shows how the legal system can be corrupted. Well, you know, from both sides. It can be corrupted by a prosecutor who is probably too aggressive in making statements, even though he believes in his mind the idea was just to bring this to trial. You know, clearly the justice system was subverted here. There was no trial. I mean how many times can you think of where somebody’s been indicted, three kids – three people have been indicted and then there was no trial to see whether or not in fact they were guilty or not guilty and then declared innocent.

Comment: This is a very strange statement, in a couple of respects. First, Cohan suggests that a corruption case against Nifong would be based on his “probably” having been “too aggressive” in public statements—not even bothering to mention Nifong’s withholding of exculpatory DNA evidence or lying to a judge, offenses that get to the heart of a corrupted system.

Then, Cohan asserts that not bringing a case to trial—a case in which the prosecutors of the state attorney general’s office believed that the defendants were actually innocent—constitutes the “legal system” being “corrupted.” Under this astonishing standard, people who both the prosecution and the defense believe are innocent nonetheless would have to face trial, with the not-insignificant chance of a false conviction that results.
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LAMB:  Last question. Mike Nifong who was the District Attorney in Durham, was he right or wrong the way he conduct himself? Especially in that first week or so declaring them guilty.    

COHAN:  I think he probably would be the first to say he regrets all those public statements he made. He also was the first to tell me why he did that. Again, this is the first time he’s ever had the chance to talk about it and a lot of people condemn him for even having the temerity to speak out and sharing his point of view, but his problem was that he was a District Attorney, he was trying to figure out who the suspects were, who the people were, who may have done this. And he didn’t have any suspects. So he thought that by going public, by describing what he believed happened based on what the police investigation showed, what Crystal Mangum had said, what Tara Levicy had found in her medical report that he could sort of smoke out somebody who would feel guilty about what they thought might have happened in that bathroom and would be willing to come forward. Unfortunately that didn’t work and so within a week’s time he gave that up and basically didn’t talk to the media again and but he was crucified for doing it in that very publicly and during that week.

Comment: This was a fitting end to the interview—Nifong, lo Durham’s Christ-like figure, “crucified.”

Start with the obvious: first, nothing in Rule 3.6a (and Nifong was, as Cohan repeatedly reminds listeners, a prosecutor of long standing) allows prosecutors to avoid the rule’s prohibition on making prejudicial public statements if the prosecutor believes the statements will serve some benefit to his case. Cohan’s conception of the rule would allow prosecutors to constantly violate it on grounds that they had an innocent motive.

Second, why would any prosecutor, especially one as experienced as Nifong, believe that the way to encourage witnesses to come forward is to publicly label them “hooligans,” or to suggest they’re comparable to cross-burners (both Nifong remarks)? And why should anyone believe that Nifong wanted to encourage witnesses to come forward, given that he repeatedly spurned meetings with the former students’ attorneys, who said they had evidence that would prove to Nifong no crime occurred?

Finally, despite Cohan’s claim, Nifong made many ethically improper statements well beyond “a week’s time” after his first statement (27 March 2006). Seventeen days after his first statements on the case, Nifong made this public remark, at a candidates' debate:

 

Wholly contradicting Cohan’s concluding remarks to C-SPAN, more than six months after his first statement on the case:
  • Nifong asserted, “If a case is of such significance that people in the community are divided or up in arms over the existence of that case, then that in and of itself is an indication that a case needs to be tried”;
  • Nifong claimed that dismissing the case “does nothing to address the underlying divisions that have been revealed. My personal feeling is the first step to addressing those divisions is addressing this case.”
  • Nifong maintained, “They have endeavored to make this election something it is not: a referendum on a single case that that view as a threat to their sense of entitlement and that they do not trust a jury of Durham citizens to decide: a referendum on a single case that that [sic] view as a threat to their sense of entitlement and that they do not trust a jury of Durham citizens to decide.”
  • Nifong told one reporter, “They’ve come out really strong with the idea they would either scare me or the [accuser] away. That’s never worked for me, which they should know by now, and it didn’t work for her, either. And so here we are.”
For good measure, in late December 2006, nearly nine months after his original statements on the case, Nifong conducted a three-hour interview with his friends from the New York Times.

From where could Cohan have gotten such an odd (and demonstrably false) idea that Nifong “basically didn’t talk to the media again” after early April? From . . . Mike Nifong’s attorneys, in an argument that was presented to and then firmly rejected by the Bar.

That Cohan has now been reduced to recycling the rejected legal arguments of Nifong’s attorneys speaks volumes about his “fair and balanced” approach. 

Monday, April 21, 2014

New Evidence from Karen R. Long?

In his (excellent) review of William D. Cohan’s Nifong apologia, Stuart Taylor commented on an oddity of the book’s roll-out—the “amazing succession of puff-piece reviews” that have appeared in some reputable (and some not-so-reputable) publications. Until very recently, not a single one of these reviews have endorsed either of Cohan’s two principal theses (that “something happened” in the bathroom and that Mike Nifong was unfairly punished). Yet these “puff-piece reviews” of which Taylor spoke have featured glowing, largely content-free praise for Cohan’s work.

My personal favorite in this regard was the review in the Economist, penned by Reuters’ “correspondent in Sierra Leone and West Africa.” As part of an attempt to portray the book as even-handed, the review almost comically claimed that Cohan “criticises one long New York Times article in particular.” In fact, Cohan’s argument about the criminal case reflects and expands upon the thesis of that August 2006 Duff Wilson article (Wilson: enough evidence existed for trial; Cohan: enough evidence existed for trial, and “something happened that none of us would be proud of”). So if Cohan had actually criticized the Wilson piece “in particular,” he would have effectively undermined his own book’s argument.

Of course, Cohan had made no such criticism, much less “in particular.” As the book summarized, as if by rote, scores of other articles, op-eds, and blog posts, so too did it summarize Stuart Taylor’s opinion on the Times article, without saying whether or not Cohan agreed with Taylor. But Cohan himself (in his own voice, p. 394) deemed the Times article “comprehensive”—even though, since it omitted key details and contained several factual errors, the article was anything but comprehensive. Nor did Cohan spend much time on the piece: in a 600-plus page book, discussion about the Wilson article received three paragraphs. If this is criticizing something “in particular,” then perhaps the Economist needs to freshen its stable of reviewers.

Late last week, however, Newsday produced the first review that appears to embrace at least one of Cohan’s twin theses—that something happened in the bathroom. (There still have been no takers for Cohan’s characterizations of Nifong as “quite credible” and “honorable,” victimized by a previously “passive” State Bar acting at the behest of the “clever” defense attorneys). Reviewer Karen R. Long spent 728 words focusing on the former students’ alleged character flaws, and couldn’t even bring herself to mention the reasons for Nifong’s disbarment.

The most striking sentence in the Long review, however, was the following, which marked at least an implicit acceptance of the Cohan/Nifong “something happened” thesis: “It [a St. Raymond’s medal] was a gift from Duke co-captain David Evans, whose DNA under the false fingernail of the accuser was never explained.” [all three emphases added]

Note that the final clause of Long’s sentence contains three factual assertions:
  1. That Evans’ DNA was identified;
  2. That the DNA was found “under” the fake fingernail;
  3. That the DNA evidence was “never explained.”
The first and third of these factual assertions are simply false; the second is an unfounded insinuation. Evans’ DNA was not identified; the DNA sample could not exclude Evans, and thousands of other men, in a test so precise that it could positively identify a cell accidentally deposited by lab director Brian Meehan. While DNA was found in the false fingernail sample, skin was not found—so a suggestion about material being found “under” the fingernail would be, at best, misleading.

Finally, even Cohan, despite his bias, included a summary of the North Carolina Attorney General's report, which offered a thorough explanation (pp. 12-13) of the DNA evidence. It appears as if reviewer Long disagrees with the findings of the attorney general’s report, although it isn’t clear if she actually read the document. In the event, disagreeing with an official report’s detailed explanations of the DNA evidence fundamentally differs from asserting that the DNA evidence was “never explained.”

For good measure, Long began her paragraph by wildly describing Collin Finnerty as “one of the lacrosse party planners.” Even Cohan’s book, which goes out of its way to condemn every member of the lacrosse team that it mentions except Ryan McFadyen, contained no such claim—perhaps because the claim is demonstrably false. (The party was planned by the captains; Finnerty at the time was a sophomore.) Since the Cohan book contains no such claim about Finnerty, its inclusion in the Newsday review would suggest that Long has independent sourcing on the origins of the party that contradicts everything we have learned about the party since 2006. Will she explain the reporting she did to make this false claim? Does Newsday stand by a book reviewer performing independent, factually-challenged reporting?

In short, Long made three incorrect assertions (all reflecting negatively on the falsely accused students) that were not contained anywhere in the (already heavily one-sided) Cohan book:
  1. That Finnerty was “one of the lacrosse party planners”;
  2. That Evans’ DNA was identified;
  3. That the DNA evidence was “never explained.”
From where did she get these “facts”?

I e-mailed reviewer Long to ask if she had any factual bases for her allegations; she did not reply. I tweeted a copy of the Attorney General’s report to the book review editor at Newsday; he did not reply. As of now, Newsday has not run a correction on Long’s review, and apparently stands by her false assertions that DNA on the fake fingernail “was never explained,” that Evans’ DNA was identified at all; and that Finnerty was “one of the lacrosse party planners.”

Long’s review is noteworthy in another respect, in that hers is only the second review of Cohan (after mine in Commentary) to reference the Darryl Howard case. For Long, however, the Howard case is of interest only as grounds to launch another character assault against the three falsely accused former students (presented in a quote from Nifong’s attorney suggesting they received special treatment because of their wealth). Long managed to avoid the obvious question, which Cohan, as a Nifong apologist, has shown no interest in answering: How can the man who allegedly withheld vital evidence in the Howard case be reconciled with Cohan’s portrayal of Nifong as a credible, honorable prosecutor?

Sunday, April 20, 2014

Neff Reviews Cohan

Today’s N&O contains a devastating review of the Cohan book penned by Joe Neff, who did more reporting (and broke more stories) on the criminal side of the case than anyone.

The review isn’t long, and I’d urge people to read it in its entirety. Three items particularly stand out.

“Author William D. Cohan opts for an apology for Nifong and, by extension, prosecutors who hide evidence and lie to judges.

Nifong makes remarkable claims that the author – clearly sympathetic, if not besotted – fails to challenge or test.”

[Cohan’s relying solely on Nifong and not trying to interview those Nifong made claims about] would be pathetic mistakes for a daily newspaper story. For an author spending months or years on a book, it’s a revealing choice to avoid interviews that contradict the revisionist narrative: that Nifong is the victim.”

I’m obviously not a journalist by training. (I’m a history professor.) But it seems to me that a basic element of journalism is that the reporter at least makes the effort to obtain information from both sides. That obligation strikes me as even more important when the reporter’s chief source (in this case Nifong) has serious problems with credibility.

Yet several journalist reviewers (of what my colleague Stuart Taylor has termed the “puff-piece” variety) have praised Cohan for his “evenhanded” approach and tone. One of this number, David Shribman, serves as executive editor of the Pittsburgh Post-Gazette. If his paper’s reporters produced pieces in which they relied on a convicted liar and didn’t even try to speak to the other side, would he praise them for their “evenhanded” work?

Similarly, a few weeks ago, I would have guessed that many journalists (not usually a pro-prosecutorial misconduct constituency) would have been outraged by a publication that, by extension, apologizes for, to quote Neff’s summary, “prosecutors who hide evidence and lie to judges.” But it now appears as if many journalists (at least those selected to review the book for the Times, the Wall Street Journal, and the Washington Post) were not particularly troubled by a book that takes such a line.

Saturday, April 19, 2014

Cohan's False Portrayal of Williamson

Well beyond his odd arguments, William D. Cohan has distinguished himself through a highly unusual editorial strategy. In many cases relying solely on the word of a convicted liar (often presented second- or even third-hand), Cohan allowed Mike Nifong to launch unsubstantiated attacks against virtually anyone who challenged the rogue district attorney at any point during the lacrosse case.

It’s difficult to infer a benevolent motive to Cohan’s strategy. It’s also hard to determine how Scribner’s editorial and legal staff allowed Cohan to get away with this approach. The first article to appear on the book—by Joe Neff—exposed the problem: relying solely on Nifong’s word, Cohan claimed that Attorney General Roy Cooper “blindsided” his senior prosecutors when he declared the falsely accused students innocent. Unlike Cohan, Neff actually spoke to Jim Coman, who dismissed the presentation of events as a “figments of [Nifong’s] imagination.”

Another key figure in the case targeted by Nifong and Cohan has now refuted the Cohan presentation. Lane Williamson, who presided over the Disciplinary Hearing Commission in Nifong’s case, was a powerhouse, handling the case with unchallenged intellectual and moral authority. (UPI ends with a majestic quote from Williamson.) Williamson also produced the most dramatic moment of the entire proceeding, when he asked Nifong about his then-current view of the case.



(In the clip above, Nifong made no mention of his bizarre Japanese-rape-club example that Cohan floats as his current theory of the case in the book. Cohan did not seem to ask him when, after his testimony above, he embraced this novel interpretation of the facts of the case.)

It would seem as if the outcome of the Bar hearing placed Williamson on Nifong’s enemies list. And given Cohan’s uncritical acceptance of virtually anything Nifong told him, Williamson became a target of Cohan as well. On p. 559, Nifong-through-Cohan challenged Williamson’s integrity and impartiality, claiming that “at least part of Lane Williamson’s sentencing memo was done the night before I testified. At least part of that had been written. I could’ve said anything. I could’ve called Jesus Christ as a witness, and [h]e could have testified and ascended into heaven, and they would’ve said, ‘Well, obviously you can’t make anything of that testimony. That doesn’t mean anything. You’re obviously guilty.’”

For reasons that he has never explained regarding multiple figures in the book, Cohan produced this passage without attempting to contact Williamson. Unsurprisingly, given its reliance on the word of a convicted liar, the book’s portrayal of Williamson is untrue. In a comment (verified by me), Williamson noted,
I have never commented on this or any other blog about the Nifong case, but feel compelled to do so now. I did not prejudge Mike Nifong: rather, I evaluated the evidence presented at the hearing to reach my conclusions. I wrote no part of my concluding remarks prior to the end of the hearing: those were extemporaneous except for a few notes that I made during the panel’s deliberation following closing arguments on the punishment phase of the hearing.
Mr. Cohan has never contacted me. [emphasis added]
As with Jim Coman, then, so too with Lane Williamson: (1) Cohan uncritically accepted a less-than-plausible assertion from Nifong; and (2) despite Nifong’s credibility problems, didn’t even try to check his protagonist’s veracity with the person that Nifong had targeted.

That said, the wild Cohan/Nifong claim should give everyone an opportunity to return to one of the high points of the case. I have embedded Williamson’s remarks below, or, you can watch the entire Williamson closing in a single file, in higher quality, at the WRAL site.

Friday, April 18, 2014

Cohan: "Why? Why? Why?"

Author William D. Cohan continued his publicity tour, this time stepping slightly outside his ideological comfort zone to appear on Michael Smerconish’s radio show. (Excerpt here; full broadcast available at siriusxm.) Cohan expressed amazement that important parties to the case had declined to speak with “somebody like me.” Waxing almost philosophical, he wondered, “Why? Why? Why?”

Regarding many key figures—the defense attorneys, State Bar prosecutors, the senior prosecutors in the AG’s office, the prosecutor in the contempt trial, Judge Smith, and the Bar disciplinary tribunal—the answer to Cohan’s question is straightforward: because (as I noted in my Commentary review) he made no attempt to interview any of them.

On the Smerconish program, Cohan brushed over this inconvenient fact, and instead directed to his targets a series of easily answered questions. Why won’t Roy Cooper, he mused at 7.10, “make his investigative files open to the public?” (Hint: NCGS § 132-1.4.) “Why won’t these three boys [he’s referring to individuals in their late 20s or early 30s here] talk to me? Why? Why? Why? If there’s nothing to hide—if it were me, and this had happened to me, . . . and somebody like me was writing a book about it, I would immediately want to talk to that person despite what my attorneys were telling me, or despite what I might have signed in a settlement with Duke.” (Is Cohan so blasé in upholding legal obligations in his own life?)

So, to summarize: Cohan believes that when “somebody like” him comes a-calling, a state’s top law enforcement official should ignore state law to satisfy the author’s curiosity; and interview subjects should violate legal settlements that they freely signed to do his bidding. Meanwhile, though he’s described the purpose of his book as recreating the trial that never occurred, he apparently made no effort to interview any attorney who tangled with Mike Nifong in court on any matter related to the case.

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Over the course of the interview, Cohan provided many of what have become his usual soundbites:
  • “We’ll never know what happened,” citing Donald Rumsfeld;
  • “Absence of evidence isn’t evidence of absence,” citing Mike Nifong;
  • The book functions as the trial that never occurred, except defense attorneys weren’t asked to speak;
  • “As a student of human nature,” Cohan’s evaluation of the case should be deemed credible—even as he breezily confesses his lack of legal credentials;
  • Mangum’s newest story (the broomstick assault) is credible.
Cohan also added a new twist on an old favorite (at 6.17): “It’s not inconceivable that something happened that none of us would be proud of.” He still won’t say what happened, but his argument has now expanded—presented as a double negative, no less!: that people should stand for trial for a possible decades-long sentence because “it’s not inconceivable that something happened.” Why? Because (at 7.10) “where there’s smoke, there’s fire.” Top-notch investigative journalism in action.

Unlike WUNC’s Frank Stasio, who asked Cohan several specific questions (if he didn’t do enough follow-ups), Smerconish steered clear of detailed questions. But the host did make clear his belief that a rough kind of justice was served in the case—Mangum’s in jail, albeit for murder; Nifong’s disbarred and bankrupt; and the falsely accused students have moved on with their lives and prospered. Each got what they deserved.

Such an interpretation enraged Cohan, who had to pause for a couple of seconds before even responding, as if he were preparing to speak to a wayward schoolchild. “I’m not sure,” he sputtered at 2.58, “that the players, the three guys, deserved $20 million each.” (There’s no reason—apart from Cohan’s uncorroborated reporting—to believe that the settlement total was $60 million; credible reporting from Bernie Reeves, which I have no reason to doubt, placed the actual total at around a third of Cohan’s claim.) Cohan conceded that the university had some legal liability, but added that Duke settled because they wanted the case to go away—without explaining why Duke aggressively litigated the unindicted players’ lawsuit, ensuring that the case didn’t quickly go away.

Repeating his normal disclaimer that he isn’t a lawyer and lacks legal training, Cohan nonetheless denied that “there was justice” in the case, since (at 0.46) “justice is something that we find out through a legal process.” Cohan seems to equate a “legal process” and taking a case “through a trial,” even if the prosecution lacks probable cause or the prosecutor flagrantly violates state law or state ethics guidelines. Nor, in Cohan’s world, can prosecutors independently discover (or even concede) evidence of innocence. “I don’t think,” the author asserted, that “innocent” is “a legal term.” This would be news to state Innocence Commissions.

Perhaps because Smerconish made absolutely clear his disdain for Nifong’s conduct, Cohan toned down his customarily strident defense of the disgraced ex-DA. He did describe Nifong as “a very respected prosecutor for 28 years” who was “railroaded” out of office, showing that the “justice system was rigged” in favor of the rich. But he countered with an off-message concession—“I can’t defend his decisions as a prosecutor”(!!)—even as he had done little else in the book and in his various publicity appearances. Cohan also stated that Nifong would admit that he made “mistakes,” though the author declined to identify to which “mistakes” he was referring.

Almost all of the callers to the program were not persuaded; one pointed out the absurdity of Cohan’s insinuation that just because DNA wasn’t used 100 years ago, it’s OK for prosecutors to ignore modern science.

Cohan’s class-based arguments—his suggestion that his outrage comes from a belief that the wealthy have “rigged” the legal system to ensure that they’re not held culpable for their crimes—also fell short. Smerconish not unreasonably countered, “I think to myself, 'Thank God [the defendants] had deep pockets,' because but for those deep pockets, they might have—who knows, they might have gone away in a case where I don’t think charges should ever have been brought to begin with.”

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Smerconish could have been speaking of another of Nifong’s victims, someone who did not have the resources that the three falsely accused former Duke students did. Less than three weeks before Cohan’s book appeared, Darryl Howard’s story was brilliantly explicated by Radley Balko. And yet it has received not a single question from any journalist (or “Cycle”/”Morning Joe” co-host) who has interviewed Cohan.

This silence is particularly puzzling, for two reasons. First, Cohan has gone out of his way (even in the Smerconish interview) to describe Nifong as a distinguished prosecutor, someone widely respected in the Durham legal community before the lacrosse case. He also has portrayed Nifong as unusually solicitous of rights of defendants in cases that he tried, including by turning over all evidence from his files to defense attorneys. Yet as Balko’s article points out, it’s at the least plausible and at the most likely that Nifong withheld from Howard’s defense attorney a critical document, in which an informer attributed the crime to a gang, not to Howard.

Second, Cohan has aggressively—most notoriously in extraordinary comments to Diane Rehm (at 11.25)—portrayed Nifong as ethically pristine in his handling of the DNA evidence in the lacrosse case. The implied argument: Nifong knows his way around DNA, and defense claims to the contrary were playing fast and loose with the truth.

Yet as the filing in the Howard case by Jim Cooney and Barry Scheck made clear, Nifong’s manipulation of DNA evidence—albeit in a different way than the lacrosse case—was critical to Howard’s conviction. The case was initially investigated as a double murder and possible sexual assault. But then DNA in the victims came back without a match to Howard. The filing describes what Nifong did to avoid the DNA test sinking his case: “Nifong insinuated to the jury that a child who was murdered and had sperm in her anus at the time of her death had engaged in consensual anal sex at the age of thirteen prior to her murder.” In other words, in order to win, the disgraced ex-DA besmirched the legacy of a 13-year-old murder victim.

The Innocence Project filing made clear that Nifong’s conduct in the Howard case “was improper.” He “solicited testimony that he knew or should have known was false” in a critical examination of the lead detective on the case which dismissed the record of the case ever being investigated as a sexual assault. By posing “misleading questions,” Nifong for all practical purposes “affirmatively solicited testimony that he knew or should have known was false,” which amounted to his having “presented false testimony.”

This is the man William Cohan has described as “quite credible” and “honorable.” By the way, even though the Innocence Project took on Howard’s case in 2006, and even as the author covered other topics from the 1990s in his hours of interviews with Nifong, there’s no indication that Cohan asked his book’s central protagonist even a single question about his handling of the Howard case.

Hat tip: M.

Thursday, April 17, 2014

Cohan's Approach to Op-Eds, New Items in the Book

For those who want to read it, my general review of the Cohan book, published by Commentary, is here. Stuart has reviewed the book in the New Republic, and Peter Berkowitz has an intriguing review in Real Clear Politics.

A few notes on the structure of the book. Much of the publication—perhaps as much as half of the 600-plus pages—consists of little more than repackaged summaries of material published by other journalists, columnists, speakers, or bloggers. Cohan offers all (or virtually all) these summaries without any analysis on his part. The effect is to present some of the most dubious pieces of writing on the case as credible. Whether this effect is intended or not is hard to say: but occasionally Cohan allows the mask to slip, and praises some of the most questionable commentators on the case.

Commentary

Presumably modifying summaries prepared by a research assistant, Cohan plows through scores of op-eds and news articles, but almost never provides analysis. So unless the reader is unusually attentive, or is willing to go on the web and track down the articles herself, there’s no way of detecting how the stories of figures like Selena Roberts changed as it became increasingly clear (except in the minds of Nifong and, apparently, Cohan) that a rape never occurred. Indeed, Cohan seems to praise one of Roberts’ op-eds (p. 247), calling it “devastating.”

Similarly, the work of Hal Crowther—which has poorly stood the test of the time—gets hailed (p. 386) as the writing of “the conscience of progressive thinkers in North Carolina,” the ruminations of a man who “tried to put the still-unfolding drama into perspective.” As a center-left Democrat, the idea that anyone could consider someone like Hal Crowther the “conscience” of any state’s progressive thought is repulsive.

Along these lines, Cohan sympathetically quotes John Feinstein—after the exoneration—complaining that (p. 545) “it is almost pointless to argue with the Duke loyalists who have bought into the notion that the lacrosse players were guilty of nothing more than ‘boys being boys.’” Unmentioned at any point in Cohan’s book is the commentator’s own indefensible statements from early in the case, including this gem (30 March 2006): “You know, I don’t want to hear any ifs, and, or buts. These kids have acted disgracefully, just by the fact that not one of them—I don’t want to hear about the code, among buddies and among teams. A crime was committed. There were witnesses to the crime. They need to come forward and say what they saw . . . They won’t, and that’s why I’m saying the hell with them—strip their scholarships.”

Feinstein never apologized for this statement, or the others he made in March 2006. Quite the reverse, in fact: after the exoneration, he asserted that Seligmann, Finnerty, and Evans were “probably guilty of everything but rape.” It’s little surprise that Feinstein (described by Cohan, p. 616, as the “world-famous journalist” who was “extremely generous” with his time) is Cohan’s kind of commentator.

While Cohan summarizes (p. 394) in two paragraphs Stuart Taylor’s critique of the Times August 2006 whitewash, in his own words he terms the Times article “comprehensive.” The Herald-Sun never gets analyzed; it receives the hilariously understated description as (p. 437) “generally supportive of Nifong”—just as, I suppose, Russia Today is generally supportive of Putin.

Finally along these lines, the Janet Reitman Rolling Stone article (which many of the Group of 88 seemed to welcome) received a five-page summary—by far the longest summary in the book for any article. The general pattern—articles or columns that presumed guilt, stressed racism/sexism, or attacked the lacrosse players’ character received lengthier coverage than those that did not. By contrast, Cohan harrumphs (p. 411) about the “constant haranguing of the bloggers.” He doesn’t identify which bloggers he’s talking about (I invite readers to take a guess…); and the critical Liestoppers blog doesn’t merit an entry in the book’s index.

Me

As someone who wrote about the case while it was occurring, I receive several mentions in the book. Those who slog their way through the entire manuscript (where several blog posts are quoted fairly, presumably based on summaries by Cohan’s research assistant; and where many items from UPI resurface without attribution) doubtless will be surprised to see that the final reference to me (p. 619) claims that I suffered from “obvious bias.” Since Cohan doesn’t say what my alleged bias is—and since even Cohan criticizes Duke’s unsuccessful effort to go to court to force me to reveal confidential exchanges with sources for the book and blog—some readers might even guess that I shared Cohan’s pro-Nifong bias.

Oddly, on p. 409, Cohan notes that I said the blog “received about one hundred thousand visitors.” Actually, as of the date of publication of Cohan’s book, the blog has received 5.575 million visitors and 9.022 million page views. Roughly 90 percent of that total occurred by the end of 2007, when I ceased blogging on a daily or near-daily basis. (As regular readers know, since 2009 I have blogged far more frequently at Minding the Campus.) Rather than checking with me about the blog’s visitor rate, Cohan published an inaccurate figure that’s less than 2 percent of the blog’s total visitors, and Scribner’s fact-checkers let the item appear in print. I’m not difficult to reach: my e-mail address and cell phone number are right on my webpage. If either Cohan or the fact-checkers in the “definitive, magisterial” account had gone to the webpage, or just looked at the blog, they also would have discovered that my name is KC Johnson. It’s not clear why Cohan elected to randomly insert periods into my name, as he does throughout his book; perhaps I should follow his standards and hereafter refer to the book written by Will.i.am Cohan.

New Items

For such a long book (more than 600 pages), Cohan has surprisingly few new items—apart from trivia of the type that Susannah Meadows mentioned in her review. Meadows also lists three substantive new items, but two of these weren’t new, and the third (the settlement claim amount) is almost certainly wrong. Likewise, other ostensibly “new” items—Kirk Osborn’s payment record; the Bar’s internal strategy about Dave Evans testifying; a Nifong-Osborn meeting—are false (the first item) or wholly non-credible (the other two) in that they rely on the uncorroborated, self-serving recollections of a convicted liar.

Of the new items, by far the most interesting is Cohan’s report that by January 2007, Nifong “had given up on reading the newspapers—except for the New York Times.” Somehow I don’t think “Mike Nifong’s Favorite Newspaper” would be a good slogan for the Times. Likewise, as noted before, the book reveals that Nifong felt that he had been mistreated by Duke in not receiving enough financial aid from the school.

Bob Steel was the only current or former member of the Duke administration who spoke to Cohan on the record. Steel’s basic interpretation of the case, as told to Cohan, resembles his earlier recollections to Jason Trumpbour (something “terrible, terrible” happened in the lacrosse captains’ house) and to Stuart, in Stuart’s interview with Steel for UPI. Like Nifong and Cohan, Steel believed that something happened, and like Nifong and Cohan, Steel won’t say (“I don’t need to be graphic,” p. 534) what he believes actually occurred. That said: since publication of the book, and Cohan’s insinuation that Steel joined Nifong and Mangum in a consensus that a rape occurred, the former BOT chairman has substantially backtracked.

Regarding Duke, Steel comes across as petulant, angry that outsiders failed to appreciate all he did to keep the school together during 2006 and 2007. (p. 534): “I busted my ass to keep the board on the same page.”) But he also now admits (p. 532) that “our support of the students was deficient,” though he doesn’t say what Duke should have done differently. Cohan produces no evidence that he pressed Steel on the issue. Nor did the Cohan-Steel interview shine any light on whether Steel or Brodhead had the predominance of power regarding the university’s response to the case.

That said, Steel now offers (pp. 532-3) two criticisms of Brodhead. First, Steel, joining virtually everyone else who commented on it, delicately notes that he would have liked a “do-over” on Brodhead’s infamous Durham Chamber of Commerce address. (Even if Reade Seligmann and Collin Finnerty were innocent, the president publicly proclaimed, whatever they did was “bad enough.”) Second, Steel condemns Brodhead’s performance in the civil suit depositions (which, alas, the public almost certainly will never see): “Dick’s vocabulary, on occasion, strayed . . . Dick is a talker . . . [Duke’s lawyer said], ‘Dick, you’re the worst person I ever tried to teach about depositions. You talk too much.’ . . . [In depositions,] Dick wants to pontificate. He’s an English professor.”

These two paragraphs are well beyond anything that Steel said either to Stuart or to Peter Boyer, and represent genuinely new material.

Cohan also uses “one highly placed Duke official” (it’s not clear if this is the same anonymous official he has explaining why Duke settled the case, or if it’s Steel speaking on background, or if it’s a third figure) stating, as was widely believed, that former athletic director Joe Alleva, who decamped to LSU, was not wanted back. Referring to a one-year extension of his original contract, the unnamed source said (p. 540), “He’s lucky to get what he got.”

Cohan quotes (pp. 67-8) from seven internal Duke e-mails, dating from 16 March 2006. An e-mail chain between Dean Sue, John Burness, Larry Moneta, and two lower-level Duke administrators provides the first notice that Duke had of the event. The e-mails contain nothing out of the ordinary—people sensing a potential problem and desperately trying to find out information—but do confirm that the Duke administration knew from the start that the lacrosse players were wholly cooperative with police. Dean Sue: “Here’s the latest update on the situation . . . Most important is that the students who reside in this house have been fully cooperative.” According to Cohan, this e-mail went to a “wider group” of administrators than just those on the e-mail change.

Finally, in what appears to be an e-mail provided by anti-lacrosse extremist Peter Wood, Cohan extensively quotes from an e-mail sent to Wood, from sometime in late March 2006, by Group of 88 member Susan Thorne. Thorne’s name should resonate with followers of the case: she privately apologized to one of the lacrosse players for signing the statement and promised a public repudiation of the statement—only to turn around and sign the “clarifying” statement, in which she announced that she’d never apologize for affiliating with the Group. Cohan doesn’t mention this episode in his book—perhaps because it reflects poorly on the Group of 88, rather than on the lacrosse players.

According to Cohan (p. 180 in the text, p. 182 in the index—there are lots of minor indexing errors in this book), Thorne praised Wood’s “wonderfully eloquent, if chilling” 2004 letter attacking the lacrosse players. Describing the lacrosse players in her own class as “academically underprepared,” Thorne announced, “I am clearly no judge of character. I was totally blind to any warning signs . . . I vainly gave them moral credit for taking my classes, which are intensely antiracist.” Did Thorne believe that there were “pro-racist” classes at Duke? What exactly makes an “antiracist” class?

Thorne concluded: “As a redneck [does Thorne normally employ such disparaging racial descriptions of her associates?] friend of mine remarked about all this, these kids have no idea what all the fuss is about. A street kid [does Thorne normally employ such disparaging classist descriptions of students?] would know. But these kids think it was all just a case of bad judgment, a party out of hand. But of course that’s how their obnoxious behavior has been treated in the past—and how this was treated by Duke for about a week after the party was reported.”

Given that he considers her viewpoint of such importance that he quotes from it at length, it’s puzzling indeed that Cohan doesn’t describe Thorne’s later role in the case. By the way, here’s the two-faced Thorne privately on the case in January 2007, featuring a very different, almost apologetic tone about the very lacrosse players she condemned to Wood, as she explained why she wouldn’t make her promised public statement repudiating her membership in the Group of 88:
Now that Nifong’s gone, I don’t think there is anything left for ME to say that isn’t already being said in newspapers all over the country.  Joining the chorus in print now appears and feels self serving. 
This is also the sense of the friend to whom I sent what I’d written (he was out of town; by the time he returned and read it, the news had made it obsolete).  It would seem I’ve missed my chance to be of some use to the families.
Indeed she had.