NEW YORK – “I thought that case was over?”

Parents of players on the 2006 Duke lacrosse team embrace as a new lawsuit is announced.

That is the question I was asked repeatedly following the news that 38 present and former members of the Duke lacrosse team have filed a new lawsuit against Duke University, members of the Duke administration, the City of Durham, North Carolina, and others involved in the criminal investigation that resulted in the indictments of three players. Read more

Following the dismissal of the charges and the complete exoneration of the three players, a number of claims by those players — and the former Duke coach — were settled. Claims by those players against former District Attorney Mike Nifong were potentially sidelined by his bankruptcy filing.

So what now are these claims by the other team members about? That’s a good question.

First, some full disclosure: (1) The president of Duke, Richard Brodhead, is a friend of mine, and (2) My son is a college lacrosse player at Yale. That being said, I think it’s fair to wonder what the point of the litigation is.

These players were never charged, nor were they ever suspended from school. They were undoubtedly placed in an unpleasant situation, especially in the early stages of the investigation when the notion of “presumed innocent” seemed to escape many in the media and the general public, but they were also, for the most part, the young men who had participated in the entirely inappropriate “party” that triggered this sad episode.

It’s too early in this litigation to conclude what value it may have — whether there are real losses that need to be addressed or whether this suit is just an unseemly punctuation to and unseemly episode — but I suspect that the lawyers behind the suit may have an uphill battle as they try to persuade a trial court, and the court of public opinion, that the various defendants should be writing a check to these young men.

– Jack Ford, In Session anchor

NEW YORK – I found myself bewildered by the Roger Clemens Congressional hearing on Wednesday, a proceeding which clearly devolved into some form of absurd theater rather than a valid legislative inquiry.

Roger Clemens told his story to a skeptical Congress.

And then I found myself equally bewildered by the reactions afterward of many observers. Although I expected there would be a distinct division between those who believe Clemens and those who don’t, I didn’t expect so many observers (some who should certainly know better) to be so quick to turn the Clemens drama into a racial issue.

They did so by concluding that a failure to subject Clemens to the same perjury prosecution facing Barry Bonds would be evidence of racial bias by the Justice Department.

The argument seems to be: If you’re going to prosecute the black baseball star you should also prosecute the white baseball star.

First of all, let’s not be so quick to indict the Justice Department until there has been a sufficient opportunity to conduct an investigation and determine if a prosecution is appropriate. Perhaps the answer to that question will be “yes” and Roger Clemens’ name will be penciled in, not to a line-up card, but to a criminal docket.

But if the Justice Department decides not to prosecute, there are some very valid distinctions between Clemens and Bonds (and other high profile perjury defendants such as Martha Stewart and Scooter Libby) that could explain the decision.

For instance, the lying alleged in Bond’s case–as with Stewart and Libby–came during the course of an active criminal investigation. Clemens’ statements were offered during a voluntary informational session, apparently requested by Clemens, which the chairman of the Committee now agrees should not have taken place.

Given this situation, the Justice Department might conclude that there was no compelling justification to devote the resources to what many would argue is simply a purely personal matter between Clemens and former trainer Brian McNamee.

Additionally, prosecutors believe there is sufficient independent evidence to corroborate the charges against Bonds, as juries also found in convicting both Stewart and Libby. But we don’t yet know if prosecutors will conclude that there is sufficient valid evidence against Clemens, in addition to the testimony of his accuser, that would constitute proof beyond a reasonable doubt.

And finally, any claim that a decision not to prosecute would somehow be based on race ignores the fairly obvious fact that prosecutors were not the least bit reluctant to go after Martha Stewart and Scooter Libby, both of whom were rich, powerful and white. Maybe Roger Clemens will be prosecuted, maybe he won’t. The point is, if the Justice Department decides not to prosecute, don’t be so quick to jump on the “It’s all about race” or “It’s all about rich white Republicans” bandwagon. Perhaps it’s just all about the law.

– Jack Ford, In Session anchor

NEW YORK – I’ll bet that Roger Clemens never thought that when a reporter wrote that Clemens is scheduled to be “on the hill,” it would actually mean that he would be testifying on Capitol Hill rather than taking the mound to pitch.

Roger Clemens arrives for his session with House lawyers.

But that’s exactly what’s taking place right now as the once-certain (but now, who knows?) Hall of Fame pitcher is talking with Congressional investigators in preparation for his testimony on February 13.  Full story

Clemens has complained loudly and consistently about the allegations contained in the Mitchell Report that he used performance-enhancing substances during his career. And he hasn’t simply proclaimed his innocence—he has also gone on the offensive. He has offered to testify under oath, in the face of all the accompanying legal dangers, and filed a lawsuit against his accuser, all in an effort to preserve and protect his now damaged reputation.

I don’t know if Clemens is guilty as charged or not—and perhaps we’ll never know for sure. But after spending nearly two decades as a prosecutor and defense attorney, you get something of a sense about how an innocent man acts in the face of an accusation. Right now, Clemens seems to me to be acting exactly how I would if I found myself falsely charged.

Sometimes actions do speak louder than words.

– Jack Ford, In Session anchor

NEW YORK – Last week, disgraced former prosecutor Mike Nifong filed for personal bankruptcy, claiming as much as $180 million in potential liabilities as a consequence of the lawsuits directed at him by the Duke players.

Mike Nifong spent a day in jail for criminal contempt.

I’ve heard several commentators asking, “Hasn’t Nifong suffered enough?” I guess the answer depends upon who is answering the question.

Clearly, the former players would suggest that Nifong’s travails are faint retribution for his illegal conduct. They faced the real possibility of spending a significant amount of time in jail—not to mention the complete destruction of their reputations—before the justice system belatedly rescued them from Nifong’s excesses.

And it would be hard to disagree with them. This is a public official who held these men and their families, and indeed the entire justice system, hostage while he engaged in an entirely unprofessional, inept, and ultimately terrifying campaign fueled entirely by misguided and self-gratifying motives.

Fortunately, this “rogue” prosecutor was stopped before the Duke players found themselves in a prison cell, but the damage inflicted upon the public perception of the justice system will certainly linger.

Once, during my career as a prosecutor, I convicted an innocent man. There was nothing sinister about the prosecution—it was an armed robbery conviction based upon the eye-witness testimony of the victim. As it turned out, the victim had made an innocent—yet drastic—mistake in her identification and, fortunately, we were able to free the man within a few months. But I’ve always been haunted by the specter of jailing an innocent man.

Apparently, Nifong allowed his desire for fame and job security to pervert all concepts of justice and fairness. As a result, he has lost his job, his career, and his reputation—and now his financial standing. Some would say that’s a small price for him to pay for the injustice he created.

– Jack Ford, In Session anchor

NEW YORK — Now, I don’t know if O.J. Simpson did intend to send some type of message to a co-defendant, or if he is guilty or innocent of the charges against him. But a couple of questions come immediately to mind.

First, why is O.J. even bothering to leave messages about a co-defendant that could expose him to these types of problems? You would think he would know by now to just keep his mouth shut and let his very talented lawyers do the talking for him Second, and perhaps more troubling, who is out there monitoring Simpson’s conversations and ultimately assuring that this one got into the hands of the prosecution?

It doesn’t appear to have been done by any agent of the prosecution, so who was it? And why? Even if you don’t like O.J. Simpson and even if you believe he got away with murder, it should concern you—and all of us—that somebody, without any court approval, could be out there listening in.

– Jack Ford, In Session anchor

NEW YORK — As I spent the better part of the morning doing radio interviews about Roger Clemens and his press conference, I was struck by how many people seem absolutely convinced that he did, in fact, use steroids.

Jack Ford

What’s puzzling to me is that so many have come to this conclusion already, based solely on the thus far unsubstantiated claim by one man, his former trainer.

Now, I don’t pretend to know if Clemens did “juice up” or not — the reality is that we may never know for sure, absent either a confession or a recantation. But if I’m a juror in that vast ether-world of the “Court of Public Opinion,” I’ve got to be awfully impressed by his willingness to go before Congress — with no immunity — and testify under oath that he never was a steroid user.

Remember, Martha Stewart went to jail — not for insider trading, but for lying to investigators. And Barry Bonds, the poster boy in the minds of many for steroid use, has been indicted — not for that alleged use, but rather for lying to a grand jury.

The message sent — loud and clear — by these cases is that if you lie you’ll be prosecuted, regardless of who you are. Clearly, Clemens’ lawyers know what kind of danger there would be if Clemens lies to Congress. As the Texas saying goes, “This is not their first rodeo!” So they must be fairly certain that he’s telling the truth, or, at the very least, that there’s nothing else out there to substantiate his trainer’s claims.

And that fact alone, that willingness to expose himself to criminal charges if he lies, just might mean something in that “Court of Public Opinion” as Clemens seeks a not guilty verdict from the public.

– Jack Ford, In Session anchor