Fisking Cohan on Rehm

Yesterday, author William D. Cohan made an extended appearance on the Diane Rehm Show. The hour-long session gave him the most detailed opportunity to present his controversial twin theses that “something happened” and Mike Nifong’s ethical misdeeds were either overblown or non-existent. The program has published the transcript of Cohan’s remarks—which in many instances are chilling. At the least, it’s clear that he has all but abandoned the argument-by-insinuation that characterized much of his book.

Remarks, with my comments, below.

COHAN

11:08:29

I decided that I had too many open questions in my mind about what happened at my alma mater, which I love, about what happened during this incident between March of 2006 when the party occurred and April 2007 when Roy Cooper, the attorney general of the state of North Carolina, declared these boys innocent. I wanted to know what happened. There was no trial in this case. I wanted this book to serve as the trial that never happened.

Comment: If Cohan was so troubled by these issues, why did he wait five-plus years to start writing his book? What were these “open questions”?

Cohan is describing individuals in their late 20s or early 30s as “boys.”

Also: If Cohan conceived of his book as a “trial,” why did he not request an interview with the defense attorneys? A “trial” in which the defense has no opportunity to address the “judge” might be described as . . . Nifongesque.

COHAN

11:09:10

I was able to speak to people who had never spoken before about this, like Mike Nifong. Everybody wanted to talk to Mike Nifong in 2006, in 2007.

Comment: Well, in 2006, just about everybody in journalism did talk to Mike Nifong. And he spoke about “this” a lot.

In 2007, it’s true, Nifong ceased doing interviews, but it’s not as if he was silent: he testified, at length, before the State Bar and in his criminal contempt trial.

Cohan’s interviews with Nifong differed from Nifong’s comments to the Bar and the court, in that Nifong didn’t speak to Cohan under oath, and in that Cohan (unlike Bar prosecutors or Judge Smith) uncritically accepted virtually all of Nifong’s tales.

COHAN

11:09:32

This is the first time [Nifong has] spoken about this case since then.

Comment: Unlike so much of what Cohan says, this actually is true.

COHAN

11:10:12

Yes, after Duke University, my alma mater, told [Steel] not to talk to me, tried to silence him. But he courageously wanted his version of this story out. He wanted to say what had happened here. And he was more than happy to talk to me.

Comment: And for his “courage[],” Steel got to see Cohan misrepresent what Steel had told the author.

COHAN

11:13:10

And at about midnight, they decided to invite two strippers [to the party]. They paid $400 to them each with the idea incredibly that they were going to put on a show for two hours.

Comment: If this decision was made at “about midnight,” how did Kim Roberts arrive before midnight? Why was Crystal Mangum supposed to arrive before midnight also?

Obviously this is a minor error (the reservation was made earlier in the evening). But in a case where the timeline was critically important, this is an odd mistake.

COHAN

11:14:02

Yes. I talked with [Mangum], also for the first time that’s she’s spoken publicly about this.

Comment: Really? Mangum published an autobiography in 2008, and made at least one public appearance. She did a lengthy 2012 interview with the program “Wives with Knives.” She also did an interview with ABC-11’s Tamara Gibbs, which occurred after Cohan’s discussion with Mangum but was broadcast before Cohan’s book appeared.

The book was not “the first time that’s she’s spoken publicly about this.”

COHAN

11:15:17

The police came. They tried to get her out of the car. She wouldn’t -- she was not responsive. They gave her smelling salts. It woke her up. They eventually took her to something called Durham Access. While she was at Durham Access, they asked her what had happened. She said, I was raped.

Comment: Again, a minor, but telling, inaccuracy. The intake nurse did not ask Mangum what happened; the nurse (improperly) asked her whether she had been raped. Magnum did not say that she had been raped; she said “yes,” or something indicating agreement with the nurse’s question.

COHAN

11:15:17

They immediately took her to the Duke University Hospital. She was examined by a nurse. And for the first time, the nurse’s report is in my book. That had never been released before.

REHM

11:15:46

Why not?

COHAN

11:15:47

It was deemed to be a private document, a secure document, a nonpublic document, and so it never came out before. I was able to get a copy of it. A lot of defense attorneys sort of made hay with it, about what they thought it said, but now, for the first time, you know, people can see actually what it said. And in there she tells a story, Crystal Mangum, the victim slash -- and she was later known as the accuser when the story turned.

Comment: This is either an outright lie or an indication that Cohan is wholly unaware of any of the key reporting on the case. As I’ve noted previously, virtually every key figure who covered the case (from a variety of different perspectives) had the Levicy report. The N&O did. The Times did. 60 Minutes did. Stuart did. I did—I did a three-part series on Levicy’s role in the case, the first post of which focused on the report and Levicy’s initial actions. Stuart and I also quoted from the report in UPI (pp. 33-34).

I’m at a loss to understand what Cohan has to gain from such an easily disprovable statement.

COHAN

…And therefore they decided -- the defense decided that she was biased and a feminist, so therefore she couldn’t objectively assess what happened to Crystal Mangum.

Comment: The “defense” made no such “deci[sion].” In no defense filing was Levicy identified as a “feminist,” in no “defense” statement to the press was she so identified. And since Cohan never even asked defense attorneys for an interview, we know that he did not obtain such a statement in any interview. (The defense implied that Levicy was incompetent, and there’s every reason to believe that if a trial had occurred she would have been shredded in cross-examination on technical grounds, but Cohan is making a separate charge here.)

So: what evidence does Cohan have that “the defense decided” that Levicy was “a feminist,” which would call into question whether she could “objectively assess what happened to Crystal Mangum”?

REHM

11:17:36

Was there a second assessment at the time? Was there someone else who confirmed the evidence?

COHAN

11:17:46

Well, there was also a doctor who -- there were many doctors who examined Crystal. There were many police who talked to her. The police investigators from Durham spent a lot of time with Crystal. They obviously believed much of her story. They believed she was assaulted.

Comment: What a very, very interesting answer. Note that Cohan starts to mention Dr. Julie Manly—but then quickly backtracks, since Manly (who Nifong never interviewed) came to have doubts that Mangum was raped. It’s almost as if Cohan realized that talking about Dr. Manly’s experiences would contradict the preferred storyline. And which “police investigators” was Cohan talking about? Sgt. Shelton, who never believed Mangum? Inv. Himan, who eventually concluded she had made things up?

COHAN

11:18:07

One of the things that Mike Nifong told me, the Durham district attorney, was that had the players given DNA tests voluntarily, which they decided ultimately not to do, had they done that voluntarily, there would not have been a Duke Lacrosse case.

Comment: Another strange answer, in multiple respects. First: the lacrosse players (wisely) decided that they didn’t want to interview with Sgt. Mark Gottlieb without counsel. That’s now somehow unacceptable behavior? (I wonder how many NPR listeners would agree on cases other than the lacrosse case.) Second: the current Nifong/Mangum position (endorsed by Cohan in multiple interviews) is that something criminal happened to Mangum. If so, then why would the lacrosse players meeting with Gottlieb voluntarily have meant “there would not have been a Duke Lacrosse case”? Or is Cohan admitting that Nifong wouldn’t have pursued the case but for the publicity caused by the NTO?

REHM

11:20:01

And here’s our first email following our earlier portion of the conversation about William Cohan’s new book, “The Price of Silence.” This from Mercedes, who says, “Mr. Cohan has expressed his belief that something happened to Crystal Mangum, at the Duke lacrosse party on March 13th,” or 14th because it happened after midnight. “I would like to know, based on his research, what he believes happened in that bathroom. Does he believe that the three indicted players are not innocent?”

Comment: First: it took 20 minutes for the “first e-mail” to come in. It doesn’t appear that Rehm’s listeners were terribly engaged with Cohan’s musings. Second: this is a good question—direct, and it forces Cohan to move beyond vague generalities.

COHAN

11:20:50

So that is a very simple question that is complex to answer.

Comment: In other words, Cohan won’t answer it. (He doesn’t, instead rambling on for a few minutes.) Why can’t he answer it? “Because the people who were in that bathroom aren’t talking.” Does Cohan have evidence, for instance, that Reade Seligmann or Collin Finnerty were ever in the bathroom at the captains’ house? Does he have evidence that any lacrosse player was in the bathroom with Mangum? If not—and he’s never presented such evidence—how can he claim “the people who were in that bathroom aren’t talking”? Mangum did speak, and the only other person known to have been in the bathroom was Kim Roberts.

This question tripped Cohan up. It’s a shame that Rehm didn’t ask the obvious follow-up question: “Just to clarify, if the people who were in that bathroom aren’t talking, which people were in that bathroom?”

COHAN

11:21:57

[Nifong] was extremely well respected before this case came along. And all of a sudden everybody wants to say he had no judgment and he was just out for political gain, and this was all a vendetta against Duke students, where both -- his parents both went to Duke.

He got into Duke and chose to go to UNC. They just make him out to be an incredible villain. And I’m sorry -- and this is going to make all the haters hate me all the more -- I don’t believe it. Okay. I believe he was an honorable man trying to get to the bottom of what happened.

Comment: Who are the “haters”? What do they “hate”? Cohan doesn’t say. Who has claimed that Nifong had a “vendetta against Duke students”? If the case had involved black Duke students, given the political realities that Nifong faced, it’s inconceivable that Nifong would have responded as he did.

“An honorable man.” This is a man who committed multiple ethics improprieties and lied to a judge in open court. Incredibly, Rehm asks no follow-up question.

REHM

11:22:27

All right. Now, take us back to the Duke University Hospital once again. Did any of the evidence indicate that this young woman had been assaulted with a broomstick?

COHAN

11:22:49

Well, that night, when she was examined, I don’t think she said anything. I mean, there was discussion about a broomstick and the threat of using a broomstick. The broomstick idea is something that she told me later. Okay. That was new information that was not mentioned that night.

Comment: He doesn't think she said anything that night? Given that there’s no medical evidence of this “broomstick” assault, and given that Mangum never offered this theory of the crime at any point before indictments to any police officer or to Nifong, a remotely skeptical person would wonder about his interviewee’s credibility. But apparently not Cohan.

COHAN

11:23:28

[In] December of 2006, when she was -- so this is sort of nine months into this controversy -- when she was interviewed by one of the Mike Nifong’s investigators. And during that interview, which was, you know, transcribed and put on -- written down, she said she could no longer remember whether she was assaulted by a penis that night.

Comment: Cohan doesn’t even mention that this “revelation” came five days after the Meehan revelation that he and Nifong had agreed that the lab director would produce a report that didn’t contain the results of all the DNA tests, in violation of two separate sections of North Carolina law.

COHAN

11:25:01

[Cohan blames the defense attorneys for the Bar’s actions, and then explains why Nifong was disbarred.] The first charge was because during the first or second week of March, after he had the case, he was on TV everywhere talking about his belief that these kids had done this -- committed this crime. He was everywhere. He was everywhere. And the second part of it was related to DNA evidence that the defense believed that Mike Nifong withheld. I don’t believe he withheld it. [emphasis added] He turned all the DNA evidence over to the defense during the course of the procedural part… the defense attorneys claim that Mike Nifong withheld that information from them. But that’s just simply not true. [emphasis added]

He turned it all over to them months before there was going to be any trial. He didn’t make it easy for them. He didn’t put a nice bow around it. He made them dig through it and find out that there was DNA evidence from other men in and on her, not related to the Duke players. So of course they then trumpeted that information publicly and then they had the state bar file a complaint against Nifong for claiming to so-call withhold this evidence. But obviously he didn’t withhold the evidence because they found it. [emphasis added]

Comment: This is an extraordinary statement, quite beyond the fact that Cohan appears to have given up even trying to defend Nifong’s improper statements, which occurred from late March to mid-April, not, as Cohan claims, in the first or second weeks of March. § 15A-282 of North Carolina’s General Statues states, “A person who has been the subject of nontestimonial identification procedures or his attorney [as the lacrosse players were here] must be provided with a copy of any reports of test results as soon as the reports are available.” [emphasis added] § 15A-903 of North Carolina’s General Statues states, “Each such witness shall prepare, and the State shall furnish to the defendant, a report of the results of any examinations or tests conducted by the expert.” [emphasis added] Both of these statutes refer to “reports,” not simply raw data. The Meehan report clearly did not contain the results of all the tests he had conducted. But according to Cohan, this is all a game, and Nifong not following two separate provisions of North Carolina law was simply the DA not putting a “bow around it” or making it “easy” for the defense.

Cohan purports to be concerned with issues of class. What happens to poor defendants who can’t hire lawyers to pore over raw DNA data in the hopes of finding the evidence that the prosecutor has hidden? Apparently to Cohan, those defendants are just out of luck, because the prosecutor doesn’t have to provide full test results, or “put a nice bow around it.”

Again, almost incredibly, Rehm asks no follow-up question.

REHM

11:27:20

So they found the evidence, which it sounds as though could have been exculpatory.

COHAN

11:27:30

Yes. I’m not a lawyer. So then there’s the whole debate about exculpatory and inculpatory. Basically, Mike Nifong, what he told me was that the absence of evidence isn’t evidence of absence. It happens to be a same phrase that Donald Rumsfeld used in the new Errol Morris movie. But the fact of the matter is there was rape cases brought in Durham and in jurisdictions all over this country before DNA evidence was used...

Before they even had DNA testing, rape trials occurred all across the country. And basically, his view -- this is Mike Nifong’s view -- just because there was no DNA evidence doesn’t mean something didn’t happen in that bathroom.

Comment: Another bizarre statement. Of course there were rape cases before DNA was used. So what? In this case, given the particular crime Mangum alleged, DNA was almost certain to be dispositive. How does the fact that 40 years ago prosecutors didn’t use DNA change any of that?

Cohan’s willingness to rely on Mike Nifong’s word about what is and isn’t exculpatory evidence is terrifying.

REHM

11:29:48

All right. The remainder of the subtitle of your book is, “The Corruption of Our Great Universities.” What are you referring to?

COHAN

11:30:04

I’m referring to the fact that, you know, number one, that the emphasis on sports and big-time sports and the status that athletes get at universities all across this country is just a fact of life that is corrupting. We see that now going on, playing out in real time because we’re just coming off the NCAA basketball championship where billions of dollars go to these schools.

Comment: All well and good, but lacrosse doesn’t exactly bring in “billions of dollars” to any school.

COHAN

11:31:05

The basketball program does make money, of course, Under Coach Gay. But this party, in the end, Duke settled with these kids for reasons that are mystifying to me. Paid them $20 million each . . . And this party has cost Duke upwards of $100 million, between legal fees and P.R. fees and investigations and settlements. And I wanted to know why. Why did my university spend this money? And I feel like, you know, they got corrupted in the process.

Comment: Cohan has produced no evidence that the total settlement was $60 million, and there’s good reason to believe otherwise. Second, Cohan has produced no evidence that the legal/PR fees totaled anywhere from $37 million to $77 million; he never even mentions this second group of figures in his book.

I’m mystified as to why Cohan’s mystified that Duke settled. Entities settle when they think they’re legally vulnerable. Duke was.

REHM

11:31:34

Here’s an email from Lisa, who says, “Please address the issue of the culture of the men’s lacrosse team, whose end-of-year celebrations included a stripper. For these young men to have been wrongly convicted and to serve jail time would certainly have been unjust, but they put themselves in a position to have that happen by having a stripper at the party. The issue of the exploitation of women was never addressed. And the lacrosse players risked their freedom by their thinking it was okay to celebrate with a stripper present.”

COHAN

11:32:26

I think that because of the pedestal that the lacrosse players were put on at Duke, they were allowed to get away with a lot of bad behavior, misdemeanor kind of behavior, underage drinking, public urination, noise. I mean if you look at the analysis of the “crimes” or the misdemeanors that occurred at Duke during this period and the years leading up to it, fully half of them were committed by the lacrosse team players.

Comment: I have no idea to what study Cohan is referring suggesting that lacrosse players committed “fully half” the crimes that occurred at Duke “during this period and the years leading up to it.”

“The issue of exploitation of women was never addressed”? Has this person never heard of the Group of 88, or the CCI, or the myriad commentaries discussing the issue? But it doesn’t surprise me that Cohan liked this e-mail.

REHM

11:40:40

Here’s an email from Malcolm who says, “One thing your guest failed to mention was that the DA, the prosecutor Nifong was in a heated re-election campaign.

COHAN

11:40:58

That is, of course, quite true. And I think I referred to that as well but I’m happy to reiterate the fact that he was appointed the DA in 2005 when the then current DA was appointed a judge. He then, at the end of 2005, declared himself to be a candidate for the seat himself after 28 years being an underling. He was actively campaigning to become the DA. Beginning of the year of 2006 he had two opponents. And then in March of 2006 this happened.

So the defense and the critics will say he just used this case to promote his political ambitions, because Durham is 45 percent black so he’s just going to appeal to the black community. I mean, I think that is total rubbish. He didn’t -- he is already a declared candidate in January of 2006. This case comes around in March of 2006. He realizes it’s going to be volatile and important. And he just happened to find out about the case by reading this non-testimonial order that appeared on a copy machine a week after the case had started. And so for his critics to complain that he was just exploiting this for political purposes, I don’t think is fair.

Comment: This response (to a good question) was word salad. No one disputes that Nifong declared as a candidate in January 2006. Presumably at that time, he thought he could win. But by mid-March 2006, the only objective evidence that exists (a poll showing him trailing and his fundraising drying up) indicates that Nifong was on his way to defeat.

Cohan appears to believe that the fact that Nifong “just happened to find out about the case by reading this non-testimonial order that appeared on a copy machine a week after the case had started” (assuming that’s true) means that Nifong didn’t subsequently decide to exploit the case for political purposes. Given Nifong’s statement to Jackie Brown, and given the absence of any other credible explanation for his pre-primary publicity spree, Cohan is remarkably non-curious as to what motivated Nifong’s behavior in late March and April 2006.

REHM

11:42:15

Here’s an email from Andrew. Did you speak with any of the Duke 88 faculty members and what happened to those faculty members?

COHAN

11:42:28

Yes. I spoke to a number of the faculty members. Understandably they still work there. And even though they’re tenured, they don’t want -- never wanted their names to be used because they are very scared. There’s still legal proceedings going on. There’s still lawsuits. Lawyers have been sending professors threatening letters about make sure they don’t talk to the media, don’t share any documents with the media. Everything is subject to litigation.

So the answer is I did speak to them. Many of them of course are still -- they remain adamant with their original position, the group of 88, that something happened here and that none of us would be proud of. They had a chance to reiterate that view or decide not to pursue that view any more a year later in March of 2007. And they reiterated their view despite knowing that the kids were soon to be declared innocent.

Comment: Perhaps the only actual “news” of the entire hour. At no point in his book does Cohan mention having spoken to even a single member of the Group of 88, much less “a number of them.”

Who are the “lawyers sending professors threatening letters about make sure they don’t talk to the media”? Who knows? What possible motive could these unnamed lawyers have? No member of the Group of 88 is party to any remaining lawsuit—they’re free to speak if they choose. They were certainly willing to speak against their students in April 2006. Why have they lost the courage of their convictions?

It’s intriguing that Cohan dispenses with the pretense that the Group statement wasn’t about the lacrosse case—the Group (at least, presumably, those members to whom he spoke) believed “something happened here and that none of us would be proud of.”

By the way, there’s that curious “none of us would be proud of” phrase that Cohan erroneously placed into the mouth of Bob Steel. It’s interesting how many of Cohan’s real and alleged interviewees wind up using phrases that are remarkably similar to Cohan’s own.

COHAN

11:45:34

Mike Nifong thinks that [Seligmann’s] alibi is sort of convenient. If you did something wrong why did -- if you didn’t do anything wrong why did you have the cab pick him up around the corner? And if you were trying to establish an alibi, of course he would go to an ATM machine and then a restaurant and then pay a big tip to the cab driver and all of this. So Mike Nifong has doubts about Reade Seligmann’s alibi.

Comment: To Nifong, it seems, a defendant can’t win: if he doesn’t have an alibi, he’s guilty; if he does have an unimpeachable alibi, he’s suspicious. Any sentient person would respond to this theory by dismissing Nifong’s credibility. Instead, Cohan finds Nifong “quite credible” and an “honorable man.”

The hour concludes with Cohan proving yet again his misunderstanding of the DNA evidence, followed by his disastrous, thin-skinned response to Stuart, which I covered yesterday.