DNA & "Thousands of Years" of Rape Prosecutions

Author William D. Cohan continued his publicity tour yesterday, appearing on MSNBC’s “The Cycle” and WUNC’s “State of Things.” It’s hard at this stage to escape notice that Cohan’s press appearances have heavily tilted toward MSNBC and public radio, with a pending appearance at the Comedy Channel. It’s almost as if his bookers believe that a pro-prosecutorial misconduct message would appeal to liberals, a deeply troubling thought to those of us who are center-left Democrats but don’t see a Nifong apologia as consistent with the party’s values.

In the event, Cohan retreated from labeling Stuart Taylor among “the haters” yesterday, so I suppose his message could be said to have grown more temperate. On the other hand, he again referred to individuals in their late 20s or early 30s as “boys” on both WUNC (at 3.01) and on MSNBC (at 3.45).

Readers can listen to Cohan’s appearance on “State of Things,” and watch him on “The Cycle.”

Cohan led off his interview with WUNC’s Frank Stasio by framing his interest as superficially neutral (2.05), noting the “high passion” in the media against the players, followed by “high passion” against Mangum and Nifong. First, whatever “passion” in the media against Mangum passed very, very quickly; even after the announcement of innocence, many media organizations, led by the Times, refused to identify her (until she wrote her book).

More important, the equivalence that Cohan posed was false: on the one hand were falsely accused college students whose behavior wasn’t atypical for Duke’s campus; on the other hand was a prosecutor who broke the law.

Discussing the case itself, Cohan identified as a “seminal” moment Nifong’s recusal and Mangum’s insistence on going forward. She could have, Cohan mused, simply admitted to Nifong, (5.08) “I’m bipolar, I’m a drug addict, I’m not going to go forward with this.” To Cohan, her decision not to do so proved Mangum’s sincerity.

Of course: because lots of bipolar drug addicts willingly admit to their mental health problems when chatting with figures of authority. Who could have imagined that Mangum would cling to her lies and, indeed, tell new stories?

Cohan also slightly modified his something-happened thesis to both MSNBC and WUNC. To WUNC, when asked what happened at 5.55, he sighed, “Let me be clear on this: this is something we’ll never know.” But then a few seconds later—based, he said, on his qualifications (6.31) as a “student of human nature,” plus his discussions with Nifong and Bob Steel (really??), and reading Tara Levicy’s report, “something happened in that bathroom that none of us would be proud of.” He refused to say what that something was. Cohan’s preemptive response: “His critics” (they’re no longer “haters,” I guess) “love to seize on” him when he says something happened but won’t say what.

Cohan did briefly discuss his reading of Tara Levicy’s report (at 6.10). But in contrast to his assertions to several previous interviewers, he didn’t claim to Stasio that he was the first journalist to obtain access to that report. I wonder why?

Nifong and the Defense

Cohan’s admiration for Nifong oozed through in this interview. He referred to Nifong merely as “Mike” at 5.32, and almost did so earlier in the discussion before catching himself.

By contrast, Cohan was far more contemptuous of the defense attorneys in this interview than he was in his discussion with Diane Rehm. Seeming to barely conceal disdain (at 3.19) in his tone,  he observed, “It was brilliant legal strategy for the defense—certainly one has to commend them for their legal acumen—for turning the whole story on its head and exploiting every mistake that Crystal Mangum and Mike Nifong made in this case.”

“Mistake.” What an interesting—even meek—word to describe a prosecutor lying to a judge, or withholding exculpatory evidence, or improperly inflaming community passions against the accused.

Cohan’s insinuation: well-paid defense attorneys got the less-than-innocent “boys” off. But here’s another interpretation: when defense attorneys confront an accuser who can’t tell the same story twice and a prosecutor who can’t tell the truth to a judge, they have an ethical obligation to “exploit” such conduct—since such conduct tends to be associated with an injustice.

In Cohan’s world, it seems as if lawyers who represent innocent clients are just supposed to sit back and do nothing. I wonder how he’d feel if his children were ever tried for a crime that never occurred and faced a prosecutor like Mike Nifong.

Cohan as Defense Attorney

The last eight-and-a-half minutes of the interview featured Stasio asking at least reasonable questions (but only once following up) and Cohan (sounding increasingly peeved) functioning as Nifong’s de facto defense attorney.

Stasio led with Nifong’s unethical statements. He wondered in particular whether Nifong’s statement about someone not needing an attorney if they hadn’t done anything wrong contradicted the entire principle of American jurisprudence.

Cohan replied (at 8.00) that Nifong told him that “many of his statements were ill-advised.” He then rushed forward with (at 8.36) his bizarre assertion about Nifong informing him that if the players had met with Gottlieb without attorneys and voluntarily consented to interviews and a DNA test, there would have been no case.

But by the time Nifong made his first statement on the case, the players had already given DNA. How does the giving or non-giving of DNA in any way relate to Nifong’s pre-primary publicity crusade? Is Cohan really saying that absent the benefits of publicity, Nifong would not have moved forward with the case? What a damning, if apparently unintended, admission.

On the DNA (at 11.15), Cohan chastised those who have closed minds on the issue, and failed to appreciate Mike Nifong’s tale. He told Stasio (correctly) that Nifong promptly turned over DNA evidence from the state labs to the defense; Cohan did not explain what this action had to do with Nifong concealing the exculpatory DNA from the Meehan tests. (Stasio didn’t ask.) Regarding the Meehan material, “Mike Nifong would say that he did turn over the complete DNA evidence in a timely fashion,” thereby allowing Brad Bannon (“cleverly,” according to Cohan) to discover the concealment in the Meehan report.

And, the author added a few minutes later, “As we know, Brad Bannon likes to talk about how he found the evidence.” I’m not sure how Cohan knows what Bannon does or does not like to do, since Cohan didn’t ask Bannon for an interview.

According to Cohan (at 12.40), Nifong was a “champion”(!!) of turning over evidence to the defense. In the event, the author continued, Nifong told him that the “the absence of evidence is not the evidence of absence.” What this truism has to do with Nifong and Meehan producing a report that concealed DNA test results they were legally obligated to turn over Cohan didn’t say, and Stasio didn’t ask.

Nonetheless, Cohan argued that Nifong’s cliché is key to the case. Offering his personal interpretation of the role of DNA in sexual assault prosecutions, Cohan reasoned that for “thousands of years” (at 13.10) when DNA was not identifiable, “rape charges were brought, and people were convicted or found not guilty.” I’m not sure even the politically correct listeners of WUNC would be persuaded that it’s OK to prosecute people according to evidentiary techniques from “thousands” of years ago.

But the author was just warming up. “I think,” he fumed, “the justice system in this case was rigged so there was no trial in this case. That’s not the way the system’s supposed to work.” Stasio, to his credit, finally asked a follow-up question, noting that a prosecutor not turning over exculpatory evidence is “another way of rigging the system.”

Cohan’s response: (at 15.40) “I’m not sure that that’s true” that Nifong withheld the evidence. Perhaps at some point in his press appearances, he could point to the section in the Meehan report in which the former lab director—as he was required to do by law—revealed the results of any test that he conducted.

Journalistic Malpractice

Cohan’s segment on “The Cycle” was shorter—but perhaps his most incredible appearance yet. (The opening question—“How did this situation get go out of control?”—set the tone.) Over the course of eight minutes, the four co-hosts did not ask Cohan once about any exculpatory evidence—and (of course) he didn’t mention any.

Nonetheless, in these friendly confines, Cohan broke new news (at 1.08)—implying that Reade Seligmann and Collin Finnerty joined Dave Evans (“three privileged, elite athletes”) in “inviting” strippers to “their party.” Cohan didn’t reveal how he discovered that Seligmann and Finnerty co-hosted the party—because, of course, they did not.

After wildly claiming (at 2.18) that “a lot of people think that Mike Nifong should be put in a grave, in an early grave,” Cohan mused on how a trial was necessary (at 5.00) because it seems as if Mangum’s newest theory—assault by broomstick—might be credible. In the book, at least, he (or perhaps, it might now be assumed, he at the insistence of either his editors or Scribner’s lawyers) pointed out that even Tara Levicy’s report (to which Cohan gives Rosetta Stone-like powers to understanding the case in all other respects) didn’t corroborate Mangum’s new claims that the hospital staff had to pull wooden shards out of her.

When asked point-blank whether he believed Mangum’s newest story, Cohan responded, “I don’t know what to believe.” But he quickly moved on to his catch-phrase—“something happened in that bathroom that none of us would be proud of.” And he added a new item a bit later in the interview (at 5.55)—“we’ll never know what happened, or who did it.” Who did what? Cohan didn’t say.

Cohan concluded his MSNBC appearance by saying “I just don’t understand why” Roy Cooper “refused” to “share” with him Cooper’s “investigative materials.”

This isn’t a terribly difficult question to answer, especially for a self-described “investigative reporter” of Cohan’s . . . skill. Oddly, it appears that Cohan has never come across § 132-1.4 of North Carolina’s general statutes. (There are several provisions of the state’s general statutes, including those regarding the prosecutor’sobligation to turn over the results of all tests, with which Cohan also appears to be unfamiliar.) In the event, the provision is unequivocal: “Records of criminal investigations conducted by public law enforcement agencies, records of criminal intelligence information compiled by public law enforcement agencies, and records of investigations conducted by the North Carolina Innocence Inquiry Commission, are not public records.” It’s not clear to me why Cohan expects North Carolina’s chief law enforcement officer to violate state law to satisfy Cohan’s personal curiosity.

Perhaps the most revealing section of the interview came (at 5.34) when Cohan described the thinking of “all the defense attorneys” (the people, it’s worth reiterating, that he never sought to interview). What was their theory (at 5.34)? That the case was a “grand conspiracy . . . that this was a completely made up story, that everybody got together to try to prosecute these three angelic boys who, you know, didn’t do a darn thing.”

This description of the defense attorneys and their beliefs, by the way, came immediately after Cohan expressed his commitment (at 5.23) to present the case “as fairly and dispassionately as I possibly could.”

Just imagine what an unfair William D. Cohan would sound like!