In 2014, financial industry author William D. Cohan stepped well outside his area of expertise to pen a book on the Duke lacrosse case. His revisionist work advanced a three-part thesis:
- Something happened in the bathroom at the lacrosse captains’ house on the night of the spring break party, but Cohan couldn’t or wouldn’t say what happened.
- The primary victim in the lacrosse case was former District Attorney Mike Nifong, who was “crucified” for his efforts to fairly adjudicate the matter.
- A shadowy conspiracy including AG Roy Cooper, Cooper’s investigators, the state bar disciplinary panel, the state bar prosecutors, the judge in the criminal case, the defense lawyers, and unidentified out-of-state donors subverted justice. This conspiracy was so sophisticated that it bequeathed no evidence that an author of Cohan’s skill was able to uncover.
Cohan reached these conclusions by gathering new evidence—interviews with a convicted murderer (Crystal Mangum), a convicted liar (Nifong), the lawyers for a convicted liar (Nifong), and a fanatic faculty critic of the lacrosse players (Peter Wood). Cooper declined to speak with him; and, for reasons Cohan never explained, he did not seek to interview Cooper’s investigators, the state bar disciplinary panel, the state bar prosecutors, the judge in the criminal case, the defense lawyers, or Nifong’s former campaign manager.
I extensively analyzed Cohan’s book at Durham-in-Wonderland (you can read those posts here; if you just want a short version, I’d recommend this post). But Cohan is back, with a highly critical review of the upcoming ESPN 30 for 30 documentary, Fantastic Lies. (Every other published review of the documentary has been glowing.) It seemed worthwhile, therefore, to take a closer look at Cohan’s essay, which suffers from the same problems of his book: a basic misunderstanding of how the criminal justice system is supposed to work; a crediting of the word of convicted liars and murderers over the evidence that actually exists; and a deeply emotional hostility to the lacrosse players, the Duke students who supported them, and the defense lawyers in the case, whose work played such a role in exposing the misconduct of Cohan’s hero, Mike Nifong.
Cohan’s review introduces the party. A fisking then follows:
You may remember bits and pieces of what happened next. Mangum was black. All but one of the players on the lacrosse team were white. Among them were David Evans, Reade Seligmann, and Colin Finnerty, all of whom Mangum later accused of raping and sexually assaulting her in the house’s small bathroom. The young men were subsequently indicted by a Durham County grand jury after a police investigation and a nurse’s examination convinced Mike Nifong, the district attorney, that a crime had occurred. The indictments created a firestorm that played out in the media (including this publication) and on cable-news channels, and all across the Internet. It ignited a national debate about sexual assault on college campuses that rages to this day.
There’s absolutely no evidence that “a police investigation and a nurse’s examination convinced Mike Nifong, the district attorney, that a crime had occurred.” On March 27, 2006, Nifong gave a barrage of interviews making clear his belief a crime occurred. Those statements came before he had ever read the report of SANE-nurse-in-training Tara Levicy. And apart from Mangum’s disjointed statements, there was no evidence from the police investigation on March 27, 2006 that would have corroborated Nifong’s first pronouncements of guilt—Mangum couldn’t identify any of her alleged attackers; three captains had given police statements indicating that nothing happened; the second dancer, Kim Roberts, gave a statement that didn’t back up Mangum’s story; and the first officer on the case, John Shelton, disbelieved Mangum.
In this respect, Cohan’s statement about Nifong is, at minimum, willfully misleading.
But the Duke lacrosse case, as it came to be known, wasn’t so simple. In fact, its nuances were hard to behold and poorly understood. Soon after the indictment, as the Duke students hired top-notch defense attorneys, the narrative began to change and a vexing legal circus ensued. Mangum could no longer recall with precision exactly what happened on the night of March 13, 2006. Nifong overzealously championed his case in the media. The DNA evidence did not match any of the three players, but it showed that other men had been with Mangum in the week before the incident.
What Cohan doesn’t mention here (and what Vanity Fair readers presumably wouldn’t know) is that Mangum’s eventual story claimed a 30-minute gang rape in which her perpetrators didn’t use condoms. If the “DNA evidence didn’t match any of the three players,” it’s pretty hard to see how Mangum could have been telling the truth—or that Cohan’s claim that “something” (but he won’t say what!) happened in the bathroom could possibly be true.
In a clever tactic, the defense attorneys turned to the North Carolina State Bar to intervene, and for the first time in its history, the state bar brought charges against a sitting district attorney—Nifong—for being too outspoken and concealing the crucial DNA evidence. Nine months into the case, Nifong dropped the rape charge and offered Mangum the chance to abandon the entire case. But she refused his offer. She said she wanted justice. Eventually, to defend himself in front of the state bar, Nifong had to recuse himself from the case, and he handed it over to Roy Cooper, the North Carolina attorney general who four months later dropped the remaining charges against the players, declared them “innocent,” and called Nifong a “rogue prosecutor.”
This is a quite remarkable paragraph. The defense lawyers—facing a prosecutor who flagrantly violated multiple ethics rules—filed an ethics complaint. What were they supposed to do? Thank Nifong for violating ethics guidelines? The state bar—receiving a complaint about a prosecutor who flagrantly violated multiple ethics rules—adjudicated the case, culminating in open proceedings (which Cohan could have personally attended, but did not). What were they supposed to do? Release a statement affirming that prosecutors don’t have to follow ethics guidelines? Cooper didn’t simply “four months later” declare the players innocent. He did so based on the results of an investigation overseen by two senior prosecutors (whom Cohan didn’t try to interview), which uncovered even more evidence undermining Mangum’s tale.
Cohan’s America, it seems, is one in which prosecutors convinced of the “justice” of their case can break any and all ethics rules, without consequences.
In the end, there was no trial—a fact that most people forget. The three players received $20 million each in a settlement with Duke. The university spent more than $100 million between legal fees, settlement costs, and other expenses to move on from the ignominy and preserve its “brand.”
As Stuart and I (independently)—as well as Bernie Reeves many years ago—have reported, the total settlement with the three falsely accused players was approximately $20 million. (Cohan cites no evidence for his fantastic claim.) Settlements with the other players and ex-coach Mike Pressler were no more than $5 million combined. So if the university really “spent more than $100 million between legal fees, settlement costs, and other expenses,” this claim means that Duke’s lawyers made out with around $75 million. Perhaps Cohan should file an ethics complaint against them for overcharging their client.
…But the problem with Fantastic Lies isn’t its opportunistic programming as much as its uneven portrayal of the events in question. The Duke lacrosse case, after all, was remarkable for, among other things, its enormous complexity. This was the main point I tried to convey in The Price of Silence, my book on the scandal, which came out in 2014. (I should mention—not with any sort of Dickensian pretensions—that the final version clocked in at 614 pages for a reason. The innumerable subtleties of the story demanded it.) For the first time, Nifong explained his motivations for prosecuting the case with such zeal. For the first time, Mangum shared what she believed happened on the night of March 13, 2006. Cooper, the state attorney general, never charged her with making false accusations in the lacrosse case; she told me she still believed she had been sexually assaulted.
Anyone who actually has slogged through The Price of Silence must have guffawed at Cohan’s explaining the 614 pages by citing the “innumerable subtleties” of the case. The book contains hundreds upon hundreds of pages of filler material—random paragraphs, one after another, summarizing other articles, or interviews, or blog posts (including some of mine) that read as if they were at least initially prepared by a research assistant. The book could have been cut by 50 percent without affecting it in any way, other than making it easier to read.
The fall after my book came out, Jonathan and Simon Chinn, the principals at Lightbox, wanted to option The Price of Silence for a documentary. Simon Chinn was the producer of the Oscar-winning documentaries Searching for Sugar Man and Man on a Wire. They explained that they wanted to tell the true, multi-faceted story of what happened, not just the sanitized version that the players, their parents, and their attorneys preferred—and the one that everyone now remembers and accepts as fact. On the other hand, after they signed the contract and paid my fee, they were free to make whatever movie they wanted.
After a few false starts, the Chinns selected Marina Zenovich to direct the film. She was known for her two documentaries about Roman Polanski and another about Richard Pryor. She seemed genuinely moved by the incredible complexity and many subtleties of the story. In December 2014, she filmed me for close to six hours at the Brooklyn Navy Yard. After that, I helped her and the Chinns when I could. After Nifong declined to be interviewed or filmed, they asked me for the tapes of my conversations with him in order to include his voice in the documentary. With Nifong’s permission, I gave the Chinns 20 hours of my digital recordings, plus the transcripts, of our conversations. After they asked, I also gave the Chinns the digital recording of my conversation with Mangum, who is now in the North Carolina Correctional Institution for Women, in Raleigh, where she’ll be for the next 14 to 18 years as a result of her 2013 conviction for second-degree murder in her boyfriend’s death. (The prison would not allow Zenovich to film Mangum.)
I did not get much information along the way about the film. Nor did I really expect any. I am hardly the first writer to be kept in the dark about how his book was being used, or not, in a documentary film. Occasionally, Jonathan Chinn and I would speak. After each conversation, I felt reassured. “It’s a dense topic and not a straightforward story from any angle,” he wrote me in September 2015. “That’s what makes it so fascinating. Editorially, we are interested in unpacking the way in which this story fed into a city, state, and country’s pre-existing racial and economic dysfunction and provided every side with a runaway bandwagon to jump onto. Some of the archive we have sourced of what was going on in Durham and on campus is remarkable in its expression of raw anger, mistrust, and frustration. It’s turning out to be a story as much about the fallibility of the media and our universities as anything else. . . . Juicy stuff!”
In December, the Chinns sent me a cut of Fantastic Lies. It was breathtaking, but not in a good way. Nothing from my interview was used, nor were any of the recordings I shared with them from Nifong or Mangum. Instead, Fantastic Lies presents the narrative that the parents of the indicted players and their defense attorneys have been busily trying to preserve in amber for years: that the players were falsely accused, and that the Durham police, aided and abetted by Nifong, the rape nurse, and the media created an epic conflagration. Instead of grappling with why there never was a trial and how the North Carolina State Bar was used to subvert justice, the film once again spews the defense version that justice was served, even though it was not, and that no amount of money, not even $20 million, could ever compensate the three players for what Mangum and Nifong did to them.
These four paragraphs represent the heart of Cohan’s review. He was happy to take the Chinns’ money as payment for the option on his book, but now is whining that the final documentary didn’t feature snippets of his interview with Marina Zenovich.
I haven’t seen the documentary. But I’m not at all surprised that it doesn’t include material on “how the North Carolina State Bar was used to subvert justice”—since (I assume) any broadcast at ESPN has to be cleared by the network’s counsel. Lawyers generally won’t clear fact-free ruminations of a broad government conspiracy.
Although I find Cohan’s book substandard, it’s hard not to pity him. When the book originally was optioned, he doubtless told his friends and colleagues that a documentary would appear that would vindicate his deeply revisionist interpretation of the case. But the documentary team did the investigation that author Cohan did not. And much like Mike Nifong’s experience after Roy Cooper’s team did the investigation that prosecutor Nifong did not, Cohan is now left to be humiliated before his friends, colleagues, and a national television audience.
We’ll never know what really happened in that that bathroom 10 years ago, and the house itself has long since been torn down. To be sure, Fantastic Lies is more than just a bunch of fantastic lies. But it can certainly seem that way. In the end, sadly, it is another major missed opportunity to explain to a wider audience the complex story of the Duke lacrosse case.
The first sentence is nothing more than a recapitulation of Cohan’s “something-happened-but-I-won’t-tell-you-what-thesis.” But the second sentence is extraordinary—author Cohan asserting that the documentary contains a “bunch” of “lies.”
That’s an unequivocal, factual assertion. Perhaps Cohan would have been better served spending more time in his review identifying even one of these lies (he doesn’t, even as he misstates—twice!—the amount of the settlement) and less time petulantly complaining that the documentary doesn’t contain any clips of his interview.
At this stage, I’d urge Vanity Fair to ask Cohan to identify, publicly, the “bunch” of “lies” in the documentary. And if—as I strongly suspect—he cannot do so, I hope that VF would retract the column and publicly apologize to the documentary team.
As for the review: intense criticism from a Nifong apologist like Cohan suggests that the filmmakers got the story right.