Credibility & Commentary

I have a piece over at Minding the Campus on the issue of accountability, in this instance regarding the approach of the commentariat to the current war on campus due process.

One of the people I looked at was retired Penn anthropology professor (specialist in Women's Studies, Southeast Asia, Anthropology of Gender, Multiculturalism, Sexual Culture, Public Interest Ethnography/Anthropology) Peggy Reeves Sanday, whose final book, published in 2007, was an updated version of her earlier Fraternity Gang Rape.

NYU Press blurbed the book in the following manner: “Sanday updates the incidences of fraternity gang rape on college campuses today, highlighting such recent cases as that of Duke University and others in the headlines.” Of course, there was no “gang rape” in the lacrosse case, and the lacrosse players weren’t part of a fraternity. Otherwise, Sanday seemed right on target.

As part of a Cohan-esque book tour, Sanday defended her work with a March 2007 column placing the “Duke case in perspective”—in which she proclaimed that she would not address “whether a sexual assault took place at the party” or “whether the district attorney botched the investigation.” Nonetheless, she deemed it “noteworthy that the sexual offense and kidnapping counts have not yet been dropped.” Of course, one month later, the charges were not only dropped but the falsely accused were declared innocent.

In the book itself, Reeves Sanday offered the following . . . analysis . . . of the case: “one can only imagine” that the goal of the lacrosse players’ party was to create an event that “actively promotes if not abets non-consensual sexual behavior.” (p. 202) It’s not clear why Reeves Sanday based an item in what was an academic publication on her imagination.

Why bring these items up now? As many DIW readers know, we’re in the midst of a high-profile public debate about whether due process for students accused of sexual assault should be eroded. (To my dismay, the Obama administration and a coalition of “activists” have pushed strongly for weakening due process protections.) The move has also attracted support from politically correct journalists, such as NPR blogger Barbara King. In a post celebrating a California bill requiring students to obtain (and, presumably, find a way to record) “affirmative consent” any intercourse, King cited—of all people—Sanday. The Duke “expert” affirmed rejoiced that the California bill would help “to make campus sexual cultures more equitable and by so doing change the broader understanding of the meaning of sexual equality.”

The politically correct don’t need to worry about false predictions costing credibility.

On the issue of what it takes to lose credibility when the thesis is a politically correct one: consider the latest (perhaps the last?) review of the Cohan book, coming from Matt Storin, the (well-respected) former editor of the Boston Globe. Storin went on to work in the Notre Dame Communications Office, and his review was published in Notre Dame Magazine.

Continuing the pattern of praising a book that doesn’t exist (seen in the Economist and Newsday reviews, in particular), Storin gushes that Cohan “interviewed so many of the key people, and so well, that it is mostly captivating.” Among the “key people” that Cohan didn’t try to interview: the major defense attorneys; the State Bar prosecutors; Nifong’s primary campaign manager; the judge; the DHC chairman and panel; the special prosecutors in the criminal contempt trial; and the senior prosecutors in the AG’s office who oversaw the office’s investigation. Indeed, as I’ve noted previously, Cohan appears to have interviewed only five people (Mike Nifong, Nifong’s attorney, Crystal Mangum, Bob Steel, and Ryan McFadyen) for the book.

Why Storin considers this meager list to constitute interviewing “so many of the key people” in the case he doesn’t say. Nor does he reveal why he considers Cohan’s penchant for virtually never challenging Nifong’s assertions to exemplify a reporter interviewing “so well.”

I grew up reading the Globe; I don’t recall the paper regularly covering criminal justice issues through its reporters not even trying to interview the defense attorneys, as Cohan did in the sections of the book dealing with the criminal case in 2006, or the prosecutors, as occurred in the book’s coverage of Nifong’s ethics and criminal contempt proceedings. Storin doesn’t explain in his review why he held Cohan to a lower standard than that expected from first-year Globe reporters.

Storin also came away from the book concluding that “you probably have to give a nod to the defense attorneys.” Those would the same defense attorneys who Cohan didn’t try to interview and who he recently claimed (without presenting any substantiation) want to see Nifong “literally dead in the ground.”

Storin praises Cohan (who, again, didn’t try to speak to more than a dozen “key” players who tangled with book protagonist Nifong in the courtroom) for reporting “meticulously and fairly about the whole sorry episode.” That would be the same Cohan whose “something happened” thesis depends on police investigator Ben Himan lying about the AG’s evidence, coupled with a wide-ranging conspiracy of the defense attorneys, the Bar, the AG’s office, and unidentified Northeastern money to prevent the truth from coming out. And, of course, the same Cohan whose . . . meticulous . . . research uncovered no new evidence about the criminal case, other than Mangum’s false assertions about wooden shards and who carried her to the car.

In the end, Storin rejects the book’s basic thesis when he describes the lacrosse players as “falsely accused.” He doesn’t say if he agrees with Cohan that Nifong, a “quite credible” and “honorable” man, was “crucified.” Perhaps that’s the type of meticulous analysis that Storin found so appealing.

Cohan: "Defense Attorneys" Want Nifong "Literally Dead in the Ground"

Author William D. Cohan recently departed a columnist’s position at Bloomberg View for one at Huffington Post (which generally does not pay its columnists). Cohan then used his first HuffPost piece to lash out at the free speech rights of his critics.

Huffington Post also provided what likely will be Cohan’s final promotional appearance for his book. As with each of his interviewers other than WUNC’s Frank Stasio, the HuffPost Live asked no meaningful questions about Cohan’s revisionist thesis. Cohan, even so, came across as noticeably more ill-tempered than in his initial interviews about the book; at times, he seemed almost unhinged when talking about his critics and (especially) the defense attorneys.

Cohan, Unhinged

Cohan was asked who had suffered the most in the case. The answer supplied by the passionate Nifong apologist would come as little surprise. But then the author seemed to lose touch with reality.

COHAN at 13.30: “So you ask who, who came out the worst in all of this, who suffered the most: I think, obviously, Mike Nifong, the prosecutor, suffered the most. He’s the only one who spent any time in jail, he spent a day in jail. He lost his job, he was disbarred as a lawyer. He filed for personal bankruptcy. I mean, there are—of course, the defense attorneys would say, ‘That’s not good enough for him, that’s too good for him, and he should be, you know . . .’ They won’t be happy until he’s literally dead in the ground. And they’re doing everything they can to try to put him there!”

Here is a link to the audio:

Incredibly, the HuffPost host made no comment, no request for substantiation, as her guest made this wild assertion.

Since the criminal contempt trial, the defense attorneys have had no dealings with Nifong. The idea that they’re “doing everything they can” now to place him “literally dead in the ground” is nothing short of bizarre.

It should go without saying that while Cohan offers such a crazy claim, he never even tried to interview any of the attorneys he now claims want Nifong “literally dead.” So how he reached this determination about their thoughts must remain a mystery.

Seligmann, Finnerty, and the Party

Early in the interview, Cohan offered what appears to be a new description of the party.

COHAN at 1.53: “In this situation, you had three students, accused of sexual assault, and rape, after all day of partying, and drinking, when they thought it would be a great idea to invite strippers to their house, off campus.” [emphases added]

By this point, it’s beyond clear that Cohan simply doesn’t know very much about the topic on which he wrote. But could he actually now have come to believe that Reade Seligmann and Collin Finnerty lived with the three captains? That they were at the house “all day” during the day of the party? That strippers were invited to “their” house? His statement makes no sense otherwise.

The Nifong Apologist

The host asked, without providing specifics, if Cohan had a response to criticisms that the book sought to rehabilitate Nifong:

COHAN at 3.06: “I really find it humorous [at this stage in the video, Cohan looks anything but amused] and counterintuitive . . . To be criticized for talking to one of the principal players in this drama, no pun intended, the prosecutor, Mike Nifong, who brought this action, [voice rising] to be criticized for actually giving him a chance to tell his story, by other journalists who criticize me—many other journalists [voice rising again] have criticized me for allowing Mike Nifong to have a microphone!”

Given that a bit later in the interview, Cohan would lament Nifong’s suffering, present him as the major victim in the case, and wildly claim that defense attorneys were trying to leave him “literally dead in the ground,” the denial about his status as a Nifong apologist rings a bit hollow.

In the event: to the best of my knowledge, no one has criticized Cohan for speaking to Nifong. I certainly haven’t. The criticism—made by the first person to publicly comment on the matter, Joe Neff, and echoed by me after I got to read the book—has been that Cohan uncritically accepted the version of events presented by a convicted liar, that instead of functioning as an “investigative journalist,” Cohan saw his role as a pro-Nifong propagandist.

Nothing Cohan has said or done at any point in his publicity tour has refuted this criticism.

Math Lessons from William D. Cohan

COHAN at 4.00: “So you’ve got a 620-page book, 600 pages of which are incredibly critical of everything Mike Nifong did along the way, and 20 pages of it are Mike Nifong explaining why he did what he did, and also to some extent admitting many of the things his critics ascribe to him, and basically saying if he could have done it differently, he probably would have, and yet also defending many of his actions!”

I addressed this very strange argument previously. At this point, Cohan’s repeating the assertion suggests either that he hasn’t read his own book or he possesses an almost casual willingness to make demonstrably false statements.

Cohan and His Enemies

COHAN at 4.22: [increasingly passionate as he proceeds] To somehow ascribe to me motives, as if I were trying to rewrite this story [recoils, as if horrified], or to give Mike Nifong a platform he doesn’t deserve, to me is so ridiculous, and so absurd, that I was absolutely—I wasn’t shocked by it, but I couldn’t believe that people who consider themselves to be professional, responsible journalists today, and who have gotten space in some of our most well-respected publications like the New Republic [Stuart], and Commentary [me], and the Wall Street Journal [Dorothy Rabinowitz], to make their, you know, vitriolic cases against me. One of their main criticisms would be that I gave air time to Mike Nifong and Crystal Mangum, two of the principal uh, uh, actors in this drama, is patently absurd.”

Cohan has already made clear that whether his critics deserve free-speech protections is an open question. The criticism that Cohan gave “air time” to Nifong and Mangum appeared nowhere in any of the reviews that Cohan mentioned.

Notice that amidst his self-professed horror, Cohan nowhere in the interview addresses the actual criticisms of his book. At this point, I think it’s fair to say that his silence regarding the substantive critiques speaks volumes.

Proper Procedures for Prosecutors

The host clearly knew very little about the case. But she did know that Nifong was disbarred, and six minutes into the interview, she tried to get Cohan to explain precisely what Nifong did. The guest wasn’t interested.

COHAN at 5.51: “[Nifong] was disbarred by the State Bar, . . . then he was found in contempt of court and spent that 24 hours in jail . . . all for doing what prosecutors are supposed to do: which is, if they believe a crime was committed . . . You know, and prosecutors can believe a crime is committed for any number of different reasons—they believe the witness, they believe the police investigation, they looked at, you know, the documentary evidence and the DNA evidence, they talked to the nurse that examined Crystal Mangum on the night this supposed, uh, felony was committed. For whatever reasons that he believed a crime was committed, his job as a prosecutor is to take that evidence . . . forth into a trial.”

It’s terrifying that Cohan believes that a prosecutor who lies to a judge, withholds exculpatory evidence, violates ethical guidelines regarding public statements amidst an election campaign, and orders the police to run a photo array that violates their own guidelines was just “doing what prosecutors are supposed to do.”

Beyond that point, take a look at the remainder of Cohan’s statements and apply it to this case. Nifong first made his public statements that he had come to “believe a crime was committed” early in the afternoon of 27 March 2006. At that point, he hadn’t spoken to the witness, the police investigation had uncovered nothing, he hadn’t looked at the documentary evidence, there was no DNA evidence, and he hadn’t talked to the nurse that examined Crystal Mangum on the night this supposed felony was committed.

But don’t take my word for it. Here’s Cohan’s protagonist, Mike Nifong, admitting as much during the ethics hearing.

 

So is it Cohan’s conclusion that a prosecutor can “believe” a crime occurred, and thus take a case to trial, for any reason at all?

The Nifong Record

COHAN at 6.58: “Well, this was a situation in which this prosecutor was not allowed to bring this evidence to a trial. By the way, this was a guy who had been in the Durham DA’s office for 28 years, and before this he was generally thoroughly well-regarded as a very strong prosecutor . . .”

Cohan here is describing a legacy that includes the Darryl Howard case, in which Judge Orlando Hudson found that Nifong made “false and misleading” statements that led to the conviction, for murder, of a likely innocent man.

At no point in a 15-minute interview did Cohan ever say that Mike Nifong made ethically improper public statements in the hopes of bolstering his election campaign, or that Mike Nifong improperly withheld exculpatory DNA evidence, or that Mike Nifong lied in open court to a judge. Instead, he said that Nifong made unspecified “mistakes.”

Enemies of the “Truth”

COHAN at 8.57: “I dug up as much as I could that raised some serious questions about what happened. Of course, any time you say this, there’s an established narrative out there—there’s an established narrative out there that the people are very, very wedded to (the parents of the kids, the kids themselves [he’s describing here people in their late 20s or early 30s], their attorneys, and their powerful allies in the media) who don’t want anybody bringing this up, and would go to whatever length they could—for them, this is a war. This is a war that began in 2006, and it’s going to continue until, uh, you know, until it can’t continue anymore. Until all the principal people are no longer alive! And by me taking an objective look at what happened, seven or eight years after it happened, it apparently, you know, something that they’re having a real trouble dealing with.”

Cohan might, at some point, want to consult a dictionary to determine the meaning of “objective.”

That said, consider the oddity of Cohan’s first sentence. With regards to the criminal case, the only thing that Cohan “dug up” was the revelation that as his ethical misdeeds were exposed, Nifong confined his reading to the New York Times. None of his lengthy interviews with Nifong brought any new facts about the criminal case. His shorter jailhouse chat with murderess Crystal Mangum did dig up two new items, but both (that medical personnel had to remove wooden shards from her, that Reade Seligmann carried her to the car) were demonstrably false.

Has Cohan now conceded that all that his book “dug up” about the criminal case was precisely . . . nothing?

Media Expert

COHAN at 3.20: “The job of the investigative reporter is to go back to Ground Zero of the story, accumulate all the information that he possibly can, all the documentary evidence, and talk to as many people as possible who would talk to him.”

Author Cohan fulfilled the task of seeking to “talk to as many people as possible who would talk to him” by not seeking to talk to (among many others): any of the defense attorneys, any of the senior prosecutors in the AG’s office, the Bar prosecutors, Nifong’s primary campaign manager, the DHC chair and members, Judge Smith, the criminal contempt prosecutor, and (it appears) 43 of the 44 unindicted members of the 2006 lacrosse team.

It would seem, therefore, that Cohan failed the “job of the investigative reporter,” at least as he defines it.

“Rush to Judgment”

The host—who at several points in the interview seemed a bit startled by the passion that Cohan brought both to his defense of Nifong and to his attack on the falsely accused players—noted that from the standpoint of the falsely accused, there was a rush to judgment. Cohan responded:

COHAN at 12.17: “Everybody rushed to judgment, including the prosecutor, Mike Nifong. But he did, you know, believe that a rape had occurred, and he was going to make it his duty to bring it to a court of law, which is his job, to either prove it or not prove it.”

If it’s possible to get beyond Cohan’s claim that the defense attorneys want Nifong “literally dead,” this was clearly the oddest statement of the interview. If, as Cohan now admits, Nifong “rushed to judgment,” how, possibly, could it have been proper for him to have sought charges based on his rush to judgment? That question, unsurprisingly, was one that Cohan showed no interest in answering.

Contempt for the Falsely Accused

COHAN at 12.36: “Uh, you know, the kids, from their point of view—I mean, people are accused of crimes, you know, all the time. Uh, either they did them, or they didn’t do them. Either they could be proved in a court of law they did them, or they didn’t do them, and you know, there are plenty of cases where there are people who are wrongfully convicted [like Darryl Howard], who spend, you know, 18, 20 years in prison [like Darryl Howard], and get out based on new evidence, or new DNA evidence [like Darryl Howard], and they get, you know, whatever, $20,000 a year for their pain and suffering. I mean, these three kids didn’t spend a day in jail, there was no trial, and they ended up with $20 million each. [No, they didn’t.] This party cost Duke $100 million, all told, with legal fees and settlements, etc.” [No, it didn’t.]

The Attorney General

COHAN at 8.35: “There was a secret investigation done by the state attorney general [no criminal investigation in North Carolina is conducted in the open], who declared them innocent at the end of that 4-month investigation, and he won’t be interviewed about it [untrue: Roy Cooper did a press conference, and then was interviewed by Lesley Stahl], and he won’t allow his investigatory filed to be viewed [because it’s the law] . . .”

COHAN at 14.01: “We’ll never know what really happened . . . The State AG won’t open his investigatory files. I have sued in North Carolina to force him to open those files. I’m sure I’ll lose, and he won’t have to.”

I hope that representatives of the North Carolina attorney general’s office take notice of this comment, which essentially features plaintiff Cohan admitting that he has filed a frivolous lawsuit.

Cohan’s Publicity Tour Is (Literally) Cut Off

COHAN at 14.22: “This is just sort of one of those incredible anomalies of justice that’s occurred in our society, that if you even have the temerity to talk about it, you get, you know, eviscerated by—”

At that point, the host appeared to have had enough with Cohan’s pity party, cut the author off, and ended the interview.

Due Process and False Charges                                                                   

Cohan also offered his typically bizarre interpretation of the legal system, suggesting that even though the prosecutors from the AG’s office and the defense attorneys both believed the players were innocent, they nonetheless should have faced a trial:

COHAN at  7.12: “In our system of jurisprudence, the prosecutor brings cases before the jury, the people decide whether he’s right or he’s wrong, the people are not guilty or guilty, and that’s the way the system works. Here was a case—whether these kids were not guilty or guilty, they were ultimately declared innocent by the state attorney general. Our justice system was subverted in this case. And I think that is the most profound uh, uh action to come out of this whole incident. That our system of justice was subverted by very clever, deep-pocketed defense attorneys who exploited every mistake that the prosecution made and that the principal witness made.”

A good response to this basic misunderstanding of our legal system came from one of these “deep-pocketed defense attorneys,” Brad Bannon, during the Nifong ethics hearing:

  

Needless to say, this was another section of Bannon’s testimony that never found its way into Cohan’s book.

Bannon-Nifong Conversation

Given the . . . unusual . . . editing strategy of author William D. Cohan, I thought I would post the video of the testimony in which Brad Bannon revealed a private conversation with Mike Nifong in which the rogue DA exhibited odd behavior.



Of course, not only did Cohan (at the very last minute) cut this passage from his book, but he also eliminated a less-than-flattering interview snippet from his book’s hero and protagonist: “Nifong said of Bannon’s testimony that it was ‘snide’ and that Bannon was ‘a little pissant, is what he is, and there’s no cure for that. Quite frankly, whatever career he has, I wouldn’t want.’”

Cohan: Side-by-Side

The handful of close readers of the William D. Cohan book (a list that, alas, did not include reviewers from the Economist and Newsday) doubtless noticed an anomaly—minor errors, usually by a page or two, in the index. It was almost as if there were lots of small, last-minute alterations to the book, some of which led to pagination changes that weren’t accurately reflected in the index.

It turns out that the manuscript was reduced by 22 pages. Some of the shift came from modifying the spacing and the margins. Cohan also made minor cuts of little editorial consequence. But myriad alterations better framed the argument, by: eliminating criticism of the book’s protagonist, Mike Nifong; cutting passages that reflected very poorly on Nifong’s conduct or temperament; bolstering the Cohan/Nifong “something happened” thesis; or downplaying positive portrayals of the lacrosse players’ character.

The Cohan book was filled with hundreds of pages of recycled material—paragraph after paragraph, seemingly prepared by a research assistant, blandly summarizing an article by reporter x or the opinions of columnist y. It would not have been difficult to cut 22 (or 222, for that matter) pages of fat, without (as Cohan did) eliminating several items of significant substance.

The Smoking Gun

 . . . comes in, of all places, the acknowledgements. In the book, Cohan thanks a Nifong acquaintance named Pat Devine, who created what the author describes as an “oral history” of the lacrosse case. He remarks that “without Pat and her inspiration, this book would likely not have been possible.” He then moves on to thank other people, leaving the reader to speculate how he ever came across “Pat” and her so-called oral history.

It turns out that a specific individual guided Cohan to Pat: “I would also like to thank especially my friend Peter Wood, the former Duke history professor, who introduced me to Pat, Peter’s former neighbor in Hillsborough, North Carolina.”

This sentence disappeared from the final version. In that version, Cohan treated his “friend” Wood’s analysis of campus events as prescient (without mentioning he was, in fact, praising the work of a “friend”), and offered a passive-aggressive critique of the Duke report (by the Coleman Committee) that undermined his “friend” Wood’s credibility about the lacrosse players’ in-class behavior.

So: at the last minute, Cohan chose to hide from readers that he was a “friend” of perhaps the fiercest critic of the lacrosse players’ character on the Duke campus, and that this same “friend” had introduced him to a source without whom the “book likely would not have been possible.”

It’s rather difficult to come up with an innocent explanation for this omission.

Defending Nifong from Himself

Perhaps the most stunning deletion came in the coverage of Nifong’s ethics proceedings, where this full paragraph was cut on what became page 522:

“[Brad] Bannon also described how Nifong lost his temper during a telephone call on October 20. Bannon and Cheshire . . . had written Nifong a letter trying to get additional evidence and information from Nifong. ‘I thought the conversation was cover at that point in time,’ Bannon testified, ‘but Mr. Nifong then brought up a letter that Mr. Cheshire and I had sent to him regarding other discovery issues that had come up in the intervening period of time. And he got extremely upset with me about that letter and said we weren’t acting in good faith as lawyers. He wanted to know why we were always accusing him of withholding information . . . I tried to explain to him what some of our concerns were about the discovery materials being withheld. And he sort of at the end of the exchange, just his volume kept going up and up and up. He wouldn’t let me respond in any way. And he finally hung up the phone on me.’ (A day earlier, Wade Smith had testified about his April 13 meeting with Nifong and two other defense attorneys and said that he had ‘never experienced such behavior in his more than forty years of lawyering’ and that ‘it was clear Mr. Nifong was extraordinarily agitated and upset, and we left.’) Nifong said of Bannon’s testimony that it was ‘snide’ and that Bannon was ‘a little pissant, is what he is, and there’s no cure for that. Quite frankly, whatever career he has, I wouldn’t want.’”

(Well: Nifong got his wish.)

Consider the remarkable content of this paragraph: Nifong lashing out at the attorney who exposed his hide-the-test-results plot; the deeply respected Wade Smith providing historical context for Nifong’s misbehavior; and the recounting of a private vignette that until Bannon’s testimony wasn’t publicly known. It’s hard to imagine any reasonable editorial judgment that would justify its exclusion, especially in a book that contains so much filler material.

But, of course, the material in the paragraph—and especially the last two sentences—was also wholly inconsistent with author Cohan’s portrayal of the Christ-like Nifong, “crucified” for Duke’s sins. Instead, readers would have seen the embittered, egotistical Nifong that so many people affiliated with the case encountered.

The deletion of Nifong’s slur against Bannon wasn’t the only time Cohan used the editor’s blue pencil to save Nifong from himself. Cohan dropped two paragraphs of Nifong sounding delusional, suggesting some sort of conspiracy theory about the Bar complaint: “The unspoken subtext was,” Cohan’s readers didn’t learn Nifong said, “‘We know that you are committed to this case and if we can get anybody else but you involved in the case than the level of commitment would be les,’ and I completely understood that. I don’t think they honestly could deny that was part of their strategy.”

Awhile later (p. 544), Cohan protected Nifong from seeming closed-minded, cutting out two sentences in which the rogue prosecutor discussed the AG’s evidence: “And actually assuming that I had seen the same things that they [the AG’s office] refer to in their report upon her taking the stand in the suppression hearing, I may easily have reached the conclusion at that time. But other than the conclusion not to proceed with the case, I am not sure that I would ever take that next step.” But much of the report wouldn’t have come out at a suppression hearing, and Nifong’s admission that he doubted he could “ever” recognize the players’ innocence, regardless of the evidence, was telling.

Virtually the only new material gathered by Cohan came from the Nifong interviews; the author’s handful of other interviews were far shorter and mostly of little consequence. That Cohan cut such obviously relevant Nifong items from his book’s major primary source shows the passion that he brought to his cause of rehabilitating Nifong’s reputation.

Removing Sharply Negative Comments about Nifong

Several last-minute cuts applied to sharp criticisms of Nifong, items that had been accurately offered in the penultimate version of the text, presumably from material prepared by his research assistant. For instance, on what became p. 253, a strong attack on Nifong by the third candidate in the DA’s primary, Keith Bishop, ultimately didn’t see the light of day. “I would have been very certain of the facts before I jumped out in the media and virtually guaranteed an arrest,” Cohan’s readers ultimately wouldn’t learn that Bishop said about the book’s protagonist. Bishop added in the deleted passage that Nifong “wants to win so badly that he will do anything and will say anything. It reflects political immaturity. He thinks that simply pandering to race will get him the breakout he needs.”

Cohan eliminated a paragraph (p. 272) containing Reade Seligmann’s reaction to learning from Kirk Osborn that Nifong wouldn’t drop the case. “I don’t know much about the law,” Seligmann said but Cohan’s readers never learned, “but you hear the word ‘alibi’ and that’s one of the first things that you think a prosecutor would want to have . . .  you don’t charge an innocent person and an innocent person won’t go to jail.”

Cohan also (p. 369) chopped a paragraph quoting from Duke Law graduate Karen Bethea-Shields, who had represented a black defendant in a racially charged 1975 murder case. Bethea-Shields, Cohan’s readers ultimately didn’t learn, was “’appalled’ that Nifong had given so many interviews during the early weeks of the case, and irritated that Nifong had made race such a big factor.” Nifong’s pre-primary publicity spree, Bethea-Shields wondered, forced people to pose the question: “Why was [race] important to bring up? You don’t go leaking a little bit here and a little bit there and get the community all riled.”

It’s easy to see why someone as passionate in his defense of Nifong wouldn’t want those passages to appear in his final product.

The “Something-Happened” Thesis

In addition to rehabilitating Nifong, Cohan aggressively (as his publicity tour demonstrated) advanced a “something-happened” thesis. Perhaps the clearest example of this argument guiding his decision to eliminate material came on p. 513, when he cut a quote from Inv. Ben Himan: “Himan said that during Cooper’s investigation, he became aware of evidence he did not even know existed. ‘They had numerous, numerous accounts of pictures, documents, alibis, receipts. It was unbelievable how much stuff they actually turned over to the Attorney General’s Office.” [emphasis added]

It’s easy to see how an author who proclaimed to CNN that an “incredible amount of evidence” exists of a crime would want to keep out his “definitive, magisterial” account such an assertion. Even Cohan couldn’t try to include Himan in what the author has portrayed as a wide-ranging conspiracy to block the truth from coming out.

The “something happened” thesis also required bolstering the credibility of murderess Crystal Mangum, a task to which Cohan took with gusto, both in the book and in his press appearances. Indeed, even as he needed to cut material, Cohan added 22 lines (at p. 39) from the report of UNC doctor Yvonne Lai, who examined Mangum on the day after the part (15 March). The fresh items included such passages as “the doctor noted that Mangum had suffered an ‘assault last night,’” that she had “new neck pain,” and felt “wobbly.” The added passages also mentioned that Mangum was “plugged into a rape support group” and that her boyfriend (unclear exactly who) was “very upset with her currently because of this rape.”

These additions cemented an impression that Mangum had experienced some sort of physical injury at the party—a useful editorial approach for someone committed to the “something happened” thesis.

A further bolstering of Mangum appeared on p. 513, when Cohan eliminated one of the two paragraphs (reducing the section from 27 lines to 12) in which Himan explained why he had concluded that Mangum had lied. In addition to the material already mentioned, Cohan’s readers didn’t learn that Himan recounted, “On multiple, multiple times, she was contradicted with indisputable evidence, with her time lines and pictures and stuff like that . . . Even when she said that the two people who assaulted her brought her out to the vehicle, they have pictures of people putting her into the vehicle, and it’s not David Evans, and it’s not Collin Finnerty, and it’s not Reade Seligmann.” [emphasis added]

Seven pages(!!) after this passage disappeared from the book, Cohan included an uncorrected assertion from Mangum, in her jailhouse interview with him, falsely asserting that Reade Seligmann carried her to the car. Cohan had mentioned the photos, accurately, hundreds of pages before, but only the most careful reader would have recalled such information in evaluating Mangum’s tall tale. But it’s easy to see how an author passionately committed to the “something happened” thesis would remove a neutral, factual assertion from Himan that would prompt readers to understand that his “victim” was lying through her teeth.

Heightening a Negative View of the Lacrosse Players’ Character

Cohan eliminated (p. 218) several sentences describing a spring 2006 Chronicle editorial in which the paper’s editors argued quite strongly that the lacrosse team should be viewed as typical Duke students, for good or ill. He also cut (p. 372) two paragraphs from a largely sympathetic view in ESPN magazine about the unindicted players’ experiences. And he chopped (p. 560) an entire paragraph from David Evans, Sr., reflecting on how his “son has led the way in handling this outrageous situation well, looking out not only for himself but for his teammates and his friends.”

The boldest shifts, however, came in one reduction and one addition. On what became p. 388, Cohan made a two-page deletion (the longest of the entire last-minute editorial process) to omit all mention of the fantastic summer 2006 Chronicle article by John Taddei, featuring interviews with Bo Carrington, Tony McDevitt, Rob Wellington, and John Walsh. As with much else in this section of the book, the material clearly came from Cohan’s research assistant, and faithfully summarized the article, which humanized the lacrosse players and provided remarkable insight into their on-campus negative experiences in spring 2006. Indeed, the article was one of the most important media pieces in the case, representing as it did the first time that multiple members of the team spoke on the record about their experiences in the spring 2006.

As the interview with team members vanished, Cohan added material attacking the players’ character—through a lengthy three-paragraph insertion (almost two pages) from his unidentified “friend,” Peter Wood. On pp. 179-180, readers now heard from “friend” Wood about how lacrosse players in his class were part of a culture “occasionally tinged with defiance, belligerence, and even antisocial racism.” Wood purported to have confirmation of his criticism of the players from other, unnamed professors (the Coleman Committee, of course, found otherwise), and the added material also featured Wood affirming that he had “heard plenty of confirmation from undergraduate remarks regarding the unsavory reputation of the team in social matters on and around campus.” (Why a professor was gossiping with his students about other students’ “social matters” Cohan did not reveal.) The inserted passage concluded with the lengthy e-mail from Group of 88’er Susan Thorne to Wood, which I profiled previously.

A largely sympathetic portrayal of members of the team, from one of the best media sources on the case: out. A character assault from the author’s “friend”: in.

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The only change to the final manuscript that seemed to rebut Cohan’s thesis came on p. 538; Cohan added a paragraph summarizing the portion of the Cooper report describing the DNA transference theory. This change, ironically, suggests that Cohan was well aware of the transference theory—even as he went on talk show after talk show never once mentioning it, even bizarrely suggesting that defense attorneys claimed that the possible DNA match came from Dave Evans picking up the fingernails from the floor.

Cohan’s book, and his many guilt-presuming public appearances, speak for themselves. Even if he had made no cuts, the book’s biases would have been self-evident. But the last-minute editorial changes—the removal of clearly significant items (the “pissant” comment, Himan’s first-hand recollection of the evidence), coupled with the deception regarding both Cohan’s relationship with Peter Wood and Wood’s role in jump-starting the entire project—gives a sense of just how deeply committed Cohan was to his effort to rehabilitate Nifong.

A final note: Cohan’s original list of media-type sources (p. 619 of the book) ended with a discussion of WRAL’s online archive. But in his final version, he added the names of a few specific figures. One such addition: “K.C. [sic] Johnson,” who author Cohan described as exhibiting an “obvious bias.”

Glad to know I was in his thoughts.

More on McLeod

[Update, Monday at 11.15am: in the WSJ Law Blog, Jacob Gershman has an excellent summary of the case, including a revealing comment from the Duke spokesperson.]

Last year, James Taranto published a sensational piece on a kangaroo court at Auburn; I praised it at Minding the Campus. Taranto’s effectiveness came in his ability to bring observers inside a badly flawed sexual assault process.

The Liestoppers board has posted many of the documents from the McLeod lawsuit against Duke. In a different way than occurred with Taranto’s article, they help bring us inside Duke’s curious processes and seemingly ever-shifting standards. Some discussion below, and I will also have some more to come at MTC.

Duke made two arguments against the McLeod lawsuit. The first, which Judge Smith at least at this stage rejected, was that Duke had no legal obligation to follow its own standards, and therefore the expulsion should stand. (More on this below.) The second, on which Judge Smith has deferred, was that McLeod had no right to a Duke degree, since McLeod “failed to meet the standard of conduct required of members of the Duke community.”

Duke further added that awarding McLeod a degree would “hinder Duke’s ability to act out its values.” And in testimony before Judge Smith, Dean Sue Wasiolek affirmed that a Duke degree suggests that a student is “of high character.” McLeod’s attorneys correctly countered that “rather than Duke’s ‘honor’ being at stake, the only ‘injury’ is that a small number of Duke administrators would be angry or offended” by the court acting.

The assertions by Duke and Wasiolek are baffling, for three reasons. First, it’s true that some schools, usually affiliated with the religious right (e.g., Liberty, BYU, Baylor) have student character clauses. But it’s inconceivable for any elite institution to claim that each and every one of its graduates is of “high character,” since such a policy basically means that students have no academic freedom at all.

Second, even if Duke had such a standard, it has never before applied it to sexual assault. The filing for McLeod’s attorneys reveals that “Dean Sue Wasiolek testified that up until Mr. McLeod’s case, no Duke student had ever been expelled for sexual misconduct.” If true, does that mean that until 2013, Duke believed that students who committed sexual misconduct were of high character? Or does it mean that Duke has no such degree standard?

Finally, assume for the sake of argument that Duke had such a standard and has applied it for some time. By what grounds could the university have concluded that Chauncey Nartey fit this amorphous good-character requirement? Nartey was the Duke student who sent a menacing e-mail to the Presslers (“WHAT IF JANET LYNN WERE NEXT???”) referencing their daughter’s name as possibly “next”—at the height of the media and faculty frenzy against the lacrosse team. Later on in his Duke career, the fraternity of which Nartey was president was suspended for inappropriate behavior.

If, as Wasiolek claims, Duke has a “high character” standard for a degree, it’s hard to imagine how the author of such an e-mail could have passed the test. Yet not only did Nartey receive his degree, he did so with a full scholarship (at least according to his website), thanks to funding from a Duke “scholarship program specifically targets exemplary students of African descent.”

The McLeod filings also indicated another intriguing linkage to the lacrosse case. Even a figure as biased as author William D. Cohan conceded that a member of the Duke administration shouldn’t have counseled the lacrosse captains not to tell their parents about the investigation—silence that delayed the hiring of attorneys by around a week. Cohan suggests that this move played a role in Duke’s decision to settle with the falsely accused players.

And yet the university didn’t seem to learn any lesson. McLeod claims that Dean Stephen Bryan told him (according to the filing) “that an attorney would not be useful or necessary in the disciplinary matter.” The advice could not have been more unhelpful. The filing makes clear that McLeod’s non-attorney “advocate,” while well-intentioned, was of little or no assistance. He only met with McLeod twice (and one of those times only briefly), provided routine and perhaps even counterproductive feedback on drafts of McLeod’s statements to the tribunal; and had never served as an advocate for a student who would face expulsion if found guilty. Nor, it appears, had the advocate received any special training in how to determine intoxication levels for accusers—the key issue at play in the case.

Finally, the McLeod filings return to an old standby for Duke—the university’s assertion that while it can use the student bulletin to enforce punishment against students, the school has no legal obligation to be bound by the bulletin’s provisions. Going even further than they did in the lacrosse case, Duke’s attorneys refer to the bulletin as an almost ephemeral document, one “based on an aspirational “statement of principles.”

They’ll only go so far to say that Duke has an “intention to administer” [emphasis added] its disciplinary process as outlined in the guide (explaining, perhaps, why it was OK to change the punishment protocol without adding it to the guide). At most, according to Duke, the guide provides “a hearing free from procedural errors that substantially affect the fairness of the hearing.” But in in a hearing based on a preponderance-of-evidence (50.01 percent) threshold virtually any procedural error would affect the outcome.

[I should note that while Duke, both here and in its lacrosse-case filings, dismisses any legal obligation for the university to uphold the terms of the student bulletin or faculty handbook, it never has taken that position in admissions office publications or in communications with prospective students or parents on its website. It’s almost as if the university doesn’t want the people who will be spending more than $200,000 over four years to have access to this information.]

As to what constitutes “due process” at Duke, the university suggests that McLeod was entitled to five elements: (1) receiving the material to be used against him five days before the hearing; (2) right to witnesses; (3) ability to present questions to the disciplinary panel, which the panel might (or might not) then present to the accuser and other witnesses; (4) an opportunity to give opening and closing statements; (5) an opportunity to present written character statements from other people. How ensuring a student of sexual assault these five items means that the student gets anything approximating a fair process Duke doesn’t say.

No wonder Judge Smith issued a preliminary injunction.

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.”