Cohan: Lax on Prosecutorial Ethics

As many readers of the blog already know, today marks publication of the revisionist book on the lacrosse case, written by Vanity Fair contributing writer William D. Cohan. Joe Neff’s N&O article captured the essence of Cohan’s argument: “something happened” (the author won’t say precisely what), and myriad new Nifong assertions pass either unchallenged or virtually unchallenged. The sources upon which Cohan builds his case are a convicted liar (Nifong), the convicted liar’s attorney (Ann Petersen), and a convicted murderer (Crystal Mangum).

For those who have seen or heard Cohan’s pre-publication writings or statements: he has been far blunter in these forums than he was in the book, where his preferred approach is argument through inference or insinuation. Though he told Neff that he believes “something happened,” he never comes out and says as much in the book (though any sentient reader would recognize this is what he believes). Though he told Cosmopolitan that the defense attorneys manipulated the media, he makes no such direct allegation in the book (though, again, any sentient reader could infer from his sneering tone what he thinks about the defense attorneys, who he did not interview). And though in a recent tweet, he tauntingly referred to “those Duke lax bros,” he avoids such juvenile language in his publication.

The very rare occasions in the book when he offers his analysis directly, in his own voice, give a sense of the issues (such as lax enforcement of ethical rules against prosecutors) about which Cohan feels particularly strongly.

Much of the book (hundreds of the more than 600 pages) consists of summaries of previously published remarks, news articles, op-ed columns, or blog posts. How Cohan frames this material is telling, but the repackaged summaries themselves contain nothing new.

As for fresh material: Cohan interviewed Nifong (at length), one of Nifong’s attorneys, Ryan McFadyen (but no other member of the 2006 team), Bob Steel (briefly), and Mangum (briefly). He appears to have interviewed anti-lacrosse extremist Peter Wood (though no other member of the 2006 Duke faculty). He purports to have interviewed an unnamed senior Duke figure, who conveniently provides him with quotes that conform to his overall take on Duke. He might have interviewed Ben Himan (since he doesn’t use endnotes, it’s hard to tell). He doesn’t appear to have interviewed anyone else. He doesn’t appear to have had access to the discovery file, though again it’s hard to tell.

Sections of the book are interesting, in a perverse way, as an insight into Nifong’s still-delusional nature. But the book as a whole is seriously flawed, and in some respects simply malicious.

Over the next several days, I’ll discuss various aspects of the book, beginning with its two most disturbing elements: the author’s extraordinary tolerance of prosecutorial ethical violations; and, tomorrow, his almost casual willingness to cast doubt on innocent people. (I’ll also have a formal review of the book forthcoming in the May edition of Commentary.)

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Three types of ethical issues ultimately ended Mike Nifong’s career as an attorney: improper pre-trial public statements, improperly withholding exculpatory DNA evidence, and improperly lying to a judge in open court. Cohan either minimizes or outright excuses all three. Assuming that he believes that all prosecutors and not just Nifong should be held to the standards that the book defends, Cohan’s vision of prosecutorial power is a terrifying one—and one considerably out of step with the bien pensant Manhattan culture that Cohan in other ways seems to reflect.

Rule 3.6(a) of the North Carolina State Bar holds, “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” There can be no serious question that Nifong violated this rule. In his pre-primary publicity crusade, he labeled the lacrosse players “hooligans.” He compared their alleged crime to a cross-burning. On MSNBC, on live TV, he “demonstrated” the way in which Mangum was allegedly choked, even though Mangum had given no such description. During a primary debate, before any indictments occurred, he proclaimed, “I’m not going to allow Durham’s view in the minds of the world to be a bunch of lacrosse players at Duke raping a black girl from Durham.” Though he cut back on his public remarks after he secured the first two indictments, he continued to speak out.

Since Cohan can’t deny that Nifong violated the letter of the rule, he seeks to either excuse Nifong’s conduct or contextualize the misconduct out of existence.

The Bar found Nifong not merely guilty of the offense but guilty for an improper personal purpose (in Nifong’s case, exploiting the case to rally the African-American vote he needed to win the primary). In addition to Nifong’s comment to Jackie Brown about the case providing him with a million dollars’ worth of free publicity, strong circumstantial evidence supports the Bar’s conclusion. A private poll showed Nifong trailing Freda Black; and Nifong’s campaign fundraising had dried up to such an extent that he had to keep the campaign afloat through a personal loan.

Cohan dismisses the prospect of a political motivation; he lets Nifong attack the poll’s credibility and doesn’t even mention the fundraising woes. Instead, Cohan provides an alternative explanation for ex-DA’s misconduct, reproducing—without challenge—Nifong’s preposterous suggestion that his repeated public condemnations were designed to get the lacrosse players to cooperate with police. To bolster this claim, Cohan produces (p. 123) an alleged conversation between Nifong and a local bar owner—given name, “Joe”—who allegedly had a public safety background and who allegedly told Nifong that “everything is shut down . . . I’ve never seen a situation involving anything over here where nobody’s talking.”

Cohan offers no evidence that he ever attempted to speak with “Joe” to verify Nifong’s extremely convenient “recollection.”

Assume, for the sake of argument and despite all available evidence, that Cohan’s presentation is accurate. So what? The Bar rule doesn’t contain an exception for when a prosecutor thinks he can encourage alleged witnesses to step forward. And some of Nifong’s improper statements occurred after indictments had taken place, when the ex-prosecutor’s “witness” excuse couldn’t conceivably apply.

For instance, just before the 2006 election, Nifong asserted, “If a case is of such significance that people in the community are divided or up in arms over the existence of that case, then that in and of itself is an indication that a case needs to be tried”; and then claimed that dismissing the case “does nothing to address the underlying divisions that have been revealed. My personal feeling is the first step to addressing those divisions is addressing this case.” These statements (which do not appear in Cohan’s book) revealed an almost complete lack of understanding of a prosecutor’s appropriate role in trying a case.

For good measure, Cohan turns to the Nifong team to offer a selective-prosecution defense of the disgraced ex-district attorney. From Nifong: the “word on the street” was that the Bar was “looking for a prosecutor to make an example of.” (p. 438) Nifong attorney Ann Petersen amplified: “There were two or three [earlier] cases that came to the state bar that were clear cases of prosecutors who had gone way over their responsibilities and ethical standards, and nothing could be done, for various reasons, or nothing was done.” (p. 575) Who were those prosecutors? Did they issue statements anything like Nifong’s? It’s impossible to analyze the selective prosecution claim when Nifong’s attorney (Petersen) and Nifong’s apologist (Cohan) provide no specific cases for comparison.

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While Cohan minimizes the ethical problems associated with Nifong’s remarks, he launches a full-throated defense of Nifong’s decision producing a report that concealed exculpatory DNA evidence. A reminder: under Brady, prosecutors must turn over all exculpatory evidence to the defense. According to North Carolina law, prosecutors must turn over all (not some) results from a DNA test done by a nontestimonial order, if the defendants don’t object to the NTO. And under North Carolina's 2004 open-file discovery law, prosecutors must produce “a report of the results of any [not some, or many, or most] examinations or tests conducted by the expert.”

Violating both Brady and differing elements of North Carolina law, Nifong turned over a report that didn’t include the full test results—it excluded evidence of potential matches with multiple unidentified male DNA. Nifong knew of these results, and never claimed otherwise—except, of course, when he lied about them in open court to Judge Osmond Smith. And if Brad Bannon hadn’t figured out what Nifong was up to, there’s no reason to believe the exculpatory evidence ever would have been turned over. In the “Perry Mason” moment of the case, Dr. Brian Meehan admitted under oath that the exclusion of this material in the report was an “intentional limitation” arrived at between Nifong and him.

In perhaps the book’s most remarkable passage, Cohan aggressively defends Nifong on this point (p. 556): “Except for the fact that Nifong should have turned that information over to the defense sooner, why was it important that the so-called exculpatory evidence was not turned over? The truth was, it didn’t matter [emphases added], and even if Nifong had turned the information over sooner, he was still basing his entire case . . . on Mangum’s testimony. The charge was a red herring.”

Nifong himself didn’t go this far during his testimony before the Bar, when he instead asserted that his not turning over the material wasn’t too problematic because DNA results indicating potential matches with multiple unidentified males wasn’t “specifically exculpatory.” (There’s an interesting legal concept for unethical prosecutors eager to avoid Brady.) Cohan positively gushes, “This was truly the heart of the matter, although Nifong’s cogent explanation would likely come too late to save him from his fate.” (p. 557, emphases added) Even Duff Wilson didn’t maintain that Nifong performed well in the Bar disciplinary proceeding.

Consider the remarkable nature of Cohan’s conception of prosecutorial ethics. A minister of justice can deem evidence not specifically exculpatory (whatever that means) and withhold it indefinitely from the defense—even lie about its existence in open court—and not be worthy of ethics punishment. Indeed, such a district attorney can offer a “cogent” explanation that the non-specifically exculpatory evidence didn’t matter. The items quoted above mark two of the few sections of the book in which Cohan provides pure analysis, in his own voice—as opposed to summaries or quoted remarks from other people—about what he actually thinks.

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With the problems caused by the public remarks overstated and the withholding of the DNA evidence a “red herring,” Cohan concludes that “Nifong’s five-day state bar trial had all the trappings of a sacrificial slaughter.” (p. 548) But his defense of the disgraced former prosecutor couldn’t be complete without addressing the criminal contempt trial.

It would seem that here Nifong had little defense: there’s no doubt that he lied to Judge Osmond Smith, and there’s no doubt that a prosecutor lying to a judge in open court constitutes contempt. Unable to defend Nifong on either the facts or the law, Cohan instead passes on—wholly unchallenged—aspersions on the character, competence, and integrity of the man who prosecuted Nifong (Charles Davis) and the judge who found him guilty (Smith). Cohan-through-Nifong (or is it Nifong-through-Cohan?) has the notoriously tight-lipped Smith chatting, before the trial, at a cookout on how he planned not only to find Nifong guilty but to sentence him to 30 days in jail. This item—which Cohan appears not to have even attempted to check with Smith—allows the book to spin its hero being sentenced to jail for one day for lying to a judge as somehow a victory for Nifong.

Given his sweeping attack on the State Bar and Judge Smith, Cohan might have wondered why they acted as they did. But there’s no evidence he requested information from them; Nifong’s unverified theories sufficed. Nor, even more surprisingly, does Cohan appear to have reached out to any academic expert in prosecutorial ethics to test his perspective, perhaps explaining his willingness to set aside the basic ethical canon on Nifong’s behalf. And, it should go without saying, the Nifong of Cohan’s imagination is quite different from the real thing, as seen in the recent Darryl Howard exposé by Radley Balko.

Accepted at face value, The Price of Silence is a bold, even revolutionary, call for weakening ethical oversight of prosecutors and excusing those prosecutors who run afoul of ethics guidelines. In an era of Tea Party Republicanism, and with liberals traditionally (though not, far too often, in the lacrosse case) concerned with protecting civil liberties, I doubt that the book’s message on this issue will resonate.