Monday, April 21, 2014

New Evidence from Karen R. Long?

In his (excellent) review of William D. Cohan’s Nifong apologia, Stuart Taylor commented on an oddity of the book’s roll-out—the “amazing succession of puff-piece reviews” that have appeared in some reputable (and some not-so-reputable) publications. Until very recently, not a single one of these reviews have endorsed either of Cohan’s two principal theses (that “something happened” in the bathroom and that Mike Nifong was unfairly punished). Yet these “puff-piece reviews” of which Taylor spoke have featured glowing, largely content-free praise for Cohan’s work.

My personal favorite in this regard was the review in the Economist, penned by Reuters’ “correspondent in Sierra Leone and West Africa.” As part of an attempt to portray the book as even-handed, the review almost comically claimed that Cohan “criticises one long New York Times article in particular.” In fact, Cohan’s argument about the criminal case reflects and expands upon the thesis of that August 2006 Duff Wilson article (Wilson: enough evidence existed for trial; Cohan: enough evidence existed for trial, and “something happened that none of us would be proud of”). So if Cohan had actually criticized the Wilson piece “in particular,” he would have effectively undermined his own book’s argument.

Of course, Cohan had made no such criticism, much less “in particular.” As the book summarized, as if by rote, scores of other articles, op-eds, and blog posts, so too did it summarize Stuart Taylor’s opinion on the Times article, without saying whether or not Cohan agreed with Taylor. But Cohan himself (in his own voice, p. 394) deemed the Times article “comprehensive”—even though, since it omitted key details and contained several factual errors, the article was anything but comprehensive. Nor did Cohan spend much time on the piece: in a 600-plus page book, discussion about the Wilson article received three paragraphs. If this is criticizing something “in particular,” then perhaps the Economist needs to freshen its stable of reviewers.

Late last week, however, Newsday produced the first review that appears to embrace at least one of Cohan’s twin theses—that something happened in the bathroom. (There still have been no takers for Cohan’s characterizations of Nifong as “quite credible” and “honorable,” victimized by a previously “passive” State Bar acting at the behest of the “clever” defense attorneys). Reviewer Karen R. Long spent 728 words focusing on the former students’ alleged character flaws, and couldn’t even bring herself to mention the reasons for Nifong’s disbarment.

The most striking sentence in the Long review, however, was the following, which marked at least an implicit acceptance of the Cohan/Nifong “something happened” thesis: “It [a St. Raymond’s medal] was a gift from Duke co-captain David Evans, whose DNA under the false fingernail of the accuser was never explained.” [all three emphases added]

Note that the final clause of Long’s sentence contains three factual assertions:
  1. That Evans’ DNA was identified;
  2. That the DNA was found “under” the fake fingernail;
  3. That the DNA evidence was “never explained.”
The first and third of these factual assertions are simply false; the second is an unfounded insinuation. Evans’ DNA was not identified; the DNA sample could not exclude Evans, and thousands of other men, in a test so precise that it could positively identify a cell accidentally deposited by lab director Brian Meehan. While DNA was found in the false fingernail sample, skin was not found—so a suggestion about material being found “under” the fingernail would be, at best, misleading.

Finally, even Cohan, despite his bias, included a summary of the North Carolina Attorney General's report, which offered a thorough explanation (pp. 12-13) of the DNA evidence. It appears as if reviewer Long disagrees with the findings of the attorney general’s report, although it isn’t clear if she actually read the document. In the event, disagreeing with an official report’s detailed explanations of the DNA evidence fundamentally differs from asserting that the DNA evidence was “never explained.”

For good measure, Long began her paragraph by wildly describing Collin Finnerty as “one of the lacrosse party planners.” Even Cohan’s book, which goes out of its way to condemn every member of the lacrosse team that it mentions except Ryan McFadyen, contained no such claim—perhaps because the claim is demonstrably false. (The party was planned by the captains; Finnerty at the time was a sophomore.) Since the Cohan book contains no such claim about Finnerty, its inclusion in the Newsday review would suggest that Long has independent sourcing on the origins of the party that contradicts everything we have learned about the party since 2006. Will she explain the reporting she did to make this false claim? Does Newsday stand by a book reviewer performing independent, factually-challenged reporting?

In short, Long made three incorrect assertions (all reflecting negatively on the falsely accused students) that were not contained anywhere in the (already heavily one-sided) Cohan book:
  1. That Finnerty was “one of the lacrosse party planners”;
  2. That Evans’ DNA was identified;
  3. That the DNA evidence was “never explained.”
From where did she get these “facts”?

I e-mailed reviewer Long to ask if she had any factual bases for her allegations; she did not reply. I tweeted a copy of the Attorney General’s report to the book review editor at Newsday; he did not reply. As of now, Newsday has not run a correction on Long’s review, and apparently stands by her false assertions that DNA on the fake fingernail “was never explained,” that Evans’ DNA was identified at all; and that Finnerty was “one of the lacrosse party planners.”

Long’s review is noteworthy in another respect, in that hers is only the second review of Cohan (after mine in Commentary) to reference the Darryl Howard case. For Long, however, the Howard case is of interest only as grounds to launch another character assault against the three falsely accused former students (presented in a quote from Nifong’s attorney suggesting they received special treatment because of their wealth). Long managed to avoid the obvious question, which Cohan, as a Nifong apologist, has shown no interest in answering: How can the man who allegedly withheld vital evidence in the Howard case be reconciled with Cohan’s portrayal of Nifong as a credible, honorable prosecutor?

Sunday, April 20, 2014

Neff Reviews Cohan

Today’s N&O contains a devastating review of the Cohan book penned by Joe Neff, who did more reporting (and broke more stories) on the criminal side of the case than anyone.

The review isn’t long, and I’d urge people to read it in its entirety. Three items particularly stand out.

“Author William D. Cohan opts for an apology for Nifong and, by extension, prosecutors who hide evidence and lie to judges.

Nifong makes remarkable claims that the author – clearly sympathetic, if not besotted – fails to challenge or test.”

[Cohan’s relying solely on Nifong and not trying to interview those Nifong made claims about] would be pathetic mistakes for a daily newspaper story. For an author spending months or years on a book, it’s a revealing choice to avoid interviews that contradict the revisionist narrative: that Nifong is the victim.”

I’m obviously not a journalist by training. (I’m a history professor.) But it seems to me that a basic element of journalism is that the reporter at least makes the effort to obtain information from both sides. That obligation strikes me as even more important when the reporter’s chief source (in this case Nifong) has serious problems with credibility.

Yet several journalist reviewers (of what my colleague Stuart Taylor has termed the “puff-piece” variety) have praised Cohan for his “evenhanded” approach and tone. One of this number, David Shribman, serves as executive editor of the Pittsburgh Post-Gazette. If his paper’s reporters produced pieces in which they relied on a convicted liar and didn’t even try to speak to the other side, would he praise them for their “evenhanded” work?

Similarly, a few weeks ago, I would have guessed that many journalists (not usually a pro-prosecutorial misconduct constituency) would have been outraged by a publication that, by extension, apologizes for, to quote Neff’s summary, “prosecutors who hide evidence and lie to judges.” But it now appears as if many journalists (at least those selected to review the book for the Times, the Wall Street Journal, and the Washington Post) were not particularly troubled by a book that takes such a line.

Saturday, April 19, 2014

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.

Friday, April 18, 2014

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.

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

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.”

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

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.

Thursday, April 17, 2014

Cohan's Approach to Op-Eds, New Items in the Book

For those who want to read it, my general review of the Cohan book, published by Commentary, is here. Stuart has reviewed the book in the New Republic, and Peter Berkowitz has an intriguing review in Real Clear Politics.

A few notes on the structure of the book. Much of the publication—perhaps as much as half of the 600-plus pages—consists of little more than repackaged summaries of material published by other journalists, columnists, speakers, or bloggers. Cohan offers all (or virtually all) these summaries without any analysis on his part. The effect is to present some of the most dubious pieces of writing on the case as credible. Whether this effect is intended or not is hard to say: but occasionally Cohan allows the mask to slip, and praises some of the most questionable commentators on the case.

Commentary

Presumably modifying summaries prepared by a research assistant, Cohan plows through scores of op-eds and news articles, but almost never provides analysis. So unless the reader is unusually attentive, or is willing to go on the web and track down the articles herself, there’s no way of detecting how the stories of figures like Selena Roberts changed as it became increasingly clear (except in the minds of Nifong and, apparently, Cohan) that a rape never occurred. Indeed, Cohan seems to praise one of Roberts’ op-eds (p. 247), calling it “devastating.”

Similarly, the work of Hal Crowther—which has poorly stood the test of the time—gets hailed (p. 386) as the writing of “the conscience of progressive thinkers in North Carolina,” the ruminations of a man who “tried to put the still-unfolding drama into perspective.” As a center-left Democrat, the idea that anyone could consider someone like Hal Crowther the “conscience” of any state’s progressive thought is repulsive.

Along these lines, Cohan sympathetically quotes John Feinstein—after the exoneration—complaining that (p. 545) “it is almost pointless to argue with the Duke loyalists who have bought into the notion that the lacrosse players were guilty of nothing more than ‘boys being boys.’” Unmentioned at any point in Cohan’s book is the commentator’s own indefensible statements from early in the case, including this gem (30 March 2006): “You know, I don’t want to hear any ifs, and, or buts. These kids have acted disgracefully, just by the fact that not one of them—I don’t want to hear about the code, among buddies and among teams. A crime was committed. There were witnesses to the crime. They need to come forward and say what they saw . . . They won’t, and that’s why I’m saying the hell with them—strip their scholarships.”

Feinstein never apologized for this statement, or the others he made in March 2006. Quite the reverse, in fact: after the exoneration, he asserted that Seligmann, Finnerty, and Evans were “probably guilty of everything but rape.” It’s little surprise that Feinstein (described by Cohan, p. 616, as the “world-famous journalist” who was “extremely generous” with his time) is Cohan’s kind of commentator.

While Cohan summarizes (p. 394) in two paragraphs Stuart Taylor’s critique of the Times August 2006 whitewash, in his own words he terms the Times article “comprehensive.” The Herald-Sun never gets analyzed; it receives the hilariously understated description as (p. 437) “generally supportive of Nifong”—just as, I suppose, Russia Today is generally supportive of Putin.

Finally along these lines, the Janet Reitman Rolling Stone article (which many of the Group of 88 seemed to welcome) received a five-page summary—by far the longest summary in the book for any article. The general pattern—articles or columns that presumed guilt, stressed racism/sexism, or attacked the lacrosse players’ character received lengthier coverage than those that did not. By contrast, Cohan harrumphs (p. 411) about the “constant haranguing of the bloggers.” He doesn’t identify which bloggers he’s talking about (I invite readers to take a guess…); and the critical Liestoppers blog doesn’t merit an entry in the book’s index.

Me

As someone who wrote about the case while it was occurring, I receive several mentions in the book. Those who slog their way through the entire manuscript (where several blog posts are quoted fairly, presumably based on summaries by Cohan’s research assistant; and where many items from UPI resurface without attribution) doubtless will be surprised to see that the final reference to me (p. 619) claims that I suffered from “obvious bias.” Since Cohan doesn’t say what my alleged bias is—and since even Cohan criticizes Duke’s unsuccessful effort to go to court to force me to reveal confidential exchanges with sources for the book and blog—some readers might even guess that I shared Cohan’s pro-Nifong bias.

Oddly, on p. 409, Cohan notes that I said the blog “received about one hundred thousand visitors.” Actually, as of the date of publication of Cohan’s book, the blog has received 5.575 million visitors and 9.022 million page views. Roughly 90 percent of that total occurred by the end of 2007, when I ceased blogging on a daily or near-daily basis. (As regular readers know, since 2009 I have blogged far more frequently at Minding the Campus.) Rather than checking with me about the blog’s visitor rate, Cohan published an inaccurate figure that’s less than 2 percent of the blog’s total visitors, and Scribner’s fact-checkers let the item appear in print. I’m not difficult to reach: my e-mail address and cell phone number are right on my webpage. If either Cohan or the fact-checkers in the “definitive, magisterial” account had gone to the webpage, or just looked at the blog, they also would have discovered that my name is KC Johnson. It’s not clear why Cohan elected to randomly insert periods into my name, as he does throughout his book; perhaps I should follow his standards and hereafter refer to the book written by Will.i.am Cohan.

New Items

For such a long book (more than 600 pages), Cohan has surprisingly few new items—apart from trivia of the type that Susannah Meadows mentioned in her review. Meadows also lists three substantive new items, but two of these weren’t new, and the third (the settlement claim amount) is almost certainly wrong. Likewise, other ostensibly “new” items—Kirk Osborn’s payment record; the Bar’s internal strategy about Dave Evans testifying; a Nifong-Osborn meeting—are false (the first item) or wholly non-credible (the other two) in that they rely on the uncorroborated, self-serving recollections of a convicted liar.

Of the new items, by far the most interesting is Cohan’s report that by January 2007, Nifong “had given up on reading the newspapers—except for the New York Times.” Somehow I don’t think “Mike Nifong’s Favorite Newspaper” would be a good slogan for the Times. Likewise, as noted before, the book reveals that Nifong felt that he had been mistreated by Duke in not receiving enough financial aid from the school.

Bob Steel was the only current or former member of the Duke administration who spoke to Cohan on the record. Steel’s basic interpretation of the case, as told to Cohan, resembles his earlier recollections to Jason Trumpbour (something “terrible, terrible” happened in the lacrosse captains’ house) and to Stuart, in Stuart’s interview with Steel for UPI. Like Nifong and Cohan, Steel believed that something happened, and like Nifong and Cohan, Steel won’t say (“I don’t need to be graphic,” p. 534) what he believes actually occurred. That said: since publication of the book, and Cohan’s insinuation that Steel joined Nifong and Mangum in a consensus that a rape occurred, the former BOT chairman has substantially backtracked.

Regarding Duke, Steel comes across as petulant, angry that outsiders failed to appreciate all he did to keep the school together during 2006 and 2007. (p. 534): “I busted my ass to keep the board on the same page.”) But he also now admits (p. 532) that “our support of the students was deficient,” though he doesn’t say what Duke should have done differently. Cohan produces no evidence that he pressed Steel on the issue. Nor did the Cohan-Steel interview shine any light on whether Steel or Brodhead had the predominance of power regarding the university’s response to the case.

That said, Steel now offers (pp. 532-3) two criticisms of Brodhead. First, Steel, joining virtually everyone else who commented on it, delicately notes that he would have liked a “do-over” on Brodhead’s infamous Durham Chamber of Commerce address. (Even if Reade Seligmann and Collin Finnerty were innocent, the president publicly proclaimed, whatever they did was “bad enough.”) Second, Steel condemns Brodhead’s performance in the civil suit depositions (which, alas, the public almost certainly will never see): “Dick’s vocabulary, on occasion, strayed . . . Dick is a talker . . . [Duke’s lawyer said], ‘Dick, you’re the worst person I ever tried to teach about depositions. You talk too much.’ . . . [In depositions,] Dick wants to pontificate. He’s an English professor.”

These two paragraphs are well beyond anything that Steel said either to Stuart or to Peter Boyer, and represent genuinely new material.

Cohan also uses “one highly placed Duke official” (it’s not clear if this is the same anonymous official he has explaining why Duke settled the case, or if it’s Steel speaking on background, or if it’s a third figure) stating, as was widely believed, that former athletic director Joe Alleva, who decamped to LSU, was not wanted back. Referring to a one-year extension of his original contract, the unnamed source said (p. 540), “He’s lucky to get what he got.”

Cohan quotes (pp. 67-8) from seven internal Duke e-mails, dating from 16 March 2006. An e-mail chain between Dean Sue, John Burness, Larry Moneta, and two lower-level Duke administrators provides the first notice that Duke had of the event. The e-mails contain nothing out of the ordinary—people sensing a potential problem and desperately trying to find out information—but do confirm that the Duke administration knew from the start that the lacrosse players were wholly cooperative with police. Dean Sue: “Here’s the latest update on the situation . . . Most important is that the students who reside in this house have been fully cooperative.” According to Cohan, this e-mail went to a “wider group” of administrators than just those on the e-mail change.

Finally, in what appears to be an e-mail provided by anti-lacrosse extremist Peter Wood, Cohan extensively quotes from an e-mail sent to Wood, from sometime in late March 2006, by Group of 88 member Susan Thorne. Thorne’s name should resonate with followers of the case: she privately apologized to one of the lacrosse players for signing the statement and promised a public repudiation of the statement—only to turn around and sign the “clarifying” statement, in which she announced that she’d never apologize for affiliating with the Group. Cohan doesn’t mention this episode in his book—perhaps because it reflects poorly on the Group of 88, rather than on the lacrosse players.

According to Cohan (p. 180 in the text, p. 182 in the index—there are lots of minor indexing errors in this book), Thorne praised Wood’s “wonderfully eloquent, if chilling” 2004 letter attacking the lacrosse players. Describing the lacrosse players in her own class as “academically underprepared,” Thorne announced, “I am clearly no judge of character. I was totally blind to any warning signs . . . I vainly gave them moral credit for taking my classes, which are intensely antiracist.” Did Thorne believe that there were “pro-racist” classes at Duke? What exactly makes an “antiracist” class?

Thorne concluded: “As a redneck [does Thorne normally employ such disparaging racial descriptions of her associates?] friend of mine remarked about all this, these kids have no idea what all the fuss is about. A street kid [does Thorne normally employ such disparaging classist descriptions of students?] would know. But these kids think it was all just a case of bad judgment, a party out of hand. But of course that’s how their obnoxious behavior has been treated in the past—and how this was treated by Duke for about a week after the party was reported.”

Given that he considers her viewpoint of such importance that he quotes from it at length, it’s puzzling indeed that Cohan doesn’t describe Thorne’s later role in the case. By the way, here’s the two-faced Thorne privately on the case in January 2007, featuring a very different, almost apologetic tone about the very lacrosse players she condemned to Wood, as she explained why she wouldn’t make her promised public statement repudiating her membership in the Group of 88:
Now that Nifong’s gone, I don’t think there is anything left for ME to say that isn’t already being said in newspapers all over the country.  Joining the chorus in print now appears and feels self serving. 
This is also the sense of the friend to whom I sent what I’d written (he was out of town; by the time he returned and read it, the news had made it obsolete).  It would seem I’ve missed my chance to be of some use to the families.
Indeed she had.

Wednesday, April 16, 2014

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!

Tuesday, April 15, 2014

Fisking Cohan on Rehm

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

Remarks, with my comments, below.

COHAN
11:08:29
I decided that I had too many open questions in my mind about what happened at my alma mater, which I love, about what happened during this incident between March of 2006 when the party occurred and April 2007 when Roy Cooper, the attorney general of the state of North Carolina, declared these boys innocent. I wanted to know what happened. There was no trial in this case. I wanted this book to serve as the trial that never happened.

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

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

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

COHAN
11:09:10
I was able to speak to people who had never spoken before about this, like Mike Nifong. Everybody wanted to talk to Mike Nifong in 2006, in 2007.

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

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

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

COHAN
11:09:32
This is the first time [Nifong has] spoken about this case since then.

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

COHAN
11:10:12
Yes, after Duke University, my alma mater, told [Steel] not to talk to me, tried to silence him. But he courageously wanted his version of this story out. He wanted to say what had happened here. And he was more than happy to talk to me.


COHAN
11:13:10
And at about midnight, they decided to invite two strippers [to the party]. They paid $400 to them each with the idea incredibly that they were going to put on a show for two hours.

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

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

COHAN
11:14:02
Yes. I talked with [Mangum], also for the first time that’s she’s spoken publicly about this.

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

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

COHAN
11:15:17
The police came. They tried to get her out of the car. She wouldn’t -- she was not responsive. They gave her smelling salts. It woke her up. They eventually took her to something called Durham Access. While she was at Durham Access, they asked her what had happened. She said, I was raped.

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

COHAN
11:15:17
They immediately took her to the Duke University Hospital. She was examined by a nurse. And for the first time, the nurse’s report is in my book. That had never been released before.

REHM
11:15:46
Why not?

COHAN
11:15:47
It was deemed to be a private document, a secure document, a nonpublic document, and so it never came out before. I was able to get a copy of it. A lot of defense attorneys sort of made hay with it, about what they thought it said, but now, for the first time, you know, people can see actually what it said. And in there she tells a story, Crystal Mangum, the victim slash -- and she was later known as the accuser when the story turned.

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

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

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

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

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

REHM
11:17:36
Was there a second assessment at the time? Was there someone else who confirmed the evidence?

COHAN
11:17:46
Well, there was also a doctor who -- there were many doctors who examined Crystal. There were many police who talked to her. The police investigators from Durham spent a lot of time with Crystal. They obviously believed much of her story. They believed she was assaulted.

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

COHAN
11:18:07
One of the things that Mike Nifong told me, the Durham district attorney, was that had the players given DNA tests voluntarily, which they decided ultimately not to do, had they done that voluntarily, there would not have been a Duke Lacrosse case.

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

REHM
11:20:01
And here’s our first email following our earlier portion of the conversation about William Cohan’s new book, “The Price of Silence.” This from Mercedes, who says, “Mr. Cohan has expressed his belief that something happened to Crystal Mangum, at the Duke lacrosse party on March 13th,” or 14th because it happened after midnight. “I would like to know, based on his research, what he believes happened in that bathroom. Does he believe that the three indicted players are not innocent?”

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

COHAN
11:20:50
So that is a very simple question that is complex to answer.

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

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

COHAN
11:21:57
[Nifong] was extremely well respected before this case came along. And all of a sudden everybody wants to say he had no judgment and he was just out for political gain, and this was all a vendetta against Duke students, where both -- his parents both went to Duke.

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

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

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

REHM
11:22:27
All right. Now, take us back to the Duke University Hospital once again. Did any of the evidence indicate that this young woman had been assaulted with a broomstick?

COHAN
11:22:49
Well, that night, when she was examined, I don’t think she said anything. I mean, there was discussion about a broomstick and the threat of using a broomstick. The broomstick idea is something that she told me later. Okay. That was new information that was not mentioned that night.

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

COHAN
11:23:28
[In] December of 2006, when she was -- so this is sort of nine months into this controversy -- when she was interviewed by one of the Mike Nifong’s investigators. And during that interview, which was, you know, transcribed and put on -- written down, she said she could no longer remember whether she was assaulted by a penis that night.

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

COHAN
11:25:01
[Cohan blames the defense attorneys for the Bar’s actions, and then explains why Nifong was disbarred.] The first charge was because during the first or second week of March, after he had the case, he was on TV everywhere talking about his belief that these kids had done this -- committed this crime. He was everywhere. He was everywhere. And the second part of it was related to DNA evidence that the defense believed that Mike Nifong withheld. I don’t believe he withheld it. [emphasis added] He turned all the DNA evidence over to the defense during the course of the procedural part… the defense attorneys claim that Mike Nifong withheld that information from them. But that’s just simply not true. [emphasis added]

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

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

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

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

REHM
11:27:20
So they found the evidence, which it sounds as though could have been exculpatory.

COHAN
11:27:30
Yes. I’m not a lawyer. So then there’s the whole debate about exculpatory and inculpatory. Basically, Mike Nifong, what he told me was that the absence of evidence isn’t evidence of absence. It happens to be a same phrase that Donald Rumsfeld used in the new Errol Morris movie. But the fact of the matter is there was rape cases brought in Durham and in jurisdictions all over this country before DNA evidence was used...

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

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

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

REHM
11:29:48
All right. The remainder of the subtitle of your book is, “The Corruption of Our Great Universities.” What are you referring to?

COHAN
11:30:04
I’m referring to the fact that, you know, number one, that the emphasis on sports and big-time sports and the status that athletes get at universities all across this country is just a fact of life that is corrupting. We see that now going on, playing out in real time because we’re just coming off the NCAA basketball championship where billions of dollars go to these schools.

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

COHAN
11:31:05
The basketball program does make money, of course, Under Coach Gay. But this party, in the end, Duke settled with these kids for reasons that are mystifying to me. Paid them $20 million each . . . And this party has cost Duke upwards of $100 million, between legal fees and P.R. fees and investigations and settlements. And I wanted to know why. Why did my university spend this money? And I feel like, you know, they got corrupted in the process.

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

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

REHM
11:31:34
Here’s an email from Lisa, who says, “Please address the issue of the culture of the men’s lacrosse team, whose end-of-year celebrations included a stripper. For these young men to have been wrongly convicted and to serve jail time would certainly have been unjust, but they put themselves in a position to have that happen by having a stripper at the party. The issue of the exploitation of women was never addressed. And the lacrosse players risked their freedom by their thinking it was okay to celebrate with a stripper present.”

COHAN
11:32:26
I think that because of the pedestal that the lacrosse players were put on at Duke, they were allowed to get away with a lot of bad behavior, misdemeanor kind of behavior, underage drinking, public urination, noise. I mean if you look at the analysis of the “crimes” or the misdemeanors that occurred at Duke during this period and the years leading up to it, fully half of them were committed by the lacrosse team players.

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

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

REHM
11:40:40
Here’s an email from Malcolm who says, “One thing your guest failed to mention was that the DA, the prosecutor Nifong was in a heated re-election campaign.

COHAN
11:40:58
That is, of course, quite true. And I think I referred to that as well but I’m happy to reiterate the fact that he was appointed the DA in 2005 when the then current DA was appointed a judge. He then, at the end of 2005, declared himself to be a candidate for the seat himself after 28 years being an underling. He was actively campaigning to become the DA. Beginning of the year of 2006 he had two opponents. And then in March of 2006 this happened.

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

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

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

REHM
11:42:15
Here’s an email from Andrew. Did you speak with any of the Duke 88 faculty members and what happened to those faculty members?

COHAN
11:42:28
Yes. I spoke to a number of the faculty members. Understandably they still work there. And even though they’re tenured, they don’t want -- never wanted their names to be used because they are very scared. There’s still legal proceedings going on. There’s still lawsuits. Lawyers have been sending professors threatening letters about make sure they don’t talk to the media, don’t share any documents with the media. Everything is subject to litigation.

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

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

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

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

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

COHAN
11:45:34

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

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

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