Monday, April 14, 2014
Although his book’s subtitle is focused entirely on Duke, author William D. Cohan has relatively little to say about the university. He doesn’t much like the role of athletics (at least lacrosse) on the Duke campus, seems sympathetic to the Group of 88 without really saying why, and suggests that Duke bought silence of the falsely accused players, through large financial payments for reasons that remain clear—as if, somehow, the interests of the university and the students that Nifong targeted were aligned, despite the record of virtually all of 2006.
To the extent that the book’s specific claims have attracted any notice at all, it’s not the “something happened” thesis (which even Salon didn’t accept), but instead Cohan’s ever-inflating dollar figure for Duke’s settlement costs. He asserted that Duke settled with the three falsely accused players (p. 568) for a total of $60 million, based on “the consensus around Duke and Durham.” (As far as I can determine, the first public reference to this figure came from anti-lacrosse extremist Tim Tyson.) That’s pretty light sourcing, especially since—as I’ve noted before—the well-connected Bernie Reeves reported that the settlement was around $18 million. (I have no reason to believe that Reeves’ general framework is wrong, and I suspect that we’ll be seeing more reporting on this issue soon.) Oddly, and for reasons he fails to explain, Cohan doesn’t even cite Reeves’ figure.
In an interview with the Daily News, Cohan bumped the total settlement-related figure up to $100 million, an amount for which he provides no corroboration at all—and which does not appear in the book. Even assuming that Cohan is correct about the $60 million figure (which it appears he is not), the $100 million claim would mean—factoring in settlements with the unindicted players and with Mike Pressler—that Duke has paid $37.2 million in legal fees on the case. If Reeves’ settlement figure is roughly correct, Duke’s legal fees would jump to somewhere in the neighborhood of $77 million to $79 million to reach the figure given by Cohan to the Daily News. I obviously don’t have access to Duke’s billable hours, though I doubt that the university paid between $37.2 million and $79 million to its lawyers (who aren’t exactly my biggest fans). But if, in fact, Duke did so, then I’d say that Cohan has buried the lede.
Regardless of the figure—and, to reiterate, I find Reeves far more credible than Cohan—Cohan treats the settlement issue in a very strange fashion. His inference (which he has made unequivocally clear in his TV appearances) is that Duke purchased the “silence” of the lacrosse players—even as the rest of the book suggested that some of the lacrosse players committed a crime. If the players were actually guilty, what incentive would Duke have had for settling? It’s not my experience that universities make eight-figure settlements out of the goodness of their hearts.
Here’s Cohan’s explanation (p. 570), from an anonymous Duke insider (though Cohan spoke to Bob Steel, he doesn’t quote Steel on this issue—or does he?): An independent counsel hired by the university quickly concluded that Duke couldn’t have handled things “a lot differently,” but the university did make some mistakes “during the first twenty-four or forty-eight hours,” chiefly regarding Dean Sue’s suggesting that the captains should cooperate with the investigation without telling their parents or hiring lawyers. Other than that, according to Cohan’s “confidential” source, Duke had scant legal liability.
Translation: Dean Sue gave bad advice, so the university had to pay out (according to Cohan, who’s almost certainly incorrect here) $60 million. And, by the way, the woman who allegedly cost the university (according to Cohan, who’s almost certainly incorrect here) $60 million is still employed by Duke. This storyline conveniently overlaps with Cohan’s biases on the case, and he’s remarkably non-curious about the alleged description.
Notice a key name absent from Cohan’s recapitulation: former Duke employee and former SANE-nurse-in-training Tara Levicy. The university was legally liable for Levicy’s actions, of course, since they played a direct role in the indictments of the falsely accused, and sustaining those indictments over 2006. But Cohan can’t acknowledge this, since along with Nifong he’s painted Levicy as a credible witness for sexual assault elsewhere in the book; therefore, Levicy’s conduct cannot have left Duke with any legal vulnerabilities.
Cohan also notes the settlement’s unusual provision—a shielding of all Duke faculty members from individual liability—but dismisses it, quoting the public remarks of Paula McClain. He doesn’t mention the fact that at least one Group member—Cathy Davidson—privately admitted to havingconsulted an attorney and being told that the Group members, in fact, did have legal exposure. He provides no explanation as to why he omitted Davidson’s revelation, which would seem more relevant than McClain’s public boast. Doing so might contradict his untenable thesis that Duke basically had no legal liability for its actions.
For anyone who believes that Duke forked over an eight-figure settlement solely because of Dean Sue’s flawed advice: I have a bridge in the borough in which I teach to sell you.
Group of 88
When Cohan introduces the Group of 88 statement (p. 221), he doesn’t include that it contained an unequivocal statement that something “happened” to Mangum—at a time when the defense attorneys were unequivocal that nothing happened to her. He later (p. 480) says that the ad’s critics “argued that [the Group] had not been sufficiently supportive of the lacrosse players during their legal ordeal,” even though a primary thrust of criticism of the Group centered not on this issue at all but instead on the professors’ abandonment of the academy’s traditional fealty to due process and their disinclination to follow the rules of the Duke faculty handbook. Unless Cohan believes that defending due process amounted to defending the players—and since he portrays Nifong as respecting due process, such a belief would make no sense for him—it’s not clear why he allowed the Group’s self-description to pass without comment.
Cohan also passes along without analysis Wahneema Lubiano’s bizarre assertion (p. 481) that the ad was “taken out of context by overzealous bloggers eager to come to the defense of the three indicted players.” Yet—as Cohan’s own book notes, hundreds of pages earlier—the people who originally expressed concern about the ad were editorialists at the Chronicle, not at a blog. And my initial comments on the Group, which did appear on a blog, came at a time when I had no opinion of any type on the criminal case, which involved people I had never met. Indeed, none of my early posts about the Group defended the indicted players in any way.
Cohan declines to provide any breakdown of the pedagogical interests or department membership of the signatories—thereby leaving the impression that the statement came from a random cross-section of faculty members rather than a particular ideological and pedagogical cohort.
Finally, Cohan reproduces Houston Baker’s entire racist screed (in which he demanded the summary expulsion from Duke of the 46 white lacrosse players). Peter Lange’s eloquent response, on the other hand, is merely excerpted and summarized. As is his general approach when dealing with faculty matters outside of Peter Wood, who gets praised, Cohan offers no critique or analysis of Baker’s remarks.
Cohan has a pattern of not mentioning the worst of the extremists’ remarks. Done once, this might have been unremarkable. But seeing the pattern emerge is notable. Beyond the material on the Group of 88 statement, here are some examples:
In his discussion of the potbangers’ rally (p. 105), he doesn’t mention the protesters carrying the “castrate” or “measure for measure” signs. (He does mention comparatively milder protest signs.)
Cohan extensively summarizes (p. 175) William Chafe’s guilt-presuming March 2006 op-ed, but doesn’t mention how this historian of race in America got the date of a seminal event—the lynching of Emmett Till—wrong. Indeed, Cohan doesn’t even mention that Chafe made the inflammatory comparison.
Despite the Chauncey Nartey incident (which gets a mention) and the improper in-class behavior against lacrosse players by several professors, Cohan uses (p. 183) scare quotes—“reports of ‘harassment’ directed at Coach Pressler or the lacrosse players.” Nowhere in the book does Cohan in any way challenge the veracity of these reports.
Cohan discusses the Dowd-Curtis affair, but suggests that Duke changed Dowd’s grade voluntarily (p. 224) by recalculating it, rather than (as occurred) through a legal settlement with the Dowds. More problematically, he erroneously asserts that Duke changed Dowd’s grade to a D, rather than (as occurred) to a P (pass). And he chooses not to mention entirely that Curtis was caught—in a photo—attending rallies attacking the students in her own class.
Cohan references (p. 291) the infamous Brodhead Primal Fear e-mail (one of the few discovery items to seep through from the civil suit). Yet he gives an innocuous, misleading description of the movie (whose plot line, recall, revolved around a defendant who fools his attorney into believing that he’s innocent, when in fact he’s guilty as charged), thereby robbing the reader of the context necessary to understand that Brodhead was presuming guilt. Here, instead, is how Cohan describes the film: The movie “was about an altar boy accused of murdering a prominent Catholic priest in Chicago.”
Cohan mentions the December 2006 defense change-of-venue motion—in which, he sneers (p. 431), the lawyers presented “the so-called facts of the lacrosse case”—but doesn’t mention the most newsworthy item of the motion: that for what appears to be the first time in American history, students accused of a crime filed a motion accusing their own school’s professors of so poisoning the local jury pool that they couldn’t receive a fair trial.
The only member of the team interviewed by Cohan was Ryan McFadyen. By contrast, Stuart and I interviewed more than a dozen members of the team (including Ryan); I also interviewed several people for the blog (including Ryan). Cohan’s section on the party and the aftermath plays up Ryan’s role and recollections. Apart from the three falsely accused students, who declined to speak to Cohan, the author gives no indication of seeking to interview any members of the 2006 team other than McFadyen.
Unlike Cohan, I haven’t won “two statewide investigative awards.” But even I can see that using one person to recall events that occurred several years before is less likely to yield an accurate portrayal than interviewing more than a dozen people, much closer to the events in question.
Duke Committee Reports
Cohan is contemptuous of the Coleman Committee’s report, which he dismisses (p. 309) as “perfunctory.” If the report, he taunts, “were not read too closely, one could almost wonder what all the fuss were about.” That said: he challenges none of the report’s conclusions. It just seems he doesn’t like its findings—which, by finding that the players were in general good students who were well-behaved and treated staff and other students as well, even as most of them drank much too much—undermined the Group’s and Nifong’s preferred narrative of the players as morally flawed.
The findings of the now-discredited Bowen/Chambers report, on the other hand, get reproduced without criticism—with no mention of why, if the report’s analysis of the administration’s response was correct, why Duke eventually had to pay millions of dollars in settlements for the administration’s handling of the case.
Wood & Starn, Coach K
Peter Wood joins Nifong as a hero of the book. According to Cohan (p. 139), he had “foreseen” the “conflagration” in 2004 and had “serious chops” on the issue of athletics because he had been an excellent college athlete in the 1960s at Harvard. While Cohan repeatedly quotes Wood, the book makes no mention of the Coleman report, which discredited Wood’s unsubstantiated claims of poor behavior by lacrosse players in his classes. (Even Wood’s TA didn’t back him up.) Cohan also hails (p. 400) Orin Starn’s anti-athletics activism. Indeed, he recently tweeted that a Financial Times review hailing Starn’s efforts (while bizarrely claiming that the “attorney general” had been disbarred) “really gets it.”
While the book treats Wood and Starn favorably, it’s very negative toward Coach K. Cohan criticizes Coach K for not publicly speaking when the lacrosse team was restored; at another point in the book, Cohan dismisses the coach (p. 373) for speaking “corporate pablum [sic]” about the case. The book also contains a passage in which Cohan, citing unnamed sources, says that Duke pressured Coach K (in 2006) to make a statement defending the university, but he declined to do so.
It’s unclear, however, what such a statement would have entailed—in the real world, any such statement would have been interpreted (correctly) as an attack on the lacrosse players. Since Cohan doesn’t reveal what this alleged statement would have said, the information (if it’s even true) confuses rather than clarifies.
A Duke blue devil adorns the cover of Cohan’s book. And while I can understand the financial rationale for such a move (a book about “Duke” probably sells better than a book about “Nifong”), Cohan’s passion is defending Nifong. Most of the university-related material seems to be padding rather than substantive.