Thursday, April 24, 2014

Cohan: Fact & Fiction

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

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

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

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

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

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

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

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

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

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

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

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

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

Cohan has never acknowledged the error.

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

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

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

6.) On p. 559, Cohan quoted Nifong saying that “at least part of Lane Williamson’s sentencing memo was done the night before I testified. At least part of that had been written. I could’ve said anything.” Cohan allowed the claim to stand unrebutted, and did not contact Williamson for comment.

In fact, Williamson commented to this blog, “I did not prejudge Mike Nifong: rather, I evaluated the evidence presented at the hearing to reach my conclusions. I wrote no part of my concluding remarks prior to the end of the hearing: those were extemporaneous except for a few notes that I made during the panel’s deliberation following closing arguments on the punishment phase of the hearing.”

Cohan has never acknowledged the error.

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

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

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

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

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

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

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

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


Anonymous said...

"Cohan has made a number of factual errors, each of which he has left uncorrected."

Not errors. Lies.

Anonymous said...

Professor Johnson,

Thank you for yet another superb deconstruction (nay, evisceration) of WDC's inferences, insinuations, and factual errors.

Have you given any thought to quickly assembling your posts (and other critical reviews) into an e-book that could be sold at Amazon as an antidote to WDC's (euphemism alert!) tall tales?

Anonymous said...


Mr. Cohan is claiming that he interviewed/spoke to Ryan McFadyen. Is there any evidence or proof that such an interview took place? I find it highly suspect due to any confidentiality agreements and/or pending litigation.

Michael McNutt said...

Goodness isn't this guy opening himself and his book company to lawsuits?

kcjohnson9 said...

To the 9.15:

Yes, I believe he did interview McFadyen (he quotes from McFadyen in the book, and I had heard from other sources that McFadyen did the interview).

If the McFadyen case moves forward, Duke's attorneys could legitimately explore the issue of whether, by consenting to an interview with Cohan, McFadyen has come to accept the book's basic approach to the case. These would seem to me perfectly reasonable questions for the Duke lawyers to raise.

William L. Anderson said...


I wish that were so, but because Reade, David,and Collin and their parents are "public figures," they would have to prove in court that Cohan's errors were the result of (a) his knowing that his claims at the time were false, or (b) engaging in what the Supreme Court in 1964 (Times v. Sullivan) declared to be "reckless disregard for the truth."

Proving that is very difficult because one cannot necessarily know one's state of mind at the time. Successful libel suits involving public figures are very, very difficult to pursue because the courts are highly protective of the Times v. Sullivan and subsequent rulings that expanded the 1964 ruling.

I wrote part of my doctoral dissertation on these rulings and became quite familiar with them and the politics behind them. By being indicted and by having his photo on Newsweek's cover, Reade became a "public figure," so Cohan would have to prove to the court's satisfaction that he knew Nifong was lying when he claimed the Seligmanns had not paid Kirk Osborne. While Nifong is a proven liar, it still would be difficult to prove that Cohan KNEW Nifong was lying.

Now, I believe that believing anything Nifong says and then publishing it is "reckless disregard for the truth," but I think the courts would be more lenient with Nifong than I would be.

Anonymous said...

"If the McFadyen case moves forward, Duke's attorneys could legitimately explore the issue of whether, by consenting to an interview with Cohan, McFadyen has come to accept the book's basic approach to the case. These would seem to me perfectly reasonable questions for the Duke lawyers to raise.:

OTOH, it might raise the issue of whether Cohan misled McFadyen as to the nature of the proposed book; ie, whether it was to be an objective look at the case; or an attempt at revisionist history (including a virtual defense of Nifong).

And THAT might be interesting...

Anonymous said...

Just to keep everyone informed, Cohan's book has now accumulated FORTY TWO one star reviews. I say again I am gratified that ordinary people do not buy into the line William D, Cohan is trying to sell.

Meanwhile, if Cohan does truly believe what he has written, let him go one on one with Professor Johnson and Stuart Taylor.

Anonymous said...

Also, thus far Wendy Murphym who once predicted a Nifong book which would blow the lid off this case has not bought into Cohan's book.

Chris Halkides said...

Cohan responded to a question from Joe Coscarelli: "The question is, do you believe that all of that was made up and was all a fiction and that nothing even remotely like any of that ever happened? That it was all just made up and everyone was in on the conspiracy? Or that, as I like to say, something happened that none of us would be proud of?" This is a standard response to many people who draw attention to a putative wrongful conviction or accusation, and the nicest thing I can say about the response is that it is intellectually lazy. How does any wrongful conviction happen? Either it is the result of one person's actions or it is the result of many people's actions, and it is not as if conspiracies to commit illegal or immoral acts never happen.

kcjohnson9 said...

To Chris:

Excellent point.

And it's worth recalling that the "conspiracy" (such as it was) consisted of 4 people--Nifong, Levicy, Gottlieb, and Meehan--each of whom had their own agenda for acting as they did.

kcjohnson9 said...


Will fisk the Cohan New York item for tomorrow's post.