Wednesday, April 30, 2014

Duke Again Dismisses Due Process

Last Wednesday’s Duke Chronicle published a lengthy item on Duke’s sexual assault procedures. Though framed as highly sympathetic to accusers (the article contains no quotes from accused students, defense attorneys, or civil libertarians), the major takeaway from reporter Julian Spector’s piece is that colleges in general (and Duke, of all places, in particular) have no business adjudicating sexual assault cases.

The Chronicle article explores the treatment of two sexual assault accusers. There are four takeaway items:

(1) Duke uses secret training material for those who adjudicate campus sexual assault cases. This is perhaps the most troubling item to appear from Spector’s report. The use of specialized training material for panels hearing sexual assault claims (and only for such claims) moves the process an additional step away from the accused student being judged from a jury of his peers. More problematic, the one school’s secret training material to be made public (Stanford’s) suggests that such items dramatically increase the chances of a guilty finding. Stanford’s specialized training, for instance, suggested that defendants who presented their case in a logical fashion were more likely to be rapists.

(2) Duke administrators appear unwilling or disinterested in encouraging alleged victims to report violent crime on campus to police, or even to encourage accusers to have medical exams. Spector describes the experiences of two campus accusers, “Jean” and “Christine.” Both met with Duke administrators to allege sexual assault; in Spector’s reporting, at least, neither was encouraged to report the assault to police. It’s hard to imagine any other violent crime, or any serious crime at all, in which campus officials would not encourage victimized students to go to trained law enforcement.

Nor does Duke appear much interested in encouraging any type of formal investigative process, including medical exams. Yet a SANE report includes a near-contemporaneous account by the accuser, and can provide other types of corroboration for a real victim of crime. Duke’s dismissal of SANE exams is particularly odd given that elsewhere in the article, Duke administrators suggest a key problem is determining consent in cases involving drunken students, and, according to one administrator, “These cases are strengthened by if there’s somebody else . . . or if there’s some documentation.” Accusers who immediately went for a SANE exam presumably would have a blood test to determine their alcohol level, giving Duke adjudicators something tangible to evaluate, rather than basing their ultimate decision on subjective standards.

(3) The preponderance-of-evidence threshold encourages a guessing game. A finding of culpability for sexual assault has a life-changing impact for the convicted student: even if Duke doesn’t expel him, the notice goes on his transcript, and likely would foreclose future careers in any profession that requires a background check. For students who actually committed a rape, of course, such a punishment is nowhere near sufficient. 

But there’s nothing in the Spector piece that suggests Duke’s process can successfully weed out false claims from true ones; indeed, much of Duke’s focus seems to be less due process than protecting the feelings of the accuser. Here’s Gender Violence Intervention Services Coordinator Sheila Broderick describing the process: “Nobody gets slut-shamed in that room, nobody gets disrespectfully spoken to—the conduct panel members are exceedingly pleasant.” Indeed, Broderick hinted to Spector that she accepts accusations as the truth, since even “if they [the Duke disciplinary panel] say he’s not responsible—you and I know that he’s responsible, and that’s at the end of the day what really matters.”

(4) Duke’s administrative process is one-sided. Duke administrator Stephen Bryan conceded the obvious: “There’s not one central body that works with students who are accused. We have disciplinary advisers who are trained by our office to offer support and guidance, but it’s not like the Women’s Center setup where most students go through them coming forward.”

Duke has a world-class law school. Is there any excuse for this oversight?

Tuesday, April 29, 2014

Math Lessons from William D. Cohan

In author William D. Cohan’s publicity tour, by far the most disturbing false statements he’s made have related to former SANE-nurse-in-training Tara Levicy. Cohan’s assertion that he was the first person to reveal the contents of the Levicy report is demonstrably false, and his recent assertion about what the report contains is similarly false.

But if the Levicy material is Cohan’s most malicious fabrication, his recent comments about the book’s treatment of Mike Nifong are the most amusing. Here’s what he told NewYork: “It’s a 600-page book; 580 pages of it are a condemnation of [Nifong’s] behavior and his decisions and his judgements along the way.

The Nifong apologist, the impassioned defender of Nifong who proclaimed how he “certainly” felt “sorry” for the rogue prosecutor, actually published a book that overwhelmingly condemned Nifong’s actions?

Cohan’s book actually contains 614 pages of text, many of which don’t deal with Nifong at all; for the sake of argument, translate his New York comment to a claim that 95 percent of the book’s discussion of Nifong represents “a condemnation of [Nifong’s] behavior and his decisions and his judgements along the way.

Nifong references in the index (presumably prepared by Cohan or under Cohan’s direction) do not substantiate Cohan’s claim. I should note that the index is less-than-perfect; it’s almost as if six or seven paragraphs, scattered throughout the text, were removed after the index was prepared, so page numbers in the index are often one page (or very late in the book two pages) off. But here’s a sampling—not much evidence of the 95 percent total, or anything close to that.
  • pp. 82-97: fawning, wholly noncritical introduction of Nifong, portraying him as civil rights champion and effective prosecutor. No mention of Darryl Howard case.
  • p. 111: Nifong speaking uncritically about his early thoughts on case
  • pp. 113-4: neutral narrative of early Nifong statements
  • pp. 122-126: uncritical summary of Nifong strategy in case; alleged conversation between Nifong and “Joe,” evidently included to rationalize Nifong’s ethically improper statement. No indication Cohan ever tried to contact “Joe” to verify.
  • pp. 133-135: Nifong denying he ever told Jackie Brown about the case as free advertising; Cohan never asked Brown for comment.
  • p. 194 Nifong confidence in Mangum story; neutral narrative
  • p. 195: neutral narrative of state of DNA in case
  • p. 239: neutral narrative of Nifong meeting with Meehan
  • p. 240: defense attorneys criticize Nifong; no comment of any type from Cohan
  • pp. 277-278: neutral narrative of Nifong/Himan meeting with Meehan
  • p. 280: “legal commentators” expressing concern about Nifong’s (unethical) statements; no comment of any type from Cohan
  • p. 282: neutral narrative of Nifong relationship with Mark Simeon
  • pp. 314-5: narrative about runup to primary; in Cohan’s own voice: “Durham attorneys
  • p. 323: Uncritical presentation of Nifong, “glowing” from primary victory, denying ulterior motive in arrest of Elmostafa.
  • p. 340: summary of Stuart Taylor column critical of Nifong; no comment of any type from Cohan.
  • pp. 353-355: neutral (research-ass’t) summary of critical articles about Nifong; only analysis from Cohan is that Nick Kristof article might have turned editorial tide against Nifong.
  • p. 413: Cohan, in his own words, criticizes Nifong! Notes “apparent contradiction” in Nifong explanation of why he didn’t speak with Mangum. Two-sentence passage all in parenthesis.
  • p. 428: political criticism of Nifong; no comment of any type from Cohan
  • p. 430-1: defense motions against Nifong, Cohan claiming the motions presented “so-called facts” of the case.
  • p. 434: Cohan description of revelation of Meehan/Nifong conspiracy to intentionally not report all test results as a “setback” for Nifong.
  • p. 438: uncritical presentation of Nifong claim of selective prosecution by Bar; Cohan never contacted Bar representatives for comment.
  • p. 439: recapitulation of alleged discussion between Nifong and Kirk Osborn
  • p. 446: uncritical acceptance of Nifong attack on Linwood Wilson for Dec. 2006 interview.
  • pp. 450-455: commentators criticizing Nifong after dropping of rape charges; no comment of any type from Cohan
  • pp. 470-2: Nifong, wholly without pushback from Cohan, expressing his “something happened” belief and discussing the Japanese-rape-club theory. An obvious section for a “serious investigative journalist” to have expressed skepticism about his protagonist.
  • pp. 510-512: Nifong speaking, unrebutted, about his feelings on the Roy Cooper exoneration announcement, with Nifong making critical comments about Cooper.
  • pp. 524-527: narrative of preliminary hearing in Nifong ethics case. Bar prosecutors say negative things about Nifong; Cohan doesn’t. Section concludes with sympathetic Nifong being heckled.
  • pp. 545-580: Nifong State Bar proceedings and criminal contempt trial [Nothing in these 36 pages features Cohan saying anything negative about Nifong. Indeed, just the reverse: Cohan hails Nifong for his “cogent” argument about why he didn’t turn over the exculpatory DNA tests, and frames the contempt case as a victory for Nifong since the rogue prosecutor only got a day in jail. These pages also contain several passages in which Nifong (unrebutted, and with Cohan not even attempting to interview the rogue ex-prosecutor’s targets) attacks the integrity of those who disciplined him, Lane Williamson and Osmond Smith, or bizarrely accuses Reade Seligmann of perjury. The section does contain people saying negative things about Nifong, but often with snide remarks from Cohan, such as defense attorneys crowing or David Evans not testifying publicly about his son’s alleged DNA match.]
  • pp. 591-592: sympathetic portrayal of Nifong declaring bankruptcy with Nifong unrebutted fretting about the state not paying his legal expenses.
  • p. 614: gushing tribute to Nifong as of 2013.

A general note. Items with negative remarks about Nifong almost always come from other people, either without comment from Cohan or with Cohan casting aspersions on the figures (such as defense attorneys) making the remarks. And the two longest uninterrupted sections (the Nifong intro and the State Bar/contempt trial) feature (a) fawning praise and (b) Cohan serving as a member of the Nifong defense team.

I’m not a mathematician, but the above listing doesn’t look like 95 percent “condemnation of [Nifong’s] behavior and his decisions and his judgements along the way” to me. Maybe author Cohan is a practitioner of the new math?

Monday, April 28, 2014

Cohan: “I Certainly Feel Sorry for Mike Nifong"

Late last week, author Wlliam D. Cohan took his “something happened”/Nifong is “honorable” tour to the airwaves of upstate New York and the Berkshires, appearing on the WAMC Roundtable. The program bills itself as an effort “to explore the many facets of the human condition with civility, respect and responsibility.” This responsibility apparently does not include an interest in addressing abuses of government power.

Before beginning the fisk, these are the topics that the author of the “definitive, magisterial” account of the lacrosse case failed to mention, at all, in a 26-minute interview:
  • that the State Bar found Mike Nifong made myriad, ethically improper public statements, over a period of several months;
  • that the State Bar found Mike Nifong improperly withheld exculpatory DNA evidence, in violation of two provisions of North Carolina law;
  • that a judge found that Mike Nifong lied to him in open court;
  • that any Duke professor (much less 88 of them) publicly affirmed that something “happened” to Crystal Mangum based solely on information supplied by Nifong and the media;
  • that Duke had any legal exposure (any at all) in a possible lawsuit filed by the falsely accused players.
Instead, according to Cohan, Nifong made unspecified “mistakes” and Duke (seemingly to prevent the falsely accused players from speaking to somebody like William D. Cohan) paid “$100 million” [sic] for a “frat party.”

I haven’t bothered to re-fisk routine Cohan statements that he made again at WAMC—such as his assertion that Nifong was subjected to a rush to judgment or his claim to have approached the case in a “dispassionate” way or his repeated description of individuals in their late 20s or early 30s as “boys” or his incorrect claim that each of the falsely accused students received $20 million from Duke. While book tours normally feature authors speaking about their books, Cohan appears instead to be making more and more extreme statements that go beyond even the one-sided presentation in his book.

The Levicy Report

Cohan’s penchant for misleading about the Levicy report reached its apex in the WAMC interview, to the point in which it’s hard to describe him as doing anything other than making deliberate misrepresentations.

The host set the stage at 11.10 of the interview, noting that the book had revealed the Levicy report. The host asked what Mangum told former SANE-nurse-in-training Tara Levicy, “and why that conversation had not been revealed prior to what you write in the book”?

Cohan’s answer should have been that the conversation had been revealed, repeatedly. Instead, he said the following:

COHAN (at 11.47): So, of course, this is a family-oriented show. So it’s going to be hard to get into graphic details of what—but she basically claimed that night that she was brutally raped and sexually assaulted by a number of these players in the bathroom at the same time.

And the nurse who examined her [the medical exam was actually done by Dr. Julie Manly, not Levicy] found evidence that she had been brutalized and that she had been hurt very badly. That is the evidence, I have to say, one of the pieces of evidence that of course Mike Nifong had that others did not have. And he, of course, rightly or wrongly, believed that this nurse was a professional and had done a good job and the right job of examining Crystal Mangum on that night. The medical records, I guess—I’m not a lawyer, that’s something that gets sealed up as part of this—and nobody made that public until now. I got my hands on it and reported it faithfully in the book.

Comment: This is an extraordinary statement, in two respects.

First: In the most extreme public remark he’s made at any point about the case, Cohan has now claimed that the Levicy report “found evidence that [Mangum] had been brutalized and that she had been hurt very badly.” His book made no such “brutalization” assertion about the Levicy report: did Scribner’s attorneys veto the effort? If the attorneys so acted, they did so for good reason, since the report found that Mangum had a couple of scratches on her leg (which she had from before the party) and “diffuse edema of the vaginal walls,” a symptom easily traceable to Mangum’s vigorous sexual activity, which she had initially concealed from authorities but which the DNA test results Nifong helped to conceal confirmed. That’s some of the evidence that Cohan has said “didn’t matter.”

What about bruises? Levicy took no pictures, but two days later, a police photographer did. Here’s the photo. Not exactly the look of someone who was “brutalized,” much less kicked in the neck, as she told the special prosecutors.
Photo Sharing and Video Hosting at Photobucket

Perhaps all of this is why the AG’s report noted that Levicy based her claims solely on subjective criteria.

Second: Cohan has revived his outright false statement that “nobody made that [report] public until now.” In fact, it was reported on by the N&O, by 60 Minutes, by the Times, by me. Stuart and I quoted from it in UPI. To get a sense of the early, widespread nature of the dissemination of the Levicy report’s contents: here’s a TalkLeft discussion thread—from early August 2006.

In the event that Cohan—amidst researching the “definitive, magisterial” account of the case—didn’t come across any of this material (quite a commentary on his research skills), Stuart made it clear to him in a phone call to the Diane Rehm show.

What does it say about Cohan’s integrity that he has been willing to repeat such an obviously false statement?

COHAN (at 13.00): Obviously the defense did not want to make that public even though they had access to it as well. Their preferred strategy was to—very effective—was to completely discredit this woman, the nurse. That she was not qualified, she was not certified [she wasn’t!!], that she was an ardent feminist from Maine, [voice filled with emotion] who had temerity to, you know, stand up for women’s rights! And therefore she was predisposed to believe that Crystal Mangum had been raped.

I mean, it’s just absurd on its face, and yet that was the theme that eventually prevailed—that this nurse was completely unqualified and biased in favor of Crystal Mangum. I mean, I just find that to be absurd.

I wanted to have that report in the book for the first time [sic], and, you know—the haters [the “dispassionate” Cohan is back to calling his critics “haters] will say, “There’s another version of what happened!” Because it does not jive completely with some of the things that Crystal Mangum said later. But this was an objective person who was there that night, who examined her, and found evidence of rape.

Comment: Where, in any filing in the case, did “the defense” describe Levicy as a “feminist from Maine”?  We know they made no such description of Levicy in a conversation with Cohan, since the author (for reasons he’s never explained) didn’t seek to interview Brad Bannon or Joe Cheshire or Jim Cooney or Wade Smith.

The “defense” didn’t have to say “she was predisposed to believe that Crystal Mangum had been raped”—Levicy conceded as much to defense attorney Doug Kingsbery, who she told that she had never encountered a woman who lied about rape. (Kingsbery was another of the attorneys that author Cohan didn’t seek to interview.)

Cohan has offered no criteria as to why he considers Levicy to be “objective.” As the attorney general’s report concluded, Levicy lacked “objective evidence” to substantiate her beliefs.

Attorney General’s Investigation

Prompted by a question from the host, Cohan began by setting up the role of Mangum.

COHAN (at 14.32): Crystal Mangum is not a perfect person. She’s had a very, very hard life. Beginning at an early stage with sexual abuse, and she was taken advantage of early on. And yet this was a woman who was a single mother who put herself through NCCU, the predominantly black university in Durham, that’s three miles and a world away from Duke.

When I visited with her in prison in Durham, she struck me as rational, thoughtful, articulate, and very clear about what she still believes happened. Now, she could be totally delusional, the defense would have us believe that she was completely delusional, that she was bipolar, and she had been taking drugs for her bipolar condition, and therefore was utterly delusional and was delusional that night and remains delusional and not to be believed and the whole thing is completely fictionalized and made up.

Comment: Cohan himself—to Diane Rehm, and in his book, as Susannah Meadows pointed out—described Mangum as bipolar.

The run-on sentence at the end of the excerpt above didn’t sound like the statement of a “dispassionate” observer to me.

As to Mangum being “very clear about what she still believes happened”—about which version was she “very clear”? And, lest it need pointing out, Cohan is describing a convicted murderer as “rational, thoughtful, articulate.”

COHAN, at 15.28: That’s a similar conclusion to what Roy Cooper, the AG of North Carolina, concluded in his report, more or less. I don’t want to put words in his mouth. But, you know, and when he declared these boys innocent in April 2007, he made public a 20-page report after a 4-month investigation. He refused to be interviewed by me, which I think is astounding. If a public official, AG of North Carolina, a guy who’s running for governor of the state in 2016, he wants to be taken seriously as a public official, he oversaw this investigation for four months. He declared these kids innocent and he would not even make himself available to be interviewed. Actually, of course, he would not allow me to look at any of his investigatory files. He first told me that they had been destroyed. Then they changed the story and said actually because it was a criminal case, they could hide behind shield law and not make the documents available.

Well, the truth is, it’s not a criminal case, because he declared them innocent! So he should make this material public. What I don’t understand is why he’s hiding behind this, and Crystal has asked for these records to be released, because she believes that there’s more to it than there’s being let on. You know, the bottom line is, we won’t know. This is just one of those unknowable things. We won’t know what happened in that bathroom, and no one who does know is talkin’ about it, except for Crystal, and she’s lost all credibility.

Comment: First of all, this is what Cooper’s report said, as Cohan well knows.

It’s not clear why Cohan was unable to accurately capture Cooper’s sentiments.

Cohan’s description of the legal status of the case is bizarre. Of course this was a criminal case—there was a criminal investigation. The fact that it ended in an innocence declaration in no way affects the legal status of the records under NCGS § 132-1.4. That Cohan would even make such a claim only further demonstrates his ignorance of the law—in this case, public records law, in which you’d think a “serious investigative journalist” would have expertise.

Cooper might win in 2016, and he might lose. But I doubt that there will be many North Carolinians who won’t take Cooper “seriously as a public official” because he declined to speak to “somebody like” William D. Cohan.

Finally, the last section of this comment exposes the danger when a passionate advocate like Cohan gets too wound up. As Cohan—correctly—pointed out, Mangum has “lost all credibility.” Yet the entire premise of both his book and his publicity tour has been that the special prosecutors (who believed the accused players to be innocent) needed nonetheless to bring the case to trial, based solely on the word of Crystal Mangum, who, in Cohan’s own words, had “lost all credibility.”

Structure of Book/”New” Material

COHAN (at 2.35): Even to this day, and now, seven years, eight years later, there’s a lot of new evidence, a lot of new documents, a lot of people talked to me who had never spoken before. Important people, who had been involved in the case. You know, I thought this was the time to do it and reflect on it.

Comment: The total number of “new documents” uncovered by Cohan would include seven largely innocuous e-mails between Duke administrators just after they found out about the case and a handful of other items, none of which play a role of any significance in his book.

And who were these “important people” who “had never spoken before”?

COHAN: (at 5.50) But I talked to a number of people for the first time, including Mike Nifong, the prosecutor, who had never spoken publicly about this case before. [That’s true, if you don’t count dozens of 2006 interviews, including a three-hour discussion in December with the New York Times; his deposition (under oath) to the State Bar; his testimony (under oath) to the State Bar panel; and his testimony (under oath) at his criminal contempt trial.]

I spoke to Crystal Mangum, the accuser, who then became known as the victim. [What? She was always the accuser, and she “then became known as” a convicted murderer.] I spoke to her in a prison in Durham. [Indeed he did, but Mangum had “spoken before” through her book.]

And I spoke to a number of players who had never spoken before. [Really?? Cohan spoke to one lacrosse player, Ryan McFadyen, and he had “spoken before,” to me, in an interview for the book and the blog. I don’t believe that speaking to one player who had spoken before supports a claim that Cohan “spoke to a number of players who had never spoken before.”]

And I spoke to Bob Steel, who Duke asked not to speak with me. They asked him not to speak with me. But he did anyway, and I will be forever grateful to him for doing that. [And to show his gratitude, Cohan went on national TV and misrepresented what Steel had told him. And, by the way, Steel had spoken before about the case.]


The Nifong section was set up with yet another fawning question from the host, the time about Nifong’s “pristine record as a prosecutor.”

COHAN, at 7.40: That’s absolutely right. This guy had been in the Durham DA’s office for 28 years. As you say, he had prosecuted many cases. He had won some, he’d won most. He had lost some. He had won some rape cases, he had lost some rape cases. This is a guy who was a very well-respected prosecutor, who was not ambitious for political office like his haters are making him out to be.

I wanted to know how a guy, and part of the story is that explanation: how does a guy who had such a good record, and is a guy of high integrity—you know, he obviously made mistakes in this case, and he’s the first to admit them, but he becomes crucified. He becomes the target of everybody’s hatred and ire, even to this day.

I mean, we all know, Joe, that the haters will hate. You don’t have to go far to see that the haters are already hating on me for even allowing Mike Nifong to have his say about what happened. Because that never happened in this case. He was shut down completely. And there are people out there who will not be happy until Mike Nifong is not on the face of this earth. And that just doesn’t seem right to me, his job as a prosecutor was to either believe the evidence or not. Believe the victim or not, and if he did believe it, his job is to get this case in front of a jury, to have a jury decide. That’s the role of justice in our society, and that was never allowed to happen here.

And one of the reasons it was never allowed to happen is because the boys [again, Cohan is describing individuals in their late 20s or early 30s here] had, you know, a bottomless amount of money to spend on their defense [how did Cohan reach this conclusion, given that he interviewed neither the defendants nor their attorneys nor their families?], and the defense did an astounding job for them, including getting them $20 million each. But to me, it sounds like the justice system was badly warped by those deep pockets, and it was never really allowed to take its shape, and that’s why, again, I wanted to write this book, and have the trial that never occurred.

Comment: Cohan somehow can speak definitively about Nifong’s lack of “ambition for political office” even as he elected not to seek an interview with the person who could most clearly comment on this issue: Nifong’s 2006 primary campaign manager, Jackie Brown. Cohan has never explained why he didn’t try to interview Brown. But then again, Cohan doesn’t seem to have wanted to speak to virtually anyone who might have contradicted the version of events presented by the book’s protagonist.

Yet again, Cohan has whitewashed Nifong’s pre-lacrosse record, refusing to mention the Darryl Howard case.

Was Mike Nifong “shut down completely”? Well, yes—if you don’t count his ethics proceeding (when he had full opportunity to present his case and call witnesses to corroborate his claims) and his contempt trial (when he had full opportunity to present his case and call witnesses to corroborate his claims). For someone so insistent on the need for trials, Cohan seems unwilling (or unable) to explain how Nifong could have been shut down completely if he had a full chance to defend himself before the Bar or in court.

Along these lines, why has Cohan, who has spoken so passionately about trials being the only way legal matters can be resolved, proved so unwilling to accept the results of the Nifong proceedings? A state bar ethics hearing found Nifong culpable of 27 of 32 ethics charges—yet Cohan has continued to label Nifong “honorable.” And Nifong, after a trial, was found guilty of lying to a judge—yet Cohan has continued to label Nifong “quite credible.”

It seems as if, in the end, outcome, and not process, is what most matters to author Cohan.

Miscellaneous Items

COHAN, at 5.08: Well, you’re absolutely right, I mean, that’s why this book is called The Price of Silence because my alma mater, for starters, did not want me to write this book.

Comment: Cohan has made statements like this on several occasions. It’s an odd claim—the only way “Duke” as an institution could express what it wanted or didn’t want was through a resolution of the Board of Trustees. No such resolution was passed. It’s entirely possible President Brodhead didn’t want Cohan to write a book. But Brodhead isn’t Duke. And Cohan has conceded he secretly spoke to several members of the Group of 88.

In what might be the least surprising development of the case, Cohan’s book—which, in its “something happened” thesis effectively says the Group of 88 was correct—is being recommended as “summer reading” for some Duke students.

COHAN, at 5.35: Obviously the three boys [he’s describing people in their late 20s or early 30s here] got their settlement. A part of that settlement required that they not talk to me.

Comment: It’s hard for me to imagine that several years ago, Duke’s attorneys included a clause in their settlement stating that the “boys” could not speak many years in the future to William D. Cohan. Presumably the settlement (as most such settlements do) contained mutual non-disparagement clauses. But Reade Seligmann has given several talks about the case, as a “serious investigative journalist” such as Cohan surely knows. Seligmann, as Cohan himself has conceded, offered to speak to Cohan on an off-the-record basis, but Cohan showed no interest.

COHAN, at 10.48: And other people have serious questions about what happened. Now, nobody likes to talk about that. And Duke wants it all to go away. Of course, the kids don’t want this to be discussed anymore. But, you know, there are a number of people who believe something happened in that bathroom that we would not be proud of.

I have to say, I’ve become one of those people, and we’ll never know the truth. But something happened in that bathroom that none of us would be proud of.

Comment: The “number of people” with this position interviewed by Cohan are Mike Nifong and Crystal Mangum. I suppose the addition of William D. Cohan to this cohort makes it a “number,” but I suspect there are probably more people who think Cliven Bundy will be the next governor of Nevada.


And then, a wholly new item, prompted by a question asking Cohan for whom he felt sorry. Pausing, sighing, Cohan said that he felt “sorry for anybody, of course, who’s falsely accused.” But does that sentiment apply to the lacrosse players? “We won’t know for sure.” Indeed, “what we won’t know is whether actually something did happen in that bathroom, that they’ve been very successful at covering it up.” And if they were really innocent, they’ve been compensated for their “inconvenience.”

Who does Cohan certainly feel sorry for?

Here is a link to the audio, of the line below:

“I certainly feel sorry for Mike Nifong, the prosecutor, whose life was ruined because of this.”

The statement of a “dispassionate” investigative journalist, describing a man who lied to a judge, withheld exculpatory evidence, and inflamed a community with ethically improper statements, so as to (as the State Bar panel found) advance his personal interests.

Saturday, April 26, 2014

Weekend Reading (and Listening)

For those with a few minutes of spare time over the weekend, some items for review:

(1) I’ve linked a couple of times to Radley Balko’s excellent piece on the disparity in reviews of the Cohan book. In light of the Times’ decision to run a second(!) glowing review of a book that basically mirrors the thesis of the paper’s own flawed reporting, the Balko piece is worth another look.

(2) A few commenters have (correctly) noted that Cohan has stayed away from any conservative media appearances. But, as Balko noted about reviews, the issue is less ideological than basic competence. Cohan has received one interview from a journalist who actually knew something about the case—Frank Stasio, of WUNC’s “State of Things.” Stasio didn’t do much in terms of follow-ups, but he asked detailed, well-researched questions, and he pressed Cohan particularly hard on the author’s apologia for prosecutorial misconduct. Cohan floundered in response. I strongly recommend another listen to Stasio’s interview, especially the final nine minutes.

(3) I’ll have a fisk of Cohan’s latest press appearance on Monday, but did two long ones this week, one tracing Cohan’s appearance on C-SPAN, the second with New York. In both appearances, Cohan demonstrated an ability to be fast and loose with the facts that would have made his protagonist, Mike Nifong, blush.

(4) For those who missed it, Stuart Taylor’s 40-minute interview on C-SPAN, discussing the Cohan thesis. Stuart broke some news, as well: citing a very reliable source, he reported that the individual settlements were $6.7 million, not (as Cohan has claimed, citing “the consensus around Duke and Durham”) $20 million. Since he has been wrong on so much else, it’s not surprising to see Cohan wrong on the settlement total, as well.

Here is the full clip of Stuart:

Friday, April 25, 2014

Fisking Cohan: New York

Amidst a basically content-free attack on people (including me) who have reviewed his book negatively, author William D. Cohan conducted a Q&A with Joe Coscarelli of New York. Cohan continued his pattern of becoming more extreme in his statements about the case than he was in his book. The fisk is below, from what is described as an edited and condensed transcript prepared by New York.

Q: Why bring this case up again now?

COHAN:  . . . One minute the kids were guilty — there was a rush to judgement — and then there was a rush to judgment to find Crystal Mangum and Mike Nifong guilty of accusing these innocent kids [As he has consistently done in his press appearances, Cohan continues to infantilize his targets; does he consider all male college students “kids” or “boys”?] . . . Aside from just being curious, I wanted to know what happened myself. In the cool light of day, just gather up everything I could about what happened, talk to anybody and everyone who would talk to me, and just start at the beginning.

Comment: This refrain is becoming a broken record, but for someone with a commitment to “talk to anybody and everyone who would talk to me,” Cohan was remarkably disinterested in finding key people to talk to. After all, he didn’t even try to interview the defense attorneys. Or the State Bar prosecutors. Or the criminal contempt trial prosecutor. Or the senior prosecutors in the AG’s office who oversaw the case. Or members of the State Bar’s disciplinary hearing tribunal. Or the judge who presided over the case.

As far as can be determined from a book that declined to provide endnotes, Cohan interviewed five people (Nifong, Nifong’s lawyer, Steel, Mangum, and McFadyen) on the record, and quoted from one other person he allegedly interviewed on a not-for-attribution basis. That’s not very wide-ranging “talking.”

Cohan also continues to posit a comically false equivalence regarding an alleged “rush to judgment.” In spring 2006, within a week of the N&O (almost wholly inaccurate) interview with Mangum, Selena Roberts published a column suggesting the lacrosse players were subhuman and Cohan’s friend, John Feinstein, went on the radio to urge that every member of the team be told by Duke: “None of you is man enough to come forward and say what happened. You were witnesses to a crime. We’re shutting down the program and you’re all gone.” That’s a rush to judgment—for which Cohan has expressed no concern. Indeed, in his book, he deemed Roberts’ column was “devastating,” and hailed Feinstein as a “world-famous journalist” who was “extremely generous” with his time.

It’s true that by the end of the case, opinion regarding Nifong was extremely negative. But that’s what happens when a prosecutor is convicted of lying to a judge and held culpable for 27 of 32 ethics violations, including withholding exculpatory evidence. It’s not clear how Cohan believes members of the media should have responded to such proven prosecutorial misconduct.

Q: Did you find out what happened? A frequent criticism of the book has been that you haven’t “unearthed new evidence.” 

COHAN: I respectfully disagree with that. I think a lot of what I reported in the book [is new], from police reports, to medical reports, to reports that Duke had done, to email traffic, including an email where one of the players, Matt Zash, said [after the party] that he “didn’t split dark wood.”

Comment: To walk through these claims:
  1. “police reports”: Since Cohan has spent much of the past two weeks complaining about how he didn’t obtain access to the criminal investigation file (unlike other journalists), it’s hard to imagine what new material Cohan is even talking about here.
  2. “medical reports”: Surely Cohan is not reviving his easily disproved claim that no one before him (not Joe Neff or 60 Minutes or ABC’s Law & Justice Unit or Duff Wilson or  even me) had brought to light the report of former SANE-nurse-in-training Tara Levicy? It’s true that there has been no disclosure of Mangum’s psychological medical reports—but Cohan outright denies seeing them. So if not the Levicy report and not the Mangum files, to what other “medical reports” could he be referring?
  3. “reports that Duke had done”: These documents have been publicly available since the time the reports were completed, in 2006 or (in the case of the Campus Culture Initiative) 2007. They were widely reported on; I did 22 posts on the CCI alone, and Stuart and I extensively commented on the Coleman Committee report, the Bowen/Chambers report, and the CCI report in UPI.
  4. “email traffic”: It’s true that Cohan uncovered seven, largely innocuous, e-mails among Duke administrators, which show the first couple of hours that most of them had heard about the case. But the only remotely fresh item in the e-mails (which cover a mere two pages in the book) Cohan quickly rushes over—Dean Sue’s admission that from the start she, Burness, and Moneta knew that the captains had been “fully cooperative.”
  5. “including an email where one of the players, Matt Zash, said [after the party] that he ‘didn’t split dark wood’”: That would be the e-mail whose existence, correctly attributed to Zash, I blogged about on 13 June 2007.
That said: Cohan’s statement about all the new sources he discovered would be easily verified—or refuted—if he had included endnotes that listed the specific documents he referenced for quotes or narrative material. But, of course, he produced no endnotes. Nothing, however, is preventing him from posting a list of endnotes, as Stuart and I did for UPI, to his Facebook page or even his twitter account. Will he do so?

COHAN: I’m not a prosecutor. I don’t have subpoena power. A lot of records have been sealed, including [North Carolina Attorney General] Roy Cooper’s records [per North Carolina law, like all such files, Cohan helpfully doesn’t mention]. I didn’t seek to uncover new damning information — I sought to coolly and rationally and dispassionately tell an amazing story, something that became a national story on the order of Flight 370 and Bridgegate all combined.

Comment: Does labeling people who criticize him “haters,” including the co-author (Stuart) of a book that even Cohan deemed a “must read,” suggest a figure who approached the issue “coolly and rationally and dispassionately”?

COHAN:  . . . Today, you see consequences of the Duke case. I wouldn’t be surprised if Cy Vance Jr. dropped the DSK case because of what he saw happened in the lacrosse case. Maybe there’s some spillover into the Florida State case. It’s a little like what happened during the financial crisis, like what I’ve said about the crash of Bear Stearns: Part of the reason it happened was a lack of imagination — people could not imagine that Bear Stearns going out of business in a week could actually happen. I think, honestly, I don’t think people could have ever imagined that this story would have created the passion that exists on all sides even to this day.

Comment: Cohan cites no reporting to substantiate his assertions about Cyrus Vance or Florida State. The DSK and Winston cases have two enormous differences from Duke. First, DSK and Winston have never denied sexual intercourse occurred; they’ve merely claimed the encounter was consensual (making for a much murkier case). Second, I’m not aware of anyone who has claimed that Cyrus Vance or Willie Meggs committed prosecutorial misconduct in the DSK or Winston cases. Nifong’s prosecutorial misconduct, on the other hand, is the central element of the lacrosse case.

Q: How is covering Duke as an institution similar to reporting on Goldman Sachs or Bear Stearns?

COHAN: [After describing his work on Goldman Sachs] . . . It was easier for me to get the cooperation of Goldman Sachs than it was to get the cooperation of Duke University.

Comment: I’ll take Cohan at his word that he found it more difficult to report on this case than on Goldman Sachs. (It certainly shows in his final product.) Perhaps his difficulties stemmed from his scant experience in reporting on either criminal law or higher education. I’m sure that I would find it very hard to report on Goldman Sachs, a topic about which I know very little.

Q: How did being an alum affect the way you covered it?

COHAN: I followed the story where it lead. Unlike others who have written about it, I spent four years there. I understand some aspects of the university and Durham — it’s part of my DNA. I understand Duke’s ambition as a university. I understand what the “work hard, play hard” culture that I wrote about in the book is all about. I understand that firsthand.

Comment: Unlike Cohan, I attended Harvard, so I would concede that I lack “firsthand” experience as an undergrad at Duke. But his statement is odd, in two respects.

First, Cohan has gone to great lengths, in multiple appearances, to suggest he (unlike others, seemingly a reference to Stuart and me) approached the case dispassionately. Yet this was a case about an institution that he’s now describing as “part of [his] DNA.” How many people can cover something that’s part of their DNA—part of themselves—“coolly” or “dispassionately”? (By contrast, before the start of the lacrosse case, I had no connection to Duke of any type, and had been to Durham twice, and Duke once, in my life.)

Second, for someone with such important first-hand experience with Duke, Cohan seemed remarkably ill-informed about the institution as it existed in 2006. In his C-SPAN interview, he said that he had never heard of stripper parties when he was at Duke; yet as Stuart and I reported in UPI, there were 20 of them at Duke in the 2005-2006 alone. Moreover, Duke’s faculty had dramatically changed between Cohan’s time and 2006, thanks largely to the efforts of “diversity” and race/class/gender hires promoted so heavily by then-provost William Chafe.

Q: You quote District Attorney Mike Nifong as saying that “something” happened to Crystal Mangum in that bathroom. What do you believe happened at the party?

COHAN: The first thing that has to be said, and it’s apropos of Errol Morris and his new film about Donald Rumsfeld, is that it’s a known unknown. Because there was no trial and because Roy Cooper’s investigation was secret and he’s not making it public, we’re not going to know what happened in that bathroom. Part of the settlement with Duke was that these three kids are not going to talk about it.

If we can stipulate up front that we’ll never know what happened, then I can sort of layer upon that the fact that Crystal Mangum, the victim-slash-accuser, as she later became known, told me when I visited her at the Durham County jail that she still believes she was sexually assaulted. She still believes something happened. All I know is that the police believed her [Inv. Ben Himan: I came to the conclusion that she had made up—that she was not telling the truth about anything. That she was improvising everything that she has said. That everything she was contradicted with, she would make up improvisation of what actually happened—of why this happened, why this didn’t happen”], District Attorney Mike Nifong believed her, and the rape nurse Tara Levicy believed her. I am convinced something happened.

The question is, do you believe that all of that was made up and was all a fiction and that nothing even remotely like any of that ever happened? That it was all just made up and everyone was in on the conspiracy? Or that, as I like to say, something happened that none of us would be proud of?

Comment: At the blog, UNC-Wilmington’s Chris Halkides had an excellent, almost poignant, response to Cohan’s musings. Chris wrote, “This is a standard response to many people who draw attention to a putative wrongful conviction or accusation, and the nicest thing I can say about the response is that it is intellectually lazy. How does any wrongful conviction happen? Either it is the result of one person’s actions or it is the result of many people’s actions, and it is not as if conspiracies to commit illegal or immoral acts never happen.”

I would add the following: one of the most chilling aspects of the lacrosse case is how few people—four, plus an erratic Mangum—it took to sustain a case that could have resulted in innocent people being sent to jail for most of their adult lives. Nifong, of course, was the vital actor here, since without his unethical core, the case would never have proceeded. But the other three people who set ethics aside did so only in specific instances, and for their own individual reasons (Gottlieb, the anti-Duke police officer, in consenting to the rigged photo array and producing the “straight-from-memory” report; Meehan, the lab director on the make, eager for new business with Durham County, in conspiring with Nifong to produce a document that intentionally limited the rest results reported; and Levicy, the SANE nurse who believed accusers never lie, in, months after the fact, changing her version of Mangum’s story, seemingly to accommodate the negative DNA tests).

Indeed, the conspiracy theorist in this case is Cohan—who has wildly hinted at a dark conspiracy uniting the defense attorneys, the State Bar, and Roy Cooper, helped along by money from “Northeastern law firms,” all apparently focused on “railroad[ing]” the ethically pristine Nifong and lying to the public about what really happened in the case.

Q: How has what’s happened to Crystal Mangum since affected how this case will be remembered?

COHAN: [Deep sigh.] Obviously Crystal proved herself repeatedly to be not the most reliable witness of what happened to her. Obviously she suffered something traumatic that night in the bathroom. She was clearly traumatized. Whether she was able to remember what is unclear. She told a lot of different stories at first, and then settled down into one version of the story. Then in December of 2006, she could no longer be sure she was assaulted by a penis, so they dropped the rape charge. When I saw her five years later, she told me a different version of events that included the use of a broomstick to assault her. She’s not the most reliable witness, but she obviously still believes something happened to her and that she was assaulted in that bathroom. Again, I am trying to be an unbiased, nonjudgmental, dispassionate investigative reporter of this incident.

Comment: “She told a lot of different stories at first, and then settled down into one version of the story.” This assertion is nothing short of astonishing. Given Cohan’s penchant for whitewashing Mangum’s tales, I had revisited this issue two days ago. But until now, he’s never made such a breathtaking claim about Mangum’s versions of events—essentially repeating the false testimony that Gottlieb gave to the grand jury. A quick summary: Mangum never told the same story twice. She never came close to telling the same story twice.

“Deep sigh?” Has Mangum become Cohan’s “victim,” as she once was Nifong’s? Perhaps Mangum still does believe something; and perhaps the answer to why she so believes lies in her psychological records.

By the way: “Obviously she suffered something traumatic that night in the bathroom.” Cohan’s only citation for this claim in the book was . . . Mike Nifong, who thereafter admitted he was “not an expert.”

Q: Is there a racial aspect to these cases when the athletes accused are white men, as opposed to black men?

COHAN: I don’t know whether it’s a white or black issue. The more dispositive fact here is that, for better or worse, these defendants, these three players, were able to afford incredibly skilled attorneys. Their attorneys did an incredible job. They exploited every opening. They took advantage of every mistake that Mike Nifong made, and he made them. And every twist and turn in the Crystal Mangum story, and she provided plenty of fodder. These attorneys earned every penny they got. But the justice system is not supposed to be able to be subverted by clever, well-paid attorneys. The system is not supposed to work this way. I’m not saying the outcome of this is wrong; I’m saying the diversion of the process can’t be a good thing.

Comment: Over at Volokh Conspiracy, Jonathan Adler had an excellent post on a repulsive Republican Governors’ Association ad targeting Vince Shaheen, a trial lawyer who’s the Democratic nominee for governor in South Carolina. Cohan’s comment above channels the RGA’s criticism of defense attorneys for simply doing their job. I suspect that (much like the RGA spokesperson quoted in Adler’s piece) if Cohan were ever arrested for a crime that he didn’t commit (much less never occurred!), he’d have a quite different take on the role played by defense attorneys in the legal system.

That said, Cohan’s absolutely correct that “the system is not supposed to work this way.” The system is not supposed to feature a prosecutor who makes a string of ethically improper statements—that continued over the course of many months—whose chief purpose, as the Disciplinary Hearing Commission concluded, was to advance his political interests. The system is not supposed to feature a prosecutor who joins with a lab director and, in violation of two provisions of state law, fails to produce a report that delineates any DNA test results. And the system surely is not supposed to feature a prosecutor who lies to a judge in open court.

By the way, because of the nature of bankruptcy law, the prosecutor who engaged in this misconduct continues to collect a monthly pension—financed by the taxpayers—that exceeds what many sole-income households in North Carolina gross in a month.

But defense attorneys who exposed the prosecutor’s misconduct, in Cohan’s mind, are subverting the system. Simply amazing.

Q: Nifong is quoted heavily throughout the book, but some have said the statements, his first since his career crashed and burned, were left “unchallenged.” Do you think you let him off too easy here?

COHAN: No, I don’t at all. I have to laugh to myself when Joe Neff wrote that at the News and Observer. Obviously he covered the case extensively. I don’t think Nifong ever talked to him — maybe he was frustrated that Nifong didn’t talk to him but talked to me. It’s a 600-page book; 580 pages of it are a condemnation of [Nifong’s] behavior and his decisions and his judgements along the way.

Then there are a bunch of pages when he’s finally given a chance to talk. He came across to me as an honorable man, somebody who just wanted to do the right thing. Did he make mistakes? Yes, he did, and I think he’s paid for them dearly. I don’t see how it’s anything but fair to give him a chance to defend himself. Good for him for agreeing to speak to me. Good for Crystal. 

Comment: Cohan seems rather thin-skinned in his response to Neff. Let’s review: previously, Cohan denounced as “pathetic” Neff’s early reporting on the book—only to see Neff’s description of the book prove accurate once the book appeared. Plus, Neff’s reporting eviscerated one of the book’s more dubious claims—that the innocence announcement had “blindsided” senior prosecutors in the AG’s office.

I’m not a journalist (I’m a historian). But it was my understanding that journalists attempt to speak to all sides, especially when they’re making claims sourced to a credibility-challenged figure like Nifong. Neff has done that throughout the case; his articles constantly reference attempts to reach Nifong, and during the case quoted from Nifong’s remarks.

Cohan, on the other hand, seems to have a different definition of journalism—in that, once the protagonist gives the writer a “scoop,” the writer doesn’t even try to interview anyone who tangled with the source in court, lest talking to them destroy the “scoop.” Readers will look long and hard in the Cohan book for attempts to interview the defense attorneys, the State Bar prosecutors, the criminal contempt trial prosecutor, the senior prosecutors in the AG’s office who oversaw the case, members of the State Bar’s disciplinary hearing tribunal, or the judge who presided over the case. Why ruin a good story?

Note that Cohan does not respond to a single substantive item raised in the Neff review. Personal attack, rather than issue-based defense, appears to be his preferred approach. In the event, since Cohan failed to speak to all sorts of key people that Neff interviewed (including most recently Jim Coman), presumably by his standards, he has conceded a jealousy of Neff.

For Cohan to assert that 23/24ths of his book consists of “condemnation” of Nifong can only be described as an erroneous statement. (It would be a little like me saying 23/24ths of DIW has been devoted to defenses of the Group of 88.) The claim is so transparently absurd that even Cohan, who has displayed a habit of being fast and loose with key facts, could not have meant what he said.

In the off-chance he did mean what he said, this might be the most jaw-dropping statement from Cohan in his entire book tour. His is a book—in the author’s own voice—that excuses its protagonist’s ethical misconduct regarding the DNA, minimizes its protagonist’s ethical misconduct regarding the improper statements, and portrays a 1-day sentence for lying to a judge as some sort of victory for Nifong. It’s true that as part of his summarize-everything approach, Cohan occasionally includes items critical of Nifong, including a couple from Stuart. He also references defense filings, although almost always framed through a sneering tone indicative of his disdain for the defense attorneys. The idea that the inclusion of this material means the book overwhelmingly condemns Nifong (or condemns him at all) is laughable.

Q: What did you make of the reactions of Stuart Taylor and KC Johnson, who wrote their own book exonerating the players, and each wrote a very negative review?

COHAN: I’m not surprised that they had the reaction that they had to the book. They have a vested interest in their version of events. My version is much more complete than their version. I wasn’t writing a polemic. I wasn’t trying to prove that these kids were innocent, as they were. I’m not surprised at all by their viewpoint. What I was surprised at was that a reputable publication like The New Republic allowed Stuart Taylor to review my book, or whatever he did — destroy my book — and reputable publication like Commentary allowed KC Johnson to do the same thing.

Comment: Note, for the record: neither the questioner (what an odd question, asking Cohan what he made of the reactions instead of asking him to address any of the specific concerns raised by Stuart or me) nor Cohan cited a single item from either review that they challenged.

That said: I can understand Cohan’s preference for reviewers who know little or nothing about the case. As a fascinating Washington Post item from Radley Balko noted, reviews of the Cohan book have divided across a deep chasm. Those reviewers who closely followed the case have been extremely critical of the book, for many of the reasons outlined in the blog over the past couple of weeks. On the other hand, reviewers who approached the book with little or no knowledge about the case—and with, perhaps, a comforting politically correct worldview—have been fawning in praise, even though none have embraced the book’s defense of Nifong’s misconduct and only one (Newsday) has appeared to accept the “something happened” thesis. Cohan’s is the unusual book that appears to play better with people who are wholly ill-informed about the events that the book purports to describe.

Cohan’s claim of “more complete” depends on the definition. Cohan’s book certainly has many, many more one- or two-paragraph summaries of the work of other journalists than does UPI. As a result, it’s a longer book. On the other hand, Stuart and I had access to more documents than did Cohan (who by his own admission failed to gain access to the discovery file); because the book had second and third editions, we were able to add material from the civil suit filings as the cases developed. We interviewed many more people than did Cohan. We had far more comprehensive coverage of the academic side of things. And because we personally covered many of the key events in the case (Cohan covered none), we were able to supply our own personal observations. But I concede that Cohan includes much more of other figures’ work, especially daily journalists or commentators in one- or two-paragraph summaries, than Stuart and I did.

Cohan’s description of UPI’s purpose—“trying to prove that these kids [sic] were innocent”—is nonsensical. The original manuscript was finished several months after AG Cooper made the innocent declaration, at a time when even Nifong (under oath!) conceded that the falsely accused students had not committed the crimes of which they were charged. Why would Stuart and I “try[] to prove” something that was already proven? In this comment, Cohan appears to be clinging to his false statement that the book was written in 2006.

Book review editors at the New Republic and Commentary do not need me to defend them from Cohan’s barbs. But to the extent Cohan is implying that there’s something untoward when experts in the field write book reviews, his standard is an odd one indeed. Apart from UPI, I’ve written four books and an extended research paper; I’ve written reviews on all five topics, including a review of the only competing biography of Alaska senator Ernest Gruening.

But, again, I have no doubt that Cohan would have preferred to see the book reviewed exclusively by those with little or no knowledge about the case.

Q: What have you learned about how our society treats the accusers in these cases? In the New York Times exposé on the FSU matter and in countless other examples, there’s a lot of people in authority positions asking these women, Are you sure you want to do this?

COHAN: This is part of the epidemic. I don’t know why this happens. I can’t imagine that if the [Duke] players had been black instead of white, and the victim had been white instead of black, that it would have happened the same way. [emphasis added] We’ll never know. It’s really part of the epidemic, and it’s not getting better at all. We have not seen any advancement in our ability to deal with this.

Comment: Just a few items earlier, when asked whether there was a “racial aspect” to charges against white athletes as opposed to black athletes, Cohan replied, “I don’t know whether it’s a white or black issue.”

I suppose that, much like his book’s protagonist, it’s sometimes hard for William D. Cohan to keep his stories straight.

Thursday, April 24, 2014

Stuart Taylor on Cohan

My colleague Stuart Taylor appeared this morning on the Imus program. He talked about the recent Supreme Court decision on affirmative action, and then offered some comments on author William D. Cohan's work. You can listen to Stuart at this link.

And here was Stuart on CSPAN:

Cohan: Fact & Fiction

In his C-SPAN interview, William D. Cohan described himself as a “serious investigative journalist.” Yet despite a tendency in his book to operate mostly by inference and insinuation, Cohan has made a number of factual errors, each of which he has left uncorrected. Moreover, several of these errors resulted from Cohans’s unwillingness to reach out to the target of his (or book protagonist Mike Nifong’s) criticism.

1.) Citing Mike Nifong, Cohan reported that senior prosecutors in the attorney general’s office were “blindsided” when Roy Cooper publicly declared the falsely accused students innocent. Cohan allowed the claim to stand unrebutted, and did not contact either Jim Coman or Mary Winstead for comment.

In fact, the senior prosecutors in the AG’s office weren’t surprised at all, since they believed that the falsely accused players were innocent. In an interview with the N&O, reported a few days before the book was published, Jim Coman suggested that Cohan’s claim resulted from “figments of [Nifong’s] imagination.”

[Update, 1.08pm: It’s worth noting that Coman was absolutely clear in his interview with Joe Neff regarding his feelings on the case:
Coman said all the physical evidence pointed to innocence – DNA tests; cellphone records of the players and Mangum; photographs and videos; and receipts from a gas station, restaurants and debit cards. One player, whom Coman dubbed “Ansel Adams,” photographed and videoed much of the evening. 
“I was just adamant,” Coman said. “She lied, she made up a story, and damn it, we’ve got to do the right and ethical thing.”]
This cannot in any way be construed as the statement of a man who was blindsided by a declaration of innocence.

Cohan has never acknowledged the error. Indeed, almost incredibly, in a recent C-SPAN appearance, he slightly modified the story to leave listeners with the false impression that what he wrote in the book was true.

2.) In both Cohan’s press appearances and in Scribner’s publicity material, the claim was made that Cohan was the first journalist to access and report on the report of former SANE-nurse-in-training Tara Levicy.

In fact, multiple reporters, with differing takes on the case (N&O, 60 Minutes, New York Times, UPI), had seen and reported on the Levicy document, years ago/

Cohan has never acknowledged the error, but in his most recent press appearances, he has ceased to make it.

3.) In interviews with Bloomberg TV and MSNBC, Cohan asserted that Bob Steel had joined Mike Nifong and Crystal Mangum in a “consensus” about what occurred—that “something happened in that bathroom that none of us would be proud of.”

In fact, as Steel admitted in an e-mail sent to Stuart Taylor and me, he has no knowledge on what (if anything) occurred in the bathroom.

Cohan has never acknowledged the error, but in his most recent press appearances, he has ceased to make it.

4.) On p. 439, Nifong asserted that the Seligmanns had (with the knowledge of Jim Cooney) failed to pay their legal bills to Kirk Osborn and Buddy Conner. Cohan allowed the claim to stand unrebutted, and did not contact Jim Cooney or Philip Seligmann (who paid the bills in 2006) for comment.

In fact, all bills were paid, as Philip Seligmann told Stuart Taylor in the New Republic.

Cohan has never acknowledged the error.

5.) Expanding on assertions he made in the book (that the DNA issue was a “red herring” and involved evidence that “didn’t matter”), Cohan told NPR’s Diane Rehm that Nifong had not behaved unethically in failing to produce a report that listed any DNA test results done in the case. Rather, according to Cohan, Nifong had merely refrained from putting “a bow” on the evidence, or from making it “easy” for the defense.

In fact, two separate provisions of North Carolina law required Nifong to turn over to the defense reports containing the results of “any” tests lab director Brian Meehan conducted.

Cohan has never acknowledged the error, although in his most recent extended appearance (an hour on C-SPAN) he didn’t talk once about Nifong’s improper handling of the DNA evidence, leaving listeners with the impression that the ethics case against Nifong rested solely on his improper public statements.

6.) On p. 559, Cohan quoted Nifong saying 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.” Cohan allowed the claim to stand unrebutted, and did not contact Williamson for comment.

In fact, Williamson commented to this blog, “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.”

Cohan has never acknowledged the error.

The book contains two more significant claims of this type—claims by the credulity-impaired Nifong about the actions or thoughts of people who countered Nifong, which Cohan in turn made no attempt to verify. Nifong-through-Cohan asserted that the Bar planned to call Dave Evans rather than Reade Seligmann to testify, but then changed its mind because of an alleged focus group. Nifong-through-Cohan asserted that Judge Smith not only pre-judged his case, but told someone that he planned to sentence Nifong to 30 days.

To date, neither the Bar prosecutors nor Judge Smith have commented. [Update, 1.08pm: It’s my understanding, however, that Cohan did not request an interview from either Doug Brocker or Katherine Jean, the two State Bar prosecutors.] But there’s no reason to credit these Nifong/Cohan assertions any more than the other six incorrect claims. Nifong had no credibility when Cohan started his project, and he has no credibility now. And yet to Cohan, he’s “quite credible” and an “honorable” man, to such an extent that his word provides the argument for Cohan’s book.

Two other items, dealing mostly with Cohan’s public remarks, touch on the issue of Cohan’s frayed credibility. The first is his claim (mentioned in virtually every one of his public appearances) that the total settlement with the falsely accused former students was $60 million, and that the total cost of the affair to Duke was at least $100 million. In the book (p. 568), he cites the first of these figures to “the consensus around Duke and Durham.”

The settlement’s provisions, of course, have never been made public. But there are three oddities to Cohan’s claims.
  • First, the well-connected Bernie Reeves reported that the total was around a third of Cohan’s. Maybe Reeves is wrong and Cohan is right (I have no reason to believe this is the case), but it’s striking that Cohan doesn’t even mention Reeves’ scoop anywhere in the book.
  • Second, I’m not aware of any substantiation for Cohan’s claim (first made in an interview with the Daily News, oft-repeated since) of a $100 million cost to Duke, meaning legal fees of at least $37 million. He gives no indication that he sought to interview Duke’s attorneys, or that he asked Bob Steel or a Duke spokesperson to provide even a ballpark figure regarding Duke’s legal fees. As far as I can determine, Cohan simply created this figure from whole cloth.
  • Third, Cohan offered a peculiar line in his C-SPAN interview: his claim of a $60 million total settlement “since has been confirmed to me.” [emphasis added] The book itself doesn’t mention his receiving any confirmation for the total, and instead uses the “consensus” line. Is it Cohan’s practice to print unsourced material first, and then seek confirmation later?
Second: In his C-SPAN interview, Cohan asserted that “thanks to these lawsuits ... , one of which is still ongoing, there’s been a lot more documentary evidence that’s come to light then ever existed before.

This statement isn’t accurate. Discovery in all of these cases was sealed (because of Durham’s legal tactics, no discovery in the suit against the city even occurred at the time Cohan was writing his book). Only five discovery-related e-mails, attached to two Ekstrand filings, have (to date) surfaced. And, of course, Cohan misrepresented the major item from those filings to minimize President Brodhead’s guilt-presuming nature.

It’s true that a serious investigative journalist nonetheless might have been able to glean material from the various parties’ legal filings, but there’s no evidence that Cohan did that, either. Indeed, he went out of his way to ignore relevant material in the filings.

To take one instance: among the most controversial items of the case was the DPD’s decision to allow Mike Nifong to assume personal command of the investigation. (Gottlieb cited the command in his straight-from-memory report, and all key events after that day were run through Nifong’s office.) In the book (p. 81), Cohan allowed Nifong to contest the claim while not denying that he spoke to Capt. Lamb of the DPD. But in a June 2009 filing—exactly the type of item that Cohan had implied to C-SPAN gave his book freshness—the city of Durham admitted that Gottlieb’s recollection was correct, though not explaining why Durham had allowed Nifong to take command of the police inquiry.

Cohan, for reasons that remain unclear, did not mention the filing in his book.