Wednesday, May 28, 2014

Mark Wylie's Magnificent Amazon Condemnation of William D. Cohan's THE PRICE OF SILENCE

While the mainstream media welcomed William D. Cohan's THE PRICE OF SILENCE with a series of puff pieces until Dorothy Rabinowitz in the WALL STREET JOURNAL repudiated the WSJ's own puff piece, serious reviewers have been posting on Amazon (amid puff postings from friends whom Cohan thanks in his book). In addition, KC Johnson and Stuart Taylor, Jr., were exposing the false and misleading nature of Cohan's work, and a few reviewers, including Joe Neff, had written honest, informed reviews. After Cohan had fulminated in the HUFFINGTON POST against "too much" free speech (critics having told the truth about his book), there came onto Amazon, night before last, this masterpiece from a teacher of economics in Spokane, WA. It is merely providential that Wylie's review appeared just as Judge Orlando Hudson overturned the two decades old conviction of Darryl Howard for murder and that in his ruling Judge Hudson repeatedly mentioned the "False and Misleading" statements of the ADA in that case, the disbarred and jailed (for one night) DA in the lacrosse case, Michael Nifong, Cohan's long-suffering hero in THE PRICE OF SILENCE. Seldom was a review so timely! Today I received Mark Wylie's permission to post it here. It belongs in the bibliography of the Wiki site on THE PRICE OF SILENCE.

31 of 31 people found the following review helpful
1.0 out of 5 stars Overlong, Unreliable--Neither Definitive nor Magisterial, May 26, 2014
Mark Wylie (Spokane, WA United States) - See all my reviews
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This review is from: The Price of Silence: The Duke Lacrosse Scandal, the Power of the Elite, and the Corruption of Our Great Universities (Hardcover)
William Cohan, an investment banker turned journalist, is known for his three lengthy books on leading Wall Street investment banks. I read his book on Lazard Freres several years ago and found it to be very detailed and informative, but also long and repetitive, and I got bogged down in it more than once. In his newest book, he turns from the financial sector to writing about the criminal justice system, producing an enormous doorstop of a book on the "Duke lacrosse case" of 2006, in which three varsity men`s lacrosse players at Duke were falsely accused of rape by a stripper. The case led to the disbarring of Mike Nifong, the district attorney who brought the charges against the players, for numerous ethical violations.

The publisher's description of this book informs us that "Readers who think they know the story are in for more than one surprise." Cohan's own remarks, made in promoting his book, make it clear that he personally believes that readers should change their view of the case after reading The Price of Silence. I came to this book as a reader with a clear view of the case, having followed the case in 2006 and 2007 at Jeralyn Merritt's TalkLeft blog, and then read Until Proven Innocent, by Stuart Taylor and K.C. Johnson, when it came out in paperback in 2008.

If asked, prior to reading The Price of Silence, to summarize the case, I would have done so as follows: Early in the morning of March 14, 2006, a stripper named Crystal Mangum claimed that she had been raped by three or more Duke lacrosse players when she had danced at a team party a few hours before. The Durham, NC, District Attorney, Mike Nifong, eventually charged three Duke lacrosse players with rape and sexual assault. Over the next several months, it became increasingly clear that 1) Crystal Mangum was a completely unreliable witness who constantly changed her story, 2) there was absolutely no evidence of any kind to corroborate her claims of rape, 3) there was substantial evidence to demonstrate the complete innocence of the three accused players, and 4) Mike Nifong was cutting legal and ethical corners in pursuing the case, at least partly for political reasons. Nevertheless, Nifong persisted with the case until matters came to a head in December 2006. At a preliminary court hearing on the case, a DNA expert working with Nifong, Brian Meehan, testified under oath that he and Nifong had colluded in deliberately failing to inform defense attorneys of certain of Meehan's findings, which were exculpatory of the defendants. Nifong and Meehan's action was a clear, unambiguous violation of federal and state law, as well as a serious ethical lapse.

From that point, matters moved quickly, at least by the standards of the legal system, to a resolution of the case. The North Carolina Bar brought ethics charges against Nifong, which compelled him to turn the case over to the state attorney general. Attorney General Roy Cooper appointed two experienced prosecutors to investigate the case. The two prosecutors eventually came to the conclusion that the three lacrosse players were completely innocent of any of the charges. At their urging, Cooper publicly announced, in April 2007, that the case was being dropped, and that the three players were, in fact, innocent of the charges. Meanwhile, Mike Nifong was found guilty of 27 violations of the Bar's code of ethics and disbarred in June 2007.

There is nothing in The Price of Silence's over 600 pages that would persuade me to change a single word of the forgoing summary of the case. There are, however, a number of reasons why Cohan's publisher should consider revising their description of the book.

The first issue I have with The Price of Silence is what I would label the "un" problem. Cohan's book is completely unsourced, and as a consequence it is unreliable. At the end of the book, where a reader would expect to find a detailed set of end notes identifying the sources for the innumerable quotes and factual claims in the book, Cohan instead gives us a brief "note on sources" where he informs us that he decided it would be "superfluous" to identify his specific sources, because "the vast majority of them are easily accessible to anyone online." Even if, as Cohan helpfully tells us, most of them are available "at little or no cost," how is a reader supposed to know which of the tens of thousands of newspaper and magazine articles, online documents, and blog posts to "access," if Cohan does not identify which of these sources he used? The author does not answer this self-evident question, probably because it has no answer that would make any sense.

The absence of source notes means that Cohan can get away with presenting information in a skewed and misleading way. One example that leaped out at me as I read the book is found on page 62. Two Durham police detectives, Mark Gottlieb and Ben Himan, interviewed Crystal Mangum a couple of days after the lacrosse party. Cohan recounts how "Mangum described her three alleged assailants," and quotes three descriptions, which seem to very closely match the three falsely accused lacrosse players. Then, almost parenthetically, Cohan notes that "Himan's handwritten notes had a different description of the three men." None of this second set of three descriptions matched any of the three subsequently indicted players, nor, indeed, did they bear any resemblance at all to any of the 47 varsity lacrosse players.

So, what does a reader miss because of Cohan's failure to cite his sources? In this instance, something very important. The second set of descriptions, which incriminate none of the varsity lacrosse players, come from the notes Ben Himan took during the interview. The first set, the incriminating descriptions, come from a memorandum that Gottlieb prepared, entirely from memory with no notes, some four months after the date of his and Himan's interview with Mangum. It is incomprehensible to me how any responsible journalist would give any credence to Gottlieb's memorandum at all, when Himan's contemporaneous notes are obviously going to be far, far more reliable than Gottlieb's faded memory (even if you do not think that Gottlieb was unethical enough to simply fabricate the alleged descriptions). But not only does Cohan report Gottlieb's unreliable version of the descriptions, he accords them priority by listing them first.

As the above example shows, Cohan is not above skewing the evidence he is laying before the reader, while the absence of notes means that a reader who isn't already well-versed in the case has a difficult time detecting Cohan's distortions. This means that there are many, many portions of the book where it is hard to know how accurately Cohan is reporting events. Take what some reviewers have singled out as the "most powerful" segment of the book, the lurid, racy account of the March 13, 2006 lacrosse party. As I read this account, I couldn't help but wonder who Cohan's sources are for this chapter. How much of the narrative comes from the completely unreliable Crystal Mangum, or from the nearly as untrustworthy Kimberly Roberts (the other stripper hired by the lacrosse players)? Cohan doesn't tell us. When Cohan quotes other witnesses, which of the quotes come from contemporaneous accounts, and which are from accounts that were given weeks or months (or maybe even years) afterwards? Which accounts are first-hand, and which are hearsay? Again, we don't know the answers, since Cohan doesn't give us the necessary information.

In short, Cohan's failure to give any information about his sources, even something as simple as a list of the people he interviewed during his research, has to put a reader on guard (Amazingly, while Cohan thinks identifying sources is "superfluous," he finds space at the end of the book to list over fifty people who "gave me plenty of highly enjoyable divert my attention from the writing of this book"). Add to the absence of sources the fact that Cohan shows himself capable of presenting material in a distorted fashion, and it becomes harder for a thoughtful reader to take much of the book at face value. If he didn't want to weigh the print edition of the book down with source notes, he could and should have made them available online (as the authors of Until Proven Innocent did).

As a brief digression, I should say that Cohan might have been reluctant to identify his sources because any such information would reveal some serious gaps in the research he did for a book billed as "definitive," "magisterial" and "meticulous and complete" by his publisher. The only lawyers involved in any stage of the case who Cohan acknowledges speaking to are the disbarred Mike Nifong and a pair of Nifong's own attorneys. Cohan seems not to have spoken to any of the attorneys for the falsely accused players. He definitely did not speak to James Coman or Mary Winstead, the prosecutors who investigated the case for North Carolina Attorney General Cooper when he took over the case, or to Lane Williamson, who chaired the Disciplinary Hearing Committee for the North Carolina Bar, which found Nifong guilty of serious misconduct and recommended that he be disbarred. Both Coman and Williamson have publicly confirmed that Cohan never contacted them, and both are, understandably, furious with how Cohan uncritically repeats slanders against them which originate with Nifong.

A second big problem with this book is what I'd term "the bloat." The text of this book runs to over 600 pages. Some subjects are worthy of books of this length. Last fall, I read Christopher Clark's The Sleepwalkers, one of the spate of recent books about the outbreak of World War I, a very complex and weighty subject. I was astonished to discover, on comparing the text of the two books, that Cohan's was about 50 pages longer (Clark's book has a higher overall page count because of--wait for it--his detailed source notes). A good book that comprehensively covered all the essential elements of the Duke lacrosse case could almost certainly have been written in under 300 pages. I have a number of similar books in my library, like Anatomy of Injustice, which I reviewed here at Amazon some time back, which are under 300 pages of text.

How does Cohan take a less than 300 page subject and turn it into an over 600 page book? There are two big reasons. First, Cohan repeatedly subjects us to lengthy discussions of trivial details that are almost totally irrelevant to the main story. One of the worst examples of this is his handling of a previous rape allegation which Crystal Mangum made back in the 1990s. The limited relevance of this episode to the Duke lacrosse case could have been satisfactorily covered in a paragraph or two. Cohan, however, gives us nine or ten tedious pages on the subject, much of which is given over to a regurgitation of every detail of Mangum's account of the alleged rape (as told in her autobiography, I would guess--we can`t be sure, of course, without source notes).

More needless trivia comes in Cohan's repeated descriptions of media appearances by people with some connection to the case, and from his tedious, repetitive summaries of innumerable newspaper articles and editorials. A good writer would instead have presented the information found in such articles much more concisely and in a more organized and focused way (of course, a good writer would also properly cite all the sources he was referring to). Doing so would also avoid misleading readers; as many news stories written before the resolution of the case were inaccurate, making those stories part of the narrative can give readers the wrong picture, as well as bogging the narrative down.

Every so often, I found something interesting in the mass of trivia and minutiae that Cohan makes readers slog through. For instance, the account of Duke President Richard Brodhead's years at Yale as a dean includes the very illuminating episode where Brodhead terminated a non-tenured faculty member at Yale, James Van de Velde, when Van de Velde was falsely suspected in the murder of a Yale undergraduate. Brodhead's action in that case comes across as just as precipitate and unfair as his firing of Duke lacrosse coach Mike Pressler or his suspensions of the falsely accused lacrosse players. But a handful of pearls such as this are not worth page after page of tedious trivia.

The second cause of "the bloat" is Cohan's inability or unwillingness to stick to the real issues in the Duke lacrosse case. The case does involve a pair of important issues: first, there is the problem of false accusations of crimes, especially of rape and sexual assaults, and of how to address false accusations. Second, there is the issue of prosecutors and police investigators who cut ethical corners and disobey clearly established rules that govern their work, and the potential, all too often realized, for their misconduct to result in innocent people being charged with crimes, convicted, imprisoned, and even in a few cases executed.

But these genuine, serious issues related to the case apparently don't interest Cohan all that much. He does not discuss the problem of false accusations at all. He cannot avoid the issue of prosecutorial and police misconduct, but he downplays it to the greatest extent he can. He deemphasizes many of the most serious lapses during the case, such as the blatantly improper photo lineup of April 4, 2006, in which Crystal Mangum identified three lacrosse players as her "attackers," described by Cohan on pages 189-93. Rather than simply inform the reader of the ways in which this lineup violated proper procedure, Cohan says that "defense attorneys contended" that it was improper, giving the impression that this was simply the opinion of advocates on one side of an issue, rather than undeniable fact.

By underplaying this issue, Cohan does his readers a serious disservice. Mistaken eyewitness identifications are by far the most common factor contributing to the conviction of innocent people in this country. Brandon Garrett, in his book Convicting the Innocent, a review of 250 cases where DNA evidence exonerated people convicted of murder, reports that there were flawed, unreliable eyewitness identifications in over 75% of the cases he reviewed. Similarly, Cohan lets the reader down when he attempts to downplay Mike Nifong's egregious violations of discovery rules or his wildly improper public commentary on the case.

For these real issues, Cohan wants to substitute others which have little or no relevance to the case. Cohan seems to want to tell a story about, as he says in a recent magazine interview, "all of these hot-button issues involving young people and underage drinking and elitism and the special role athletes play at places like Duke and Stanford and other places that try to be academically and athletically at the top of the charts." As far as I can tell--he never really spells this out coherently, rather he implies it here and there, both in his book and in subsequent interviews--Cohan's narrative of the case would go like this:

Back in the 1980s, Duke made the decision to try to pursue academic and athletic excellence at the same time. Somehow, this led to Duke having a "work hard, play hard" culture. Two key elements of this culture were, one, that students' social lives revolved around lots of drinking, especially underage drinking, and second, varsity athletes, in particular lacrosse players for some unspecified reason, were "put on a pedestal" by everyone on campus. As a result, the lacrosse players were "allowed to get away with a lot of bad behavior," including lots of underage drinking, and the lacrosse case directly resulted from this "work hard play hard" culture and from the "sense of entitlement" that the lacrosse players had supposedly developed.

So, Cohan goes on and on, for chapter after chapter, about these supposed "issues." He talks extensively about the Duke administration's repeated efforts to control student drinking. He talks about what he believes to be the inordinate influence that athletics plays at Duke. And so on. Many of these are worthy issues. The problem is that none of them have anything significant to do with the Duke lacrosse case, and Cohan`s attempts to tie the lacrosse case to these issues are completely unconvincing. If you believe otherwise, that means that you believe that, somehow, the fact that some underage drinking took place at the March 13, 2006 lacrosse party was the direct cause of both Crystal Mangum's false rape accusations, and also of all of the subsequent misconduct and illegal behavior by Mike Nifong and by others working with him like Gottlieb and Meehan. That clearly and obviously is not the case--if there had been no underage drinking at the party, Mangum would still have made up her rape allegations, Nifong would still withheld evidence and tried the case in the press, etc.

Near the end of his book, Cohan recounts a half dozen or so anecdotes as examples of his claim that there is an "epidemic of alcohol-related crimes and scandals," often involving varsity athletes, plaguing American colleges and universities. Whether the frequency of these crimes and scandals rises to the level of an epidemic is a subjective judgment, but they are certainly a problem. The books Scoreboard, Baby, by Ken Armstrong and Nick Perry, and Wrongs of Passage, by Hank Nuwer, are both good reading on different aspects of the issue.

The problem is, again, not that Cohan is making these issues up--he isn't--but that in trying to link them to the Duke lacrosse case, he is trying to fit a square peg into a round hole. The lacrosse case is not an "alcohol-related crime or scandal," it is false accusation-related and prosecutorial misconduct-related.

Aside from these big problems, which result in Cohan giving us a overlong book which readers cannot rely on to present key information accurately, there are some other issues I have. Although Cohan has repeatedly, in promoting the book, waxed eloquent about how "dispassionate" and "unbiased" and "nonjudgmental" he supposedly was in writing it--judgments which he should not be offering on his own book, as they are for readers to reach on their own--the tone of the book frequently betrays noticeable biases on Cohan's part.

The most obvious bias is one that investigative journalists who spend a lot of time with a particular source have to constantly guard against--getting so close to a source that you let your sympathy for them affect your judgment. In Cohan's case, the primary source he seems to have gotten too close to is Mike Nifong (he also betrays a bit of this tendency when it comes to Crystal Mangum). As a consequence, he frequently adopts Nifong's view of important issues in the case as his own--in particular legal and evidentiary issues. As Nifong is a disbarred attorney who engaged in egregious unethical conduct, this is a pretty serious lapse of judgment on Cohan's part. One of the most troubling instances of Cohan's bias is his dismissal, on pages 556-7, of Nifong's failure to turn a report of some of Brian Meehan's DNA test results over to the defense, as a "red herring." He reaches this indefensible conclusion only by adopting Nifong's self-serving spin as to why exculpatory results were somehow not truly exculpatory, and by failing to understand the plain meaning of North Carolina law on discovery, which mandated that Nifong and Meehan turn the report over.

While he goes to unbelievable lengths to present Nifong's actions in the most favorable light, Cohan is often guilty of portraying other parties in the case, those on the opposite side from Mike Nifong, in unjustifiably negative ways. Often the source for his negative portraits turns out to be an unsubstantiated allegation, usually no more than hearsay, from Mike Nifong. For instance, Cohan passes on without critical comment Nifong's allegation that prosecutors James Coman and Mary Winstead, who took the case over when Nifong passed in on to the state Attorney General's office, were "sandbagged" when Attorney General Roy Cooper announced that the three falsely accused lacrosse players were innocent. Likewise, he reports without any display of proper skepticism Nifong's unsubstantiated claim that Lane Williamson, the chair of the State Bar's disciplinary panel, wrote part of his report "the night before" Nifong's testimony. As I noted previously, Cohan made no effort to interview Coman, Winstead or Williamson and at least get their comments on the record to balance Nifong's slurs.

Cohan also seems determined to portray the three falsely accused lacrosse players in as bad a light as possible. His treatment of one of the three, Reade Seligmann, is particularly troubling. Cohan is fond of saying in interviews that there are "no heroes" in this case. I don't know if I would call Reade Seligman a hero, but I certainly think his conduct both during the case and after it ended was exemplary (I do not mean to cast aspersions on the other accused players in saying this). That is why it's very disturbing to see Cohan aim some of his most extreme slurs and rumor-mongering at Seligmann. Two examples: 1) Cohan repeats a hearsay allegation from Nifong and one of his attorneys that Seligmann and his family never paid the fees they owed to one of Seligmann's attorneys, Kirk Osborn. He supplies zero evidence of this claim. 2) Cohan cites a lengthy, rambling discourse from Nifong purportedly demonstrating that Seligmann's concrete alibi (covering the time period during which the alleged rape supposedly took place) was "manufactured," and therefore somehow suspicious--to Nifong, somehow the fact that Seligmann was unquestionably not at the party at the time of the alleged rape implicated him in the crime. Cohan has implied in interviews that he shares Nifong's groundless suspicions.

Finally, it is impossible to separate this book from the way Cohan has promoted it in the past two months or so. In the various interviews he's given promoting the book, Cohan has behaved in an unbelievably unprofessional way by misrepresenting facts, promoting groundless conspiracy theories, and displaying a strident intolerance and an arrogant condescension to anyone who disagrees in any way with any of his opinions (frequently dismissing them as "haters"). Other reviewers have already chronicled a number of specific examples of Cohan's conduct, so I will confine myself to a couple of observations.

First, Cohan repeatedly displays a truly frightening misunderstanding of how the criminal justice system is supposed to work, as well as how it often works in practice (as anyone familiar with the system is aware, the two are not the same). In interviews, Cohan frequently states that he wants his book to constitute "the trial that never happened," and laments the supposed "subversion of the justice system" that took place when Attorney General Cooper dropped the charges against the three innocent players. Apparently, Cohan believes that the minute that someone is accused of a crime, irrespective of the amount of actual evidence that they actually committed said crime, the only "just" outcome is to put them on trial.

Let's do a thought experiment. Mr. Cohan, according to Wikipedia, resides in New York City. There are an estimated 150-200 unsolved murders each year there. Suppose that I accuse Mr. Cohan of being the killer in every unsolved murder for 2013 in whichever of New York's five boroughs he resides in--that would make at least 20 murder accusations, I'd guess. By Cohan's standards, he would now have to go on trial for every one of those murders, or else justice would be "subverted." The fact that I would have zero credibility in making those accusations, or that there is zero evidence to corroborate those accusations, would not matter. A trial must be held once there's an accusation.

Does that make sense? Of course not. First of all, as anyone with minimal understanding of the justice system knows, over 90% of all criminal cases are resolved by plea bargains, not trials. Second, because we recognize that a system of "any accusation requires a trial" would create massive potential for abuse, we require that people not be charged with crimes unless there is a certain standard of proof met--not proof of guilt, but a demonstration that there is credible evidence that they might be guilty. We also rely on prosecutors to recognize that it is a waste of limited public resources to pursue criminal prosecutions when there is no credible evidence that a crime took place or that an accused person committed the crime. In theory, these checks should keep us from putting completely innocent people on trial for crimes that they did not commit.

Unfortunately, the system doesn't always work in practice--this is Cohan's second major misunderstanding of the criminal justice system. One check on the prosecutor's authority is supposedly the grand jury, but in practice this is not so: the saying is that "a good prosecutor could get a grand jury to indict a ham sandwich." More dangerously, an overzealous or unethical prosecutor and/or police investigator can get innocent people indicted for crimes they don't commit, and all too often get them sentenced to prison. Nate Blakeslee's outstanding book Tulia recounts one of the worst episodes of American injustice in the past 20 years or so, when a single rogue undercover cop named Tom Coleman, in collusion with an unscrupulous prosecutor named Terry McEachern, was able to get dozens of residents of a small Texas town imprisoned for drug offences they never committed.

Anyone who keeps tabs on the workings of the criminal justice system knows that things like this happen all over the country, but the naïve Cohan waxes incredulous at the notion that it could have occurred in the Duke lacrosse case: "do you believe that all of that [Mangum's accusations] was made up and was all a fiction and that nothing even remotely like any of that ever happened? That it was all just made up and everyone [actually, no more than half a dozen people] was in on the conspiracy?" This argument from personal incredulity in an interview with New York magazine is, amazingly, the closest Cohan has ever come, in at least six or eight separate promotional interviews, to justifying his incessant claims that "something must have happened," presumably something criminal, to Crystal Mangum, at the lacrosse party.

The other thing I find troubling about Cohan's promotion of the book is his incessantly patting himself on the back for being "dispassionate" and "nonjudgmental" in writing his book. As I noted previously, first, such judgments are really inappropriate for an author to be making about his own work; they are for readers and independent reviewers to make. Second, Cohan is not truly free of bias, and his actual biases do not do him credit.

Third, is being "completely dispassionate" something that authors of books like this should really strive for? My experience, as someone who reads an enormous amount of non-fiction, is otherwise. The best non-fiction authors I have come across over the years--writers like Taylor Branch, Laurie Garrett, Max Hastings, Wendy Kaminer, Bethany McLean, Rick Perlstein, Barbara Tuchman or Gordon Wood, just to name a few--bring a point of view to their books. They do not mislead readers, but they give readers the benefit of their critical thinking abilities and their analytical judgments of the issues, and their books are better for it. Cohan could have profited by their examples.

Cohan's book, to sum up, is far from being the "definitive, magisterial" treatment of the Duke lacrosse case. Taylor and Johnson's Until Proven Innocent, although not without some shortcomings, is still the best book to read for a clear, accurate account of the case.

I regret if some readers found this review too wordy. As a writer, my natural style is to aim for thoroughness, but there is a point where thoroughness becomes long-windedness, and I apologize if I crossed that line. If it's any consolation, think of it this way--I have written somewhat less than 8 words for every page in The Price of Silence.

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