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Preview: Durham-in-Wonderland


Comments and analysis about the Duke/Nifong case (2006-2014).

Updated: 2018-03-12T05:14:06.600-04:00


Closing Comments


When I first started writing about the lacrosse case, at a joint historians’ blog called Cliopatria, I did so in reaction to the Group of 88 statement. Then (and now) I considered the statement an indefensible betrayal by professors of their own school’s students, an action that contradicted many of the basic values on which American higher education rests.Absent the Group statement, I doubt I would have noticed the case at all—in spring 2006, I didn’t even know that Duke had a lacrosse team, much less know any of its members. But as I remained interested in the case, the editor of Cliopatria suggested I spin off into a focused blog. When I did so, in August 2006, I envisioned a six-week effort, which would perhaps provide background for people interested in the case from the 60 Minutes broadcast, which I had heard was scheduled for early October. Instead, a flurry of events—the delay of the broadcast, then the November 2006 election, the Meehan hearing, the Nifong ethics charges, the culmination of the criminal case, and the two Nifong hearings—sustained the blog on a daily basis (the blog had more than 1000 posts during its first 14 months) through September 2007.I stopped daily posts in fall 2007, and since then have averaged only about a post a week. I extended the blog to follow the civil cases, which struck me as likely to establish important precedents. (They did so, though in ways that trouble me—suggesting that in the 4th Circuit colleges have no obligation to enforce the student bulletin or faculty handbook, at least in cases where disfavored groups of students are targeted by powerful faculty interests on campus; and victims have no grounds for a federal civil rights lawsuit when prosecutors and police conspire to frame innocent people, provided the police are internally candid about their lack of evidence and the prosecutor obtains a grand jury indictment.) The civil cases dragged on for much longer than I had anticipated, largely due to Durham’s high-risk, but ultimately high-reward, strategy of filing multiple interlocutory appeals to avoid any discovery.This delay, ironically, meant that the blog remained active during two unanticipated but important events.The first came when Duke employed the civil suit discovery process to try and obtainmy private correspondence with confidential sources for the book and blog. For reasons neither the university nor its attorneys ever explained, I was the only person who covered the case to receive such a subpoena; even UPI co-author Stuart Taylor wasn’t targeted by Duke. Thanks to excellent representation from my attorney, Patrick Strawbridge, and assistance from the Reporters Committee for Freedom of the Press, I resisted the subpoena. A limited setback before a Maine magistrate judge evaporated in the courtroom of Maine district court judge Brock Hornby, who peppered the Duke attorneys with questions, eliciting the extraordinary statement that Duke would be happy for its professors to live under the same standards the university expected of me. (Unsurprisingly, no member of the Brodhead administration ever informed Duke faculty members of this new policy, which would decimate the freedom to research controversial topics at Duke.) In the aftermath of the hearing, and after the Carrington settlement, Duke withdrew its subpoena before Hornby could render a decision. The magistrate judge’s decision subsequently was vacated.The second significant event occurred with publication of the revisionist book by William D. Cohan. In his up-is-down opus, Cohan portrayed Mike Nifong as victim, “crucified” by the efforts of an amorphous conspiracy that included defense attorneys, the State Bar, some members of the media, Judge Osmond Smith, the Disciplinary Hearing Commission, families of the lacrosse players, senior prosecutors in the North Carolina attorney general’s office, and Northeastern lawyers whose identities he declined to reveal. Cohan reached this startling conclusion not by interviewing any members of the alleged conspiracy, but instead by speak[...]

The Group of 88 & Wikipedia


Some interesting comments in a Wikipedia discussion thread regarding efforts to remove mention of their membership in the Group from Wikipedia bios of Group of 88 members. The evidence regarding Cathy Davidson, author of the infamous N&O apologia for the Group, is particularly troubling, in that the editor/whitewasher was traced to a CUNY IP on the same day that Davidson began her CUNY service.

I welcome insights from any Wikipedia editors in the comment thread.

Howard Update


Anne Blythe reports in the N&O that Judge Hudson has said he wants to grant bail to Darryl Howard, whose prosecution, writes Blythe, the judge described “as one of the most 'horrendous' prosecutions he had seen in his 34 years on the bench.” The prosecutor in the case was, of course, disgraced ex-DA Mike Nifong.

As he has deemed Nifong as honorable and quite credible, author William D. Cohan has yet to comment once on the Howard case.

Gottlieb News


WRAL's Julia Sims is reporting that former Sgt. Mark Gottlieb died on Saturday, apparently of suicide. He had, according to WRAL, been living in DeKalb County, Georgia, where he had worked as a paramedic after leaving the Durham Police. I will post more information if and when it becomes available.

Checking in with the Group of 88


As I wind down the blog after the resolution of the Evans and Carrington lawsuits (I’ll have a closing post next Monday), I thought it might be useful to check in on some members of the Group of 88. An utter lack of accountability within the academy for those faculty members who abandoned due process (and, in some cases, appeared to violate Duke regulations) was apparent almost from the start in the case, and remains so today.No fewer than nine Group members were hired away from Duke, often for more prestigious positions, despite (because of?) their activism in the Group. Cathy Davidson—author of the Group apologia that invented a spring 2006 that never existed—was the latest, having just joined the faculty at the CUNY Graduate Center. She joins Grant Farred (Cornell, which got a taste of the contempt for students he had demonstrated at Duke); Houston Baker (Vanderbilt); Charles Payne (University of Chicago); and Rom Coles (Northern Arizona, endowed chair) in moving onto greener pastures. Meanwhile, three signatories who were members of the University Writing Program received full-time, tenure-track positions—Jason Mahn at Augustana, Matthew Brim at the College of Staten Island, and Christine Beaule at the University of Hawai’i—while a fourth (Caroline Light) was appointed to an administrative-teaching position at Harvard’s women’s studies program.Several other Group signatories advanced at Duke. Srinivas Aravamudancurrently serves as Duke’s dean of the humanities. Lee Baker is dean of academic affairs at Trinity College. And Paula McClain is dean of the graduate school, and vice provost for graduate education. Clearly the role of their behavior in causing a multi-million dollar settlement was no barrier in the Group members’ standing at Duke.Imagine if the lacrosse case had featured a race-baiting DA, on behalf of a white false accuser, going after African-American students to advance his political career. Does anyone believe that professors who abandoned due process to stand shoulder-to-shoulder with the DA, affirming that something “happened” to the false accuser, would not have faced professional repercussions in the contemporary academy?And then there’s the principal author of the Group statement, Wahneema Lubiano. Those waiting for her perpetually “forthcoming” books (Like Being Mugged by a Metaphor: “Deep Cover” and Other “Black” Fictions; and Messing with the Machine: Politics, Form, and African-American Fiction) continue to wait; 15 years after Lubiano advertised their coming appearances, the books remain nowhere to be found.Lubiano, befitting someone who believes that she participates in what she calls “public intellectualism,” has sporadically shared her insights via twitter. In February, for instance, she revealed that she has spent her “entire adult life addressing the US public’s murderous imagination when it comes to the lives of black Americans.” As always, temperate analysis from the tenured professor.Lubiano hasn’t tweeted in a few months. She doesn’t appear to be academically active, either. According to her departmental CV at Duke, the Group of 88 leader has a grand total of . . . one . . . academic publication in the past six years, an article entitled, “Affect and Rearticulating the Racial ‘Un-sayables.’” The four-page essay appeared in the journal Cultural Anthropology.(Lubiano appears to be comfortable with this length; her previous publication, subtitled “An Interview with Wahneema Lubiano,” also spanned four pages.)In the event, Lubiano’s recent publication builds off her work in teaching a first-year seminar at Duke, “Prison, the U.S., and the Citizen.” The course, according to the Group leader, explores “the inability of general public discussion—what my students are aware of in abundance but which they understand as ‘natural’—to accommodate elaborated and unelaborated discourses for cathected critical enga[...]

Cohan's Trials


Now that his publicity tour appears to have ended, I thought it might be worthwhile to have two short concluding comments on the work of William D. Cohan. (You can read all of my Cohan-related posts here.)First: a mantra of Cohan’s tour was the author’s purported intention to have the book function as a trial in the case. He described the book in this odd manner on Morning Joe, WNYC, WAMC, C-SPAN, the Michael Smerconish Show, and the Diane Rehm Show.Leave aside, for a moment, the obvious: in the United States, political trials of the type that Cohan seems to have wanted don’t occur. Instead, when prosecutors (in the lacrosse case, Jim Coman and Mary Winstead, and through them Attorney General Roy Cooper) believe that the defendants are actually innocent, the prosecutors have an ethical obligation to dismiss charges.But, again, leave aside basic rules of legal ethics. In a sexual assault trial, at a bare minimum four people speak: the judge, the prosecutor, the accuser, and the defense attorney. (Obviously in most cases, more people than four speak.) The defendant might or might not take the stand; in many cases, for various reasons, the defendant doesn’t testify.In Cohan’s model of the book-as-trial, author Cohan functioned as the judge, and he certainly spoke (as, for instance, when he praised Nifong’s defense, which the State Bar wholly rejected, as “cogent”). Accuser Crystal Mangum was given the opportunity to speak, in a jailhouse interview in which she told still more tall tales (that medical staff had to pull wooden shards from her, that one of the students she falsely accused carried her to the car). And Nifong was allowed to speak. And speak. And speak. And speak some more, virtually always without challenge—even though in a real trial, a prosecutor who bore false witness would be silenced by the judge.But in William D. Cohan’s “trial,” Judge Cohan never asked the defense attorneys to speak. He solicited no interviews from Brad Bannon, Jim Cooney, Joe Cheshire, Wade Smith, or Doug Kingsbery. Nor, when Nifong became the defendant, did Cohan seek to interview the men and women who prosecuted him, either before the State Bar or in the contempt trial. The author never explained this curious editorial decision, either in the book itself or in his myriad post-publication interviews. Indeed, to the best of my knowledge, he never was asked, in any interview, why he deliberately did not solicit interviews from such key figures in the case.In this manner, Cohan imitated the conduct of his book’s protagonist, when Nifong notoriously refused to speak with multiple groups of defense attorneys before the indictments. This approach was one of the many ways in which the line between Cohan and the disgraced prosecutor blurred to such an extent as to be almost invisible.Second: consider one element from Cohan’s presentation of the ethics hearing, courtesy of the “honorable” and “quite credible” Mike Nifong. Discussing Reade Seligmann’s testimony during the proceedings, Cohan wrote the following, mostly consisting of quotes from his interviews with Nifong (p. 554):“‘They [the State Bar prosecutors] were very surprised to find that Reade Seligmann came across very well, even though some of what he said might not have been true. And actually, he did come across very well . . . . [ellipsis in original] Not everything he said was true, but he did come across very well.’ Nifong was reluctant to specify what exactly Seligmann had said in his testimony that wasn’t true. ‘Some of the things that he said about the party, we had other things to show otherwise,’ [Nifong] continued. ‘There’s no point in getting into any of that. I’ve already talked to you [Cohan] about how his actions after the party indicated that in leaving he showed that he knew that there was something about that that he had to distance himself from. There were some other things that[...]

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[...]

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, UnhingedCohan 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 PartyEarly 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 ApologistThe 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 ev[...]

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.

allowfullscreen="" frameborder="0" height="300" src="//" width="480">

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 HimselfPerhaps 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 a[...]

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 affirmedthat 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 fundingfrom 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[...]

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 tr[...]

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.--------------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 referencefor the now-late-20s/early-30slacrosse playerstargeted 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[...]

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 [...]

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:

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

Civil Suit Settlement


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

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

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

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

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

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

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

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

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

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

According to Durham, none of this constituted improper conduct.

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

On the Rev. Barber


Amidst the lacrosse case, more-than-occasional comparisons occurred to the Tawana Brawley rape hoax. The cases, in fact, don’t seem to me all that much alike: there was no prosecutorial misconduct in the Brawley case (if anything, there was the reverse), and there was nothing like 88 Columbia or Fordham or NYU professors taking out a full-page ad to proclaim something “happened” to Brawley.But there is one similarity between the two cases—the eventual mainstreaming of advocates for the false accusers. In the Brawley case, of course, the highest-profile such figure was Rev. Al Sharpton, who has evolved from a charlatan to a Democratic presidential candidate (2004) to host of a talk show on which many Democratic politicians appear.In the lacrosse case, the best example of mainstreaming comes with the Rev. William Barber, head of North Carolina’s NAACP. Since Republicans captured control of the state’s legislature in 2010 and then governorship in 2012, Barber has assumed a high-profile role in the state’s politics. In 2012, even as the state’s African-Americans favored marriage discrimination by a 20-point margin, Barber led the opposition to Amendment One; its passage made North Carolina almost certainly the last state to add an anti-gay amendment to its state constitution. And last year, Barber again marshaled protests against what election law expert Rick Hasen has termed one of the most restrictive voting laws in the nation, a measure that will disproportionately affect the very poor, minorities, and students.Those who followed the lacrosse case, however, should recall a very different image of Barber than a figure who courageously stands up against majority sentiment on behalf of civil liberties and civil rights. Instead, his organization rivaled the Herald-Sun and the Group of 88 in serving as the biggest local cheerleader for Nifong’s case. That’s not the image, however, a reader would have gathered from Anne Blythe’s recent profile of Barber. Blythe (whose reporting on the lacrosse case I generally admired) wrote the following: “In 2006 and 2007, he frequently weighed in on the Duke lacrosse case, highlighting issues of racial disparity while urging people to withhold judgment on the accused and accuser until the legal process played out.”I suppose it’s true that Barber’s remarks at the time could be seen as “highlighting issues of racial disparity”—though since the events involved a prosecutor exploiting the case to maximize his share of the black vote, Barber should have emerged as a fierce critic of the race-baiting Mike Nifong, something that most definitely did not occur.Suggesting that the reverend wanted people to withhold judgment, in any case, is hard to square with Barber’s record. It’s true that—unlike the Group of 88—Barber was savvy enough to toss in a line about withholding judgment to most of his public remarks. But everything the NAACP did in the lacrosse case presumed guilt.To review:The State NAACP presented an 82-point “memorandum of law” in August 2006. Riddled with factual errors—all of which tilted the presentation in favor of Nifong’s case—the “memorandum of law” falsely claimed that: “the only Black [lacrosse] player, a freshman, left the party before the dancers arrived”; “the lacrosse team member asked the women to dance and simulate sex acts between them, similarly to scenes from a book and movie that several of the Lacrosse team members enjoyed reading and talking about—American Psycho”; “after about three minutes of dancing . . . there [...]

On Amazon


I admit that before I purchase a book from Amazon, I tend to look at the reviews; I’ll rarely purchase a book that has quite negative feedback. Radley Balko first commented on the disparity between the overwhelmingly negative response the Cohan book received from Amazon reviewers (51 of the 75 Amazon reviews are 1-star) and the puff-piece comments from reviews in most of the mainstream media.The negative reviews clearly captured Cohan’s attention; he has complained about them in a couple of press appearances. On C-SPAN, he offered the following remark: “All one has to do is go on to Amazon and see already that I’ve amassed, you know, 25 one star reviews even the book hasn’t been out a week and it’s a 600 page book, so I’m pretty much guessing that not many of those one star review writers have read this book.”This was an interesting statement in a couple of respects. First, many of these 1-star comments contain substantive disagreements with Cohan’s arguments (some of them, in fact, are longer than a standard published book review). Cohan didn’t tell C-SPAN, and hasn’t said since, how people could have written a substantive review of a book they hadn’t read. That said, this is a tactic he’s employed elsewhere, as when he insinuated that Joe Neff hadn’t read the book even as Neff’s coverage made clear that the N&O reporter had done so.Second, it seems as if Cohan’s line of attack better applies to those who had reviewed the book positively on Amazon. As has often been the case with the book’s favorable published reviews, many of Cohan’s 5-star Amazon reviews avoid discussing anything that’s actually in the book.Some examples, with each of the six below in their totality:“I'm not a sports fan but William Cohan tells a story so well that I read ‘The Price of Silence" like a novel. I even got excited by descriptions of Lacrosse games, though I doubt that I'd sit through one in real life.”“William D. Cohan has created a masterpiece of both investigative reporting & history. Of the 7 book [??] thus far published about the case, it is the best one yet. As such it is heartily recommended.”“Do not let the negative reviews dissuade you from this book. William Cohan has done a masterful job of pulling together the disparate facts concerning what occurred at Duke and setting forth the definitive account. The book is superb and is a compelling read.”“I am surprised by all of the negative. No Duke alum wants to rehash this experience but isn't it at least good to have the facts as opposed to just fleeting bits here and there? I don't think this is condemnation or judgment as much as it is about historical account and I for one thing this is incredibly important.”“A book that strikes at the heart of universities today despite the aggressive criticism of Duke alum. Sometimes the truth can be painful.”“I was familiar with the case and have followed Duke for years and wondered how it turned out, Cohan filled in the blanks.”How someone “familiar with the case” didn’t know how the case turned out the reviewer elected not to reveal.One 5-star reviewer hailed Cohan’s “sympathetic” portrayals of the lacrosse players(!), while another even labeled the “crucified” Nifong a “serial offender”—suggesting that whatever book these two reviewers read, it wasn’t Cohan’s.Of the reviews, only two—one by an anonymous New Yorker, and the second by a Jerome Buttrick—appeared to embrace the book’s twin “something happened”/Nifong’s-a-victim [...]

Cohan's Greatest Hits


Now that author William D. Cohan appears to be wrapping up his publicity tour—and his review process ended with a biting item from the Independent—it might be worth reviewing some of his “greatest hits” in interviews. A general comment: in a highly unusual approach to a book tour, Cohan was far, far more aggressive about the case than he was in the book itself. Could it be that freed from the constraints of Scribner’s editors and counsel, Cohan could be himself?Nifong“I certainly feel sorry for Mike Nifong, the prosecutor, whose life was ruined because of this.”—WAMCI’m sure that Darryl Howard shares Cohan’s sympathy.“It’s a 600-page book; 580 pages of it are a condemnation of [Nifong’s] behavior and his decisions and his judgements along the way.”—New York…suggesting that author Cohan either is prone to misstatements or didn’t read his own book.“I was able to speak to people who had never spoken before about this, like Mike Nifong.”—Diane Rehm ShowIt’s true Nifong had never spoken about this, if we overlook dozens of press and political appearances and his testimony, under oath, before the State Bar and Judge Smith.“This idea that he was exploiting this case for his election, I think, is ridiculous . . . he was already an announced candidate.”—Jim Campbell ShowPolitical analyst Cohan: once a candidate announces for election, he can no longer politically exploit an issue that emerges.“[Mangum] truck me as rational, thoughtful, articulate.”—WAMCCohan, on Nifong’s “victim.”“So within a week’s time he gave up [his preprimary publicity crusade] and basically didn’t talk to the media again and but he was crucified for doing it in that very publicly and during that week.”—CSPANDespite Cohan’s claims, Nifong, Durham’s Christ-like figure crucified for his sins, didn’t refrain from speaking to the media after a week; he just spoke less frequently. Lexis/Nexis and a basic Google search can, sometimes, assist even a “serious investigative journalist.”Approach to the Book“In the cool light of day, just gather up everything I could about what happened, talk to anybody and everyone who would talk to me, and just start at the beginning.”—New YorkTalk, that is, to everyone other than anyone who tangled professionally with Mike Nifong in the courtroom.“LAMB: Where is [Kim Roberts] today?; COHAN: I have no idea. She…; LAMB: Did you try to find her?; COHAN: I did, but I didn’t even know where to look.”—CSPAN A “serious investigative journalist” in action.“I wasn’t trying to prove that these kids were innocent, as [Stuart and KC] were.”—New YorkFor reasons he has never explained, Cohan appears to believe that the actual writing of UPI occurred in 2006, when there was any doubt that “these kids were innocent.”“I have tried to present all sides to this fairly and dispassionately, but the - the - the haters like Stuart Taylor don’t want anything to do with a fair and dispassionate assessment of this case.”—Diane Rehm ShowCohan still hasn’t revealed precisely what makes Stuart a “hater.” Outrage at an author bedeviled by sloppy reasoning?“LAMB: How did you approach doing this? COHAN: Completely dispassionately.”—CSPANFor those in need of a good chuckle.“Why? Why? Why? If there’s nothing to hide—if it were me, and this had happened to me, . . . and somebody like me was writing a book about it, I would immediately want to talk to that [...]

Readership Note


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

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

As always, thank you for visiting the blog.

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


As Radley Balko has presciently observed, the pattern in reviews of author William Cohan’s book has been straightforward: overwhelmingly negative reviews from any reviewer who followed the case closely, coupled with glowing reviews from those who knew nothing about the case and appeared willing to uncritically accept Cohan’s musings without even wondering about the merits of using a convicted liar as the book’s chief source.(The sole somewhat-exception to the pattern: Susannah Meadows, whose review admitted that Cohan had failed to provide evidence for his something-happened thesis but nonetheless praised Cohan for producing new findings that either weren’t new or weren’t true.)Confirmation of the Balko pattern comes now from a most unexpected source, The Independent.As noted below, few publications did more to uphold Nifong’s fraudulent efforts; the paper endorsed him twice and aggressively slanted opinion coverage during the case in his favor. Yet reviewer Stephen Deusner has nothing good to say about the book in which the paper’s one-time hero serves as chief protagonist.Reflecting the IndyWeek mindset, Deusner seems eager to embrace Cohan’s message. He opens his review in the following way: “When President Obama recently issued new guidelines for reporting and investigating sexual assaults on campus, he signaled his intention to curb violence against women and to confront a toxic culture that is deeply entrenched in higher education. Triangle readers might view these policies as a delayed response to the Duke lacrosse controversy of 2006, where a racially charged rape allegation made by a stripper against members of the Duke men's lacrosse team later proved unfounded.”While this remark accurately captures the politically correct approach to the issue of campus sexual assault nationally, it raises the obvious question: how would Duke, a rape that not only never occurred, but an episode exposed as an instance of massive prosecutorial misconduct, provide justification for a policy that eviscerates the due process protections of accused students?Nonetheless, even a reviewer who seems as highly sympathetic to Cohan’s ideological perspective can’t stomach the book. “Even Jon Stewart could barely hide his skepticism in a recent Daily Show interview,” Deusner correctly notes. (As Stuart Taylor and I commented in our RCP piece, Stewart was about the only interviewer, along with WUNC’s Frank Stasio, to in any way challenge Cohan: and Stasio, though his program leans to the left, clearly was knowledgeable about the case.) Deusner observes, again correctly, that critics “have not been kind in their assessments, nor should they be: This very long book is short on insight or purpose.”Deusner wonders about the book at a structural level, noting that “Cohan regurgitates seemingly every last shred of information from his files . . . persistently confusing summary with analysis and failing to shape the facts into a coherent or accessible narrative.” He also expresses doubt about Cohan's willingness to rely so heavily on “Nifong, who is perhaps not the most credible witness.”Cohan's apparent sympathy for Nifong, Deusner reasons, might be “the unintended consequence of the author's lack of access to other testimonies and to his own mishandling of the narrative.” In the end, the reviewer concludes, neither Cohan nor Nifong are able to provide any “new perspecti[...]

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


Tuesday is primary day in North Carolina. The Independent, the Triangle’s alternative weekly, recently made its endorsement for the Democratic primary for DA.The Independenthosts the columns of Hal Crowther, hailed by author William D. Cohan as “the conscience of progressive thinkers in North Carolina.” That would be the same Crowther who penned a vicious summer 2006 column featuring Peter Wood speaking disparagingly of the accused lacrosse players he had taught in his class. When the mother of one of the players, Reade Seligmann, called up Wood to ask him on what basis he had attacked her son, Wood hung up on her.(In an intriguing item, Cohan revealed in the WYNC interview that he knew Wood when he was at Duke, explaining the book’s heroic treatment of the discreditedlacrossecritic.)Indy has quite a record on endorsements.In the 2006 DA’s primary, the Independent urged voters to “look beyond the recent handling of one case” (including the DA’s myriad ethically improper public statements) and vote for Mike Nifong. The paper’s board praised Nifong’s “hardworking and professional manner,” and suggested that “colleagues and legal opponents alike laud his sense of fairness and justice.” (This statement came in the midst of the lacrosse case; Joe Cheshire’s first press conference calling into question Nifong’s sense of fairness and justice had occurred weeks before.) But Nifong was acceptable ideologically, and so he earned the nod.In the fall campaign, Indy climbed back on board the Nifong bandwagon. Editors fretted at how “Nifong has a target on his back,” and then offered a bizarre recapitulation of events of the year. “Nifong and the Durham Police Department may have mishandled the case,” Indy delicately noted, and—in a Cohanesque interpretation—perhaps Nifong spoke out of turn when he “publicly condemned the defendants before completing his investigation.” But, the editors assured their readers, “the district attorney has made amends.” The nature of those “amends” was a mystery in October 2006 and remains a mystery now.In the event, even if he was seeking to convict innocent people without any evidence, The Independent concluded that “We're sticking with the endorsement we made for the April primary: Mike Nifong.” After all, “maybe he has a few tricks up his sleeve.” Tricks, perhaps, like withholding exculpatory evidence.Nifong was removed as district attorney amidst an ethics scandal.In the 2008 primary, after conceding they were hoodwinked by Nifong, the editors issued a glowing endorsement of Tracey Cline. Identity politics was front and center in the selection; the editorial suggested that Cline, “as a black woman, could be an excellent role model for the young African Americans caught in the system.”In a remarkable passage for a paper that had enabled Nifong, the editorial whitewashed Cline’s role in the lacrosse case. “She is putting to rest questions,” Indy mused, “that she was involved in Nifong's lacrosse prosecution, a concern among some critics. She told the Independent that police officers came to her asking advice about what paperwork to complete, a search warrant or a non-testimonial order, and when they had completed the paperwork, filed it with then Assistant District Attorney David Saacks, who signed it. ‘I didn't sign anything,’ Cline said. ‘All I did was advise them, which I should do [...]

Media & Cohan


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