Commentary Magazine


The Hazards of Duke

The Price of Silence: The Duke Lacrosse Scandal, the Power of the Elite, and the Corruption of Our Great Universities
By William D. Cohan
Scribner’s, 653 pages

On August 25, 2006 the New York Times published a nearly 6,000-word, front-page analysis of the evidence in the case against the three lacrosse-playing students at Duke University who were charged with raping a prostitute who had been hired to dance at a party. The article conceded that holes had emerged in the case brought against them by Mike Nifong, the district attorney in Raleigh, North Carolina. But by presenting material in the light most favorable to Nifong’s claims and by excluding or diminishing the significance of key exculpatory evidence, the Times implied that a rape still might have occurred. The article was widely, and correctly, disparaged as the work of reporters whose longstanding acceptance of Nifong’s assumptions had robbed them of objectivity. Those who had read only the Times would have been stunned, several months later, to see the case end with the lacrosse players declared innocent and Nifong disbarred and sent to jail for lying to a judge.

In his new book, The Price of Silence, the Vanity Fair writer William D. Cohan has revived the Times thesis. 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 case was also a real-world legal thriller, featuring a team of defense attorneys who confronted and ultimately overcame a powerful, corrupt district attorney. But since Cohan, who has spent most of his career writing about the business world, neither interviewed these lawyers nor examined their case files, he can offer nothing new on this front either. Instead, the author gives Nifong a platform to besmirch the character of the lawyers who exposed the lies upon which he built his claims.

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.

Such analysis, however, might have distracted from the book’s emphasis on rehabilitating Nifong’s reputation. Indeed, The Price of Silence makes sense only if readers go along with Cohan in assuming that Nifong, a convicted liar, is an honest man who can guide outsiders through the facts of the case. In this respect, the timing of the book, published on April 8, was particularly unfortunate. On March 20, the Washington Post ran an exposé by Radley Balko suggesting that, in the 1990s, Nifong committed ethical transgressions in the conviction of an innocent man for murder. The Duke case thus appears not to have been the first time that Nifong crossed ethical lines in court. Cohan nonetheless minimizes the overwhelming indications that the whole affair was a hoax and presents Nifong’s musings uncorroborated.

The shortcomings of this approach are most obvious in Cohan’s treatment of the DNA evidence, which played a key role in both Nifong’s disbarment and the students’ exoneration. No DNA from Mangum’s rape kit ever matched the DNA of any of the lacrosse players, while supplementary DNA tests indicated multiple unidentified males. Nifong revealed the former, but turned over a report that concealed the latter finding. During the case itself, no one involved doubted that this evidence was critical. Defense attorneys spent scores of hours decoding the raw DNA data before discovering what Nifong had done. The State Bar and trial judge cited the evidence as a reason for punishing Nifong, who apparently considered hiding these findings so important that he repeatedly lied about them in court. But to Cohan, this DNA evidence “didn’t matter,” and discussion about it constituted a “red herring.”

While Cohan minimizes a prosecutor’s need to be truthful about exculpatory evidence, he mischaracterizes what DNA evidence did exist to advance his “something happened” thesis. At several points, Cohan darkly hints at the unresolved question of whether Dave Evans’s DNA was found on Mangum’s false fingernails. (Trace DNA on one of the fingernails, found in Evans’s trashcan, could not exclude him, or thousands of other males, as a possible match.) Yet this issue—to borrow a phrase—is a red herring, already addressed by North Carolina authorities. No skin or body tissue was attached to the fingernails, and state lab experts noted that if the DNA was, in fact, Evans’s, it “could easily have been transferred to the fingernails from other materials in the trash can.” As the attorney general’s official report concluded, “No DNA evidence confirmed [Mangum’s] stories.”

Joseph Neff, of the Raleigh News & Observer, has already exposed how deceptively Cohan frames the declaration of innocence itself. Relying solely on Nifong’s recollections, which included a wild claim that Attorney General Cooper experienced a “selling your soul to the devil” moment, Cohan implies that Cooper not only made the announcement for political reasons, but also kept his senior prosecutors in the dark. Neff, unlike Cohan, actually spoke to one of Cooper’s senior prosecutors, who dismissed the Nifong and Cohan characterizations as “figments of [Nifong’s] imagination.”

As for the “something happened” thesis: For this Cohan produces no evidence beyond Nifong’s stream of consciousness, the misrepresented DNA results, and the opinion of one Bob Steel, who formerly chaired Duke’s board of trustees. Needless to say, Steel, who lacks any law enforcement experience, has no more basis for his conclusions than does Cohan.

Cohan’s whitewashing the record of a deeply unethical prosecutor and his disturbing willingness to cast doubt on innocent people can, and should, be dismissed. But the author’s actions touch on one of the most interesting questions of the lacrosse case: why so many people (here, Cohan merely joins Duke faculty extremists, various mainstream reporters, and local civil-rights activists) aggressively attached their professional reputations to a charlatan like Nifong.

Unlike most of his colleagues in the pro-Nifong movement, Cohan bases his position less on ideology than on the mercenary needs of a book with severe source limitations. Cohan’s decision to abjure what he terms “somewhat superfluous” endnotes fails to obscure the remarkably small amount of new information that the book uncovers. Virtually the only fresh material comes from the author’s interviews with Nifong, so if Nifong can’t be credited with truthfulness, the book has no value.

The rehabilitation effort sometimes creates the impression that the project’s central goal is allowing Nifong to settle scores with his enemies, real and imagined. At various points, unchallenged by the author, the disgraced former district attorney lashes out not only at the North Carolina attorney general, but also at the judge who handled the final months of the lacrosse case, the attorney who presided over his ethics proceedings before the State Bar, the prosecutor in his contempt trial, his former assistant district attorney, his former chief investigator, his former campaign manager, several of the defense attorneys, and (of course) the lacrosse players.

Cohan’s embrace of one-sidedness extends beyond treating Nifong’s self-serving recollections as credible. He appears not to have interviewed anyone who confronted Nifong in the legal arena—not the defense attorneys, not the senior lawyers who investigated Mangum’s claims for the attorney general’s office, not the special prosecutor who handled Nifong’s contempt trial, and not the State Bar figures involved in the ethics case against Nifong. Nor did Cohan personally cover any of those proceedings. As someone who did, I can say that the book’s portrayal of Nifong’s criminal contempt trial is particularly divorced from reality.

Despite its ominous-sounding subtitle—The Duke Lacrosse Scandal, the Power of the Elite, and the Corruption of Our Great Universities—the book’s sections on Duke University are perfunctory. Cohan offers milquetoast criticism of the university’s craven president, Richard Brodhead. He appears to sympathize with the race, class, and gender obsession of Duke faculty activists but does little more than present their remarks without skepticism. Cohan’s chief interest seems to be the role of athletics on the Duke campus. He deems prescient the former Duke professor Peter Wood, a strong anti-athletics voice known for condemning the lacrosse players’ character. (Cohan neglects to mention the discrediting of Wood’s claims about team members in a report commissioned by Duke itself.) And he describes as “modest” another professor’s untenable proposal to remove Duke from Division I athletics.

This agenda connects to the lacrosse case only indirectly; Cohan implies that if Duke hadn’t had an elite lacrosse team, many of the lacrosse players would have attended another school, and the party (and associated culture) that triggered the rape accusation never would have occurred. In any event, Cohan presents the critique of athletics so meekly that it’s hard to imagine many readers will be persuaded or even notice. And since Cohan’s own Twitter feed is peppered with fan-oriented remarks about the Duke men’s basketball team, perhaps even he is ambivalent about his message on this issue.

The book does contain one revealing item. As the case progressed, Cohan reports, Nifong gave up “reading the newspapers—except for the New York Times.” Like its protagonist, The Price of Silence will appeal only to those willing to close themselves off to any and all information that contradicts their preconceived views.

About the Author

KC Johnson is a professor of history at Brooklyn College and the CUNY Graduate Center. He covered the lacrosse case through a blog, Durham-in-Wonderland, and co-authored, with Stuart Taylor Jr., a book on the case. 




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