Wednesday, April 16, 2014

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!


Anonymous said...

" those of us who are center-left Democrats but don’t see a Nifong apologia as consistent with the party’s values"

Well, you and Stuart Taylor aren't much of a voting bloc. Or a TV demographic.

kcjohnson9 said...

To the 4.48:

Perhaps--but it's worth remembering that given Durham County's strong dem tilt, many Dems voted against Nifong in the 2006 election.

No Justice, No Peace said...

"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."

And God said, "Let there be light", and there was light. God saw that the light was good, and he separated the light from the darkness...

One wonders what Durham would be like today were it led by someone like Barry Goldwater. It certainly wouldn't be the cess pool of darkness that we find now.

No Justice, No Peace said...

Are other's reminded of the Brittany Spear's fan after reading the recent Duke Anonymous apologist who has been posting lately?

Leave Duke Alone! Leave Durham Alone?

Chris Halkides said...

"1. If DNA evidence fails to prove that an accused person raped an alleged rape victim, does that prove that the accused person could not have raped the alleged victim?

There is no “pat answer” to your question. The circumstances of the investigation (particularly the victim’s recounting of the events when it is available) almost always need to be taken into consideration. For instance, consider a situation in which a woman asserts that she was raped by a single individual and that she had not had sexual contact with any other individual for many days. If investigators identify a suspect and then find that his DNA profile is not the same as the source of semen from the victim, then those test results can be construed as proof that the suspect was not the perpetrator." link

This answer comes from Professor Dan Krane, and IMO you can take what he says to the bank. The host of the blog formulated slanted questions, but at least he got qualified people to answer them. The answers are better than the questions.

skwilli said...

Wouldn't the statement by Cohan that Seligman and Finnerty hosted the party be actionable by them, even at this late date? It is provably false, already known by even cursory/amateur journalists, and indeed damages their reputations. It would seem they have a claim to book proceeds with provably false statements about them which can be therefore only malicious in nature.

Scot Foley said...

Having just listened to the WUNC interview, I give great credit to Frank Stasio for, finally, asking William Cohan questions that clearly took him off his stride and forced him to acknowledge several of the inconvenient (for him, Nifong and Mangum, that is) facts of this case. While to be sure there could have been more follow-up, this interview was light-years better than the ones conducted by the Morning Joe panel and Diane Rehm.

What this interview also makes clear is that, when confronted with the facts, Cohan will retreat back to his talking points over and over again. In that, this interview was actually very reminiscent of Mike Nifong's Bar hearing. It is more apparent than ever that William Cohan is nothing more than Nifong's mouthpiece and that this once-respected author's reputation is suffering severe, and likely permanent, damage.

Anonymous said...

"It would seem they have a claim to book proceeds with provably false statements about them which can be therefore only malicious in nature."

I agree completely--BUT, any suit would first have to go up against Scribner's team of lawyers, as well as Cohan's, and who knows who else.

And another five years of legal stalling by our sclerotic legal system is not what I think anyone wants. (As Mark Steyn says of the US system, the process IS the punishment.)

Second, the courts might just decide that even though the book was malicious, it would be "bad law" to find an author guilty (it might have a "chilling effect" on future authors); and so, they won't find for the plaintiffs (or will award them only a penny).

Finally, a trial would only provide a forum for Cohan to publicize his assertions even more--claiming that "something happened", and that if it didn't, let the players prove their own innocence.

IOW, only a pig enjoys rolling around in mud; everyone else just ends up getting dirty.

Anonymous said...

Again, this affair is a real life example of the search for Tom Wolfe's Great White Defendant(s), right out of "The Bonfire of the Vanities," with a touch of "I Am Charlotte Simmons."

KC writes:

"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."

It was obvious since 2006 that there are liberals who overlook prosecutorial misconduct if people like the Duke Lacrosse players are the target. What else explains the national media (and some Duke faculty)) jumping on this case and relentlessly attacking the accused? Why does a member of the "media elite" produce a Nifong apologia years later?

Not all liberals are like this by any means.

Trial Junkie

William L. Anderson said...

Regarding how center-left Democrats may respond to Cohan's current statements and his book, it depends upon whether or not the people in question are principled liberals or not. For example, where I teach, most of the political science faculty (indeed, most of the faculty members I know) consider themselves to be Democrats first, and if principles will help the Democratic Party advance in political power, then they will be principled.

However, if principles (i.e. the Bill of Rights) work against Democratic Party interests, then they are going to support the suppression of rights. For that matter, John Ashcroft, as a U.S. Senator during the Clinton administration years, opposed passage of a law similar to the Patriot Act because he said is "smacks of Big Brother."

A few years later when he was Attorney General, he considered opposition to the Patriot Act to be subversive and downright evil. So, access to power often will trump principles.

K.C. is consistent in his principles, and he stands up for them with integrity, which makes him unpopular with some colleagues, hence his famous tenure fight at Brooklyn College. (I knew of that fight long before there was the Duke Lacrosse case.

Furthermore, K.C. is not going to be patient with people who claim to be principled, but really seek only power. Contrast that to a man like Cohan, who is writing and saying some very cynical stuff. Then compare UPI with Price of Silence. Enough said.

kcjohnson9 said...

To Scot:

I agree completely: in Cohan's many interviews, Stasio was the first person to ask him intelligent questions, and he was almost singularly unable to answer them.

What comes through in the interviews is that Cohan just doesn't seem to know much about NC law. When I started with the case, I didn't, either; but I read and tried to learn as much as I could. Cohan, on the other hand, just seems to have taken whatever Nifong says the law is at face value.

Chris Halkides said...

Presumptive and confirmatory tests for semen exist. Were these tests run, and what result was obtained?

Anonymous said...

At Amazon, Cohn's book now has 25 one star reviews.

Anonymous said...

First question for Mr. Cohan-

We're talking about the same Mike Nifong who was convicted of 27 charges including making false statements, withholding exculpatory evidence, lying to a judge, and was subsequently disbarred?

This is the guy we're supposed to believe? Or should we consider the myriad reasons for trusting Crystal Gail Mangum?

William L. Anderson said...

What you are describing, K.C., is a man who did not do his research. Yet, we are seeing the book being praised for its "depth" and "detail."

As I see it, the book is full of trivial stuff or it essentially lifts accounts from elsewhere. But I really am surprised at how shallow it really is, given all of the praise that proceeded it. Again, I cannot help but wonder if Cohan suddenly became a shallow and vapid writer, or if his previous books are overrated.

Anonymous said...

Here's a direct link to the MSNBC "The Cycle" segment Justice system ‘distorted’ in Duke rape case.

kcjohnson9 said...

To the 2.29:

Thanks for the link; have updated the post.

Anonymous said...

I spent the three evenings reviewing videos of the State Bar Hearing, looking for the proper response to Mr. Cohan's book and subsequent public statements. I found hours and hours of material that speak directly to the point, but you need only understand the 2 minute, 52 second excerpt linked below to blow Mr. Cohan's misguided, if not malicious, rumblings out of the water.

Mr. Brocker addresses the following points:

Misleading Condom Statements
* March 21: SANE Report Received
* By March 29: Nifong had read the SANE Report
* March 30: SBI no DNA on rape kit
* March 31: MSNBC spoke with SBI lab and condom statements

Please pay particular attention to Mr. Nifong's facial expressions and overall body language.

Nifong Day 5 - Brocker Statements