Monday, May 19, 2014

A Dishonest Rewrite of the Duke Lacrosse Case

On an author's publicity tour, he's even more explicit in trying to taint the students who were falsely accused.

May 18, 2014

In the outpouring of praise for William D. Cohan's new book "The Price of Silence"—a work, remarkably enough, being celebrated as a model of evenhandedness, scrupulous objectivity, etc.—one essential has gone overlooked. Namely, the central point of this tale about the Duke lacrosse case and accusations against three players of rape and assault at a house party. It takes no close reading to see that the book is meant to recast the story so as to nullify the outcome Americans thought they knew—that the players were exonerated and had been falsely accused. In Mr. Cohan's portrayal, the workings of decency and justice were undone by malign forces—among them, it would seem, the ability to hire defense attorneys.
The three members of the Duke lacrosse team charged with attacking a hapless black woman—a stripper hired to perform at their March 2006 house party—were ultimately cleared, after enduring months of public vilification by District Attorney Mike Nifong, when the attorney general who replaced him dropped the case and declared the young men innocent. They had been the subject of wholly incredible allegations by the accuser, as DNA findings confirmed.
Durham County District Attorney Mike Nifong listens during a North Carolina State Bar trial in Raleigh, N.C., Thursday, June 14, 2007. Associated Press
The book's pro forma declarations that the accused were, yes, exonerated come surrounded by a far stronger drumbeat of doubt that their exoneration could conceivably have been just. No surprise the accused beat the charges, Mr. Cohan is regularly at pains to make clear: These were white sons of privilege, from families who could pay for their excellent defense lawyers.
In Mr. Cohan's revisionist history we find a new moral hero—none other than Mr. Nifong, the prosecutor who brought the case and was disbarred for his actions during the investigation. "The Price of Silence" gives us a man mistreated and misunderstood, ruined for his efforts to do justice.
Such is the book's view of the prosecutor whose prime activity, upon taking the case, consisted of nonstop media interviews in which he denounced the evil of this racist sex assault by the lacrosse players—"hoodlums," as he referred to them—whose guilt, he emphasized, was unquestionable.
That this protracted pretrial outpouring might be unwise—in addition to being a clear violation of the requirement that prosecutors make no statements prejudicial to a fair trial—did not apparently trouble Mr. Nifong, who relished his turn on the national stage. Mr. Cohan rationalizes this bizarre prosecutorial behavior as a strategy to pressure members of the lacrosse team who had attended the party to tell what they knew—to break their "wall of silence."
In Mr. Cohan's interviews as he promotes his book, we hear much the same. Along with the author's repeated dark assertions that "something happened in that bathroom," we also hear, ominously, that "we will never know" the facts because "nobody in that bathroom is talking." District Attorney Nifong's career may have been undone but its spirit lives on.
Among Mr. Nifong's violations of acceptable standards—no small assortment—none was more consequential than his contriving, with his lab director, to leave out the results of the lab report showing that DNA from four men who were not the students was found on the accuser—indicating that she had had sexual relations with them before the alleged attack. That no Duke player's DNA was found on her was all the more probative of innocence.
Of this long withholding of crucial evidence, in violation of state law, Mr. Cohan argues in his book that the district attorney had "cogent" reasons. In a radio interview on NPR's "The Diane Rehm Show" last month, Mr. Cohan asserted that Mr. Nifong had certainly not withheld the test results—he had delivered them. In his characteristically sympathetic grasp of Mr. Nifong's thinking, the author explained that the district attorney just "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 there was DNA evidence from other men."
Mr. Cohan failed to mention that what the district attorney sent for the defense attorneys to dig through was nearly 2,000 pages of raw DNA files. In 2007 the North Carolina State Bar, the agency regulating law practice in the state, found Mr. Nifong guilty of 27 of the 32 ethical charges lodged against him in the case. He would lose his license to practice law. He was found guilty, at a separate contempt hearing, of having lied about the DNA evidence to the presiding judge in the criminal case.
In Mr. Cohan's claims of justice gone wrong in the Duke case—claims louder and more explicit on his publicity tour than in his book, though they are clear enough there—Mr. Nifong is Exhibit A: "an honorable man" who tried his best to "get to the bottom of the case."
An odd way to describe Mr. Nifong's methods. Few facts would be as startling, after the case unraveled, as the revelation that the district attorney had never himself interviewed the alleged victim, Crystal Mangum, about the charges. Clearly the district attorney didn't relish questioning this problem witness—not the first prosecutor to have concluded that ignorance is bliss. He had no need to talk to her, Mr. Nifong tells Mr. Cohan, because the important thing was that he found her story credible. Mangum is today serving 18 years for the murder of her boyfriend in 2011.
On the NPR show, things were going swimmingly as Mr. Cohan presented his version of the Duke case, which included playing the race card. The parents of the three accused, he said "of course had a bottomless pit of money to spend on the defense . . . had it been, you know, black players . . . they would not have had the money for this defense."
As he has done regularly, Mr. Cohan named one of the exonerated students who, he said, left his DNA in one of the alleged victim's plastic fingernails, fallen off as "she was fighting for her life." State investigators dismissed the evidence as the likely result of contamination from other items in a trash bin at the house. As ever, Mr. Cohan emphasized that he had treated everyone in the book in a fair and balanced way.
During the broadcast a call came in from legal writer Stuart Taylor Jr. , who is the co-author, with historian KC Johnson, of the 2008 book "Until Proven Innocent"—a powerful assault on Mr. Nifong's handling of the Duke case. Mr. Taylor took issue with, among other points, Mr. Cohan's claim that he was the first to publish a nurse's sex-assault report on the case. The key findings of that report had been published numerous times before, including in Mr. Taylor's book.
The caller having departed, Mr. Cohan responded with the observation that "the haters like Stuart Taylor" don't want anything to do with "a fair and dispassionate assessment of the case."
Two weeks later, on April 28, when Mr. Cohan was asked during a WAMC radio interview in Albany, N.Y., why the nurse's report had never before been published, the author answered, remarkably, that it was the sort of thing that was sealed: "Nobody made that public till now. I got my hands on it and reported it faithfully in the book."
The report's contents had been published earlier in the New York Times, described on CBS's "60 Minutes," in addition to appearing in the Taylor and Johnson book, among other places. That Mr. Cohan would continue to repeat his claim publicly, despite all evidence to the contrary, is inexplicable.
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.
Correction: An earlier version of this article suggested incorrectly that then-District Attorney Nifong's lab report omitted evidence that no DNA from the accused Duke lacrosse players was found on the accuser.
Ms. Rabinowitz is a member of the Journal's editorial board.

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