The attempted rehabilitation of Mike Nifong

Financial reporter William Cohan has a long book out this month that bills itself as a fresh look at the Duke lacrosse case. But judging from early reviews, it’s more of an attempt to rehabilitate the reputation of disgraced former Durham County district attorney Mike Nifong and his role in the Duke lacrosse case.

Early reaction to the book has been telling: The book has received mostly glowing reviews from the New York Times, Salon, the Economist and the Wall Street Journal. Cohan also pulled off the rare triple play of publishing: He received starred reviews from Kirkus, Publishers Weekly and Booklist.

But the book also has received some harsh criticism. In fact, just as rare as the triple-starred review is to see a book so warmly reviewed by critics get so thoroughly trashed on Amazon. After 45 reviews, Cohen’s book currently has an aggregate 1.8 stars out of a possible 5. Of the 45 reviews so far, 35 have given him the lowest possible score.

Reaction to the book so far has mirrored the unusual alliances (unusual in some ways, that is — entirely predictable in others) that emerged during the Duke lacrosse scandal, with the same elite, left-of-center figures and institutions that initially backed the prosecution now embracing Cohan’s attempt to rehabilitate a fallen prosecutor, and outlets such as the neoconservative journal Commentary publishing a scathing review of the book.

To be fair, the Commentary piece is by K.C. Johnson, the Brooklyn history professor who wrote a book about the Duke lacrosse case with Stuart Taylor. (Taylor wrote his own critical review of Cohan’s book in the New Republic.) Johnson’s politics can’t easily be pigeonholed. But he is intimately familiar with the case, and his review is pretty biting. Here’s an excerpt:

Relying on a mixture of interviews with Nifong and previously available material, Cohan portrays Nifong as a courageous prosecutor who tackled a difficult case as best he could, even as many of his key advisers let him down at critical junctures. Nifong might have made a few mistakes, in this version of events, but his heart was in the right place. As with the Times in 2006, a superficially neutral tone conceals a fundamentally dishonest thesis — that “something happened” (precisely what occurred the author leaves to readers’ imaginations) to accuser Crystal Mangum.

At its core, the lacrosse case was a story of three Duke students — Dave Evans, Collin Finnerty, and Reade Seligmann — accused of a heinous crime that never occurred, and their impressive ability to endure a false arrest and intense, often malicious, public scrutiny. But since Cohan was unable to interview any of the three or their family members, he cannot provide any new insights into their experiences. Instead, relying on the same evidence that a comprehensive investigation from North Carolina attorney general Roy Cooper’s office had found worthy of a declaration of innocence, Cohan baselessly implies that one of the falsely accused might have been a criminal after all. For good measure, he launches unsubstantiated character smears against a second of Nifong’s targets. . . .

The lacrosse case generated the backlash it did because it illustrated the breakdown of institutions that purport to offer a dispassionate commitment to the truth. Professors at an elite university, obsessed with themes of race, class, and gender, abandoned the academy’s traditional fealty to due process to exploit their own students’ distress. Journalists from the New York Times to the local newspaper in Durham seemed to view their central task as propping up Nifong’s case by any means necessary, lest a false accusation contradict their editors’ (and many of their readers’) ideological biases. North Carolina civil-rights activists set aside their longstanding calls for fair treatment of criminal suspects to bolster whatever version of events Mangum happened to be offering.

Cohan isn’t much interested in these aspects of the story, but any book on the lacrosse case must address such matters. The Price of Silence covers them in a slipshod fashion, cutting and pasting lengthy excerpts of remarks from key figures, or summarizing, one after another, items that appeared in various publications (including my own blog on the case). In his acknowledgements, Cohan thanks his research assistant, who presumably did yeoman’s work compiling the many snippets that the book uses. But readers deserve more than mind-numbing, context-free synopses of dozens of articles or columns or blog posts.

Johnson has a much more thorough dismantling of Cohan’s book and its flaws over at his blog, including some troubling allegations that Cohan badly misquoted a couple of his sources and point-by-point rebuttals of Cohan’s media appearances to promote the book.

Another blistering review of the book comes from Joseph Neff, a reporter at the Raleigh News & Observer who closely covered the lacrosse case and the subsequent fallout.

In the years before “Nifong” became a synonym for railroading, North Carolina had witnessed several death-penalty cases in which prosecutors had withheld exculpatory evidence. The legislature responded with an open file discovery law requiring prosecutors to share their entire file. In two cases, the N.C. State Bar had botched disciplinary proceedings against the prosecutors. The resulting uproar led to serious changes in how the bar conducted high-profile discipline cases.

In the lacrosse case, Nifong faced the very defense lawyers who opened the prosecution files and forced changes at the bar.

You won’t find this history in “The Price of Silence.” Instead, author William D. Cohan opts for an apology for Nifong and, by extension, prosecutors who hide evidence and lie to judges.

The 653-page book mostly rehashes previous reporting. What is new is Nifong speaking for the first time about the case. Nifong makes remarkable claims that the author — clearly sympathetic, if not besotted — fails to challenge or test.

Nifong claims the prosecutor who took over the case was “sandbagged” when the attorney general later declared the players innocent; Cohan could have proven that claim false had he tried to interview the prosecutor, garrulous and blunt-speaking Jim Coman, who was adamant about declaring the players innocent.

Nifong claims he’s pretty sure he never told told his campaign manager that the national headlines were millions of dollars of free advertisement. Cohan never contacted the campaign manager, the very accessible Jackie Brown.

Nifong claims the State Bar’s disciplinary committee chairman concluded he was guilty before Nifong ever testified. Cohan never tried to talk with Lane Williamson, the chairman.

Nifong claimed the judge who jailed him for a day had told friends beforehand that he planned on convicting Nifong of contempt of court. Cohan made no attempt to interview Judge W. Osmond Smith.

These 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.

So while Cohan’s book continues to win airy praise in elite outlets from reviewers who have little prior working knowledge of  Durham, it’s getting panned by people who have specialized knowledge of Nifong, and of the lacrosse case in particular. That’s a pretty fascinating discrepancy.

Last month I wrote a long piece here at The Post about Darryl Howard, another potential victim of Nifong’s misconduct who was convicted about a decade before the lacrosse case. After Nifong was removed from office, Tracey Cline, his top aide, took over. She, too, was removed from office after a series of allegations of misconduct, including several cases in which she was found to have failed to turn over exculpatory evidence, just like her boss. There were then explosive allegations about bias, corruption and fraud in the North Carolina state crime lab, misconduct that probably resulted in yet more wrongful convictions. The people implicated in those cases didn’t play lacrosse.

One of the sad legacies of the Duke lacrosse case is what could have been. The case presented a golden opportunity for reform that was ultimately subsumed by tired partisan politics. In an ideal world, the Duke lacrosse players’ defenders, who mostly came from the right, could have had their eyes opened to the inadequacies of the criminal justice system. Perhaps they could have joined forces with civil libertarians and activists on the left — who initially lined up behind Nifong — to call for a comprehensive review of the Durham DA’s office. In an ideal world, the left would have admitted to the same bias in the Duke cases that it regularly fights in other cases. And the right would have come to understand that if criminal justice railroadings can happen to white, upper-middle-class lacrosse players, they can happen to anyone — and that, indeed, they’re more likely to happen to people who don’t have the means to adequately defend themselves.

But of course that isn’t how it happened. The conservatives who were so temporarily outraged by this criminal justice scandal mostly moved on. (This is not true of the players themselves, who have become eloquent voices for reform.) The liberals who backed Nifong either continued to back him or simply clammed up to save face. In the end, there was no comprehensive review of the Durham DA’s office. The other people potentially railroaded by Nifong, his contemporaries, his successors and the conviction culture in that office are people who don’t have the money to hire top-notch defense teams and who, at best, can hope that a group like the Innocence Project eventually finds them. Those people are more likely to be black than white, more likely to be high school dropouts than college students and far more likely to be poor than middle class or wealthy.

My article on the Howard case concluded that the Durham community has learned little since the Duke lacrosse scandal. Sadly, the broader reaction to William Cohan’s book confirms that this problem is by no means limited to Durham.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."
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Radley Balko · April 21