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.
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.)
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.
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.”]
Nifong
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.
Sympathies
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.
