Due Process and Duke

[Update, 5.43pm: Judge Smith's preliminary injunction is here.]

Over at Minding the Campus, I write about Duke joining the list of universities facing a lawsuit for violating the due process rights of a student accused of sexual assault. The student, Lewis McLeod, was expelled under what appears to be dubious reasoning just before he graduated. (And a hat tip to Independent reporter John Tucker, who covered the hearing and provided a comprehensive report.)

In a bold move, last yesterday afternoon Judge Osmond Smith (to whom the case was assigned) issued an injunction against Duke, preventing the university from expelling McLeod until a trial can be held. Smith acted on the basis that a trial would show that Duke had “breached, violated, or otherwise deprived the plaintiff of material rights.”

The Duke spokesperson responded to the legal setback by (very oddly) terming the school “pleased.” The spokesperson added, “Duke follows federal legal requirements for complaints of student sexual misconduct and works very hard to make sure the process is fair and just in every case.” [emphasis added]

That “fair and just process” is one in which:

• the accused student is consigned to an “advocate” who cannot speak in the hearing that will determine whether Duke brands him a rapist;
• consent is vaguely defined, on grounds that “alcohol or other drugs can lower inhibitions and create an atmosphere of confusion over whether consent is freely and effectively given”;
• a preponderance of evidence (50.01 percent) threshold is used;
• the accused student cannot directly cross-examine his accuser;
• the accused student only has a maximum of five days to examine the evidence that Duke has compiled against him, while he lacks the power to subpoena potentially exculpatory evidence from the accuser;
• double jeopardy exists, in that the accuser can appeal a not-guilty finding;
• Duke is allowed to use evidence from anonymous parties against the accused student.

Fair and just, according to Duke.

Judges Overturns Howard Verdict, Citing Nifong's "False and Misleading" Statements

[Update, 5.46pm: Joe Neff and Anne Blythe have an article on the ruling in the N&O. Will the Durham Police Department now re-examine all cases in which rogue prosecutor Mike Nifong was involved?]

[Update, 9.34am, Wed.: As of this time, there is no mention on the Herald-Sun website of the Hudson ruling. And, of course, Nifong apologist William D. Cohan has made no comment or tweet regarding the further disgrace of his book's central hero.]

[Update, 7.08pm, Wed.: More than 24 hours later, word of the ruling finally appears in the Herald-Sun, though with an emphasis on the DA's decision (for reasons not explained) to appeal. Still no mention of his protagonist’s further disgrace from author William Cohan, whose twitter feed instead has focused on such pressing topics as a picture of tulips and a complaint about the cover of the New York Post.]

Radley Balko reports that Durham judge Orlando Hudson has overturned the conviction of Darryl Howard, citing police and prosecutorial misconduct. (The prosecutor in the case was then-ADA Mike Nifong.) Howard will now receive a new trial. Given the paucity of actual evidence against Howard, hopefully the state will drop the case.

Balko covers the ruling in greater detail; and I’ve previously written about the case also. The thrust: much like the lacrosse case, Nifong reacted to a negative DNA test result not by wondering whether he was trying the wrong party, but instead by suggesting that the DNA evidence was irrelevant to the case. In the lacrosse case, Nifong behaved unethically by withholding exculpatory test results from the defense and lying about them to a judge. In the Howard case, he behaved unethically by misleading the court about the state’s original theory of the crime once that theory became inconsistent with  DNA test results showing that the DNA of two unidentified men--but not Howard--was found in the two murder victims.

In his ruling, Hudson is unsparing in his criticism of Nifong. In comments about Nifong, the judge began by taking notice of the fact that more than a decade after the Howard case, Nifong would be disbarred and held in criminal contempt for “suppressing exculpatory evidence and willfully making false statements” to Judge Smith in the lacrosse case.

In the Howard case, Hudson quoted from Nifong’s closing argument to the jury: “This case was never investigated as a sexual assault and it was never suspected to be a sexual assault.” For good measure, Nifong explained away the presence of DNA in the case by baselessly suggesting that a 13-year-old murder victim had been sexually active with her boyfriend.

Hudson found that Nifong’s assertion was simply not true. He noted that a Durham Police Department document--included in the DA’s files--suggested that the DPD had received a tip that the case was a sexual assault/murder, a tip that was consistent with the presence of DNA in both of the victims. No evidence exists that prosecutor Nifong turned over this document, despite its highly exculpatory nature, to the defense. The existence of this memo, Hudson found, was “directly contrary” to Nifong’s statements to the jury.

Hudson concluded that Nifong had failed to turn over the DPD memo to the defense, and therefore had committed a Brady violation. But Hudson then went further, and held that Nifong violated a 1959 case called Napue v. Illinois, in which the Supreme Court ruled that “a State may not knowingly use false evidence, including false testimony, to obtain a conviction.” The false testimony in the case was given by the lead detective, but Hudson noted that Nifong was responsible for the testimony, since he had access to the DPD memo showing that what Dowdy told the jury wasn’t true. Indeed, Hudson described Nifong’s statements to the jury as “false and misleading.”

As a result of this conduct, Hudson concluded that Nifong violated Howard’s rights under the 4^th, 5^th, 6^th, 8^th, and 14^th amendments.

This is the same Mike Nifong that author William D. Cohan has deemed “honorable” and “quite credible,” and has said that he “certainly feels sorry for.”

Lacrosse, Litigation, & Editorial Strategy

Earlier today, the Duke lacrosse team narrowly defeated Notre Dame in the national championship game. In the run-up to the event, CBS Sports had an article on Casey Carroll, a member of the 2006 team whose life has taken an extraordinary turn since then. Carroll graduated from Duke in 2007, and, inspired by the legacy of former Duke lacrosse player Jimmy Regan, a U.S. Army Ranger who was killed in Iraq in February 2007, Carroll enlisted in the Army. He had four tours of duty in Afghanistan and Iraq. He also married his college girlfriend, and the couple has two children.

After Carroll’s time in the military, he returned to Duke, using GI Bill benefits to enroll in the business school. And with one year of eligibility left (thanks to the efforts of Duke’s Chris Kennedy), he returned to the lacrosse team—where this year, at age 29, he was a regular starter on defense. He was named ACC defensive player of the week in his first week back at Duke (a span of nearly 2500 days between games). And he started in the national championship game, which was held on Memorial Day.

ESPN2 led its broadcast with a discussion of Carroll (and of Regan’s parents, who attended the game). It’s easy to see the journalistic significance.

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Carroll’s is exactly the kind of story that seemingly would have yielded itself to telling in William D. Cohan’s “definitive, magisterial” account—especially given Cohan’s suggestions as to how he benefited from the passage of time in putting together his publication. Yet there’s no evidence that Cohan ever sought to interview Carroll, even though Carroll was back on the team (he missed the 2013 season due to an injury) during the time Cohan claims that he was engaged in a frantic effort to “just gather up everything I could about what happened, talk to anybody and everyone who would talk to me.”

Indeed, while the three falsely accused former students declined to speak to Cohan, it doesn’t appear as if Cohan sought to interview any of the unindicted players, except for Ryan McFadyen. This unusual strategy differed from how Stuart and I approached UPI; we interviewed 15 members of the 2006 team on the record. (We also did off-the-record interviews.) We spoke to people from each of the four classes; to those who were at the party for the duration, those who left the party, and those who never attended the party at all. The idea was to obtain (to borrow a term) as definitive an account as possible of the lacrosse team’s experiences.

(Perhaps Cohan shied away from trying to speak with Carroll because it would have been difficult for him to have described a person with Carroll’s experiences as a “boy,” the author’s preferred term of reference for the now-late-20s/early-30s lacrosse players targeted by his book’s protagonist, Mike Nifong.)

Even if Cohan didn’t see Carroll’s recent story as significant enough to fit into a 621-page book, it’s hard to come up with an explanation as to why the author apparently tried to speak with only one of the 44 unindicted players. It’s even harder to come up with an explanation as to why, having chosen this odd tactic, Cohan then selected McFadyen as his sole subject.

Alone among the unindicted players, McFadyen wasn’t on the Duke campus for the entire spring semester in 2006 (he was suspended in early April), so on those grounds would seem the least suitable candidate for a sole interviewee. Moreover, because of his e-mail, McFadyen probably has a more negative public reputation than any former member of the team except for Matt Zash. It’s almost as if, by choosing McFadyen as the sole interview subject among the 44 unindicted players, Cohan wanted to create the impression that McFadyen was typical of the team as a whole.

There is, in the end, one clear difference between Cohan’s treatment of McFadyen and of Carroll. As he has cast aspersions on the finding of innocence while advancing his “something happened” thesis, Cohan has definitively excluded McFadyen from his insinuations. (“He was never, you know, in or near the bathroom. He was never accused of anything. He was just, you know, doing, you know, the usual underage drinking that’s so prevalent.”) Relying on the exact same evidence, Cohan has refused to make such a declaration for Carroll, or any of the 45 other members of the 2006 team. (“There is an incredible amount of evidence [which he won’t identify] that something untoward happened in that bathroom . . . Who did it [emphasis added], when they did it, what they did is absolutely just still not clear.”)

The “dispassionate” author at work.

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Only one lawsuit remains—filed by three former members of the team, with McFadyen as the lead plaintiff. Last week, Judge Beaty issued a ruling that further narrowed the suit, and ensured that former SANE nurse-in-training (and Cohan heroine) Tara Levicy would never take the witness stand to account for the full range of her conduct in the case.

Beaty (not incorrectly) noted that the “spirit” of the 4^th Circuit’s ruling demanded dismissing the claims against Levicy. Even though, as he noted, the plaintiffs claimed that Levicy produced “false corroborated evidence” as “part of a conspiracy to assist police officers in a criminal investigation,” they had no case, since Levicy was seeking “to aid police officers, among others, in a police investigation.” That this “aid” allegedly occurred as part of an effort to frame innocent people is no longer a cause for action in the 4^th Circuit—provided that the prosecutor was in on the conspiracy, and provided that the grand jury (fooled by testimony recounting the non-existent evidence) brought back an indictment.

This is the “rule of law” in the Carolinas, Virginia, West Virginia, and Maryland.

The Beaty ruling also contained a touch of humor—at the expense of Linwood Wilson, who continues to prove the aphorism that a lawyer who represents himself has a fool for a client. Wilson, who has distinguished himself throughout this litigation for bizarre legal assertions, had demanded that Beaty impose sanctions against the lacrosse players’ attorneys.

Beaty denied the request with a biting comment: “The basis of Defendant Wilson’s request for sanctions is that he believes that the claims brought by Plaintiffs in this case are groundless and vexatious and that the Court should impose sanctions in this case. However, the Court finds Defendant Wilson’s Motion itself to border on being vexatious given that it largely consists of copied and pasted paragraphs.”

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Finally: Cathy Davidson is best-recalled for her January 2007 apologia for the Group of 88 statement, in which she took to the pages of the N&O to preposterously justify the Group’s actions on the grounds that “racist and sexist remarks swirling around in the media and on the campus quad” during the time in which the ad was considered. Inventing a past that never occurred, Davidson told N&O readers, “The insults, at that time, were rampant. It was as if defending David Evans, Collin Finnerty and Reade Seligmann necessitated reverting to pernicious stereotypes about African-Americans, especially poor black women.”

Of course, “at that time,” virtually no one was “defending” any of the lacrosse players, much less Seligmann and Finnerty (who weren’t even considered suspects). Before April 6 “on the campus quad” there were “rampant” insults directed against Duke students, such as the “castrate” sign, the plastering of “wanted” posters, and one lacrosse player being surrounded on campus by black students urging him to turn in the rapists. None of these events appear to have troubled Davidson, since the lacrosse players weren’t the Duke students that concerned her.

At the time her whitewashing N&O piece appeared, Davidson also admitted privately that she had consulted an attorney, who informed her that the Group members could be legally vulnerable for their actions. A few months later, when Duke entered into an approximately $20 million settlement with the three falsely accused players (not, as William Cohan has incorrectly suggested, a $60 million payout), the settlement contained an unusual clause immunizing the Duke faculty from individual lawsuits.

So where is Davidson now? In what seems like Exhibit 200 of the lack of accountability in the academy comes from a recent notice from the CUNY trustees. The announcement indicated the arrival of one Cathy Davidson to the CUNY Graduate Center—where she will receive an annual financial supplement of $28,594 beyond her salary as full professor.

As someone who teaches at Brooklyn and the Graduate Center, I can fully understand why Davidson would consider CUNY a more appealing place to work than Duke. But consider the likelihood of her (or any other Group member) being hired away from Duke if the races in the case were changed. That is: if the case involved a white stripper making false allegations against black Duke students; and if Nifong needed to maximize the white vote to win, and broke all sorts of ethical rules to fabricate a case; and if Davidson had signed a public statement implying the guilt of these same black Duke students; and if, months later, Davidson presented an inaccurate op-ed to justify her decision to ignore the plight of these black Duke students and turn a blind eye to the prosecutor’s misconduct, the obligations of the Faculty Handbook, and basic principles of due process.

Does anyone believe that, having participated in such a scheme, someone like Davidson, or Grant Farred, or Houston Baker, or Charles Payne, or Rom Coles would have been hired away by other schools, with more prestigious appointments, given the nature of the contemporary academy?

Free Speech & William D. Cohan

Author William D. Cohan’s first written comments on the Duke case came in an unusual forum—a CNN column bizarrely arguing for lowering the national drinking age to 19 years old. Cohan’s proposal would have left the strongest moral arguments against the current policy—that if you can die for your country, you should be able to buy a beer—in place, perhaps explaining why not a single state is considering the idea. But the column seemed designed not to influence public policy but instead to give Cohan an opportunity to launch character attacks against the lacrosse players. Of the tens (hundreds?) of thousands of instances of excessive drinking on campus in the past decade, Cohan focused on the lacrosse party.

Having departed Bloomberg View for the Huffington Post, Cohan used his inaugural HuffPost column to again ostensibly comment on a policy issue but mostly to discuss The Price of Silence. The column’s arresting title: “How Much Freedom of Speech Is Too Much?”

Cohan offered three examples of an allegedly disturbing trend of excessive free speech. One was a lawsuit from Virginia, involving allegedly defamatory statements made about the work of a contractor. The second was a lawsuit from Oregon, involving allegedly defamatory statements made about the work of a contractor. The third was the fate of “authors whose books appear for sale on Amazon and then quickly get reviewed by an increasingly large army of people who seem to have nothing better to do with their time.” It appears as if Cohan’s chief interest is the fate of one author in particular: William D. Cohan. He mentions no other Amazon author in his column.

For those interested in logic puzzles, one of the three examples in Cohan’s column is unlike the other two.

Having earlier floated a conspiracy of defense attorneys, the State Bar, the AG’s office, and unnamed Northeastern lawyers to explain the exoneration, Cohan is now reduced to alleging a “well-organized” conspiracy (of unidentified individuals, led by unidentified parties) of “haters” (a favorite Cohan term!) to “poison the well” regarding what one commentator has termed a “tightly wound 621 pages devoted to a balanced assessment of a complex event.”

(That commentator, by the way, was William D. Cohan, practicing the kind of speech that author William D. Cohan seems to very much like.)

Cohan’s central claim in the column is that people who hadn’t read his book gave it negative reviews. Given that one of his five-starreviewers outright admitted not reading the book, and several others either described a book that didn’t exist or didn’t mention Cohan’s arguments at all, Cohan’s complaint seems one-sided. His concern seems to be less “instant, unvetted and unfiltered commentary” than “instant, unvetted and unfiltered commentary” that doesn’t say the sort of things that William D. Cohan wants said.

Indeed, Cohan has complained about the “speech” of critical reviewers before; in his New York interview, he fumed about the New Republic and Commentary turning to Stuart and me to review his book. In a Facebook comment, he falsely suggested that Joe Neff hadn’t read the book before writing about it. He’s been silent or praiseworthy, on the other hand, regarding positive commentaries (Economist, Newsday) from reviewers who took away from the book items that the book didn’t actually include.

It’s hard to imagine any neutral readers will come away from Cohan’s column jumping on the anti-free speech bandwagon. The author, in any event, comes across as obsessed with Amazon—the column is at least the third time he’s complained about the site’s reviews, even as many of the negative reviews are quite detailed and clearly come from people who are engaging with his book’s claims. In a surprising tactical move, he even confesses to having contacted Amazon, to inquire about an unspecified number of negative reviews (or what he deems “clearly biased reviews”) being taken down. He gives no indication of having demanded that Amazon remove positive reviews from people who admitted not having read the book. Amazon unsurprisingly rebuffed Cohan’s complaint.

In the end, though, Cohan perhaps unintentionally reveals his chief concern. The reviews, he laments, show that “the market’s verdict has been rendered: this is a two-star book, not worthy of a moment’s consideration.”

Rabinowitz Eviscerates Author Cohan

In the Monday edition of the Wall Street Journal, Pulitzer Prize-winning author Dorothy Rabinowitz has thoroughly taken apart the arguments of author William D. Cohan, as expressed in both Cohan's book and his myriad interviews. In addition to winning the award, Rabinowitz also had been a Pulitzer finalist for her extraordinary commentary on prosecutorial misconduct and the conviction of the innocent. That honor came from her work examining (and exposing) the false sexual abuse charges associated with the the 1980s and 1990s day-care cases.

In reviewing Cohan's oeuvre, Rabinowitz concludes:

In Mr. Cohan's fair-to-everyone tome, spoiled white males, arrogant athletes, the entitled affluent all prevailed against the forces of light. Against this golden-oldie pack of villains stood Mr. Nifong, a man of honor unable to succeed in his search for justice thanks to the deep pockets that paid for sharp lawyers. He wrote this book, the author told his WAMC interviewer, as a way of having the trial that was never allowed to take place.

To Mr. Cohan, apparently, true justice is served by allowing a prosecutor oblivious to ethical constraints to bring a groundless case in the hopes of winning a jury conviction. And by the writing of his book attempting to restore the taint of guilt and suspicion on three young men who had been cleared despite all Mr. Nifong's fraudulent effort. Mr. Cohan's grim refrain, "We will never know what happened in that bathroom"—a faithful image of the substance Mr. Nifong brought to his case—stands as a perfect tribute to that predecessor.

Given how thoroughly Rabinowitz eviscerates Cohan's work, a reader might be tempted to show a smidgen of sympathy for the embattled author. Might be tempted, that is, until the reader recalls that Cohan wrote a book, and has spent the last month-plus on a publicity tour, seeking to cast aspersions on falsely accused people as he aggressively attempted to rehabilitate the reputation of a prosecutor whose ethical misconduct was notorious.

[Update, 1.15am: Indeed, Rabinowitz's column was quite timely. In his most recent press appearance, Cohan offered perhaps his most extreme commentary yet, telling CNN that "there is an incredible amount of evidence that something untoward happened in that bathroom . . . Who did it, when they did it, what they did is absolutely just still not clear." What this "incredible amount of evidence" might be must, it seems, remain a mystery, and CNN's Jake Tapper did not press him on the bizarre nature of this assertion, or why this mystery evidence didn't appear in the AG's report.

When Tapper asked whether the case was one of "misconduct" by Nifong, or "mistakes," Cohan replied, "Mistakes." Nifong's conviction of 27 of 32 counts of ethical misconduct apparently doesn't count to Cohan; and Tapper didn't challenge Cohan on this point. Indeed, Tapper didn't mention the specifics of Nifong's ethics charges at all. Did he even know about them?

Cohan also repeated his incorrect claim that each of the falsely accused players received $20 million from Duke; Tapper, reflecting his . . . hard-hitting . . . approach to journalism, responded to this assertion not by questioning it or asking for Cohan's source, but by near-exclaiming, "Each one got $20 million?!" The non-curious Tapper then expressed puzzlement as to how Duke did anything at all wrong--not mentioning Tara Levicy, or the Group of 88, or the administration's early response. An embarrassment of an interview, even by the low standards we have seen on the Cohan tour.]

Nifong Ironies in Settlement

Two Nifong-related ironies in the civil suit settlement:

First, the H-S reports the following: Seligmann attorney Richard Emery “said the former prosecutor had agreed to make a $1,000 contribution to the Innocence Inquiry Commission and reaffirm 'his statement of [the players] innocence.'”

If so, of course, Nifong has repudiated the Cohan “something happened” thesis, and has effectively repudiated much of what he told Cohan for the book. If the settlement is as reported, will Cohan now issue a retraction?

Second: the N&O obtained a statement from the head of the state Innocence Inquiry Commission, Kendra Montgomery-Blinn, who commented,“It was an honor and a surprise to be chosen to receive this grant . . . We will put the money in a special fund, and it will be used for the investigation of innocence claims. We are pleased that the important work of the Innocence Inquiry Commission was recognized in this way.”

Does her acceptance of the donation mean that Montgomery-Blinn has now accepted that the case was one of actual innocence, in which the prosecutor violated ethical norms? The former Durham ADA (and member of the politically correct People's Alliance) once believed differently: in one of the most jaw-dropping moments of the Nifong ethics hearing, Montgomery-Blinn testified in defense of Nifong, on both substantive and character grounds. As Joe Cheshire noted at the time, “It is very troubling for anyone’s faith in the innocence commission when its director testified for a man who tried to put demonstrably innocent people in prison. It’s going to take a lot of work to give anyone any comfort that she can properly screen claims of innocence.”

For a taste of the Innocence Inquiry Commission head defending the actions of the state's highest profile rogue prosecutor, see below:



Hopefully Montgomery-Blinn now has a more fair-minded view of the dangers of prosecutors abusing their power for personal gain.

Civil Suit Settlement

Anne Blythe at the N&O brings word of the final resolution of the civil suit filed by the three falsely accused players. The suit was effectively neutered by the 4th Circuit, and the settlement reflects that reality: the city has agreed to make a $50,000 donation to the state Innocence Inquiry Commission, but otherwise make no payments or admit to any wrongdoing.

Updated, 1.07pm: The city of Durham released a statement, indicating the following: “As the City has maintained throughout, it believes that its police officers had an obligation to investigate the allegations made by Crystal Mangum in 2006 and that no police officer nor any other City employee engaged in improper conduct.”

And so Durham has now reaffirmed that it was not improper conduct:

--for a member of its Police Department to give misleading testimony to the grand jury;

--for its Police Department to run a rigged photo array confined only to photos of the suspects;

--for one of two investigators on the case to not keep contemporaneous notes on his exchanges with witnesses, and then months later to produce a straight-from-memory report that seemed designed to fill in holes in the case;

--for its senior police leadership to transfer supervisory control of a major police investigation to a county prosecutor;

--for members of the police department to (at the bare minimum) not speak up when the prosecutor and lab director discussed, in the officers' presence, producing a report that did not include all DNA test results;

--for members of the Police Department to enter Duke dorms and seek to interview suspects that the department knew were represented by counsel;

--for a police department employee to give wildly misleading, and in some cases simply inaccurate, public statements about the case.

According to Durham, none of this constituted improper conduct.

[Updated, 1.46: WRAL has a longer version of the Durham statement. In addition to describing the above conduct as not improper, the city also forcefully rejected the Cohan/Nifong theory of the case: “Today, the city reaffirms that it fully concurs with the attorney general’s decision to dismiss the charges and with his conclusion that Mr. Evans, Mr. Seligmann and Mr. Finnerty were innocent of the charges for which they were indicted.”

On the Rev. Barber

Amidst the lacrosse case, more-than-occasional comparisons occurred to the Tawana Brawley rape hoax. The cases, in fact, don’t seem to me all that much alike: there was no prosecutorial misconduct in the Brawley case (if anything, there was the reverse), and there was nothing like 88 Columbia or Fordham or NYU professors taking out a full-page ad to proclaim something “happened” to Brawley.

But there is one similarity between the two cases—the eventual mainstreaming of advocates for the false accusers. In the Brawley case, of course, the highest-profile such figure was Rev. Al Sharpton, who has evolved from a charlatan to a Democratic presidential candidate (2004) to host of a talk show on which many Democratic politicians appear.

In the lacrosse case, the best example of mainstreaming comes with the Rev. William Barber, head of North Carolina’s NAACP. Since Republicans captured control of the state’s legislature in 2010 and then governorship in 2012, Barber has assumed a high-profile role in the state’s politics. In 2012, even as the state’s African-Americans favored marriage discrimination by a 20-point margin, Barber led the opposition to Amendment One; its passage made North Carolina almost certainly the last state to add an anti-gay amendment to its state constitution. And last year, Barber again marshaled protests against what election law expert Rick Hasen has termed one of the most restrictive voting laws in the nation, a measure that will disproportionately affect the very poor, minorities, and students.

Those who followed the lacrosse case, however, should recall a very different image of Barber than a figure who courageously stands up against majority sentiment on behalf of civil liberties and civil rights. Instead, his organization rivaled the Herald-Sun and the Group of 88 in serving as the biggest local cheerleader for Nifong’s case.

That’s not the image, however, a reader would have gathered from Anne Blythe’s recent profile of Barber. Blythe (whose reporting on the lacrosse case I generally admired) wrote the following: “In 2006 and 2007, he frequently weighed in on the Duke lacrosse case, highlighting issues of racial disparity while urging people to withhold judgment on the accused and accuser until the legal process played out.”

I suppose it’s true that Barber’s remarks at the time could be seen as “highlighting issues of racial disparity”—though since the events involved a prosecutor exploiting the case to maximize his share of the black vote, Barber should have emerged as a fierce critic of the race-baiting Mike Nifong, something that most definitely did not occur.

Suggesting that the reverend wanted people to withhold judgment, in any case, is hard to square with Barber’s record. It’s true that—unlike the Group of 88—Barber was savvy enough to toss in a line about withholding judgment to most of his public remarks. But everything the NAACP did in the lacrosse case presumed guilt.

To review:

The State NAACP presented an 82-point “memorandum of law” in August 2006. Riddled with factual errors—all of which tilted the presentation in favor of Nifong’s case—the “memorandum of law” falsely claimed that: “the only Black [lacrosse] player, a freshman, left the party before the dancers arrived”; “the lacrosse team member asked the women to dance and simulate sex acts between them, similarly to scenes from a book and movie that several of the Lacrosse team members enjoyed reading and talking about—American Psycho”; “after about three minutes of dancing . . . there were racial remarks made”; and perhaps most outrageously, a simple invention of facts to make Reade Seligmann look guilty: “around 12:20, some men who saw the vulnerable Ms. M returning to the house called their friends who had taken cabs and gone to get some cash from an ATM. Some returned. Sometime between approximately 12:21 and 12:53, Ms. M has stated she was kidnapped into the bathroom, beaten, robbed, choked, and vaginally and anally raped.”

Lest there be any doubt of Barber’s connection to the memo, written by NAACP legal advisor Al McSurely, here’s a screenshot of the NAACP’s then-webpage, with Barber’s photo alongside the memo.

Note that the webpage also leads with the wild claim—right next to Barber’s face—about “Crimes and Torts [no withholding judgment here] Committed by Duke Lacrosse Team Players on 3/13 and 3/14.”

It’s rather difficult to reconcile the McSurely memo, McSurely’s repeated condemnation of the defense attorneys, the state NAACP’s call to gag the defense attorneys, and the assertion next to Barber’s face of the lacrosse players committing “crimes and torts” with a description of Barber as a figure who urged “people to withhold judgment on the accused and accuser until the legal process played out.”

The State NAACP also appointed a legal “monitor,” NCCU professor Irving Joyner, to observe the case. Joyner spent most of his time apologizing for Nifong’s conduct in a manner that might have made William D. Cohan blush. Over the course of 2006, Joyner and McSurely repeatedly took pro-Nifong stances that contradicted longstanding positions of the national NAACP; their (and Barber’s) silence about the rigged photo array was particularly outrageous given past NAACP work on the question.

Barber himself traveled to Duke Chapel as Nifong’s case imploded, and delivered a sermon widely interpreted as attacking the character of the lacrosse players. In 2008, he offered a wildly misleading account of his and his organization’s role in the case in a WRAL chat. And, even after the legal process ended with AG Cooper’s report, there was some talk from the NAACP of a new (what could now be called Cohan-esque) investigation into the case.

Barber deserves praise for opposing state government discrimination against gays and lesbians, the poor, students, and minorities. But simply because he’s redeemed himself in recent years is no reason to ignore (or misleadingly portray) his record in the lacrosse case. 

On Amazon

I admit that before I purchase a book from Amazon, I tend to look at the reviews; I’ll rarely purchase a book that has quite negative feedback. Radley Balko first commented on the disparity between the overwhelmingly negative response the Cohan book received from Amazon reviewers (51 of the 75 Amazon reviews are 1-star) and the puff-piece comments from reviews in most of the mainstream media.

The negative reviews clearly captured Cohan’s attention; he has complained about them in a couple of press appearances. On C-SPAN, he offered the following remark: “All one has to do is go on to Amazon and see already that I’ve amassed, you know, 25 one star reviews even the book hasn’t been out a week and it’s a 600 page book, so I’m pretty much guessing that not many of those one star review writers have read this book.”

This was an interesting statement in a couple of respects. First, many of these 1-star comments contain substantive disagreements with Cohan’s arguments (some of them, in fact, are longer than a standard published book review). Cohan didn’t tell C-SPAN, and hasn’t said since, how people could have written a substantive review of a book they hadn’t read. That said, this is a tactic he’s employed elsewhere, as when he insinuated that Joe Neff hadn’t read the book even as Neff’s coverage made clear that the N&O reporter had done so.

Second, it seems as if Cohan’s line of attack better applies to those who had reviewed the book positively on Amazon. As has often been the case with the book’s favorable published reviews, many of Cohan’s 5-star Amazon reviews avoid discussing anything that’s actually in the book.

Some examples, with each of the six below in their totality:

“I'm not a sports fan but William Cohan tells a story so well that I read ‘The Price of Silence" like a novel. I even got excited by descriptions of Lacrosse games, though I doubt that I'd sit through one in real life.”

“William D. Cohan has created a masterpiece of both investigative reporting & history. Of the 7 book [??] thus far published about the case, it is the best one yet. As such it is heartily recommended.”

“Do not let the negative reviews dissuade you from this book. William Cohan has done a masterful job of pulling together the disparate facts concerning what occurred at Duke and setting forth the definitive account. The book is superb and is a compelling read.”

“I am surprised by all of the negative. No Duke alum wants to rehash this experience but isn't it at least good to have the facts as opposed to just fleeting bits here and there? I don't think this is condemnation or judgment as much as it is about historical account and I for one thing this is incredibly important.”

“A book that strikes at the heart of universities today despite the aggressive criticism of Duke alum. Sometimes the truth can be painful.”

“I was familiar with the case and have followed Duke for years and wondered how it turned out, Cohan filled in the blanks.”

How someone “familiar with the case” didn’t know how the case turned out the reviewer elected not to reveal.

One 5-star reviewer hailed Cohan’s “sympathetic” portrayals of the lacrosse players(!), while another even labeled the “crucified” Nifong a “serial offender”—suggesting that whatever book these two reviewers read, it wasn’t Cohan’s.

Of the reviews, only two—one by an anonymous New Yorker, and the second by a Jerome Buttrick—appeared to embrace the book’s twin “something happened”/Nifong’s-a-victim argument. Buttrick wrote, “Not only does this read like a John Grisham legal thriller, it also addresses some of the most important and difficult issues facing our nation today: social and racial injustice, ‘bad boy’ behavior on college campuses, and the ability of the rich and powerful to bend the system to their liking.” Neither Buttrick nor the anonymous New Yorker have reviewed any other book at Amazon.

Two 5-star reviews particularly caught my eye.

First was this item, from a “D. Retah,” who wrote, “For anyone who wants to know what goes on at colleges today,this [sic] is required reading, and an unforgettable narrative about a snarled legal sysyem [sic], privilege, and elitism. I found it unputtdownable [sic] and feel it is a must read.”

The only other book the grammatically-challenged “D.” reviewed was UPI—which “D.” reviewed not when it appeared but instead a few days ago. (Thanks for reading, “D.”!) In her review, “D.” suggested that Stuart and I lacked the credentials we claimed to possess. I’m sure my superiors at Brooklyn College would be fascinated by the bizarre claim.

But the classic 5-star Cohan review was this one, from a reviewer named JKR:

“It came promptly, but I haven't had time to read it.”

Tough to rebut that line of argument. Perhaps the New York Times could schedule a third gushing review, with JKR taking the pen?

Cohan's Greatest Hits

Now that author William D. Cohan appears to be wrapping up his publicity tour—and his review process ended with a biting item from the Independent—it might be worth reviewing some of his “greatest hits” in interviews. A general comment: in a highly unusual approach to a book tour, Cohan was far, far more aggressive about the case than he was in the book itself. Could it be that freed from the constraints of Scribner’s editors and counsel, Cohan could be himself?

Nifong

“I certainly feel sorry for Mike Nifong, the prosecutor, whose life was ruined because of this.”—WAMC

I’m sure that Darryl Howard shares Cohan’s sympathy.

“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.”—New York

…suggesting that author Cohan either is prone to misstatements or didn’t read his own book.

“I was able to speak to people who had never spoken before about this, like Mike Nifong.”—Diane Rehm Show

It’s true Nifong had never spoken about this, if we overlook dozens of press and political appearances and his testimony, under oath, before the State Bar and Judge Smith.

“This idea that he was exploiting this case for his election, I think, is ridiculous . . . he was already an announced candidate.”—Jim Campbell Show

Political analyst Cohan: once a candidate announces for election, he can no longer politically exploit an issue that emerges.

“[Mangum] truck me as rational, thoughtful, articulate.”—WAMC

Cohan, on Nifong’s “victim.”

“So within a week’s time he gave up [his preprimary publicity crusade] and basically didn’t talk to the media again and but he was crucified for doing it in that very publicly and during that week.”—CSPAN

Despite Cohan’s claims, Nifong, Durham’s Christ-like figure crucified for his sins, didn’t refrain from speaking to the media after a week; he just spoke less frequently. Lexis/Nexis and a basic Google search can, sometimes, assist even a “serious investigative journalist.”

Approach to the Book

“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.”—New York

Talk, that is, to everyone other than anyone who tangled professionally with Mike Nifong in the courtroom.

“LAMB: Where is [Kim Roberts] today?; COHAN: I have no idea. She…; LAMB: Did you try to find her?; COHAN: I did, but I didn’t even know where to look.”—CSPAN

A “serious investigative journalist” in action.

“I wasn’t trying to prove that these kids were innocent, as [Stuart and KC] were.”—New York

For reasons he has never explained, Cohan appears to believe that the actual writing of UPI occurred in 2006, when there was any doubt that “these kids were innocent.”

“I have tried to present all sides to this fairly and dispassionately, but the - the - the haters like Stuart Taylor don’t want anything to do with a fair and dispassionate assessment of this case.”—Diane Rehm Show

Cohan still hasn’t revealed precisely what makes Stuart a “hater.” Outrage at an author bedeviled by sloppy reasoning?

“LAMB: How did you approach doing this? COHAN: Completely dispassionately.”—CSPAN

For those in need of a good chuckle.

“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.”—Michael Smerconish Show

Cohan, on the need to uphold personal legal obligations.

“I thought for sure as the President of Duke University, my Alma Mater, knowing my reputation as a serious investigative journalist, he would have at least have the courtesy to meet with me.”—CSPAN

Cohan’s self-interpretation.

Due Process

“[Mangum] eventually did identify, with the help of the police, [emphasis added] in an identification process, she did identify three of the players, two with 100 percent certainty, one [sic] with 90 percent certainty, and those were the three who were indicted.”—Leonard Lopate Show, WYNC

Cohan, describing (and seeming to defend) the rigged photo array.

“Mike Nifong would say that he did turn over the complete DNA evidence in a timely fashion.”—WUNC

Why, then, did Nifong lie to Judge Smith about doing so?

“For thousands of years [when DNA was not identifiable,] rape charges were brought, and people were convicted or found not guilty.”—WUNC

Civil liberties, according to the man who (except for at WUNC) was the toast of the town on usually civil-liberties friendly public radio stations.

“It’s not inconceivable that something happened that none of us would be proud of.”—Michael Smerconish Show

Cohan, carrying Richard Brodhead’s mantra that a trial could prove his students innocent to a new extreme.

“Between Nifong, Crystal, and Bob Steel, the consensus seems to be something happened in that bathroom that no one would be proud of.”—Bloomberg TV

In around a dozen interviews, Cohan always refused to say what happened—even when he was directly asked the question by a savvy e-mailer.

“The defense attorneys claim that Mike Nifong withheld that information from them. But that’s just simply not true . . . He didn’t make it easy for them. He didn’t put a nice bow around it. He made them dig through it.”—Diane Rehm Show

“[Defense attorneys] claimed that he did not disclose the so-called exculpatory DNA in a timely fashion. But, you know, actually that’s not true!”—Jim Campbell Show

We moved from “simply” not true to Diane Rehm to, a few days later, “actually” not true to Jim Campbell. Either version of events is, to borrow a phrase, not true.

Erroneous Descriptions of Evidence

“So my question is: how did David Evans’ DNA get on those fingernails?”—Jim Campbell Show

“On one of those fingernails was David Evans DNA with 98 percent certainty. Which seems pretty high to me, but I guess sometimes DNA experts say that two percent probability means that it’s not related at all.”—CSPAN

So at what point in the few days between his CSPAN appearance and his Jim Campbell appearance did the “serious investigative journalist” decide that a probability DNA experts say “means that it’s not related at all” was longer a necessary qualifier?

“The nurse who examined her found evidence that she had been brutalized and that she had been hurt very badly . . . The medical records, I guess . . . nobody made that public until now. I got my hands on it and reported it faithfully in the book.”—WAMC

Tall Tales, with William D. Cohan.

“Each of the boys [Cohan is describing people in their late 20s or early 30s as “boys”] – each of the three indicted players got $20 million each from Duke.”—CSPAN

Alas, word on the street in “Duke and Durham” isn’t always reliable, as a “serious investigative journalist” should know.

----------------

And, finally, my personal favorite, a nonsense-sentence uttered by someone pretending he knew something about the law, on the Leonard Lopate Show, WYNC:

“Again, it’s [innocence] not a word that’s used, uh, in jurisprudent lexicon.

Readership Note

Earlier today, the blog surpassed the 6,000,000 mark for visits. It currently has just under 9.1 million page views. The overwhelming percentage of that total came in 2006 and 2007 (when posts were, at least, daily), but the blog still averages around 7,500 reads per week.

I should observe that the “definitive, magisterial” account of the case lists DIW readership at 100,000—leaving author Cohan off by a factor of 60 on visits and over 90 on page views. Although this item is insignificant when compared to the book’s serious errors, Cohan has never explained why he chose to use an incorrect figure, or why he did not contact me to ascertain the correct figure before publishing.

As always, thank you for visiting the blog.

The Independent: "The Price of Silence Adds Nothing New to the Case or Our Understanding of It"

As Radley Balko has presciently observed, the pattern in reviews of author William Cohan’s book has been straightforward: overwhelmingly negative reviews from any reviewer who followed the case closely, coupled with glowing reviews from those who knew nothing about the case and appeared willing to uncritically accept Cohan’s musings without even wondering about the merits of using a convicted liar as the book’s chief source.

(The sole somewhat-exception to the pattern: Susannah Meadows, whose review admitted that Cohan had failed to provide evidence for his something-happened thesis but nonetheless praised Cohan for producing new findings that either weren’t new or weren’t true.)

Confirmation of the Balko pattern comes now from a most unexpected source, The Independent.

As noted below, few publications did more to uphold Nifong’s fraudulent efforts; the paper endorsed him twice and aggressively slanted opinion coverage during the case in his favor. Yet reviewer Stephen Deusner has nothing good to say about the book in which the paper’s one-time hero serves as chief protagonist.

Reflecting the IndyWeek mindset, Deusner seems eager to embrace Cohan’s message. He opens his review in the following way: “When President Obama recently issued new guidelines for reporting and investigating sexual assaults on campus, he signaled his intention to curb violence against women and to confront a toxic culture that is deeply entrenched in higher education. Triangle readers might view these policies as a delayed response to the Duke lacrosse controversy of 2006, where a racially charged rape allegation made by a stripper against members of the Duke men's lacrosse team later proved unfounded.”

While this remark accurately captures the politically correct approach to the issue of campus sexual assault nationally, it raises the obvious question: how would Duke, a rape that not only never occurred, but an episode exposed as an instance of massive prosecutorial misconduct, provide justification for a policy that eviscerates the due process protections of accused students?

Nonetheless, even a reviewer who seems as highly sympathetic to Cohan’s ideological perspective can’t stomach the book. “Even Jon Stewart could barely hide his skepticism in a recent Daily Show interview,” Deusner correctly notes. (As Stuart Taylor and I commented in our RCP piece, Stewart was about the only interviewer, along with WUNC’s Frank Stasio, to in any way challenge Cohan: and Stasio, though his program leans to the left, clearly was knowledgeable about the case.) Deusner observes, again correctly, that critics “have not been kind in their assessments, nor should they be: This very long book is short on insight or purpose.”

Deusner wonders about the book at a structural level, noting that “Cohan regurgitates seemingly every last shred of information from his files . . . persistently confusing summary with analysis and failing to shape the facts into a coherent or accessible narrative.” He also expresses doubt about Cohan's willingness to rely so heavily on “Nifong, who is perhaps not the most credible witness.”

Cohan's apparent sympathy for Nifong, Deusner reasons, might be “the unintended consequence of the author's lack of access to other testimonies and to his own mishandling of the narrative.” In the end, the reviewer concludes, neither Cohan nor Nifong are able to provide any “new perspective” on the case.

Again: all of this comes from a paper that twice endorsed Nifong and whose editorial slant seems highly sympathetic to Cohan overall.

I suppose Cohan can hold out hope for a positive review from the Herald-Sun? But unless one is forthcoming, the Price of Silence will conclude its reviewer season as an extraordinary example of a book about which no one who knew anything about the case could find anything positive to say.

The Independent: Durham Needs a DA with Passion, Like Nifong & Cline

Tuesday is primary day in North Carolina. The Independent, the Triangle’s alternative weekly, recently made its endorsement for the Democratic primary for DA.

The Independent hosts the columns of Hal Crowther, hailed by author William D. Cohan as “the conscience of progressive thinkers in North Carolina.” That would be the same Crowther who penned a vicious summer 2006 column featuring Peter Wood speaking disparagingly of the accused lacrosse players he had taught in his class. When the mother of one of the players, Reade Seligmann, called up Wood to ask him on what basis he had attacked her son, Wood hung up on her.

(In an intriguing item, Cohan revealed in the WYNC interview that he knew Wood when he was at Duke, explaining the book’s heroic treatment of the discredited lacrosse critic.)

Indy has quite a record on endorsements.

In the 2006 DA’s primary, the Independent urged voters to “look beyond the recent handling of one case” (including the DA’s myriad ethically improper public statements) and vote for Mike Nifong. The paper’s board praised Nifong’s “hardworking and professional manner,” and suggested that “colleagues and legal opponents alike laud his sense of fairness and justice.” (This statement came in the midst of the lacrosse case; Joe Cheshire’s first press conference calling into question Nifong’s sense of fairness and justice had occurred weeks before.) But Nifong was acceptable ideologically, and so he earned the nod.

In the fall campaign, Indy climbed back on board the Nifong bandwagon. Editors fretted at how “Nifong has a target on his back,” and then offered a bizarre recapitulation of events of the year. “Nifong and the Durham Police Department may have mishandled the case,” Indy delicately noted, and—in a Cohanesque interpretation—perhaps Nifong spoke out of turn when he “publicly condemned the defendants before completing his investigation.” But, the editors assured their readers, “the district attorney has made amends.” The nature of those “amends” was a mystery in October 2006 and remains a mystery now.

In the event, even if he was seeking to convict innocent people without any evidence, The Independent concluded that “We're sticking with the endorsement we made for the April primary: Mike Nifong.” After all, “maybe he has a few tricks up his sleeve.” Tricks, perhaps, like withholding exculpatory evidence.

Nifong was removed as district attorney amidst an ethics scandal.

In the 2008 primary, after conceding they were hoodwinked by Nifong, the editors issued a glowing endorsement of Tracey Cline. Identity politics was front and center in the selection; the editorial suggested that Cline, “as a black woman, could be an excellent role model for the young African Americans caught in the system.”

In a remarkable passage for a paper that had enabled Nifong, the editorial whitewashed Cline’s role in the lacrosse case. “She is putting to rest questions,” Indy mused, “that she was involved in Nifong's lacrosse prosecution, a concern among some critics. She told the Independent that police officers came to her asking advice about what paperwork to complete, a search warrant or a non-testimonial order, and when they had completed the paperwork, filed it with then Assistant District Attorney David Saacks, who signed it. ‘I didn't sign anything,’ Cline said. ‘All I did was advise them, which I should do on every single case. Under the same situation, any district attorney would do the same thing. The statute requires you to do that.’”

Of course, the questions extended beyond her giving an “advice” for a NTO that covered some people the police had no cause to believe even were in Durham the night of the party. The questions involved what role Cline—second chair to Nifong in the trial that William D. Cohan desperately wished had occurred—played in assisting Nifong during 2006. Cline’s Wonderland-like implication that she had never talked about the case with Nifong fooled no one—except, it seems, the Indy editors.

Cline was removed as district attorney amidst an ethics scandal.

So who has the paper endorsed in the first post-Cline election? In an editorial that didn’t mention Indy’s endorsements in either 2006 or 2008, the paper endorsed a “veteran defense attorney” named Brian Aus. What accounted for the choice? “He seems to have more passion than his opponents.”

And, by the way? According to the editors, “passion is the very quality that sunk Nifong and Cline.”

It’s good to see that for the Independent, reconsidering long-held criteria in face of contradictory evidence isn’t a useful task.

Media & Cohan

Stuart and I had a piece yesterday in Real Clear Politics, examining how the failure of (much of) the mainstream media--both in reviewers and interviewers--to critically examine the extreme arguments of author William D. Cohan reveals a new round in the media's rush to judgment about the case. You can read the piece here.

"Counselor" Cohan on Law & Procedure

Author William D. Cohan carried his “something happened” media tour to two additional programs, appearing Sunday on the Jim Campbell show and Monday on WYNC, where he was interviewed by Leonard Lopate (a politically correct type who rarely defends prosecutorial misconduct). Continuing his penchant for offering more extreme statements on the radio than made in the book, Cohan even appeared to defend—for the first time—the rigged photo array ordered by Mike Nifong, the only “evidence” Nifong ever had against the three falsely accused students.

Cohan also extended his conspiracy theory beyond previous claims of an alliance between Roy Cooper, the state bar, and the defense attorneys to block the truth. He suggested to WYNC that ethics charges appeared in the case because Cooper “could be more easily controlled by the powers that be in the state. Mike Nifong was somebody that the defense and Duke clearly could not control.” Exactly who or what these shadowy “powers” were Cohan left listeners guessing.

DNA

Host Jim Campbell started this section of the discussion by prompting Cohan (whose book he subsequently positively reviewed): “They did find DNA of semen on a towel in that bathroom.”

COHAN, at 38.40: Yes, and the defense said . . . that’s one interesting thing. She says that after he “finished,” he wiped himself off with his towel and threw it in the corner. They found that towel with his DNA on it. And of course the defense says, “Of course, they found a towel with his DNA on it, because it was his bathroom in his house.”

But the interesting thing, the thing that I keep going back to, a bit of evidence that the defense does not like to talk about [Cohan, albeit incoherently, is referring here to the results of the Meehan DNA test, which “the defense” fought tooth and nail to reveal, and which Nifong sought to conceal], which is in his statement to the police, a few days after the alleged crime, Matt Zash . .  . told the police that he was the one who—

Let me just go back here. Crystal Mangum said that in the bathroom, she was raped and sexually assaulted, there was a struggle, and she was struggling for her life. She thought she was going to die, and she was struggling to get away from her attacker [who conveniently left no bruises on her…], and during that struggle, her fingernails came off. OK? She had these plastic fingernails that she had glued on [Cohan presented no evidence that Mangum had glued them on]. They came off. Red fingernails.

In his statement to police, Matt Zash said that he was the one who went into the bathroom after the party, took the fingernails, and put them in a wastebasket. OK?

Later on, those fingernails were tested for DNA. You would have thought Matt Zash’s DNA would be on those fingernails . . . In fact, David Evans’ DNA was on those fingernails, with 98 percent certainty. Now, 98 is not 100, and maybe in the DNA world, that’s a big gulf [As the author of the “definitive, magisterial” work on the case, why didn’t he ask an expert on DNA if a result that means the DNA could belong to thousands of men is a “big gulf”?], but . . .

Still, with 98 percent certainty, the DNA matched David Evans’ DNA. So if Matt Zash was the one who put those fingernails in the trash and now David Evans (by the way, the defense explains David Evans’ DNA being on those fingernails because they say he was the one who put them in the trash [What??]). But he wasn’t the one who put them in the trash! Matt Zash was.

So my question is: how did David Evans’ DNA get on those fingernails?

Comment: Perhaps because the fact a test result that says that Evans, plus two percent of the sample pool, can’t be excluded from the test results doesn’t mean that “David Evans’ DNA get on those fingernails.”

The issue of transference—that is, DNA from a discarded item of Evans’ in Evans’ bathroom trashcan possibly cross-contaminating the false fingernails—is a concept that Cohan appears unable to grasp, even though the attorney general’s report specifically raised it.

Nifong and Ethics

Host Jim Campbell asked a question about Nifong’s myriad ethical violations, triggering what is perhaps Cohan’s longest defense of Nifong’s conduct.

COHAN, at 41.41: So I would say now that clearly [Nifong] admits now that he made mistakes along the way—but he does have an explanation for each of those things! You know, you can believe him or not. [Isn’t is the job of a “serious investigative journalist” to test a source’s credibility?] He had 28 years’ worth of experience before this incident in the DA’s office in Durham. [Again, Cohan brushes past the Darryl Howard case.] This idea that he was exploiting this case for his election, I think, is ridiculous. He’d been appointed the interim DA . . . the governor appointed him to be the DA. He decided to run for his own election in his own right in December 2005. This incident occurred in March 2006. So he was already an announced candidate.

The defense, you know, loves to say that he was exploiting this incident for his own electoral benefit. I think that’s ridiculous. Of course, Mike Nifong does, too.

Comment: It’s not clear to me what the defense “loves” to say, and since Cohan never tried to speak to the “defense,” it’s not clear to me why he chose to describe their mindset. In the event, it was the State Bar disciplinary panel, not simply the “defense,” that found Nifong exploiting the case for his electoral benefit. That’s not a finding that author Cohan wants to talk about.

Cohan’s description of politics is either willfully naïve or outright deceptive. (I suspect the latter.) His argument, as far as I can determine, is that because (a) Nifong had decided to run for election in late 2005; (b) nothing that occurred between that time and the May primary could be exploited by Nifong for political benefit. A typical high school student could offer more sophisticated political analysis.

To review: Nifong was down in the polls and saw his fundraising drying up, with his best chance of winning maximizing the black vote, when the lacrosse case emerged. He then decided to personally try his first criminal case in years.

COHAN: But he did make mistakes. In retrospect, it was a mistake to be so public about his views, about what he believed happened. He made—clearly, you know, his judgment was to believe Tara Levicy, the nurse who examined Crystal Mangum. He believed her report, which said that she had been sexually assaulted [and which he did not appear to have read before beginning his pre-primary publicity crusade…]. He believed the police investigators, who had spoken extensively to Crystal and wrote it up in the reports [sic] as she described it. [At the time of his crusade, one investigator, Himan, had written his report, and Nifong doesn’t appear to have read it.] You know, once she settled on a version [Mangum’s myriad, contradictory stories are reduced to a minor inconvenience of not “settling.”]. He believed them. He believed, you know, in his gut that something had happened that cause Crystal Mangum to react the way she did after this incident occurred. [Prosecuting people based on the DA’s “gut” feeling is quite an approach to evidentiary analysis.]

But, you know, in retrospect he was way too outspoken about it. What the defense did, because he was so outspoken about it, they filed a bunch of letters with the State Bar which eventually filed a complaint in the middle of the investigation and even before the trial had started in the middle of all of this, claiming that Mike Nifong’s public statements had sort of biased any potential jury and were prejudicial to the case, and they also claimed that he did not disclose the so-called exculpatory DNA in a timely fashion. But, you know, actually that’s not true! There were two DNA examinations—one by the state DNA experts, and as soon as he got that report back, which showed no DNA on the players in or on here, as they say, he shared that information with the defense, who then had a press conference on the Durham Co. jail to proclaim, you know, their clients’ innocence, you know, or however they said it at that time.

Then he had a second laboratory, a private laboratory, test the DNA, which is sort of how he found out about David Evans’ DNA on her fingernails. When he got those results back, too, he turned that over to the defense, who once again held a press conference proclaiming their clients’ innocence.

What they claimed he did not do in a timely fashion was turn over the entire file of thousands of pages of the DNA evidence.

Comment: Add this item to the many inaccuracies (all tilted toward bolstering Nifong’s version of the case) in Cohan’s book and commentary. Actually: “What they claimed he did not do in [any] fashion was turn over [a report that contained the results of any DNA tests that were done, instead of only some tests, with the limitation the result of an intentional agreement between Dr. Meehan and prosecutor Nifong].” Other than the bracketed items, Cohan’s statement was entirely accurate. After all, “they” did “claim” something!

Race

Host Campbell asked a bizarre question about whether the lacrosse player who responded to Kim Roberts’ racial taunt with a racial slur should have been charged with a hate crime. Cohan used the question to claim that no one denies the use of racial epithets (but lots of people, unlike Cohan, deny use of epithets at the party, when two of the defendants were present), elided the question, and then said:

COHAN, at 51.22: That’s just part of the story that nobody focuses on. In Manhattan, or New York City, probably a bigger deal would have been made about that, that didn’t seem to get anybody too jazzed up in Durham, North Carolina.

Comment: That’s true—nobody got “jazzed up” about the racial slur. Except the Group of 88, and President Brodhead, and the potbangers, and the New Black Panthers, and much of the media. Other than that, no one.

Targets

On WYNC, Cohan exhibited rather different attitudes toward the falsely accused than toward their accuser. Of the falsely accused, he harrumphed (at 2.58), “If I was flush with $20 million and somebody reputable was writing a book about it, I’d be more than happy to talk to them.” Perhaps the falsely accused students considered someone who would falsely claim they were each “flush” with “$20 million,” an inflated figure for which Cohan produced no evidence, to be non-reputable. Of Mangum (at 11.00), Cohan deemed her life story “so heartbreaking”; she made “efforts to better herself,” including by “dancing.” Cohan concluded that “the whole thing is extremely heartbreaking.”

Legal Commentary

When asked by WYNC why it was improper for Cooper to acknowledge the falsely accused students’ innocence, Cohan unleashed this response:

COHAN, at 22.54: Again, it’s [innocence] not a word that’s used, uh, in jurisprudent lexicon. I mean, uh, Cy Vance or somebody like that would have thoughts on that, I’m sure.

Here is a link to the audio above.

Comment: The first sentence is word salad—the musings of someone who knows little or nothing about the law trying to sound as if he’s a legal expert. What exactly is “jurisprudent lexicon,” anyway? A google search of the term reveals exactly one match—to this post.

As for the second sentence: Cohan has proclaimed himself such a “serious investigative journalist” that the Attorney General of North Carolina won’t be taken “seriously as a public official” unless Cooper speaks to him. So why didn’t Cohan call up Vance, the Manhattan DA, and ask his “thoughts on that”? Surely Vance would have taken the call, given Cohan’s importance.

Cohan then offered his insights about North Carolina public records law, seemingly referring to NCGS § 132-1.4, which holds that criminal records are not public documents.

COHAN, at 23.36: But of course, [Cooper] declared them innocent, so there was no crime, so it’s not technically a criminal investigation. He should turn them over.

Comment: I’m sure any lawyers listening to this explanation chuckled—regardless of its outcome, the investigation was a criminal investigation. The nature of the investigation is based on the charge, not the outcome.

The feckless WYNC host asked if Nifong felt he was being railroaded, setting up this response.

COHAN, at 20.28: Absolutely.

At 21.00: [Nifong] thinks the justice system was subverted, because it’s not supposed to work that, you know, if the prosecutor believes something happens, and he’s got witnesses who are ready to testify, he’s supposed to be able to bring that case to trial. It’s not [voice cracking] right that the case is not brought to trial because of the clever legal strategies of defense attorneys and their deep pockets.

Comment: Cohan again displays his passion for defending prosecutorial misconduct. The justice system is subverted when prosecutors lie to a judge, or don’t follow the law, or withhold exculpatory evidence, or make public statements inflaming the populace to benefit politically. These subversions don’t seem to bother Cohan.

The WYNC host asked a sympathetic question about Nifong’s being disbarred. Cohan responded with passion:

COHAN: Oh, my God! And completely disparaged! There are still lawyers working for these three indicted players who won’t be happy until Mike Nifong is silenced. They were unhappy that he was able to speak with me for this book, and they want to silence him, and bury him, if they can. Literally, I would think.

Comment: This seems to be another example of “Conspiracy-Theory-Bill” in action. He presents, of course, no evidence that attorneys for the falsely accused players have attempted to silence Nifong—indeed, since they sued him, they gave Nifong an opportunity to respond in open court. Since Cohan didn’t try to interview any of the civil-case attorneys, it’s not clear how he determined they were “unhappy that he was able to speak with me for this book”; if anything, given Nifong’s using the book to continue to attack the former students’ reputations, the book would be helpful to the civil case.

A follow-up Q from the hard-hitting WYNC host (WYNC has a reputation as the most high-brow of the nation’s public radio stations): “The irony here that the DA was the only person who spent time in jail.”

COHAN: Yes, it’s unbelievable, frankly, for what he thought was just doing his job. I mean, there are people who think he’s the anti-Christ to this day, and, again, won’t be happy until he’s not on earth anymore. You know, he made mistakes, and he’s the first to admit them, but for him to be the only person to spend a day in jail and to have his life essentially terminated—as he knew it—after having a long and distinguished career is extraordinary.

Comment: It’s terrifying that Cohan appears to think that for Nifong, “just doing his job” consisted of violating myriad ethics guidelines, ignoring the requirements of two separate North Carolina statutory provisions, and lying in open court to a judge.

Nifong and the Array

Finally, an item for the archives, from the WYNC interview, with Cohan whitewashing the rigged photo array:

COHAN, at 18.19: She couldn’t, at first, remember how many people had attacked her. She couldn’t remember their names. Of course, they may have given her fake names. She eventually did identify, with the help of the police, [emphasis added] in an identification process, she did identify three of the players, two with 100 percent certainty, one [sic] with 90 percent certainty, and those were the three who were indicted.

Comment: It’s hard to know where to start here. Obvious point: Mangum identified four, not three, people, in the rigged array—two with 100 percent certainty, two with 90 percent certainty. It’s not clear why Cohan misstated the facts here. Perhaps he never saw the transcript of the array session.

More broadly, it’s true that Mangum eventually did identify people “with the help of the police” (who rigged the process by giving her an array with only lacrosse players, and then telling her that). But in a fair process, an ID process isn’t supposed to occur “with the help of the police.” And in this case, the rigged array occurred under the direction of Cohan’s protagonist, Nifong, who by this point had assumed supervision of the police investigation.

That Cohan seems untroubled with the rigged array is unsurprising, but nonetheless revealing.