Cohan's False Portrayal of Williamson

Well beyond his odd arguments, William D. Cohan has distinguished himself through a highly unusual editorial strategy. In many cases relying solely on the word of a convicted liar (often presented second- or even third-hand), Cohan allowed Mike Nifong to launch unsubstantiated attacks against virtually anyone who challenged the rogue district attorney at any point during the lacrosse case.

It’s difficult to infer a benevolent motive to Cohan’s strategy. It’s also hard to determine how Scribner’s editorial and legal staff allowed Cohan to get away with this approach. The first article to appear on the book—by Joe Neff—exposed the problem: relying solely on Nifong’s word, Cohan claimed that Attorney General Roy Cooper “blindsided” his senior prosecutors when he declared the falsely accused students innocent. Unlike Cohan, Neff actually spoke to Jim Coman, who dismissed the presentation of events as a “figments of [Nifong’s] imagination.”

Another key figure in the case targeted by Nifong and Cohan has now refuted the Cohan presentation. Lane Williamson, who presided over the Disciplinary Hearing Commission in Nifong’s case, was a powerhouse, handling the case with unchallenged intellectual and moral authority. (UPI ends with a majestic quote from Williamson.) Williamson also produced the most dramatic moment of the entire proceeding, when he asked Nifong about his then-current view of the case.

(In the clip above, Nifong made no mention of his bizarre Japanese-rape-club example that Cohan floats as his current theory of the case in the book. Cohan did not seem to ask him when, after his testimony above, he embraced this novel interpretation of the facts of the case.)

It would seem as if the outcome of the Bar hearing placed Williamson on Nifong’s enemies list. And given Cohan’s uncritical acceptance of virtually anything Nifong told him, Williamson became a target of Cohan as well. On p. 559, Nifong-through-Cohan challenged Williamson’s integrity and impartiality, claiming that “at least part of Lane Williamson’s sentencing memo was done the night before I testified. At least part of that had been written. I could’ve said anything. I could’ve called Jesus Christ as a witness, and [h]e could have testified and ascended into heaven, and they would’ve said, ‘Well, obviously you can’t make anything of that testimony. That doesn’t mean anything. You’re obviously guilty.’”

For reasons that he has never explained regarding multiple figures in the book, Cohan produced this passage without attempting to contact Williamson. Unsurprisingly, given its reliance on the word of a convicted liar, the book’s portrayal of Williamson is untrue. In a comment (verified by me), Williamson noted,

I have never commented on this or any other blog about the Nifong case, but feel compelled to do so now. I did not prejudge Mike Nifong: rather, I evaluated the evidence presented at the hearing to reach my conclusions. I wrote no part of my concluding remarks prior to the end of the hearing: those were extemporaneous except for a few notes that I made during the panel’s deliberation following closing arguments on the punishment phase of the hearing.

Mr. Cohan has never contacted me. [emphasis added]

As with Jim Coman, then, so too with Lane Williamson: (1) Cohan uncritically accepted a less-than-plausible assertion from Nifong; and (2) despite Nifong’s credibility problems, didn’t even try to check his protagonist’s veracity with the person that Nifong had targeted.

That said, the wild Cohan/Nifong claim should give everyone an opportunity to return to one of the high points of the case. I have embedded Williamson’s remarks below, or, you can watch the entire Williamson closing in a single file, in higher quality, at the WRAL site.

Cohan: "Why? Why? Why?"

Author William D. Cohan continued his publicity tour, this time stepping slightly outside his ideological comfort zone to appear on Michael Smerconish’s radio show. (Excerpt here; full broadcast available at siriusxm.) Cohan expressed amazement that important parties to the case had declined to speak with “somebody like me.” Waxing almost philosophical, he wondered, “Why? Why? Why?”

Regarding many key figures—the defense attorneys, State Bar prosecutors, the senior prosecutors in the AG’s office, the prosecutor in the contempt trial, Judge Smith, and the Bar disciplinary tribunal—the answer to Cohan’s question is straightforward: because (as I noted in my Commentary review) he made no attempt to interview any of them.

On the Smerconish program, Cohan brushed over this inconvenient fact, and instead directed to his targets a series of easily answered questions. Why won’t Roy Cooper, he mused at 7.10, “make his investigative files open to the public?” (Hint: NCGS § 132-1.4.) “Why won’t these three boys [he’s referring to individuals in their late 20s or early 30s here] talk to me? 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.” (Is Cohan so blasé in upholding legal obligations in his own life?)

So, to summarize: Cohan believes that when “somebody like” him comes a-calling, a state’s top law enforcement official should ignore state law to satisfy the author’s curiosity; and interview subjects should violate legal settlements that they freely signed to do his bidding. Meanwhile, though he’s described the purpose of his book as recreating the trial that never occurred, he apparently made no effort to interview any attorney who tangled with Mike Nifong in court on any matter related to the case.

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Over the course of the interview, Cohan provided many of what have become his usual soundbites:

• “We’ll never know what happened,” citing Donald Rumsfeld;
• “Absence of evidence isn’t evidence of absence,” citing Mike Nifong;
• The book functions as the trial that never occurred, except defense attorneys weren’t asked to speak;
• “As a student of human nature,” Cohan’s evaluation of the case should be deemed credible—even as he breezily confesses his lack of legal credentials;
• Mangum’s newest story (the broomstick assault) is credible.

Cohan also added a new twist on an old favorite (at 6.17): “It’s not inconceivable that something happened that none of us would be proud of.” He still won’t say what happened, but his argument has now expanded—presented as a double negative, no less!: that people should stand for trial for a possible decades-long sentence because “it’s not inconceivable that something happened.” Why? Because (at 7.10) “where there’s smoke, there’s fire.” Top-notch investigative journalism in action.

Unlike WUNC’s Frank Stasio, who asked Cohan several specific questions (if he didn’t do enough follow-ups), Smerconish steered clear of detailed questions. But the host did make clear his belief that a rough kind of justice was served in the case—Mangum’s in jail, albeit for murder; Nifong’s disbarred and bankrupt; and the falsely accused students have moved on with their lives and prospered. Each got what they deserved.

Such an interpretation enraged Cohan, who had to pause for a couple of seconds before even responding, as if he were preparing to speak to a wayward schoolchild. “I’m not sure,” he sputtered at 2.58, “that the players, the three guys, deserved $20 million each.” (There’s no reason—apart from Cohan’s uncorroborated reporting—to believe that the settlement total was $60 million; credible reporting from Bernie Reeves, which I have no reason to doubt, placed the actual total at around a third of Cohan’s claim.) Cohan conceded that the university had some legal liability, but added that Duke settled because they wanted the case to go away—without explaining why Duke aggressively litigated the unindicted players’ lawsuit, ensuring that the case didn’t quickly go away.

Repeating his normal disclaimer that he isn’t a lawyer and lacks legal training, Cohan nonetheless denied that “there was justice” in the case, since (at 0.46) “justice is something that we find out through a legal process.” Cohan seems to equate a “legal process” and taking a case “through a trial,” even if the prosecution lacks probable cause or the prosecutor flagrantly violates state law or state ethics guidelines. Nor, in Cohan’s world, can prosecutors independently discover (or even concede) evidence of innocence. “I don’t think,” the author asserted, that “innocent” is “a legal term.” This would be news to state Innocence Commissions.

Perhaps because Smerconish made absolutely clear his disdain for Nifong’s conduct, Cohan toned down his customarily strident defense of the disgraced ex-DA. He did describe Nifong as “a very respected prosecutor for 28 years” who was “railroaded” out of office, showing that the “justice system was rigged” in favor of the rich. But he countered with an off-message concession—“I can’t defend his decisions as a prosecutor”(!!)—even as he had done little else in the book and in his various publicity appearances. Cohan also stated that Nifong would admit that he made “mistakes,” though the author declined to identify to which “mistakes” he was referring.

Almost all of the callers to the program were not persuaded; one pointed out the absurdity of Cohan’s insinuation that just because DNA wasn’t used 100 years ago, it’s OK for prosecutors to ignore modern science.

Cohan’s class-based arguments—his suggestion that his outrage comes from a belief that the wealthy have “rigged” the legal system to ensure that they’re not held culpable for their crimes—also fell short. Smerconish not unreasonably countered, “I think to myself, 'Thank God [the defendants] had deep pockets,' because but for those deep pockets, they might have—who knows, they might have gone away in a case where I don’t think charges should ever have been brought to begin with.”

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Smerconish could have been speaking of another of Nifong’s victims, someone who did not have the resources that the three falsely accused former Duke students did. Less than three weeks before Cohan’s book appeared, Darryl Howard’s story was brilliantly explicated by Radley Balko. And yet it has received not a single question from any journalist (or “Cycle”/”Morning Joe” co-host) who has interviewed Cohan.

This silence is particularly puzzling, for two reasons. First, Cohan has gone out of his way (even in the Smerconish interview) to describe Nifong as a distinguished prosecutor, someone widely respected in the Durham legal community before the lacrosse case. He also has portrayed Nifong as unusually solicitous of rights of defendants in cases that he tried, including by turning over all evidence from his files to defense attorneys. Yet as Balko’s article points out, it’s at the least plausible and at the most likely that Nifong withheld from Howard’s defense attorney a critical document, in which an informer attributed the crime to a gang, not to Howard.

Second, Cohan has aggressively—most notoriously in extraordinary comments to Diane Rehm (at 11.25)—portrayed Nifong as ethically pristine in his handling of the DNA evidence in the lacrosse case. The implied argument: Nifong knows his way around DNA, and defense claims to the contrary were playing fast and loose with the truth.

Yet as the filing in the Howard case by Jim Cooney and Barry Scheck made clear, Nifong’s manipulation of DNA evidence—albeit in a different way than the lacrosse case—was critical to Howard’s conviction. The case was initially investigated as a double murder and possible sexual assault. But then DNA in the victims came back without a match to Howard. The filing describes what Nifong did to avoid the DNA test sinking his case: “Nifong insinuated to the jury that a child who was murdered and had sperm in her anus at the time of her death had engaged in consensual anal sex at the age of thirteen prior to her murder.” In other words, in order to win, the disgraced ex-DA besmirched the legacy of a 13-year-old murder victim.

The Innocence Project filing made clear that Nifong’s conduct in the Howard case “was improper.” He “solicited testimony that he knew or should have known was false” in a critical examination of the lead detective on the case which dismissed the record of the case ever being investigated as a sexual assault. By posing “misleading questions,” Nifong for all practical purposes “affirmatively solicited testimony that he knew or should have known was false,” which amounted to his having “presented false testimony.”

This is the man William Cohan has described as “quite credible” and “honorable.” By the way, even though the Innocence Project took on Howard’s case in 2006, and even as the author covered other topics from the 1990s in his hours of interviews with Nifong, there’s no indication that Cohan asked his book’s central protagonist even a single question about his handling of the Howard case.

Hat tip: M.

DNA & "Thousands of Years" of Rape Prosecutions

Author William D. Cohan continued his publicity tour yesterday, appearing on MSNBC’s “The Cycle” and WUNC’s “State of Things.” It’s hard at this stage to escape notice that Cohan’s press appearances have heavily tilted toward MSNBC and public radio, with a pending appearance at the Comedy Channel. It’s almost as if his bookers believe that a pro-prosecutorial misconduct message would appeal to liberals, a deeply troubling thought to those of us who are center-left Democrats but don’t see a Nifong apologia as consistent with the party’s values.

In the event, Cohan retreated from labeling Stuart Taylor among “the haters” yesterday, so I suppose his message could be said to have grown more temperate. On the other hand, he again referred to individuals in their late 20s or early 30s as “boys” on both WUNC (at 3.01) and on MSNBC (at 3.45).

Readers can listen to Cohan’s appearance on “State of Things,” and watch him on “The Cycle.”

Cohan led off his interview with WUNC’s Frank Stasio by framing his interest as superficially neutral (2.05), noting the “high passion” in the media against the players, followed by “high passion” against Mangum and Nifong. First, whatever “passion” in the media against Mangum passed very, very quickly; even after the announcement of innocence, many media organizations, led by the Times, refused to identify her (until she wrote her book).

More important, the equivalence that Cohan posed was false: on the one hand were falsely accused college students whose behavior wasn’t atypical for Duke’s campus; on the other hand was a prosecutor who broke the law.

Discussing the case itself, Cohan identified as a “seminal” moment Nifong’s recusal and Mangum’s insistence on going forward. She could have, Cohan mused, simply admitted to Nifong, (5.08) “I’m bipolar, I’m a drug addict, I’m not going to go forward with this.” To Cohan, her decision not to do so proved Mangum’s sincerity.

Of course: because lots of bipolar drug addicts willingly admit to their mental health problems when chatting with figures of authority. Who could have imagined that Mangum would cling to her lies and, indeed, tell new stories?

Cohan also slightly modified his something-happened thesis to both MSNBC and WUNC. To WUNC, when asked what happened at 5.55, he sighed, “Let me be clear on this: this is something we’ll never know.” But then a few seconds later—based, he said, on his qualifications (6.31) as a “student of human nature,” plus his discussions with Nifong and Bob Steel (really??), and reading Tara Levicy’s report, “something happened in that bathroom that none of us would be proud of.” He refused to say what that something was. Cohan’s preemptive response: “His critics” (they’re no longer “haters,” I guess) “love to seize on” him when he says something happened but won’t say what.

Cohan did briefly discuss his reading of Tara Levicy’s report (at 6.10). But in contrast to his assertions to several previous interviewers, he didn’t claim to Stasio that he was the first journalist to obtain access to that report. I wonder why?

Nifong and the Defense

Cohan’s admiration for Nifong oozed through in this interview. He referred to Nifong merely as “Mike” at 5.32, and almost did so earlier in the discussion before catching himself.

By contrast, Cohan was far more contemptuous of the defense attorneys in this interview than he was in his discussion with Diane Rehm. Seeming to barely conceal disdain (at 3.19) in his tone,  he observed, “It was brilliant legal strategy for the defense—certainly one has to commend them for their legal acumen—for turning the whole story on its head and exploiting every mistake that Crystal Mangum and Mike Nifong made in this case.”

“Mistake.” What an interesting—even meek—word to describe a prosecutor lying to a judge, or withholding exculpatory evidence, or improperly inflaming community passions against the accused.

Cohan’s insinuation: well-paid defense attorneys got the less-than-innocent “boys” off. But here’s another interpretation: when defense attorneys confront an accuser who can’t tell the same story twice and a prosecutor who can’t tell the truth to a judge, they have an ethical obligation to “exploit” such conduct—since such conduct tends to be associated with an injustice.

In Cohan’s world, it seems as if lawyers who represent innocent clients are just supposed to sit back and do nothing. I wonder how he’d feel if his children were ever tried for a crime that never occurred and faced a prosecutor like Mike Nifong.

Cohan as Defense Attorney

The last eight-and-a-half minutes of the interview featured Stasio asking at least reasonable questions (but only once following up) and Cohan (sounding increasingly peeved) functioning as Nifong’s de facto defense attorney.

Stasio led with Nifong’s unethical statements. He wondered in particular whether Nifong’s statement about someone not needing an attorney if they hadn’t done anything wrong contradicted the entire principle of American jurisprudence.

Cohan replied (at 8.00) that Nifong told him that “many of his statements were ill-advised.” He then rushed forward with (at 8.36) his bizarre assertion about Nifong informing him that if the players had met with Gottlieb without attorneys and voluntarily consented to interviews and a DNA test, there would have been no case.

But by the time Nifong made his first statement on the case, the players had already given DNA. How does the giving or non-giving of DNA in any way relate to Nifong’s pre-primary publicity crusade? Is Cohan really saying that absent the benefits of publicity, Nifong would not have moved forward with the case? What a damning, if apparently unintended, admission.

On the DNA (at 11.15), Cohan chastised those who have closed minds on the issue, and failed to appreciate Mike Nifong’s tale. He told Stasio (correctly) that Nifong promptly turned over DNA evidence from the state labs to the defense; Cohan did not explain what this action had to do with Nifong concealing the exculpatory DNA from the Meehan tests. (Stasio didn’t ask.) Regarding the Meehan material, “Mike Nifong would say that he did turn over the complete DNA evidence in a timely fashion,” thereby allowing Brad Bannon (“cleverly,” according to Cohan) to discover the concealment in the Meehan report.

And, the author added a few minutes later, “As we know, Brad Bannon likes to talk about how he found the evidence.” I’m not sure how Cohan knows what Bannon does or does not like to do, since Cohan didn’t ask Bannon for an interview.

According to Cohan (at 12.40), Nifong was a “champion”(!!) of turning over evidence to the defense. In the event, the author continued, Nifong told him that the “the absence of evidence is not the evidence of absence.” What this truism has to do with Nifong and Meehan producing a report that concealed DNA test results they were legally obligated to turn over Cohan didn’t say, and Stasio didn’t ask.

Nonetheless, Cohan argued that Nifong’s cliché is key to the case. Offering his personal interpretation of the role of DNA in sexual assault prosecutions, Cohan reasoned that for “thousands of years” (at 13.10) when DNA was not identifiable, “rape charges were brought, and people were convicted or found not guilty.” I’m not sure even the politically correct listeners of WUNC would be persuaded that it’s OK to prosecute people according to evidentiary techniques from “thousands” of years ago.

But the author was just warming up. “I think,” he fumed, “the justice system in this case was rigged so there was no trial in this case. That’s not the way the system’s supposed to work.” Stasio, to his credit, finally asked a follow-up question, noting that a prosecutor not turning over exculpatory evidence is “another way of rigging the system.”

Cohan’s response: (at 15.40) “I’m not sure that that’s true” that Nifong withheld the evidence. Perhaps at some point in his press appearances, he could point to the section in the Meehan report in which the former lab director—as he was required to do by law—revealed the results of any test that he conducted.

Journalistic Malpractice

Cohan’s segment on “The Cycle” was shorter—but perhaps his most incredible appearance yet. (The opening question—“How did this situation get go out of control?”—set the tone.) Over the course of eight minutes, the four co-hosts did not ask Cohan once about any exculpatory evidence—and (of course) he didn’t mention any.

Nonetheless, in these friendly confines, Cohan broke new news (at 1.08)—implying that Reade Seligmann and Collin Finnerty joined Dave Evans (“three privileged, elite athletes”) in “inviting” strippers to “their party.” Cohan didn’t reveal how he discovered that Seligmann and Finnerty co-hosted the party—because, of course, they did not.

After wildly claiming (at 2.18) that “a lot of people think that Mike Nifong should be put in a grave, in an early grave,” Cohan mused on how a trial was necessary (at 5.00) because it seems as if Mangum’s newest theory—assault by broomstick—might be credible. In the book, at least, he (or perhaps, it might now be assumed, he at the insistence of either his editors or Scribner’s lawyers) pointed out that even Tara Levicy’s report (to which Cohan gives Rosetta Stone-like powers to understanding the case in all other respects) didn’t corroborate Mangum’s new claims that the hospital staff had to pull wooden shards out of her.

When asked point-blank whether he believed Mangum’s newest story, Cohan responded, “I don’t know what to believe.” But he quickly moved on to his catch-phrase—“something happened in that bathroom that none of us would be proud of.” And he added a new item a bit later in the interview (at 5.55)—“we’ll never know what happened, or who did it.” Who did what? Cohan didn’t say.

Cohan concluded his MSNBC appearance by saying “I just don’t understand why” Roy Cooper “refused” to “share” with him Cooper’s “investigative materials.”

This isn’t a terribly difficult question to answer, especially for a self-described “investigative reporter” of Cohan’s . . . skill. Oddly, it appears that Cohan has never come across § 132-1.4 of North Carolina’s general statutes. (There are several provisions of the state’s general statutes, including those regarding the prosecutor’sobligation to turn over the results of all tests, with which Cohan also appears to be unfamiliar.) In the event, the provision is unequivocal: “Records of criminal investigations conducted by public law enforcement agencies, records of criminal intelligence information compiled by public law enforcement agencies, and records of investigations conducted by the North Carolina Innocence Inquiry Commission, are not public records.” It’s not clear to me why Cohan expects North Carolina’s chief law enforcement officer to violate state law to satisfy Cohan’s personal curiosity.

Perhaps the most revealing section of the interview came (at 5.34) when Cohan described the thinking of “all the defense attorneys” (the people, it’s worth reiterating, that he never sought to interview). What was their theory (at 5.34)? That the case was a “grand conspiracy . . . that this was a completely made up story, that everybody got together to try to prosecute these three angelic boys who, you know, didn’t do a darn thing.”

This description of the defense attorneys and their beliefs, by the way, came immediately after Cohan expressed his commitment (at 5.23) to present the case “as fairly and dispassionately as I possibly could.”

Just imagine what an unfair William D. Cohan would sound like!

Cohan's Nifong Blindness

Perhaps the most startling of the many such assertions made by author William D. Cohan to “Morning Joe” was his statement that he found Mike Nifong “quite credible.” This is the same Mike Nifong who a State Bar panel determined violated ethics rules on 27 of 32 counts. And it’s the same Mike Nifong found guilty of contempt for lying to a judge in open court. If this is the sort of figure that Cohan deems credible, how could anyone be non-credible in Cohan’s eyes?

(Well, anyone except the defense attorneys, I suppose.)

In the event, Cohan’s deep admiration for Nifong colors the entire book. The author gives his hero every benefit of the doubt, and then some, in a desperate effort to rehabilitate the disgraced ex-prosecutor’s reputation.

Nifong Background

While the players that he persecuted get basically no personal introduction (a survey of frat culture seems to suffice, in Cohan’s mind), Nifong receives a glowing, 15-page introduction that portrays him as a wonderful family man and a champion of civil rights. Virtually the only new  item here (apart from the spin) came from a revelation of Nifong bitterness with Duke: he intended to go there, didn’t get as much financial aid as he expected, appealed the decision and thought he was right, but Duke still didn’t give him the money.

Later on, Nifong claimed (p. 97) that there was a “kernel of truth” that Duke students got unfair positive treatment from the justice system, and he was intent to ensure that didn’t happen. He provided no evidence for the assertion, and Cohan apparently didn’t ask for any.

Cohan also surveys Nifong’s pre-2006 career. This section contains no mention of the Darryl Howard case—which naturally wouldn’t fit into the book’s strongly positive portrayal of Nifong. Cohan likewise doesn’t mention the earlier sexual assault cases that Nifong had dismissed or pled down, contrary to the theory of justice Nifong employed in the lacrosse case.

On the personal front, his daughter from his first marriage—the woman that Nifong initially didn’t mention in his campaign literature—gets one sentence, all in parenthesis. It looks like even Cohan couldn’t spin Nifong’s treatment of her.

In the background section, Cohan lets Nifong go on and on and on about the proper way to try rape cases, and how sometimes prosecutors won’t have “forensic evidence” (p. 91), especially in acquaintance rape cases. The relevance of any of this to the lacrosse case is zero.

Nifong’s Blame Game

Given Cohan’s approach—allowing Nifong to present whatever he wants to say, virtually without challenge—much of the book includes Nifong playing the blame game at anyone who in any way crossed him during the lacrosse case. Even more remarkable, Cohan not only allows Nifong (the convicted liar) to lash out at his critics at will, but the author (who told Bloomberg TV, “I talked to anybody who would talk to me”) appears not to have even requested comment from virtually any of Nifong’s targets.

For instance:

• On the wording of the NTO, and its (correct, given the facts of the case) promise that the DNA tests would reveal guilt or innocence, Nifong blames ADA David Saacks, saying that Saacks had “never dealt with a rape case,” and he shouldn’t have “allowed” such language “to remain in a nontestimonial.” Needless to say, Nifong never gave any hint of such sentiments before the DNA tests came back negative. (p. 78) Cohan gives no indication that he contacted Saacks for comment.
• On his statement to then-campaign manager Jackie Brown, that he was receiving a “million dollars” worth of publicity from the case, Nifong implies that Brown (p. 135) lied: “I’m pretty sure that I never made any comment like that to her.” Cohan gives no indication that he contacted Brown for comment.
• Nifong faults Linwood Wilson(!)—supposedly an “experienced investigator” (p. 446)—for mishandling the December 20, 2006 solo interview with Mangum. The widespread backlash to that interview, of course, accelerated the process by which Nifong was removed. Cohan gives no indication that he contacted Wilson for comment.
• Nifong accuses Lane Williamson (p. 559) of having pre-judged his ethics case, and having written part of Nifong’s sentencing memo even before Nifong testified at the Bar hearing. Cohan gives no indication that he contacted Williamson for comment.
• Nifong charges (p. 579) that the State Bar “exists for the purpose of protecting the rich lawyers from the people,” and that “it was a situation where they [it’s not clear who ‘they’ are] really sold out to the monied interest of the state bar.” Cohan gives no indication that he contacted anyone from the State Bar for comment.
• Nifong claims that Osmond Smith pre-judged his criminal contempt trial, and told people at a cookout that he was planning to sentence Nifong to 30 days in jail. Cohan gives no indication that he contacted Smith for comment.
• Nifong scoffs (p. 573) that Charles Davis, in prosecuting his criminal contempt trial, was incompetent and “the most inept that I had ever seen.” (Nifong was found guilty in this trial.) Cohan gives no indication that he contacted Davis for comment.
• Nifong accuses the defense attorneys (p. 578) for having engaged in behavior that “was not really appropriate and it was not really permissible.” Nifong doesn’t say what this improper behavior was, nor does Cohan appear to have asked him. Cohan gives no indication that he contacted any of the defense attorneys for comment.
• Nifong blames the lacrosse players(!) for all his problems, since they started the affair by refusing Gottlieb’s March 2006 demand (p. 576) to meet with him without attorneys present.

Nifong and Kirk Osborn

Anyone who followed the case understood how contemptuously Nifong treated the late Kirk Osborn. The bullying DA was afraid of Joe Cheshire, but didn’t seem to fear Osborn, and so went out of his way to put Osborn down. In the book, however, Cohan portrays Nifong as deeply concerned with Osborn’s well-being. Two examples:

First: Cohan relates (p. 439) an alleged conversation between Nifong and Osborn—which, of course, relies wholly upon the recollection of a convicted liar. A “very agitated” Osborn, looking “very unhealthy” and not “like himself” (Cohan’s Nifong even touchingly asked Osborn if he was on medication) privately met with Nifong and implied to him that the Bar complaint would go forward unless Nifong called a public press conference to say that Mangum was not telling the truth. The alleged episode proved Nifong’s claim that the Bar was “really acting as an agent for the defense lawyers.”

Second: Cohan passes on (as usual, uncorroborated) assertions from Nifong (third-hand, in this instance) that the Seligmanns “never” paid either Kirk Osborn or Buddy Conner. How did this story get past Scribner’s in-house counsel? Cohan asks us to believe that Buddy Conner never got paid, and never filed any sort of claim against the Seligmanns, and that Jim Cooney knew all this and did nothing. Naturally, Cohan gives no evidence of having asked Cooney if Nifong’s ruminations were true. The charge is non-credible, even for Cohan and Nifong.

(I should note, by the way, that I have every reason to believe that Cohan’s assertion that Osborn and Conner were “never” paid is untrue, quite apart from the claim’s logical inconsistencies.)

Minimizing Exposés of Nifong

Cohan’s extraordinary sympathy for Nifong infuses all aspects of the book; it provides the only plausible explanation for a host of the author’s editorial choices.

Along these lines: Jim Coleman’s extremely important June2006 denunciation of Nifong—in an interview with the N&O, and a long letter—gets rushed over in three sentences. Cohan doesn’t even bother to explain why Coleman wanted Nifong to step aside (p. 364), in what was a turning-point moment in the case. Of course, an author committed to propping Nifong up would find Coleman very difficult to challenge—far better to minimize him. Coleman gets more attention later in the book, but at that point his remarks were less distinctive.

Joe Neff—mentioned only once in the entire book by name(!)—suffers a similar fate. How otherwise could a Nifong apologist address Neff’s many biting exposés? Instead, Cohan settles for criticizing Neff’s work by implication: the author dismisses (p. 435) the Neff/Niolet/Blythe article on the day after the bombshell Meehan hearing as “nearly breathless,” without explaining why it was so, or even quoting from the article—and even as the article accurately predicted that the hearing could cause Nifong problem with the Bar. Via the wayback machine, here is a link to the article that Cohan deems “nearly breathless.” It describes what happened at the hearing better than the presentation in the Cohan manuscript.

In his discussion of the election results, Cohan quotes (p. 425) Beth Brewer (co-chair of the Recall Nifong effort): “I hope the North Carolina State Bar will do what the Durham citizens could not.” How does Cohan describe this rather straightforward statement, one fully in line with Brewer’s statements over a several-month period? That Brewer was “nearly apoplectic.” Cohan doesn’t seem to have tried to interview Brewer to get a sense of her mindset.

Nifong’s “Enemies”

As he goes out of his way to treat Nifong favorably, Cohan can barely conceal his contempt when referencing statements of actions by the defense attorneys. Three of many examples:

In a discussion of Dr. Julie Manly coming to doubt a rape had occurred once she realized it was likely yeast and not semen that she had detected on Mangum’s body (p. 33), Cohan writes, “There were other possible explanations for the swelling, as attorneys for the athletes were only too happy to point out later.” [emphasis added]

Here’s how Cohan describes the defense attorneys’ December 2006 change of venue motion (p. 431): it addressed, he sneered, “the so-called facts of the lacrosse case.” [emphasis added] He does not identify a single item in the motion, or in any defense motion, that was inaccurate.

Here’s Cohan on the criminal contempt finding (p. 573): “As usual, the defense attorneys crowed about Judge Smith’s findings.” [emphasis added] These are people, it’s worth noting, who exposed massive prosecutorial misconduct and ensured that innocent people didn’t go to jail.

In a promotional interview for the book, Cohan has charged that the defense attorneys were “masters at manipulating the media,” [emphasis added] without identifying any improper actions that they took, or any inaccurate statement that they made. Just as with his “something happened” assertion, he does not make this claim directly in the book, operating by inference instead. Perhaps such inflammatory and misleading language could not clear Scribner’s in-house counsel?

Nifong and the Bar

The book moves into a kind of alternate reality whenever it discusses the State Bar proceedings against Nifong. Perhaps the strangest section of the Bar material comes when Cohan uses Nifong—a reminder: the defendant—to provide a behind-the-scenes account of the Bar’s legal strategy. “In an interview,” Cohan writes (p. 554), “Nifong said he was told the original plan was to have David Evans testify at the state bar hearing, not Seligmann.”

Who told Nifong this? Who knows? The “definitive, magisterial” book on the case has little interest in how Nifong gained access to the Bar prosecutors’ internal strategy. Nor does Cohan explain why he simply didn’t ask the Bar’s own attorneys if he wanted a behind-the-scenes take on their strategy. As with Jim Coman in the AG’s office, Cohan’s preferred approach appears to have been refraining from asking questions of people who might discredit Nifong’s latest ruminations.

Cohan then allows Nifong to accuse Seligmann of perjury (p. 554) in his testimony. “Not everything he said was true . . . some of the things that he said about the party, we had other things to show otherwise.” Cohan produces this passage even as Nifong refuses to give him the specifics of the alleged perjury. Nor does Cohan ask the obvious question, of either Nifong or Nifong attorney Anne Petersen: if the Nifong team had evidence that Seligmann lied, why didn’t they address the matter in cross-examination?

In the event, given that Cohan has produced what his publisher deemed the “definitive, magisterial” study of the lacrosse case, surely he didn’t need Nifong to identify the portion of Seligmann’s testimony that constituted perjury. Why, then, didn’t the author simply identify the statement himself? Could it be, perhaps, that Seligmann actually didn’t lie in any way, shape, or form before the Bar?

The discussions about the Bar hearing aren’t the only sections of the book in which Cohan’s heavy partiality toward Nifong causes him to uncritically pass along absurd claims. Another is Nifong’s assertion (p. 571) that a desire to ensure that [former governor] Mike Easley won’t look bad” explained his criminal contempt trial. (Easley was, at the time, under investigation for a campaign finance violation for which he would eventually be convicted.)

Cohan, of course, produces no evidence to corroborate this . . . remarkable . . . claim.

Personal Relationships

Cohan writes (p. 615) that the “book would likely not have been possible” without the “inspiration” of a Nifong friend, who compiled “a lengthy oral history of the Duke lacrosse case from Mike Nifong’s perspective.” Much like Cohan, this Nifong associate does not appear to have interviewed anyone on the other side in the courtroom or at the State Bar.

At some point, either Cohan himself or an editor at Scribner’s must have decided that the manuscript was so transparently pro-Nifong that the author needed to toss in some token criticism.

Cohan’s strongest rebuke of Nifong in the book is a two-sentence, wholly parenthetical, remark on p. 413, about the October hearing. Cohan writes, “(During the hearing Nifong realized he appeared to be in the situation where he said he had spoken to Mangum about the case while at the same time saying his conversations had not yet been substantive. He seemed fine with the apparent contradiction.)”

That’s the most direct criticism of Nifong, in Cohan’s own voice, that the author can muster. No wonder that Nifong (p. 614) gushed to Cohan, “I’d like for [my son] to meet you someday.”

A final note, from page 83: “It was from being forced to stand his ground that Nifong developed a lifelong disdain for bullies.” Cohan passes along this observation—about Durham’s biggest bully, circa 2006—without comment. Indeed, it appears as if he didn’t even notice the irony.

Cohan: Lax on Prosecutorial Ethics

As many readers of the blog already know, today marks publication of the revisionist book on the lacrosse case, written by Vanity Fair contributing writer William D. Cohan. Joe Neff’s N&O article captured the essence of Cohan’s argument: “something happened” (the author won’t say precisely what), and myriad new Nifong assertions pass either unchallenged or virtually unchallenged. The sources upon which Cohan builds his case are a convicted liar (Nifong), the convicted liar’s attorney (Ann Petersen), and a convicted murderer (Crystal Mangum).

For those who have seen or heard Cohan’s pre-publication writings or statements: he has been far blunter in these forums than he was in the book, where his preferred approach is argument through inference or insinuation. Though he told Neff that he believes “something happened,” he never comes out and says as much in the book (though any sentient reader would recognize this is what he believes). Though he told Cosmopolitan that the defense attorneys manipulated the media, he makes no such direct allegation in the book (though, again, any sentient reader could infer from his sneering tone what he thinks about the defense attorneys, who he did not interview). And though in a recent tweet, he tauntingly referred to “those Duke lax bros,” he avoids such juvenile language in his publication.

The very rare occasions in the book when he offers his analysis directly, in his own voice, give a sense of the issues (such as lax enforcement of ethical rules against prosecutors) about which Cohan feels particularly strongly.

Much of the book (hundreds of the more than 600 pages) consists of summaries of previously published remarks, news articles, op-ed columns, or blog posts. How Cohan frames this material is telling, but the repackaged summaries themselves contain nothing new.

As for fresh material: Cohan interviewed Nifong (at length), one of Nifong’s attorneys, Ryan McFadyen (but no other member of the 2006 team), Bob Steel (briefly), and Mangum (briefly). He appears to have interviewed anti-lacrosse extremist Peter Wood (though no other member of the 2006 Duke faculty). He purports to have interviewed an unnamed senior Duke figure, who conveniently provides him with quotes that conform to his overall take on Duke. He might have interviewed Ben Himan (since he doesn’t use endnotes, it’s hard to tell). He doesn’t appear to have interviewed anyone else. He doesn’t appear to have had access to the discovery file, though again it’s hard to tell.

Sections of the book are interesting, in a perverse way, as an insight into Nifong’s still-delusional nature. But the book as a whole is seriously flawed, and in some respects simply malicious.

Over the next several days, I’ll discuss various aspects of the book, beginning with its two most disturbing elements: the author’s extraordinary tolerance of prosecutorial ethical violations; and, tomorrow, his almost casual willingness to cast doubt on innocent people. (I’ll also have a formal review of the book forthcoming in the May edition of Commentary.)

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Three types of ethical issues ultimately ended Mike Nifong’s career as an attorney: improper pre-trial public statements, improperly withholding exculpatory DNA evidence, and improperly lying to a judge in open court. Cohan either minimizes or outright excuses all three. Assuming that he believes that all prosecutors and not just Nifong should be held to the standards that the book defends, Cohan’s vision of prosecutorial power is a terrifying one—and one considerably out of step with the bien pensant Manhattan culture that Cohan in other ways seems to reflect.

Rule 3.6(a) of the North Carolina State Bar holds, “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” There can be no serious question that Nifong violated this rule. In his pre-primary publicity crusade, he labeled the lacrosse players “hooligans.” He compared their alleged crime to a cross-burning. On MSNBC, on live TV, he “demonstrated” the way in which Mangum was allegedly choked, even though Mangum had given no such description. During a primary debate, before any indictments occurred, he proclaimed, “I’m not going to allow Durham’s view in the minds of the world to be a bunch of lacrosse players at Duke raping a black girl from Durham.” Though he cut back on his public remarks after he secured the first two indictments, he continued to speak out.

Since Cohan can’t deny that Nifong violated the letter of the rule, he seeks to either excuse Nifong’s conduct or contextualize the misconduct out of existence.

The Bar found Nifong not merely guilty of the offense but guilty for an improper personal purpose (in Nifong’s case, exploiting the case to rally the African-American vote he needed to win the primary). In addition to Nifong’s comment to Jackie Brown about the case providing him with a million dollars’ worth of free publicity, strong circumstantial evidence supports the Bar’s conclusion. A private poll showed Nifong trailing Freda Black; and Nifong’s campaign fundraising had dried up to such an extent that he had to keep the campaign afloat through a personal loan.

Cohan dismisses the prospect of a political motivation; he lets Nifong attack the poll’s credibility and doesn’t even mention the fundraising woes. Instead, Cohan provides an alternative explanation for ex-DA’s misconduct, reproducing—without challenge—Nifong’s preposterous suggestion that his repeated public condemnations were designed to get the lacrosse players to cooperate with police. To bolster this claim, Cohan produces (p. 123) an alleged conversation between Nifong and a local bar owner—given name, “Joe”—who allegedly had a public safety background and who allegedly told Nifong that “everything is shut down . . . I’ve never seen a situation involving anything over here where nobody’s talking.”

Cohan offers no evidence that he ever attempted to speak with “Joe” to verify Nifong’s extremely convenient “recollection.”

Assume, for the sake of argument and despite all available evidence, that Cohan’s presentation is accurate. So what? The Bar rule doesn’t contain an exception for when a prosecutor thinks he can encourage alleged witnesses to step forward. And some of Nifong’s improper statements occurred after indictments had taken place, when the ex-prosecutor’s “witness” excuse couldn’t conceivably apply.

For instance, just before the 2006 election, Nifong asserted, “If a case is of such significance that people in the community are divided or up in arms over the existence of that case, then that in and of itself is an indication that a case needs to be tried”; and then claimed that dismissing the case “does nothing to address the underlying divisions that have been revealed. My personal feeling is the first step to addressing those divisions is addressing this case.” These statements (which do not appear in Cohan’s book) revealed an almost complete lack of understanding of a prosecutor’s appropriate role in trying a case.

For good measure, Cohan turns to the Nifong team to offer a selective-prosecution defense of the disgraced ex-district attorney. From Nifong: the “word on the street” was that the Bar was “looking for a prosecutor to make an example of.” (p. 438) Nifong attorney Ann Petersen amplified: “There were two or three [earlier] cases that came to the state bar that were clear cases of prosecutors who had gone way over their responsibilities and ethical standards, and nothing could be done, for various reasons, or nothing was done.” (p. 575) Who were those prosecutors? Did they issue statements anything like Nifong’s? It’s impossible to analyze the selective prosecution claim when Nifong’s attorney (Petersen) and Nifong’s apologist (Cohan) provide no specific cases for comparison.

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While Cohan minimizes the ethical problems associated with Nifong’s remarks, he launches a full-throated defense of Nifong’s decision producing a report that concealed exculpatory DNA evidence. A reminder: under Brady, prosecutors must turn over all exculpatory evidence to the defense. According to North Carolina law, prosecutors must turn over all (not some) results from a DNA test done by a nontestimonial order, if the defendants don’t object to the NTO. And under North Carolina's 2004 open-file discovery law, prosecutors must produce “a report of the results of any [not some, or many, or most] examinations or tests conducted by the expert.”

Violating both Brady and differing elements of North Carolina law, Nifong turned over a report that didn’t include the full test results—it excluded evidence of potential matches with multiple unidentified male DNA. Nifong knew of these results, and never claimed otherwise—except, of course, when he lied about them in open court to Judge Osmond Smith. And if Brad Bannon hadn’t figured out what Nifong was up to, there’s no reason to believe the exculpatory evidence ever would have been turned over. In the “Perry Mason” moment of the case, Dr. Brian Meehan admitted under oath that the exclusion of this material in the report was an “intentional limitation” arrived at between Nifong and him.

In perhaps the book’s most remarkable passage, Cohan aggressively defends Nifong on this point (p. 556): “Except for the fact that Nifong should have turned that information over to the defense sooner, why was it important that the so-called exculpatory evidence was not turned over? The truth was, it didn’t matter [emphases added], and even if Nifong had turned the information over sooner, he was still basing his entire case . . . on Mangum’s testimony. The charge was a red herring.”

Nifong himself didn’t go this far during his testimony before the Bar, when he instead asserted that his not turning over the material wasn’t too problematic because DNA results indicating potential matches with multiple unidentified males wasn’t “specifically exculpatory.” (There’s an interesting legal concept for unethical prosecutors eager to avoid Brady.) Cohan positively gushes, “This was truly the heart of the matter, although Nifong’s cogent explanation would likely come too late to save him from his fate.” (p. 557, emphases added) Even Duff Wilson didn’t maintain that Nifong performed well in the Bar disciplinary proceeding.

Consider the remarkable nature of Cohan’s conception of prosecutorial ethics. A minister of justice can deem evidence not specifically exculpatory (whatever that means) and withhold it indefinitely from the defense—even lie about its existence in open court—and not be worthy of ethics punishment. Indeed, such a district attorney can offer a “cogent” explanation that the non-specifically exculpatory evidence didn’t matter. The items quoted above mark two of the few sections of the book in which Cohan provides pure analysis, in his own voice—as opposed to summaries or quoted remarks from other people—about what he actually thinks.

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With the problems caused by the public remarks overstated and the withholding of the DNA evidence a “red herring,” Cohan concludes that “Nifong’s five-day state bar trial had all the trappings of a sacrificial slaughter.” (p. 548) But his defense of the disgraced former prosecutor couldn’t be complete without addressing the criminal contempt trial.

It would seem that here Nifong had little defense: there’s no doubt that he lied to Judge Osmond Smith, and there’s no doubt that a prosecutor lying to a judge in open court constitutes contempt. Unable to defend Nifong on either the facts or the law, Cohan instead passes on—wholly unchallenged—aspersions on the character, competence, and integrity of the man who prosecuted Nifong (Charles Davis) and the judge who found him guilty (Smith). Cohan-through-Nifong (or is it Nifong-through-Cohan?) has the notoriously tight-lipped Smith chatting, before the trial, at a cookout on how he planned not only to find Nifong guilty but to sentence him to 30 days in jail. This item—which Cohan appears not to have even attempted to check with Smith—allows the book to spin its hero being sentenced to jail for one day for lying to a judge as somehow a victory for Nifong.

Given his sweeping attack on the State Bar and Judge Smith, Cohan might have wondered why they acted as they did. But there’s no evidence he requested information from them; Nifong’s unverified theories sufficed. Nor, even more surprisingly, does Cohan appear to have reached out to any academic expert in prosecutorial ethics to test his perspective, perhaps explaining his willingness to set aside the basic ethical canon on Nifong’s behalf. And, it should go without saying, the Nifong of Cohan’s imagination is quite different from the real thing, as seen in the recent Darryl Howard exposé by Radley Balko.

Accepted at face value, The Price of Silence is a bold, even revolutionary, call for weakening ethical oversight of prosecutors and excusing those prosecutors who run afoul of ethics guidelines. In an era of Tea Party Republicanism, and with liberals traditionally (though not, far too often, in the lacrosse case) concerned with protecting civil liberties, I doubt that the book’s message on this issue will resonate.