Fisking Cohan: New York

Amidst a basically content-free attack on people (including me) who have reviewed his book negatively, author William D. Cohan conducted a Q&A with Joe Coscarelli of New York. Cohan continued his pattern of becoming more extreme in his statements about the case than he was in his book. The fisk is below, from what is described as an edited and condensed transcript prepared by New York.

Q: Why bring this case up again now?

COHAN:  . . . One minute the kids were guilty — there was a rush to judgement — and then there was a rush to judgment to find Crystal Mangum and Mike Nifong guilty of accusing these innocent kids [As he has consistently done in his press appearances, Cohan continues to infantilize his targets; does he consider all male college students “kids” or “boys”?] . . . Aside from just being curious, I wanted to know what happened myself. In the cool light of day, just gather up everything I could about what happened, talk to anybody and everyone who would talk to me, and just start at the beginning.

Comment: This refrain is becoming a broken record, but for someone with a commitment to “talk to anybody and everyone who would talk to me,” Cohan was remarkably disinterested in finding key people to talk to. After all, he didn’t even try to interview the defense attorneys. Or the State Bar prosecutors. Or the criminal contempt trial prosecutor. Or the senior prosecutors in the AG’s office who oversaw the case. Or members of the State Bar’s disciplinary hearing tribunal. Or the judge who presided over the case.

As far as can be determined from a book that declined to provide endnotes, Cohan interviewed five people (Nifong, Nifong’s lawyer, Steel, Mangum, and McFadyen) on the record, and quoted from one other person he allegedly interviewed on a not-for-attribution basis. That’s not very wide-ranging “talking.”

Cohan also continues to posit a comically false equivalence regarding an alleged “rush to judgment.” In spring 2006, within a week of the N&O (almost wholly inaccurate) interview with Mangum, Selena Roberts published a column suggesting the lacrosse players were subhuman and Cohan’s friend, John Feinstein, went on the radio to urge that every member of the team be told by Duke: “None of you is man enough to come forward and say what happened. You were witnesses to a crime. We’re shutting down the program and you’re all gone.” That’s a rush to judgment—for which Cohan has expressed no concern. Indeed, in his book, he deemed Roberts’ column was “devastating,” and hailed Feinstein as a “world-famous journalist” who was “extremely generous” with his time.

It’s true that by the end of the case, opinion regarding Nifong was extremely negative. But that’s what happens when a prosecutor is convicted of lying to a judge and held culpable for 27 of 32 ethics violations, including withholding exculpatory evidence. It’s not clear how Cohan believes members of the media should have responded to such proven prosecutorial misconduct.

Q: Did you find out what happened? A frequent criticism of the book has been that you haven’t “unearthed new evidence.” 

COHAN: I respectfully disagree with that. I think a lot of what I reported in the book [is new], from police reports, to medical reports, to reports that Duke had done, to email traffic, including an email where one of the players, Matt Zash, said [after the party] that he “didn’t split dark wood.”

Comment: To walk through these claims:

1. “police reports”: Since Cohan has spent much of the past two weeks complaining about how he didn’t obtain access to the criminal investigation file (unlike other journalists), it’s hard to imagine what new material Cohan is even talking about here.
2. “medical reports”: Surely Cohan is not reviving his easily disproved claim that no one before him (not Joe Neff or 60 Minutes or ABC’s Law & Justice Unit or Duff Wilson or  even me) had brought to light the report of former SANE-nurse-in-training Tara Levicy? It’s true that there has been no disclosure of Mangum’s psychological medical reports—but Cohan outright denies seeing them. So if not the Levicy report and not the Mangum files, to what other “medical reports” could he be referring?
3. “reports that Duke had done”: These documents have been publicly available since the time the reports were completed, in 2006 or (in the case of the Campus Culture Initiative) 2007. They were widely reported on; I did 22 posts on the CCI alone, and Stuart and I extensively commented on the Coleman Committee report, the Bowen/Chambers report, and the CCI report in UPI.
4. “email traffic”: It’s true that Cohan uncovered seven, largely innocuous, e-mails among Duke administrators, which show the first couple of hours that most of them had heard about the case. But the only remotely fresh item in the e-mails (which cover a mere two pages in the book) Cohan quickly rushes over—Dean Sue’s admission that from the start she, Burness, and Moneta knew that the captains had been “fully cooperative.”
5. “including an email where one of the players, Matt Zash, said [after the party] that he ‘didn’t split dark wood’”: That would be the e-mail whose existence, correctly attributed to Zash, I blogged about on 13 June 2007.

That said: Cohan’s statement about all the new sources he discovered would be easily verified—or refuted—if he had included endnotes that listed the specific documents he referenced for quotes or narrative material. But, of course, he produced no endnotes. Nothing, however, is preventing him from posting a list of endnotes, as Stuart and I did for UPI, to his Facebook page or even his twitter account. Will he do so?

COHAN: I’m not a prosecutor. I don’t have subpoena power. A lot of records have been sealed, including [North Carolina Attorney General] Roy Cooper’s records [per North Carolina law, like all such files, Cohan helpfully doesn’t mention]. I didn’t seek to uncover new damning information — I sought to coolly and rationally and dispassionately tell an amazing story, something that became a national story on the order of Flight 370 and Bridgegate all combined.

Comment: Does labeling people who criticize him “haters,” including the co-author (Stuart) of a book that even Cohan deemed a “must read,” suggest a figure who approached the issue “coolly and rationally and dispassionately”?

COHAN:  . . . Today, you see consequences of the Duke case. I wouldn’t be surprised if Cy Vance Jr. dropped the DSK case because of what he saw happened in the lacrosse case. Maybe there’s some spillover into the Florida State case. It’s a little like what happened during the financial crisis, like what I’ve said about the crash of Bear Stearns: Part of the reason it happened was a lack of imagination — people could not imagine that Bear Stearns going out of business in a week could actually happen. I think, honestly, I don’t think people could have ever imagined that this story would have created the passion that exists on all sides even to this day.

Comment: Cohan cites no reporting to substantiate his assertions about Cyrus Vance or Florida State. The DSK and Winston cases have two enormous differences from Duke. First, DSK and Winston have never denied sexual intercourse occurred; they’ve merely claimed the encounter was consensual (making for a much murkier case). Second, I’m not aware of anyone who has claimed that Cyrus Vance or Willie Meggs committed prosecutorial misconduct in the DSK or Winston cases. Nifong’s prosecutorial misconduct, on the other hand, is the central element of the lacrosse case.

Q: How is covering Duke as an institution similar to reporting on Goldman Sachs or Bear Stearns?

COHAN: [After describing his work on Goldman Sachs] . . . It was easier for me to get the cooperation of Goldman Sachs than it was to get the cooperation of Duke University.

Comment: I’ll take Cohan at his word that he found it more difficult to report on this case than on Goldman Sachs. (It certainly shows in his final product.) Perhaps his difficulties stemmed from his scant experience in reporting on either criminal law or higher education. I’m sure that I would find it very hard to report on Goldman Sachs, a topic about which I know very little.

Q: How did being an alum affect the way you covered it?

COHAN: I followed the story where it lead. Unlike others who have written about it, I spent four years there. I understand some aspects of the university and Durham — it’s part of my DNA. I understand Duke’s ambition as a university. I understand what the “work hard, play hard” culture that I wrote about in the book is all about. I understand that firsthand.

Comment: Unlike Cohan, I attended Harvard, so I would concede that I lack “firsthand” experience as an undergrad at Duke. But his statement is odd, in two respects.

First, Cohan has gone to great lengths, in multiple appearances, to suggest he (unlike others, seemingly a reference to Stuart and me) approached the case dispassionately. Yet this was a case about an institution that he’s now describing as “part of [his] DNA.” How many people can cover something that’s part of their DNA—part of themselves—“coolly” or “dispassionately”? (By contrast, before the start of the lacrosse case, I had no connection to Duke of any type, and had been to Durham twice, and Duke once, in my life.)

Second, for someone with such important first-hand experience with Duke, Cohan seemed remarkably ill-informed about the institution as it existed in 2006. In his C-SPAN interview, he said that he had never heard of stripper parties when he was at Duke; yet as Stuart and I reported in UPI, there were 20 of them at Duke in the 2005-2006 alone. Moreover, Duke’s faculty had dramatically changed between Cohan’s time and 2006, thanks largely to the efforts of “diversity” and race/class/gender hires promoted so heavily by then-provost William Chafe.

Q: You quote District Attorney Mike Nifong as saying that “something” happened to Crystal Mangum in that bathroom. What do you believe happened at the party?

COHAN: The first thing that has to be said, and it’s apropos of Errol Morris and his new film about Donald Rumsfeld, is that it’s a known unknown. Because there was no trial and because Roy Cooper’s investigation was secret and he’s not making it public, we’re not going to know what happened in that bathroom. Part of the settlement with Duke was that these three kids are not going to talk about it.

If we can stipulate up front that we’ll never know what happened, then I can sort of layer upon that the fact that Crystal Mangum, the victim-slash-accuser, as she later became known, told me when I visited her at the Durham County jail that she still believes she was sexually assaulted. She still believes something happened. All I know is that the police believed her [Inv. Ben Himan: “I came to the conclusion that she had made up—that she was not telling the truth about anything. That she was improvising everything that she has said. That everything she was contradicted with, she would make up improvisation of what actually happened—of why this happened, why this didn’t happen”], District Attorney Mike Nifong believed her, and the rape nurse Tara Levicy believed her. I am convinced something happened.

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?

Comment: At the blog, UNC-Wilmington’s Chris Halkides had an excellent, almost poignant, response to Cohan’s musings. Chris wrote, “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.”

I would add the following: one of the most chilling aspects of the lacrosse case is how few people—four, plus an erratic Mangum—it took to sustain a case that could have resulted in innocent people being sent to jail for most of their adult lives. Nifong, of course, was the vital actor here, since without his unethical core, the case would never have proceeded. But the other three people who set ethics aside did so only in specific instances, and for their own individual reasons (Gottlieb, the anti-Duke police officer, in consenting to the rigged photo array and producing the “straight-from-memory” report; Meehan, the lab director on the make, eager for new business with Durham County, in conspiring with Nifong to produce a document that intentionally limited the rest results reported; and Levicy, the SANE nurse who believed accusers never lie, in, months after the fact, changing her version of Mangum’s story, seemingly to accommodate the negative DNA tests).

Indeed, the conspiracy theorist in this case is Cohan—who has wildly hinted at a dark conspiracy uniting the defense attorneys, the State Bar, and Roy Cooper, helped along by money from “Northeastern law firms,” all apparently focused on “railroad[ing]” the ethically pristine Nifong and lying to the public about what really happened in the case.

Q: How has what’s happened to Crystal Mangum since affected how this case will be remembered?

COHAN: [Deep sigh.] Obviously Crystal proved herself repeatedly to be not the most reliable witness of what happened to her. Obviously she suffered something traumatic that night in the bathroom. She was clearly traumatized. Whether she was able to remember what is unclear. She told a lot of different stories at first, and then settled down into one version of the story. Then in December of 2006, she could no longer be sure she was assaulted by a penis, so they dropped the rape charge. When I saw her five years later, she told me a different version of events that included the use of a broomstick to assault her. She’s not the most reliable witness, but she obviously still believes something happened to her and that she was assaulted in that bathroom. Again, I am trying to be an unbiased, nonjudgmental, dispassionate investigative reporter of this incident.

Comment: “She told a lot of different stories at first, and then settled down into one version of the story.” This assertion is nothing short of astonishing. Given Cohan’s penchant for whitewashing Mangum’s tales, I had revisited this issue two days ago. But until now, he’s never made such a breathtaking claim about Mangum’s versions of events—essentially repeating the false testimony that Gottlieb gave to the grand jury. A quick summary: Mangum never told the same story twice. She never came close to telling the same story twice.

“Deep sigh?” Has Mangum become Cohan’s “victim,” as she once was Nifong’s? Perhaps Mangum still does believe something; and perhaps the answer to why she so believes lies in her psychological records.

By the way: “Obviously she suffered something traumatic that night in the bathroom.” Cohan’s only citation for this claim in the book was . . . Mike Nifong, who thereafter admitted he was “not an expert.”

Q: Is there a racial aspect to these cases when the athletes accused are white men, as opposed to black men?

COHAN: I don’t know whether it’s a white or black issue. The more dispositive fact here is that, for better or worse, these defendants, these three players, were able to afford incredibly skilled attorneys. Their attorneys did an incredible job. They exploited every opening. They took advantage of every mistake that Mike Nifong made, and he made them. And every twist and turn in the Crystal Mangum story, and she provided plenty of fodder. These attorneys earned every penny they got. But the justice system is not supposed to be able to be subverted by clever, well-paid attorneys. The system is not supposed to work this way. I’m not saying the outcome of this is wrong; I’m saying the diversion of the process can’t be a good thing.

Comment: Over at Volokh Conspiracy, Jonathan Adler had an excellent post on a repulsive Republican Governors’ Association ad targeting Vince Shaheen, a trial lawyer who’s the Democratic nominee for governor in South Carolina. Cohan’s comment above channels the RGA’s criticism of defense attorneys for simply doing their job. I suspect that (much like the RGA spokesperson quoted in Adler’s piece) if Cohan were ever arrested for a crime that he didn’t commit (much less never occurred!), he’d have a quite different take on the role played by defense attorneys in the legal system.

That said, Cohan’s absolutely correct that “the system is not supposed to work this way.” The system is not supposed to feature a prosecutor who makes a string of ethically improper statements—that continued over the course of many months—whose chief purpose, as the Disciplinary Hearing Commission concluded, was to advance his political interests. The system is not supposed to feature a prosecutor who joins with a lab director and, in violation of two provisions of state law, fails to produce a report that delineates any DNA test results. And the system surely is not supposed to feature a prosecutor who lies to a judge in open court.

By the way, because of the nature of bankruptcy law, the prosecutor who engaged in this misconduct continues to collect a monthly pension—financed by the taxpayers—that exceeds what many sole-income households in North Carolina gross in a month.

But defense attorneys who exposed the prosecutor’s misconduct, in Cohan’s mind, are subverting the system. Simply amazing.

Q: Nifong is quoted heavily throughout the book, but some have said the statements, his first since his career crashed and burned, were left “unchallenged.” Do you think you let him off too easy here?

COHAN: No, I don’t at all. I have to laugh to myself when Joe Neff wrote that at the News and Observer. Obviously he covered the case extensively. I don’t think Nifong ever talked to him — maybe he was frustrated that Nifong didn’t talk to him but talked to me. It’s a 600-page book; 580 pages of it are a condemnation of [Nifong’s] behavior and his decisions and his judgements along the way.

Then there are a bunch of pages when he’s finally given a chance to talk. He came across to me as an honorable man, somebody who just wanted to do the right thing. Did he make mistakes? Yes, he did, and I think he’s paid for them dearly. I don’t see how it’s anything but fair to give him a chance to defend himself. Good for him for agreeing to speak to me. Good for Crystal. 

Comment: Cohan seems rather thin-skinned in his response to Neff. Let’s review: previously, Cohan denounced as “pathetic” Neff’s early reporting on the book—only to see Neff’s description of the book prove accurate once the book appeared. Plus, Neff’s reporting eviscerated one of the book’s more dubious claims—that the innocence announcement had “blindsided” senior prosecutors in the AG’s office.

I’m not a journalist (I’m a historian). But it was my understanding that journalists attempt to speak to all sides, especially when they’re making claims sourced to a credibility-challenged figure like Nifong. Neff has done that throughout the case; his articles constantly reference attempts to reach Nifong, and during the case quoted from Nifong’s remarks.

Cohan, on the other hand, seems to have a different definition of journalism—in that, once the protagonist gives the writer a “scoop,” the writer doesn’t even try to interview anyone who tangled with the source in court, lest talking to them destroy the “scoop.” Readers will look long and hard in the Cohan book for attempts to interview the defense attorneys, the State Bar prosecutors, the criminal contempt trial prosecutor, the senior prosecutors in the AG’s office who oversaw the case, members of the State Bar’s disciplinary hearing tribunal, or the judge who presided over the case. Why ruin a good story?

Note that Cohan does not respond to a single substantive item raised in the Neff review. Personal attack, rather than issue-based defense, appears to be his preferred approach. In the event, since Cohan failed to speak to all sorts of key people that Neff interviewed (including most recently Jim Coman), presumably by his standards, he has conceded a jealousy of Neff.

For Cohan to assert that 23/24ths of his book consists of “condemnation” of Nifong can only be described as an erroneous statement. (It would be a little like me saying 23/24ths of DIW has been devoted to defenses of the Group of 88.) The claim is so transparently absurd that even Cohan, who has displayed a habit of being fast and loose with key facts, could not have meant what he said.

In the off-chance he did mean what he said, this might be the most jaw-dropping statement from Cohan in his entire book tour. His is a book—in the author’s own voice—that excuses its protagonist’s ethical misconduct regarding the DNA, minimizes its protagonist’s ethical misconduct regarding the improper statements, and portrays a 1-day sentence for lying to a judge as some sort of victory for Nifong. It’s true that as part of his summarize-everything approach, Cohan occasionally includes items critical of Nifong, including a couple from Stuart. He also references defense filings, although almost always framed through a sneering tone indicative of his disdain for the defense attorneys. The idea that the inclusion of this material means the book overwhelmingly condemns Nifong (or condemns him at all) is laughable.

Q: What did you make of the reactions of Stuart Taylor and KC Johnson, who wrote their own book exonerating the players, and each wrote a very negative review?

COHAN: I’m not surprised that they had the reaction that they had to the book. They have a vested interest in their version of events. My version is much more complete than their version. I wasn’t writing a polemic. I wasn’t trying to prove that these kids were innocent, as they were. I’m not surprised at all by their viewpoint. What I was surprised at was that a reputable publication like The New Republic allowed Stuart Taylor to review my book, or whatever he did — destroy my book — and reputable publication like Commentary allowed KC Johnson to do the same thing.

Comment: Note, for the record: neither the questioner (what an odd question, asking Cohan what he made of the reactions instead of asking him to address any of the specific concerns raised by Stuart or me) nor Cohan cited a single item from either review that they challenged.

That said: I can understand Cohan’s preference for reviewers who know little or nothing about the case. As a fascinating Washington Post item from Radley Balko noted, reviews of the Cohan book have divided across a deep chasm. Those reviewers who closely followed the case have been extremely critical of the book, for many of the reasons outlined in the blog over the past couple of weeks. On the other hand, reviewers who approached the book with little or no knowledge about the case—and with, perhaps, a comforting politically correct worldview—have been fawning in praise, even though none have embraced the book’s defense of Nifong’s misconduct and only one (Newsday) has appeared to accept the “something happened” thesis. Cohan’s is the unusual book that appears to play better with people who are wholly ill-informed about the events that the book purports to describe.

Cohan’s claim of “more complete” depends on the definition. Cohan’s book certainly has many, many more one- or two-paragraph summaries of the work of other journalists than does UPI. As a result, it’s a longer book. On the other hand, Stuart and I had access to more documents than did Cohan (who by his own admission failed to gain access to the discovery file); because the book had second and third editions, we were able to add material from the civil suit filings as the cases developed. We interviewed many more people than did Cohan. We had far more comprehensive coverage of the academic side of things. And because we personally covered many of the key events in the case (Cohan covered none), we were able to supply our own personal observations. But I concede that Cohan includes much more of other figures’ work, especially daily journalists or commentators in one- or two-paragraph summaries, than Stuart and I did.

Cohan’s description of UPI’s purpose—“trying to prove that these kids [sic] were innocent”—is nonsensical. The original manuscript was finished several months after AG Cooper made the innocent declaration, at a time when even Nifong (under oath!) conceded that the falsely accused students had not committed the crimes of which they were charged. Why would Stuart and I “try[] to prove” something that was already proven? In this comment, Cohan appears to be clinging to his false statement that the book was written in 2006.

Book review editors at the New Republic and Commentary do not need me to defend them from Cohan’s barbs. But to the extent Cohan is implying that there’s something untoward when experts in the field write book reviews, his standard is an odd one indeed. Apart from UPI, I’ve written four books and an extended research paper; I’ve written reviews on all five topics, including a review of the only competing biography of Alaska senator Ernest Gruening.

But, again, I have no doubt that Cohan would have preferred to see the book reviewed exclusively by those with little or no knowledge about the case.

Q: What have you learned about how our society treats the accusers in these cases? In the New York Times exposé on the FSU matter and in countless other examples, there’s a lot of people in authority positions asking these women, Are you sure you want to do this?

COHAN: This is part of the epidemic. I don’t know why this happens. I can’t imagine that if the [Duke] players had been black instead of white, and the victim had been white instead of black, that it would have happened the same way. [emphasis added] We’ll never know. It’s really part of the epidemic, and it’s not getting better at all. We have not seen any advancement in our ability to deal with this.

Comment: Just a few items earlier, when asked whether there was a “racial aspect” to charges against white athletes as opposed to black athletes, Cohan replied, “I don’t know whether it’s a white or black issue.”

I suppose that, much like his book’s protagonist, it’s sometimes hard for William D. Cohan to keep his stories straight.