"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.