Cohan's Trials

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hat tip: K.

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

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

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

Cohan, Unhinged

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

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

Here is a link to the audio:

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

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

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

Seligmann, Finnerty, and the Party

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

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

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

The Nifong Apologist

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

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

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

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

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

Math Lessons from William D. Cohan

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

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

Cohan and His Enemies

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

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

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

Proper Procedures for Prosecutors

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

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

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

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

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

 

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

The Nifong Record

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

Cohan here is describing a legacy that includes the Darryl Howard case, in which Judge Orlando Hudson found that Nifong made “false and misleading” statements that led to the conviction, for murder, of a likely innocent man.

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

Enemies of the “Truth”

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

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

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

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

Media Expert

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

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

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

“Rush to Judgment”

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

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

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

Contempt for the Falsely Accused

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

The Attorney General

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

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

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

Cohan’s Publicity Tour Is (Literally) Cut Off

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

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

Due Process and False Charges                                                                   

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

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

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

  

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

Bannon-Nifong Conversation

Given the . . . unusual . . . editing strategy of author William D. Cohan, I thought I would post the video of the testimony in which Brad Bannon revealed a private conversation with Mike Nifong in which the rogue DA exhibited odd behavior.



Of course, not only did Cohan (at the very last minute) cut this passage from his book, but he also eliminated a less-than-flattering interview snippet from his book’s hero and protagonist: “Nifong said of Bannon’s testimony that it was ‘snide’ and that Bannon was ‘a little pissant, is what he is, and there’s no cure for that. Quite frankly, whatever career he has, I wouldn’t want.’”

Cohan: Side-by-Side

The handful of close readers of the William D. Cohan book (a list that, alas, did not include reviewers from the Economist and Newsday) doubtless noticed an anomaly—minor errors, usually by a page or two, in the index. It was almost as if there were lots of small, last-minute alterations to the book, some of which led to pagination changes that weren’t accurately reflected in the index.

It turns out that the manuscript was reduced by 22 pages. Some of the shift came from modifying the spacing and the margins. Cohan also made minor cuts of little editorial consequence. But myriad alterations better framed the argument, by: eliminating criticism of the book’s protagonist, Mike Nifong; cutting passages that reflected very poorly on Nifong’s conduct or temperament; bolstering the Cohan/Nifong “something happened” thesis; or downplaying positive portrayals of the lacrosse players’ character.

The Cohan book was filled with hundreds of pages of recycled material—paragraph after paragraph, seemingly prepared by a research assistant, blandly summarizing an article by reporter x or the opinions of columnist y. It would not have been difficult to cut 22 (or 222, for that matter) pages of fat, without (as Cohan did) eliminating several items of significant substance.

The Smoking Gun

 . . . comes in, of all places, the acknowledgements. In the book, Cohan thanks a Nifong acquaintance named Pat Devine, who created what the author describes as an “oral history” of the lacrosse case. He remarks that “without Pat and her inspiration, this book would likely not have been possible.” He then moves on to thank other people, leaving the reader to speculate how he ever came across “Pat” and her so-called oral history.

It turns out that a specific individual guided Cohan to Pat: “I would also like to thank especially my friend Peter Wood, the former Duke history professor, who introduced me to Pat, Peter’s former neighbor in Hillsborough, North Carolina.”

This sentence disappeared from the final version. In that version, Cohan treated his “friend” Wood’s analysis of campus events as prescient (without mentioning he was, in fact, praising the work of a “friend”), and offered a passive-aggressive critique of the Duke report (by the Coleman Committee) that undermined his “friend” Wood’s credibility about the lacrosse players’ in-class behavior.

So: at the last minute, Cohan chose to hide from readers that he was a “friend” of perhaps the fiercest critic of the lacrosse players’ character on the Duke campus, and that this same “friend” had introduced him to a source without whom the “book likely would not have been possible.”

It’s rather difficult to come up with an innocent explanation for this omission.

Defending Nifong from Himself

Perhaps the most stunning deletion came in the coverage of Nifong’s ethics proceedings, where this full paragraph was cut on what became page 522:

“[Brad] Bannon also described how Nifong lost his temper during a telephone call on October 20. Bannon and Cheshire . . . had written Nifong a letter trying to get additional evidence and information from Nifong. ‘I thought the conversation was cover at that point in time,’ Bannon testified, ‘but Mr. Nifong then brought up a letter that Mr. Cheshire and I had sent to him regarding other discovery issues that had come up in the intervening period of time. And he got extremely upset with me about that letter and said we weren’t acting in good faith as lawyers. He wanted to know why we were always accusing him of withholding information . . . I tried to explain to him what some of our concerns were about the discovery materials being withheld. And he sort of at the end of the exchange, just his volume kept going up and up and up. He wouldn’t let me respond in any way. And he finally hung up the phone on me.’ (A day earlier, Wade Smith had testified about his April 13 meeting with Nifong and two other defense attorneys and said that he had ‘never experienced such behavior in his more than forty years of lawyering’ and that ‘it was clear Mr. Nifong was extraordinarily agitated and upset, and we left.’) Nifong said of Bannon’s testimony that it was ‘snide’ and that Bannon was ‘a little pissant, is what he is, and there’s no cure for that. Quite frankly, whatever career he has, I wouldn’t want.’”

(Well: Nifong got his wish.)

Consider the remarkable content of this paragraph: Nifong lashing out at the attorney who exposed his hide-the-test-results plot; the deeply respected Wade Smith providing historical context for Nifong’s misbehavior; and the recounting of a private vignette that until Bannon’s testimony wasn’t publicly known. It’s hard to imagine any reasonable editorial judgment that would justify its exclusion, especially in a book that contains so much filler material.

But, of course, the material in the paragraph—and especially the last two sentences—was also wholly inconsistent with author Cohan’s portrayal of the Christ-like Nifong, “crucified” for Duke’s sins. Instead, readers would have seen the embittered, egotistical Nifong that so many people affiliated with the case encountered.

The deletion of Nifong’s slur against Bannon wasn’t the only time Cohan used the editor’s blue pencil to save Nifong from himself. Cohan dropped two paragraphs of Nifong sounding delusional, suggesting some sort of conspiracy theory about the Bar complaint: “The unspoken subtext was,” Cohan’s readers didn’t learn Nifong said, “‘We know that you are committed to this case and if we can get anybody else but you involved in the case than the level of commitment would be les,’ and I completely understood that. I don’t think they honestly could deny that was part of their strategy.”

Awhile later (p. 544), Cohan protected Nifong from seeming closed-minded, cutting out two sentences in which the rogue prosecutor discussed the AG’s evidence: “And actually assuming that I had seen the same things that they [the AG’s office] refer to in their report upon her taking the stand in the suppression hearing, I may easily have reached the conclusion at that time. But other than the conclusion not to proceed with the case, I am not sure that I would ever take that next step.” But much of the report wouldn’t have come out at a suppression hearing, and Nifong’s admission that he doubted he could “ever” recognize the players’ innocence, regardless of the evidence, was telling.

Virtually the only new material gathered by Cohan came from the Nifong interviews; the author’s handful of other interviews were far shorter and mostly of little consequence. That Cohan cut such obviously relevant Nifong items from his book’s major primary source shows the passion that he brought to his cause of rehabilitating Nifong’s reputation.

Removing Sharply Negative Comments about Nifong

Several last-minute cuts applied to sharp criticisms of Nifong, items that had been accurately offered in the penultimate version of the text, presumably from material prepared by his research assistant. For instance, on what became p. 253, a strong attack on Nifong by the third candidate in the DA’s primary, Keith Bishop, ultimately didn’t see the light of day. “I would have been very certain of the facts before I jumped out in the media and virtually guaranteed an arrest,” Cohan’s readers ultimately wouldn’t learn that Bishop said about the book’s protagonist. Bishop added in the deleted passage that Nifong “wants to win so badly that he will do anything and will say anything. It reflects political immaturity. He thinks that simply pandering to race will get him the breakout he needs.”

Cohan eliminated a paragraph (p. 272) containing Reade Seligmann’s reaction to learning from Kirk Osborn that Nifong wouldn’t drop the case. “I don’t know much about the law,” Seligmann said but Cohan’s readers never learned, “but you hear the word ‘alibi’ and that’s one of the first things that you think a prosecutor would want to have . . .  you don’t charge an innocent person and an innocent person won’t go to jail.”

Cohan also (p. 369) chopped a paragraph quoting from Duke Law graduate Karen Bethea-Shields, who had represented a black defendant in a racially charged 1975 murder case. Bethea-Shields, Cohan’s readers ultimately didn’t learn, was “’appalled’ that Nifong had given so many interviews during the early weeks of the case, and irritated that Nifong had made race such a big factor.” Nifong’s pre-primary publicity spree, Bethea-Shields wondered, forced people to pose the question: “Why was [race] important to bring up? You don’t go leaking a little bit here and a little bit there and get the community all riled.”

It’s easy to see why someone as passionate in his defense of Nifong wouldn’t want those passages to appear in his final product.

The “Something-Happened” Thesis

In addition to rehabilitating Nifong, Cohan aggressively (as his publicity tour demonstrated) advanced a “something-happened” thesis. Perhaps the clearest example of this argument guiding his decision to eliminate material came on p. 513, when he cut a quote from Inv. Ben Himan: “Himan said that during Cooper’s investigation, he became aware of evidence he did not even know existed. ‘They had numerous, numerous accounts of pictures, documents, alibis, receipts. It was unbelievable how much stuff they actually turned over to the Attorney General’s Office.” [emphasis added]

It’s easy to see how an author who proclaimed to CNN that an “incredible amount of evidence” exists of a crime would want to keep out his “definitive, magisterial” account such an assertion. Even Cohan couldn’t try to include Himan in what the author has portrayed as a wide-ranging conspiracy to block the truth from coming out.

The “something happened” thesis also required bolstering the credibility of murderess Crystal Mangum, a task to which Cohan took with gusto, both in the book and in his press appearances. Indeed, even as he needed to cut material, Cohan added 22 lines (at p. 39) from the report of UNC doctor Yvonne Lai, who examined Mangum on the day after the part (15 March). The fresh items included such passages as “the doctor noted that Mangum had suffered an ‘assault last night,’” that she had “new neck pain,” and felt “wobbly.” The added passages also mentioned that Mangum was “plugged into a rape support group” and that her boyfriend (unclear exactly who) was “very upset with her currently because of this rape.”

These additions cemented an impression that Mangum had experienced some sort of physical injury at the party—a useful editorial approach for someone committed to the “something happened” thesis.

A further bolstering of Mangum appeared on p. 513, when Cohan eliminated one of the two paragraphs (reducing the section from 27 lines to 12) in which Himan explained why he had concluded that Mangum had lied. In addition to the material already mentioned, Cohan’s readers didn’t learn that Himan recounted, “On multiple, multiple times, she was contradicted with indisputable evidence, with her time lines and pictures and stuff like that . . . Even when she said that the two people who assaulted her brought her out to the vehicle, they have pictures of people putting her into the vehicle, and it’s not David Evans, and it’s not Collin Finnerty, and it’s not Reade Seligmann.” [emphasis added]

Seven pages(!!) after this passage disappeared from the book, Cohan included an uncorrected assertion from Mangum, in her jailhouse interview with him, falsely asserting that Reade Seligmann carried her to the car. Cohan had mentioned the photos, accurately, hundreds of pages before, but only the most careful reader would have recalled such information in evaluating Mangum’s tall tale. But it’s easy to see how an author passionately committed to the “something happened” thesis would remove a neutral, factual assertion from Himan that would prompt readers to understand that his “victim” was lying through her teeth.

Heightening a Negative View of the Lacrosse Players’ Character

Cohan eliminated (p. 218) several sentences describing a spring 2006 Chronicle editorial in which the paper’s editors argued quite strongly that the lacrosse team should be viewed as typical Duke students, for good or ill. He also cut (p. 372) two paragraphs from a largely sympathetic view in ESPN magazine about the unindicted players’ experiences. And he chopped (p. 560) an entire paragraph from David Evans, Sr., reflecting on how his “son has led the way in handling this outrageous situation well, looking out not only for himself but for his teammates and his friends.”

The boldest shifts, however, came in one reduction and one addition. On what became p. 388, Cohan made a two-page deletion (the longest of the entire last-minute editorial process) to omit all mention of the fantastic summer 2006 Chronicle article by John Taddei, featuring interviews with Bo Carrington, Tony McDevitt, Rob Wellington, and John Walsh. As with much else in this section of the book, the material clearly came from Cohan’s research assistant, and faithfully summarized the article, which humanized the lacrosse players and provided remarkable insight into their on-campus negative experiences in spring 2006. Indeed, the article was one of the most important media pieces in the case, representing as it did the first time that multiple members of the team spoke on the record about their experiences in the spring 2006.

As the interview with team members vanished, Cohan added material attacking the players’ character—through a lengthy three-paragraph insertion (almost two pages) from his unidentified “friend,” Peter Wood. On pp. 179-180, readers now heard from “friend” Wood about how lacrosse players in his class were part of a culture “occasionally tinged with defiance, belligerence, and even antisocial racism.” Wood purported to have confirmation of his criticism of the players from other, unnamed professors (the Coleman Committee, of course, found otherwise), and the added material also featured Wood affirming that he had “heard plenty of confirmation from undergraduate remarks regarding the unsavory reputation of the team in social matters on and around campus.” (Why a professor was gossiping with his students about other students’ “social matters” Cohan did not reveal.) The inserted passage concluded with the lengthy e-mail from Group of 88’er Susan Thorne to Wood, which I profiled previously.

A largely sympathetic portrayal of members of the team, from one of the best media sources on the case: out. A character assault from the author’s “friend”: in.

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The only change to the final manuscript that seemed to rebut Cohan’s thesis came on p. 538; Cohan added a paragraph summarizing the portion of the Cooper report describing the DNA transference theory. This change, ironically, suggests that Cohan was well aware of the transference theory—even as he went on talk show after talk show never once mentioning it, even bizarrely suggesting that defense attorneys claimed that the possible DNA match came from Dave Evans picking up the fingernails from the floor.

Cohan’s book, and his many guilt-presuming public appearances, speak for themselves. Even if he had made no cuts, the book’s biases would have been self-evident. But the last-minute editorial changes—the removal of clearly significant items (the “pissant” comment, Himan’s first-hand recollection of the evidence), coupled with the deception regarding both Cohan’s relationship with Peter Wood and Wood’s role in jump-starting the entire project—gives a sense of just how deeply committed Cohan was to his effort to rehabilitate Nifong.

A final note: Cohan’s original list of media-type sources (p. 619 of the book) ended with a discussion of WRAL’s online archive. But in his final version, he added the names of a few specific figures. One such addition: “K.C. [sic] Johnson,” who author Cohan described as exhibiting an “obvious bias.”

Glad to know I was in his thoughts.

Nifong Ironies in Settlement

Two Nifong-related ironies in the civil suit settlement:

First, the H-S reports the following: Seligmann attorney Richard Emery “said the former prosecutor had agreed to make a $1,000 contribution to the Innocence Inquiry Commission and reaffirm 'his statement of [the players] innocence.'”

If so, of course, Nifong has repudiated the Cohan “something happened” thesis, and has effectively repudiated much of what he told Cohan for the book. If the settlement is as reported, will Cohan now issue a retraction?

Second: the N&O obtained a statement from the head of the state Innocence Inquiry Commission, Kendra Montgomery-Blinn, who commented,“It was an honor and a surprise to be chosen to receive this grant . . . We will put the money in a special fund, and it will be used for the investigation of innocence claims. We are pleased that the important work of the Innocence Inquiry Commission was recognized in this way.”

Does her acceptance of the donation mean that Montgomery-Blinn has now accepted that the case was one of actual innocence, in which the prosecutor violated ethical norms? The former Durham ADA (and member of the politically correct People's Alliance) once believed differently: in one of the most jaw-dropping moments of the Nifong ethics hearing, Montgomery-Blinn testified in defense of Nifong, on both substantive and character grounds. As Joe Cheshire noted at the time, “It is very troubling for anyone’s faith in the innocence commission when its director testified for a man who tried to put demonstrably innocent people in prison. It’s going to take a lot of work to give anyone any comfort that she can properly screen claims of innocence.”

For a taste of the Innocence Inquiry Commission head defending the actions of the state's highest profile rogue prosecutor, see below:



Hopefully Montgomery-Blinn now has a more fair-minded view of the dangers of prosecutors abusing their power for personal gain.

On Amazon

I admit that before I purchase a book from Amazon, I tend to look at the reviews; I’ll rarely purchase a book that has quite negative feedback. Radley Balko first commented on the disparity between the overwhelmingly negative response the Cohan book received from Amazon reviewers (51 of the 75 Amazon reviews are 1-star) and the puff-piece comments from reviews in most of the mainstream media.

The negative reviews clearly captured Cohan’s attention; he has complained about them in a couple of press appearances. On C-SPAN, he offered the following remark: “All one has to do is go on to Amazon and see already that I’ve amassed, you know, 25 one star reviews even the book hasn’t been out a week and it’s a 600 page book, so I’m pretty much guessing that not many of those one star review writers have read this book.”

This was an interesting statement in a couple of respects. First, many of these 1-star comments contain substantive disagreements with Cohan’s arguments (some of them, in fact, are longer than a standard published book review). Cohan didn’t tell C-SPAN, and hasn’t said since, how people could have written a substantive review of a book they hadn’t read. That said, this is a tactic he’s employed elsewhere, as when he insinuated that Joe Neff hadn’t read the book even as Neff’s coverage made clear that the N&O reporter had done so.

Second, it seems as if Cohan’s line of attack better applies to those who had reviewed the book positively on Amazon. As has often been the case with the book’s favorable published reviews, many of Cohan’s 5-star Amazon reviews avoid discussing anything that’s actually in the book.

Some examples, with each of the six below in their totality:

“I'm not a sports fan but William Cohan tells a story so well that I read ‘The Price of Silence" like a novel. I even got excited by descriptions of Lacrosse games, though I doubt that I'd sit through one in real life.”

“William D. Cohan has created a masterpiece of both investigative reporting & history. Of the 7 book [??] thus far published about the case, it is the best one yet. As such it is heartily recommended.”

“Do not let the negative reviews dissuade you from this book. William Cohan has done a masterful job of pulling together the disparate facts concerning what occurred at Duke and setting forth the definitive account. The book is superb and is a compelling read.”

“I am surprised by all of the negative. No Duke alum wants to rehash this experience but isn't it at least good to have the facts as opposed to just fleeting bits here and there? I don't think this is condemnation or judgment as much as it is about historical account and I for one thing this is incredibly important.”

“A book that strikes at the heart of universities today despite the aggressive criticism of Duke alum. Sometimes the truth can be painful.”

“I was familiar with the case and have followed Duke for years and wondered how it turned out, Cohan filled in the blanks.”

How someone “familiar with the case” didn’t know how the case turned out the reviewer elected not to reveal.

One 5-star reviewer hailed Cohan’s “sympathetic” portrayals of the lacrosse players(!), while another even labeled the “crucified” Nifong a “serial offender”—suggesting that whatever book these two reviewers read, it wasn’t Cohan’s.

Of the reviews, only two—one by an anonymous New Yorker, and the second by a Jerome Buttrick—appeared to embrace the book’s twin “something happened”/Nifong’s-a-victim argument. Buttrick wrote, “Not only does this read like a John Grisham legal thriller, it also addresses some of the most important and difficult issues facing our nation today: social and racial injustice, ‘bad boy’ behavior on college campuses, and the ability of the rich and powerful to bend the system to their liking.” Neither Buttrick nor the anonymous New Yorker have reviewed any other book at Amazon.

Two 5-star reviews particularly caught my eye.

First was this item, from a “D. Retah,” who wrote, “For anyone who wants to know what goes on at colleges today,this [sic] is required reading, and an unforgettable narrative about a snarled legal sysyem [sic], privilege, and elitism. I found it unputtdownable [sic] and feel it is a must read.”

The only other book the grammatically-challenged “D.” reviewed was UPI—which “D.” reviewed not when it appeared but instead a few days ago. (Thanks for reading, “D.”!) In her review, “D.” suggested that Stuart and I lacked the credentials we claimed to possess. I’m sure my superiors at Brooklyn College would be fascinated by the bizarre claim.

But the classic 5-star Cohan review was this one, from a reviewer named JKR:

“It came promptly, but I haven't had time to read it.”

Tough to rebut that line of argument. Perhaps the New York Times could schedule a third gushing review, with JKR taking the pen?

Cohan's Greatest Hits

Now that author William D. Cohan appears to be wrapping up his publicity tour—and his review process ended with a biting item from the Independent—it might be worth reviewing some of his “greatest hits” in interviews. A general comment: in a highly unusual approach to a book tour, Cohan was far, far more aggressive about the case than he was in the book itself. Could it be that freed from the constraints of Scribner’s editors and counsel, Cohan could be himself?

Nifong

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

I’m sure that Darryl Howard shares Cohan’s sympathy.

“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.”—New York

…suggesting that author Cohan either is prone to misstatements or didn’t read his own book.

“I was able to speak to people who had never spoken before about this, like Mike Nifong.”—Diane Rehm Show

It’s true Nifong had never spoken about this, if we overlook dozens of press and political appearances and his testimony, under oath, before the State Bar and Judge Smith.

“This idea that he was exploiting this case for his election, I think, is ridiculous . . . he was already an announced candidate.”—Jim Campbell Show

Political analyst Cohan: once a candidate announces for election, he can no longer politically exploit an issue that emerges.

“[Mangum] truck me as rational, thoughtful, articulate.”—WAMC

Cohan, on Nifong’s “victim.”

“So within a week’s time he gave up [his preprimary publicity crusade] 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.”—CSPAN

Despite Cohan’s claims, Nifong, Durham’s Christ-like figure crucified for his sins, didn’t refrain from speaking to the media after a week; he just spoke less frequently. Lexis/Nexis and a basic Google search can, sometimes, assist even a “serious investigative journalist.”

Approach to the Book

“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.”—New York

Talk, that is, to everyone other than anyone who tangled professionally with Mike Nifong in the courtroom.

“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.”—CSPAN

A “serious investigative journalist” in action.

“I wasn’t trying to prove that these kids were innocent, as [Stuart and KC] were.”—New York

For reasons he has never explained, Cohan appears to believe that the actual writing of UPI occurred in 2006, when there was any doubt that “these kids were innocent.”

“I have tried to present all sides to this fairly and dispassionately, but the - the - the haters like Stuart Taylor don’t want anything to do with a fair and dispassionate assessment of this case.”—Diane Rehm Show

Cohan still hasn’t revealed precisely what makes Stuart a “hater.” Outrage at an author bedeviled by sloppy reasoning?

“LAMB: How did you approach doing this? COHAN: Completely dispassionately.”—CSPAN

For those in need of a good chuckle.

“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.”—Michael Smerconish Show

Cohan, on the need to uphold personal legal obligations.

“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.”—CSPAN

Cohan’s self-interpretation.

Due Process

“[Mangum] eventually did identify, with the help of the police, [emphasis added] in an identification process, she did identify three of the players, two with 100 percent certainty, one [sic] with 90 percent certainty, and those were the three who were indicted.”—Leonard Lopate Show, WYNC

Cohan, describing (and seeming to defend) the rigged photo array.

“Mike Nifong would say that he did turn over the complete DNA evidence in a timely fashion.”—WUNC

Why, then, did Nifong lie to Judge Smith about doing so?

“For thousands of years [when DNA was not identifiable,] rape charges were brought, and people were convicted or found not guilty.”—WUNC

Civil liberties, according to the man who (except for at WUNC) was the toast of the town on usually civil-liberties friendly public radio stations.

“It’s not inconceivable that something happened that none of us would be proud of.”—Michael Smerconish Show

Cohan, carrying Richard Brodhead’s mantra that a trial could prove his students innocent to a new extreme.

“Between Nifong, Crystal, and Bob Steel, the consensus seems to be something happened in that bathroom that no one would be proud of.”—Bloomberg TV

In around a dozen interviews, Cohan always refused to say what happened—even when he was directly asked the question by a savvy e-mailer.

“The defense attorneys claim that Mike Nifong withheld that information from them. But that’s just simply not true . . . He didn’t make it easy for them. He didn’t put a nice bow around it. He made them dig through it.”—Diane Rehm Show

“[Defense attorneys] claimed that he did not disclose the so-called exculpatory DNA in a timely fashion. But, you know, actually that’s not true!”—Jim Campbell Show

We moved from “simply” not true to Diane Rehm to, a few days later, “actually” not true to Jim Campbell. Either version of events is, to borrow a phrase, not true.

Erroneous Descriptions of Evidence

“So my question is: how did David Evans’ DNA get on those fingernails?”—Jim Campbell Show

“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.”—CSPAN

So at what point in the few days between his CSPAN appearance and his Jim Campbell appearance did the “serious investigative journalist” decide that a probability DNA experts say “means that it’s not related at all” was longer a necessary qualifier?

“The nurse who examined her found evidence that she had been brutalized and that she had been hurt very badly . . . The medical records, I guess . . . nobody made that public until now. I got my hands on it and reported it faithfully in the book.”—WAMC

Tall Tales, with William D. 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.”—CSPAN

Alas, word on the street in “Duke and Durham” isn’t always reliable, as a “serious investigative journalist” should know.

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And, finally, my personal favorite, a nonsense-sentence uttered by someone pretending he knew something about the law, on the Leonard Lopate Show, WYNC:

“Again, it’s [innocence] not a word that’s used, uh, in jurisprudent lexicon.

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: