Friday, March 28, 2014

Coman to Neff: Nifong Characterizations "Figments of His Imagination"

Joe Neff has a breaking piece in the N&O disproving one of the many questionable assertions in the forthcoming book by author William D. Cohan. (I'm reviewing the book for Commentary, and will also comment here after the book is published.)

Neff observes that “most of the new content in the book comes from Cohan’s interviews with Nifong . . . Cohan allows the former prosecutor’s assertions to go unchallenged.” Neff's article illustrates the dangers of an author relying on the uncorrobated musings of a convicted liar.

According to Neff, Nifong told Cohan that “I have to believe, based on my knowledge of Jim Coman and Mary Winstead, that they were every bit as sandbagged by [AG Roy Cooper declaring the players innocent] as I was.” Author Cohan, for reasons that remain unclear, elected to publish without attempting to contact either Coman or Winstead for comment. I should note that it appears that many key players on the legal side of the case were similarly never contacted, for reasons that remain unclear.

It turns out--unsurprisingly--that Nifong's . . . recollection . . . was flawed. Jim Coman told Neff, “These characterizations are figments of his imagination.” After reviewing all of the evidence (it's not clear, by contrast, how much evidence author Cohan ever saw), Coman concluded the obvious: “[Crystal Mangum] lied, she made up a story, and damn it, we’ve got to do the right and ethical thing” by issuing an innocence declaration.

[Update, for those interested: it might be worth reviewing the AG's report.]

Tuesday, March 25, 2014

A Turn of Season

For the politically correct, the lacrosse case proceeded through three stages. The first came in spring 2006, when figures like Selena Roberts and factions like the Group of 88 not merely presumed guilt, but drew broad moral lessons from the crime they were certain occurred. The second came in winter 2006 and spring 2007, when many of these same figures denied they their previous comments had referred to the criminal case at all, and instead launched a biting cultural critique against the lacrosse players. The third came in summer 2007, when the politically correct rushed to move on.

A few recent signs, however, suggest we might be moving back toward that second phase. The most obvious comes from, which found time to break away from its round-the-clock coverage of the Malaysian Airlines disaster to run a column on the  . . . cutting-edge . . . topic of lowering the drinking age (to 19, rather than 18, suggesting that the author believes it’s OK to prevent some people who can vote and die for their country from drinking alcohol).

The argument of the column, by William Cohan—that the lacrosse players were drunken louts, that we’ll never know if something happened to Crystal Mangum, that despite their innocence the players should have faced a trial—is little more than a warmed-over version of the Herald-Sun editorial pages from winter 2006. But given the column’s ill-concealed status as a promotion for Cohan’s forthcoming book, presumably this thesis will reappear in Cohan’s April publication as well. So I assume we’ll be hearing lots more about how college students should be judged on how the worst of their group behaved at a spring break party—a standard that the paragons of political correctness rarely apply to all college students.

A second sign came in Jim Coleman’s comments to Radley Balko. The Duke law professor wildly claimed that the three falsely accused students failed to have used their experience “as an opportunity to subject the criminal justice system to a searing review. It’s as if they believe the only bias in the system is against wealthy white college students.”

Less than a minute on Google proves the falsity of Coleman’s statement: Reade Seligmann, for one, has been extremely active with the Innocence Project, to such an extent that his work received extensive press coverage and an “Advocate for Justice” award from an Innocence Project committee. (Collin Finnerty and Dave Evans likewise have worked with Innocence Project events.) Would Coleman be willing to compare Seligmann’s record on this issue with that of any member of the Group of 88? Why does Coleman consider a law student repeatedly working with the Innocence Project to constitute a failure “to subject the criminal justice system to a searing review”?

As with Cohan, it appears that Coleman has retreated into a factually-challenged cultural critique. To date, he has not retracted his statement about Seligmann.

Finally, this tweet from the left-leaning journalist Howard Fineman

recalls what might have passed for humor on the Upper West Side in summer 2006.

Expect more of this sort of cultural “critique” to coincide with the Cohan book.

Thursday, March 20, 2014

Comments on the Balko Article

A few thoughts on the Radley Balko exposé that Mike Nifong might well have prosecuted, and convicted—an innocent man, and that he might have violated ethical norms while doing so. The man was named Darryl Howard, and he was convicted of 2nd-degree murder in 1995, in the killing of Doris Washington and her 13-year-old daughter, Nishonda. The Innocence Project has filed papers calling for a review of Howard’s case.

1.) It’s an extraordinary piece of journalism. Read it in its entirety. The piece is both a brilliant exposé and a damning indictment of Durham’s legal culture.

2.) The article gives the lie to Nifong’s oft-repeated claim in the 2006 primary and general election of his fundamentally ethical nature.

3.) Balko provides some interesting—and very important—context about the relationship between DNA evidence and Nifong’s conception of his role as prosecutor. Recall in the lacrosse case, Nifong at first said that the DNA test results would be decisive, but then, when the tests came back negative, he dismissed the importance of DNA in deciding cases the “old-fashioned” way. (He also, of course, sought out Dr. Brian Meehan for additional DNA testing, the results of which he falsely portrayed in court.) The theme here, however: Nifong was a prosecutor who seemed to believe that he didn’t need to adjust his theory of the “crime” to accommodate unimpeachable scientific evidence.

So too in the Howard case. The operating theory of the crime was that the killer raped the Washingtons before killing them. Semen was found on the girl’s body—but after testing that occurred following the arrest, it didn’t match Howard’s. Nifong plowed ahead anyway, continuing the murder case against Howard but simply dropping the theory that a sexual assault was tied to the crime. (Instead, incredibly, he suggested that the 13-year-old girl was sleeping around, and the semen was her boyfriend’s.) As Balko noted, “Such test results might have persuaded a conscientious prosecutor to at least consider the possibility that he had charged the wrong man, especially considering the statement from the informant. At the very least, it would seem to mean they needed to change their theory, and consider the possibility that Howard didn’t kill the women by himself.” Of course, Nifong was not a conscientious prosecutor.

4.) At the heart of Howard’s case is what Balko terms “a credible statement from an informant days after the murder who attributed the crimes to a local gang, not to Darryl Howard,” which Nifong might have withheld from the defense. If Nifong did so, he committed a Brady violation—hardly a surprising move from such an unethical man. But, as Balko notes, Howard’s lawyer hasn’t kept the case file, and can’t say with 100% certainty that Nifong or the police withheld the document.

That doesn’t excuse Nifong, however. Either he committed a Brady violation; or he did turn over the document but never read it, even though it undermined his case. The latter is a possibility—recall during the case he claimed that his regular approach was to pass his entire file onto defense attorneys without bothering to read its contents. So, regarding the Brady document, Nifong was either outright unethical or so lazy as to be unethical.

5.) The Balko article also reveals dubious conduct from the Durham Police Department—in this case from a detective named Darryl Dowdy, who allegedly pressured witnesses to bolster Nifong’s case and ignored obvious leads that a gang, and not Howard, might be responsible for the murders. Should anyone be surprised that a department that kept Mark Gottlieb on the force for two decades had more than its share of ethically challenged law enforcement officers?

5.) Howard’s lawyer was Woody Vann (who had also once represented Crystal Mangum). Yes, the same Woody Vann who frequently appeared on cable news in 2006 defending Nifong’s integrity. The man who told the AP in summer 2007, “Nobody knows anything about the previous 28 years. The cases he's tried and won, and the cases he's tried well and won.” Vann said that even though he represented a client who may very well have been sent to jail for murder as a result of Nifong’s unethical conduct—and who, he told Balko, Vann himself believed was innocent.

6.) As I often said at the time and repeat today, Jim Coleman was one of the heroes of the lacrosse case—he spoke truth to power when few in Durham were willing to do so, and when the easiest thing for him (personally and professionally) would have been to have remained quiet. Some of his comments since the case ended, however, have been a little odd. For instance, he bizarrely compared the Forsyth County DA to Nifong—even though, in the case in question, the prosecutor wasn’t even accused of ethical misconduct, much less the sort of massive misconduct associated with Nifong.

In the Balko article, Coleman says, “I had hoped that the people of influence who were attracted to this case — the players and their families, the conservative groups, the commentators who were drawn to the injustice — I had hoped they would have used it as an opportunity to subject the criminal justice system to a searing review. It’s as if they believe the only bias in the system is against wealthy white college students.” That’s largely true when describing the (almost exclusively out-of-state) conservative journalists who defended the lacrosse players. But did Coleman expect otherwise? The time to have engaged the conservatives who were active on the case (again, not a terribly large number) was during the case itself. Events in Durham provided a perfect opportunity for a cross-ideological alliance in favor of due process. But at the time, the state NAACP, the Group of 88, or groups like Durham’s People’s Alliance weren’t interested—they were too busy either outright defending Nifong or ignoring his abuses. What’s the excuse for the continued silence of such groups? These figures supposedly favor due process. Or were they so compromised by their de facto alliance with Nifong that they’ve chosen to just move on?

But Coleman also accused the “players and their families” of declining “an opportunity to subject the criminal justice system to a searing review. It’s as if they believe the only bias in the system is against wealthy white college students.” This is an outrageous statement. The one group that clearly has been concerned with these issues were the falsely accused players, their families, and their attorneys. They pushed for reform in Durham (even as the Whichard Committee was quickly shut down), and reform has been a central element of their lawsuit against the city before the 4th Circuit provided a procedural cover to Durham. They’ve been active with the Innocence Project. Reade Seligman—who has said he went to law school in large part because his own experience convinced him of the need to be able to help others who are falsely accused—and Jim Cooney have frequently spoken about the case.

I understand that Coleman’s statements in the lacrosse case caused him some professional discomfort with allies, and perhaps in attacking the falsely accused players’ character he’s now trying to rehabilitate himself with them. Nonetheless, I would hope that Coleman would issue an apology to the players and the families.

7.) It’s worth reiterating: even after Nifong’s abuses, the voters of Durham County elected the ethically challenged Tracey Cline as their chief prosecutor. And the frontrunner in this year’s DA primary is a Cline protégé.

8.) Finally, to repeat: the Balko article is amazing. Please read it.