The Struggles of the "Something Happened" Thesis

Yesterday’s post examined the lax attitude toward prosecutorial ethics in author William D. Cohan’s full-throated defense of Mike Nifong. Today’s post looks at the other big-ticket item from the book—as Cohan relayed to Joe Neff, his belief that “something happened.” He never says precisely what he believes happened, but gives the game away in his description of Mangum’s first allegation of gang rape (from when she was a girl), which describes as her “first rape” [emphasis added, p. 302]. There’s no need for a “first” modifier unless Cohan wants to imply that Mangum was raped a second time—apparently “in the bathroom,” as the author elegantly proclaimed on twitter, “of those Duke lax bros.”

That said, during the course of completing what his publisher has termed the “definitive, magisterial” work on the case, Cohan uncovered no evidence not before the attorney general’s investigators—as even Susannah Meadows’ ambivalent review conceded. Instead, Cohan operates mostly by insinuation or inference (in the book, he doesn’t even go as far as he did in the Neff interview). He minimizes or simply ignores exculpatory evidence, introduces inculpatory evidence, allows Nifong and Mangum to offer wholly new theories of the crime virtually unrebutted, and darkly hints at conspiracies to prevent him from reaching the truth.

Nifong’s Evidence

There were three pieces of evidence (I use the term loosely) that Nifong hoped to employ against the lacrosse players: Levicy, DNA, and the IDs. The testimony of former SANE-nurse-in-training Tara Levicy was accepted uncritically by Nifong in the case, and is accepted uncritically by Cohan in the book. (More on Levicy tomorrow.) The book’s treatment of the DNA evidence begins (p. 121) with the notice of the non-match from the SBI tests, which Cohan observes, with enormous understatement, “theoretically [emphasis added] … might have ended the matter then and there.” By page 180, Cohan is describing the same DNA evidence as “inconclusive.” He doesn’t explain how the evidence became inconclusive, given that Mangum had alleged a lengthy, violent attack in which her accusers did not use condoms and in which she went to the hospital almost immediately, without a shower or a change of clothing.

Cohan does discuss Mangum’s difficulty in making any sort of identification; he specifies the incorrect and contradictory IDs that she made in the April 4, 2006 photo array. He notes how defense attorneys criticized the array. But how does he describe it (p. 192), in his own words? An “unorthodox identification procedure.” And he produces nothing from Nifong about why he proceeded ahead with an accuser who identified people who weren’t even in Durham as being at the party.

In any event, one of the key takeaways from Cohan’s book is that rigorous application of normal procedures can distract from the author’s (and his hero’s) pursuit of what they perceive as the truth. By insisting on legal representation, the lacrosse players invited their fate. In one Cohan interview, Nifong blames the case on the students for having the temerity to seek legal representation on 22 and 23 March 2006, rather than blindly appearing for an interview, without counsel, before Mark Gottlieb. Or, as the rogue ex-prosecutor put it more pithily in March 2006, “One would wonder why one needs an attorney if one was not charged and had not done anything wrong.”

Cohan’s basic conclusion: Nifong had grounds to go forward with his case.

Something Happened: Nifong’s New Theory of the Crime

One consistent aspect of the lacrosse case was the ease with which Nifong, Mangum, and apologists for one or both changed their version of what happened (sometimes radically) as evidence emerged that undermined their previously articulated theories. As perhaps the foremost Nifong apologist, Cohan is more than up to the task, allowing Nifong to introduce an almost entirely new theory of the crime. “Something happened in that bathroom,” Nifong told Cohan (p. 470). After asserting that he was “not an expert,” Nifong claimed that Mangum suffered a post-traumatic stress reaction. Why anyone should believe the medical or psychological diagnosis of someone who admits he’s not an expert neither Nifong nor Cohan explains.

(To reiterate: neither Nifong nor Cohan say what happened. Only that something did.)

What caused Mangum to react the way she did, according to non-expert Nifong? Cohan passes along the new theory: “Nifong compared the behavior of the Duke lacrosse players to that of the members of a now-defunct ‘club’ for elite Japanese university students, known as Super Free.” (I’m not making this up.) Nifong based his insight on material gleaned from a Harper’s Magazine article (!!) that “someone had sent him.” The book doesn’t say that the Harper’s article was sent to Linwood Wilson by an out-of-stater sometime after indictments.

According to Cohan—speaking now in his own voice—“the part that Nifong deemed the most similar” to the lacrosse case involved the following: “Make sure everybody has a tight cover story and be sure all the information related to you is deleted from the woman’s phone. Take pictures or a video of the rape and threaten to expose the woman publicly if she opens her mouth about what happened.”

This is currently Mike Nifong’s “theory of the crime.” (There is, it should go without saying, no indication that any member of the lacrosse team had ever heard of the events in the Harper’s article; or that Nifong, when he was supervising the DPD investigation, ever ordered DPD officers to investigate the claim.) Nifong has apparently abandoned the testimony that he gave under oath to the State Bar, where he stated that whatever happened was non-sexual; he’s now back to a version of the rape claim.

This task should be needless, but compare the facts of the lacrosse case to those of this Japanese event, as portrayed by Cohan and Nifong:

1. There’s no evidence that anything was deleted from Mangum’s phone.
2. There’s no evidence that any sexual act toward Mangum occurred, much less was videotaped.
3. Even Mangum—who by this point has told close to a dozen different stories about the event—has never claimed that the lacrosse players threatened to expose her if she opened her mouth.
4. No evidence exists that any of the lacrosse players “made sure everybody has a tight cover story,” or any cover story at all. Given that players did different things as the party broke up, the Nifong/Cohan version would have the lacrosse players as criminal masterminds, concocting dozens of different individual cover stories either on the fly or, if in advance, concealing all evidence of their concoction.

Mangum, too, has a new version of events (p. 520), in which she claims to have been penetrated with a wooden instrument—in this version, hospital employees had to remove wooden shards from her; and Reade Seligmann carried her to the car. Cohan notes in his recapitulation of Mangum’s latest theory that there was no record of wood in Mangum’s rape kit, but then quickly moves along. Incredibly, in the relevant passage, he doesn’t even pretend to challenge Mangum’s inaccurate claim about Seligmann, who was on video someplace else when two other members of the team were photographed carrying Mangum to the car. The photograph and video have been widely circulated, but for reasons unexplained, Cohan doesn’t mention them when discussing his interview with Mangum.

Evidence of Innocence

Assuming that neither Cohan nor Nifong believes the attackers could have been in two places simultaneously, the Japanese-rape-club-theory still needed time for implementation. Both Reade Seligmann and Collin Finnerty (or “Duke lax bros,” in Cohan’s preferred parlance) had unimpeachable electronic alibis showing they were elsewhere while Mangum claimed two, three, four, or twenty people were raping her. Cohan basically ignores Finnerty’s alibi, while he uses Nifong, who suggests (p. 336) that a guilty person would be desperate to have an alibi, to diminish without in any way challenging Seligmann’s.

In the event, Cohan breezily implies (p. 441), perhaps Mangum misidentified Seligmann. In Cohan’s world, Seligmann and Finnerty still should have gone to trial. Indeed, he appears sympathetic to the bizarre assertion of Mangum (of all people), who dismissed Seligmann’s alibi (p. 520) on the grounds that “none of the evidence was actually verified in court.” But in the American legal system, as Cohan if not Mangum surely knows, when the prosecutor and defense both accept evidence (as the special prosecutors and defense did regarding Seligmann’s alibi), the evidence is treated as accurate. Otherwise, every case, including not only plea bargains but those in which prosecutors had concluded they indicted the wrong person, would need to go to trial.

As for Dave Evans: while Cohan excuses Nifong’s attempt to conceal exculpatory DNA, he views as absolutely vital the trace DNA that might have been Evans’ (or might have come from one of thousands of other male DNA profiles) found on Mangum’s fake fingernails. On p. 440, he has Nifong, unchallenged, remarking “it was his DNA that was found on those [fake] fingernails.” On p. 475, he moves into his own voice, chastising Lesley Stahl for making “no mention of the possibility that Evans’s DNA was on Mangum’s fake fingernails.” On p. 602, he continues in his own voice, musing, “If in fact it was David Evans’s DNA on Mangum’s red plastic fingernails, how did it get there?”

After noting that thousands of men could conceivably match the trace DNA, the AG’s office had already answered Cohan’s trolling question: “A visual examination at the SBI lab of the recovered fingernails indicated that there was no skin or body tissue attached. [Mangum] had said the fingernails were ripped off during the attack . . . To the extent that Evans’s DNA could not be excluded, the SBI experts confirmed that the DNA could easily have been transferred to the fingernails from other materials in the trash can.”

Indeed, on p. 571, Nifong himself issued a statement that undermined the Cohan thesis. The disgraced ex-prosecutor, on 26 July 2007, asserted that he agreed with Roy Cooper’s finding “that there is no credible evidence that [the three falsely accused] committed any of the crimes for which they were indicted.” As a result, the trio is “entitled” to “more than” the presumption of innocence “as they go forward with the rest of their lives.” Cohan elected not to explore the contradiction between what Nifong told the author in various interviews and what he said on 26 July 2007.

Politics and Roy Cooper

Why would Attorney General Roy Cooper have neglected such a theory of the crime, bolstered by such evidence? Unlike Cohan, Joe Neff actually spoke to Jim Coman, one of the senior investigators in the AG’s office. In the process, Neff disproved a key facet of the Cohan argument: that Cooper’s innocence declaration “blindsided” his office’s senior attorneys. (The source for the uncorroborated claim, unsurprisingly, was Nifong.) Not checking things with Jim Coman allowed Cohan to proceed with his argument: that Cooper (in Nifong’s words, p. 510) had a “selling your soul to the devil” moment by declaring the players innocent, despite his doubts (again, according to Nifong) about the students’ innocence. The attorney general apparently acted in a desire to advance his political career; Cohan (p. 511) explains that Cooper’s “coffers were enriched by tens of thousands of dollars” from Northeastern law firms.

Leave aside the absurdity of Cohan’s suggestion that Cooper, a Democrat in a politically inelastic state (one in which, according to Nate Silver’s useful definition, party coalitions are highly stable along lines of race, age, gender, and ethnicity, with few persuadable voters and the outcome dependent largely on turnout), could benefit politically by taking an action that threatened problems with the African-American voters upon whom any North Carolina Democrat relies.

Instead, consider the absurdity of Cohan’s insinuation that there was anything unusual in the out-of-state money that Cooper received. The author’s citation for this is followthemoney.org—which, writes Cohan, reported that “in his 2008 election Cooper received $228,124, or 19 percent of his contributions, from outside North Carolina.” (According to followthemoney.org, the percentage was actually 18.9.)

To an uninformed reader, and perhaps to Cohan, that might sound like a lot of money or a high percentage of donations. But how does the total compare with attorneys general from other states in the 4^th Circuit? In 2009, Virginia Attorney General Ken Cuccinelli raised $686,404 (22.3 percent of his overall total) from out-of-state donors. In 2010, South Carolina Attorney General Alan Wilson raised $161,211 (15.2 percent of his overall total) from out-of-state donors. In 2008, West Virginia Attorney General Darrell McGraw raised $77,300 (26.5 percent of his overall total) from out-of-state donors. And in 2010, Maryland Attorney General Doug Gansler raised $712,027 (40 percent of his overall total) from out-of-state donors.

As a matter of comparison, then, of the five successful candidates in 4^th Circuit attorneys general elections in 2008, 2009, and 2010, Cooper received the second-lowest percentage of donations from out of state. He was right in the middle (third) in terms of overall money from out of state. Yet Cohan—by choosing to deny the readers context—frames the donations as something pernicious, in what can only be seen as a conscious editorial choice.

Concealment

Finally, Cohan darkly hints at concealment of key evidence. He says he’s going to sue Roy Cooper to demand access to the entire investigative file of the attorney general. In few if any states, and certainly not in North Carolina, are all raw criminal investigation files public documents—so this seems like little more than a publicity stunt.

In his acknowledgements, Cohan also notes (p. 615) the following: “Tiffany A. Ross, at the courthouse in Durham, helped me immeasurably to obtain hard-to-find records of the court proceedings against the three lacrosse players. For whatever reason, it seems, some people would have been more than happy to have some of these records disappear. Tiffany made sure that did not happen.”

This passage is strange. To which records does Cohan refer? (He doesn’t say.) Who are the “some people” who wanted the records to “disappear”? (He doesn’t say.) What motive could these unnamed people have had for so wanting? (He doesn’t say.) Are the lacrosse case files any easier or harder to track down than any other criminal case from 2006? (He doesn’t say.) What sort of general records retention policy does the Durham County Courthouse have? (He doesn’t say.)

By this point in the book, of course, Cohan had long since abandoned any pretense of objectivity. But the untethered conspiracy-mongering, jarring in its own right, is a revealing way to conclude his work.