Friday, April 18, 2014

Cohan: "Why? Why? Why?"

Author William D. Cohan continued his publicity tour, this time stepping slightly outside his ideological comfort zone to appear on Michael Smerconish’s radio show. (Excerpt here; full broadcast available at siriusxm.) Cohan expressed amazement that important parties to the case had declined to speak with “somebody like me.” Waxing almost philosophical, he wondered, “Why? Why? Why?”

Regarding many key figures—the defense attorneys, State Bar prosecutors, the senior prosecutors in the AG’s office, the prosecutor in the contempt trial, Judge Smith, and the Bar disciplinary tribunal—the answer to Cohan’s question is straightforward: because (as I noted in my Commentary review) he made no attempt to interview any of them.

On the Smerconish program, Cohan brushed over this inconvenient fact, and instead directed to his targets a series of easily answered questions. Why won’t Roy Cooper, he mused at 7.10, “make his investigative files open to the public?” (Hint: NCGS § 132-1.4.) “Why won’t these three boys [he’s referring to individuals in their late 20s or early 30s here] talk to me? Why? Why? Why? If there’s nothing to hide—if it were me, and this had happened to me, . . . and somebody like me was writing a book about it, I would immediately want to talk to that person despite what my attorneys were telling me, or despite what I might have signed in a settlement with Duke.” (Is Cohan so blasé in upholding legal obligations in his own life?)

So, to summarize: Cohan believes that when “somebody like” him comes a-calling, a state’s top law enforcement official should ignore state law to satisfy the author’s curiosity; and interview subjects should violate legal settlements that they freely signed to do his bidding. Meanwhile, though he’s described the purpose of his book as recreating the trial that never occurred, he apparently made no effort to interview any attorney who tangled with Mike Nifong in court on any matter related to the case.


Over the course of the interview, Cohan provided many of what have become his usual soundbites:
  • “We’ll never know what happened,” citing Donald Rumsfeld;
  • “Absence of evidence isn’t evidence of absence,” citing Mike Nifong;
  • The book functions as the trial that never occurred, except defense attorneys weren’t asked to speak;
  • “As a student of human nature,” Cohan’s evaluation of the case should be deemed credible—even as he breezily confesses his lack of legal credentials;
  • Mangum’s newest story (the broomstick assault) is credible.
Cohan also added a new twist on an old favorite (at 6.17): “It’s not inconceivable that something happened that none of us would be proud of.” He still won’t say what happened, but his argument has now expanded—presented as a double negative, no less!: that people should stand for trial for a possible decades-long sentence because “it’s not inconceivable that something happened.” Why? Because (at 7.10) “where there’s smoke, there’s fire.” Top-notch investigative journalism in action.

Unlike WUNC’s Frank Stasio, who asked Cohan several specific questions (if he didn’t do enough follow-ups), Smerconish steered clear of detailed questions. But the host did make clear his belief that a rough kind of justice was served in the case—Mangum’s in jail, albeit for murder; Nifong’s disbarred and bankrupt; and the falsely accused students have moved on with their lives and prospered. Each got what they deserved.

Such an interpretation enraged Cohan, who had to pause for a couple of seconds before even responding, as if he were preparing to speak to a wayward schoolchild. “I’m not sure,” he sputtered at 2.58, “that the players, the three guys, deserved $20 million each.” (There’s no reason—apart from Cohan’s uncorroborated reporting—to believe that the settlement total was $60 million; credible reporting from Bernie Reeves, which I have no reason to doubt, placed the actual total at around a third of Cohan’s claim.) Cohan conceded that the university had some legal liability, but added that Duke settled because they wanted the case to go away—without explaining why Duke aggressively litigated the unindicted players’ lawsuit, ensuring that the case didn’t quickly go away.

Repeating his normal disclaimer that he isn’t a lawyer and lacks legal training, Cohan nonetheless denied that “there was justice” in the case, since (at 0.46) “justice is something that we find out through a legal process.” Cohan seems to equate a “legal process” and taking a case “through a trial,” even if the prosecution lacks probable cause or the prosecutor flagrantly violates state law or state ethics guidelines. Nor, in Cohan’s world, can prosecutors independently discover (or even concede) evidence of innocence. “I don’t think,” the author asserted, that “innocent” is “a legal term.” This would be news to state Innocence Commissions.

Perhaps because Smerconish made absolutely clear his disdain for Nifong’s conduct, Cohan toned down his customarily strident defense of the disgraced ex-DA. He did describe Nifong as “a very respected prosecutor for 28 years” who was “railroaded” out of office, showing that the “justice system was rigged” in favor of the rich. But he countered with an off-message concession—“I can’t defend his decisions as a prosecutor”(!!)—even as he had done little else in the book and in his various publicity appearances. Cohan also stated that Nifong would admit that he made “mistakes,” though the author declined to identify to which “mistakes” he was referring.

Almost all of the callers to the program were not persuaded; one pointed out the absurdity of Cohan’s insinuation that just because DNA wasn’t used 100 years ago, it’s OK for prosecutors to ignore modern science.

Cohan’s class-based arguments—his suggestion that his outrage comes from a belief that the wealthy have “rigged” the legal system to ensure that they’re not held culpable for their crimes—also fell short. Smerconish not unreasonably countered, “I think to myself, 'Thank God [the defendants] had deep pockets,' because but for those deep pockets, they might have—who knows, they might have gone away in a case where I don’t think charges should ever have been brought to begin with.”


Smerconish could have been speaking of another of Nifong’s victims, someone who did not have the resources that the three falsely accused former Duke students did. Less than three weeks before Cohan’s book appeared, Darryl Howard’s story was brilliantly explicated by Radley Balko. And yet it has received not a single question from any journalist (or “Cycle”/”Morning Joe” co-host) who has interviewed Cohan.

This silence is particularly puzzling, for two reasons. First, Cohan has gone out of his way (even in the Smerconish interview) to describe Nifong as a distinguished prosecutor, someone widely respected in the Durham legal community before the lacrosse case. He also has portrayed Nifong as unusually solicitous of rights of defendants in cases that he tried, including by turning over all evidence from his files to defense attorneys. Yet as Balko’s article points out, it’s at the least plausible and at the most likely that Nifong withheld from Howard’s defense attorney a critical document, in which an informer attributed the crime to a gang, not to Howard.

Second, Cohan has aggressively—most notoriously in extraordinary comments to Diane Rehm (at 11.25)—portrayed Nifong as ethically pristine in his handling of the DNA evidence in the lacrosse case. The implied argument: Nifong knows his way around DNA, and defense claims to the contrary were playing fast and loose with the truth.

Yet as the filing in the Howard case by Jim Cooney and Barry Scheck made clear, Nifong’s manipulation of DNA evidence—albeit in a different way than the lacrosse case—was critical to Howard’s conviction. The case was initially investigated as a double murder and possible sexual assault. But then DNA in the victims came back without a match to Howard. The filing describes what Nifong did to avoid the DNA test sinking his case: “Nifong insinuated to the jury that a child who was murdered and had sperm in her anus at the time of her death had engaged in consensual anal sex at the age of thirteen prior to her murder.” In other words, in order to win, the disgraced ex-DA besmirched the legacy of a 13-year-old murder victim.

The Innocence Project filing made clear that Nifong’s conduct in the Howard case “was improper.” He “solicited testimony that he knew or should have known was false” in a critical examination of the lead detective on the case which dismissed the record of the case ever being investigated as a sexual assault. By posing “misleading questions,” Nifong for all practical purposes “affirmatively solicited testimony that he knew or should have known was false,” which amounted to his having “presented false testimony.”

This is the man William Cohan has described as “quite credible” and “honorable.” By the way, even though the Innocence Project took on Howard’s case in 2006, and even as the author covered other topics from the 1990s in his hours of interviews with Nifong, there’s no indication that Cohan asked his book’s central protagonist even a single question about his handling of the Howard case.

Hat tip: M.


Jim In San Diego said...

The mystery deepens:

Why did this man, William Cohan, whose resume shows 17 years on Wall Street, and three fairly well received books on business, ever venture to write a 600+ page book on an eight year old rape hoax?:

Item: Cohan has no intellectual apparatus, or apparent interest, in genuine investigative reporting.

Item: Cohan knows less than the informed layman about some of the most fundamental issues of a rape prosecution, and has made no apparent attempt to educate himself about:

(1) The ethical obligations of a criminal prosecutor;

(2) The functions of the legal system;

(3) The role of DNA as evidence to prove/disprove physical contact between two human beings.

Item: He has made no attempt to verify facts critical to his effort. The list of knowledgeable witnesses who both dispute Cohan's claims about them, and confirm he made no attempt even to contact them, grows:

--Lane Williamson wrote just days ago that (a) Cohan's reporting of his role as head of Nifong's disciplinary hearing was totally wrong, and (b) Cohan made no attempt to interview him.

--Jim Coman reported soon after "Price" was published that, (a) "[Cohan"s] characterizations of his and Mary Winstead's role are figments of his imagination, and (b) Cohan made no attempt to contact him.

--Robert Steel, who did talk to Cohan, disputes the most significant thing Cohan claims he said.

We have seen this "head in the sand" behavior before from someone who had a duty to investigate the truth. This is exactly how Mike Nifong behaved when he refused to interview Crystal Mangum, and refused to let the defense attorneys present evidence of innocence to him.

What, pray tell, is the real relationship between William Cohan and Mike Nifong?

Item: Cohan does not recognize or worse, does not care, that witnesses may be biased; that there is an accepted methodology to proving disputed facts in a court of law which is intended to prevent injustice to any party; that you do not start with a conclusion and ignore inconvenient facts which contradict your pre-selected conclusion.

This is in no way a complete list of William Cohan's shortcomings as a reporter investigating a long closed rape case.

The investigative report I really would like to see would be how William Cohan ended up writing this dishonestly hyped book, when he in fact has no background or qualifications to do so?

Jim Peterson

One Spook said...

"Cohan nonetheless denied that 'there was justice' in the case, since (at 0.46) 'justice is something that we find out through a legal process.' "

There was a legal process as provided by North Carolina law.

Nifong began a legal process to prosecute three men accused of a crime.

The State Bar brought charges against former District Attorney Nifong when it believed that Nifong's prosecution of the men was illegal. The Attorney General took over the prosecution after charges were made against Nifong.

That is a legal process.

After a lengthy, thorough investigation of available facts and evidence, the Attorney General determined that no charges would be brought against the defendants, because no crime, as alleged, had occurred; not in the house; not in the bathroom; --- nowhere on earth.

That is a legal process.

Further, the Attorney General declined to prefer charges against the accuser for her demonstrably false accusations.

That is a legal process.

Justice was done.

One Spook

Anonymous said...

"Why? Why? Why? If there’s nothing to hide—if it were me, and this had happened to me"

Where does this idea come from? That innocent accusees should pour their hearts out? It seems obvious to me that an innocent person accused of a crime is going to mistrust the whole damn system and everybody in it, and everyone who defends it.

Chris Halkides said...

In the Howard case Mr. Nifong took a page out of the book of prosecutorial improv. He invoked the unindicted co-ejaculator (see links here and here )

At the NYT Andrew Martin wrote, "Why prosecutors sometimes fight post-conviction evidence so adamantly depends on each case. Some legitimately believe the new evidence is not exonerating. But legal scholars looking at the issue suggest that prosecutors’ concerns about their political future and a culture that values winning over justice also come into play. 'They are attached to their convictions,' Garrett says, 'and they don’t want to see their work called into question.'" Brandon Garrett is professor of law and the University of Virginia and the author of the book "Convicting the Innocent."

Chris Halkides said...

"Sapienza [Universita di Roma] researchers Antonio Filippini and Carla Vecchiotti have demonstrated that a biological print on an object or person could have simply been transferred there by others...As our hands do not contain sebaceous glands, the touch DNA that is found on objects can only have been transferred there by our hands, from another part of our body. Most importantly, however, this also means that it could be someone else’s DNA. Consequently, a genetic profile identified on an object is not necessarily that of the hand that touched it." link This may be relevant to the question of how DNA was transferred to the fake fingernails.

skwilli said...

Jim in San Diego has questions similar to mine. Will Cohan come to one day regret his participation in such a complex and doomed project like propping up a corrupt, disbarred former prosecutor, (I forgot perjurer!)? It would seem that an intelligent man would have read this blog and the UPI book and known what he was up against. I for one, would never try to outwit KC. I've seen and read what he can do. Is Cohan that ignorant, or was he paid more than any of us know?

Anonymous said...

After hearing part of Cohan's interview on Diane Ream, I pulled a few on-line articles concerning the case and eventually bought UPI. It is difficult for me to understand how anyone with the slightest understanding of criminal law or the court's could conclude that there is something to write about from the Nifong/Mangum side. But maybe Cohan does not have said slightest understanding.

I believe that mine is not an uninformed perspective, as a federal prosecutor for more than 30 years. Nifong's abuse of his office is shocking and idiotic. A few examples like his performance is why the rest of us spend a large part of our working hours fighting baseless claims of prosecutorial misconduct.

I can only speculate that Cohan is seeking fame and fortune by the only means at hand and that Nifong has gravitated towards the few people who will still speak to him. Sad.

Thanks for the updates, M

Anonymous said...

Cohan wondered why no one wanted to talk to him. We'll never know. We do know from the known facts of the case, anything AG Cooper and his investigators told Cohan, Cohan would have discarded.

No Justice, No Peace said...

Why, why, why did Cohan write the book?

I don't know what Cohan wrote, but whatever it was, was bad enough.

RighteousThug said...

Cohan spoke at a signing in Durham yesterday. Saw a brief synopsis at Liestoppers thanks to Rusty Dog. He had the temerity to say:

"We'll never know what exactly went on in the bathroom on the night of March 13, 2006, but it's fair to say that the weight of public opinion, and the press of a team of highly compensated defense attorneys took what had been a viable criminal court case and snuffed it out before the accuser could have her day in court. And before the DA could raise legitimate questions about the actions of the players."

Q&A with William Cohan

Airing Details

Apr 20, 2014 | 8:00pm EDT | C-SPAN 1
Apr 20, 2014 | 11:00pm EDT | C-SPAN 1
Apr 21, 2014 | 5:50am EDT | C-SPAN 1

A Duke Dad said...

Ipse Dixit

1. An arbitrary dogmatic statement which the speaker expects the listener to accept as valid, without any proof.
It is also called "the bare assertion fallacy."

2. Ipse dixit denies that an issue is debatable. In other words, "that's just the way it is."

3. The most basic way to distort an issue is to deny that it exists.

4. An assertion made but not proved

An arbitrary and unsupported statement that rests solely on the perceived or self-assumed authority of the individual who makes it.

Anonymous said...

Last night, Cohan went on to say, "By the way, I'm not convinced that those were the three right boys --men. I, I don't know who was in that bathroom, ok". Yet Cohan puts himself in the role of a prosecutor and asks us (the jury) to convict people that he's personally not convinced have committed a crime. Thus Mr. Cohan put himself in direct conflict with his star witness, Mr. Nifong, on the viability of bringing the case to trial.

"I think I have a responsibility before I take a case to trial, to be personally persuaded that a crime occurred. If I don't believe that a crime actually occurred then I cannot ask the jury to return a verdict of guilty." Mike Nifong Trial (2007)

Through words and deeds, both men have hurt innocent people, reopened old wounds, and made fools of themselves.

I've studied and blogged about this case for eight years. Along the way, I've been fortunate to interact with some really great people from all walks of life. Some were direct participants in the case; others, reporters; still others, relatives and friends; but mostly just concerned citizens who shared a common purpose: to seek the truth. Granted, I've added little to the discussion, but I did pay attention to the details. I always looked upon the case as a learning experience. Now, this crackpot wanders in and proclaims himself the expert - the authoritative source for all things Duke Lacrosse. Well, last night, Cohan ran into some real experts. And he exposed himself as a fraud.

KC, thanks for being a great teacher.


Anonymous said...

What were the dimensions and layout of the bathroom? Does anyone know? the house is torn down now. The old small buildings in college towns tended to have small bathrooms.

Anonymous said...

"What were the dimensions and layout of the bathroom?"

This is AFAIK the only crime scene which the media was unwilling to show to the public. Bizarre.

The house should have been preserved so that anyone who wanted to physically see the bathroom could see how impossible it was for four people to fit inside, shut the door from the inside, hoist Mangum into the air, and gang rape her in every possible way.

However, apparently nobody in Durham (and that includes Duke, and Preservation Durham--a group devoted to Durham's history, which has had such illustrious members as Richard Brodheand and his wife, Robert K. Steel, the Dagenharts, and Professor emeritus French as members/directors)--was interested in doing so.

Nicolas Martin said...

"Smerconish steered clear of detailed questions...” What a generous way of saying that he did nothing to prepare for an informed and competent interview.

A Duke Dad said...

Willy Cohan: Who Broke that Window?

Mikey : Joe did. I threw a rock at him, and HE ducked.