If common sense, plain talk and self-awareness were requirements of the legal system, Duke University’s recent court filing would begin something like this:

OK, we bigwigs from Duke University are the last people who ought to be complaining about not getting a fair shake in the court of public opinion. Considering that we stood aside and let the members of our lacrosse team be hounded, harassed and excoriated on campus for months after bogus rape charges were filed against three of them, we get that it’s pretty nervy for us to even ask this. But here goes: Your Honor, we hope you might consider telling the lacrosse players’ lawyers to maybe dial back their public comments a tad. Hey, they’re making us look bad.

Duke’s request to the court — filed after 38 lacrosse players earlier this year sued the university, the city of Durham and specific individuals for their actions during the lacrosse case — asked the judge to sanction the players’ lawyers for talking about the case, and operating a web site devoted to it, before trial. The rationale was that such pre-trial publicity jeopardized the chance of a fair hearing in court.

The university’s commitment to fair trials and limits on publicity is, shall we say, a recent and sudden development. Through most of 2006, when Durham district attorney Mike Nifong not only brought criminal charges against three Duke lacrosse players without having anything close to sufficient evidence to warrant prosecution, but also engaged in an egregious months-long media campaign to paint them as criminals, Duke officials took a hands-off approach to the whole event. They neither protested vigorously that the defendants had been robbed of a presumption of innocence, nor did they do much to slow the rush to judgment made by the now-notorious faculty group called the Gang of 88, which encouraged activists to harass the lacrosse players.

We all know how the case turned out, of course. Nifong was disgraced, disbarred and sent to jail for a day (a shamefully short sentence, all things considered). The charges against the players were dismissed, with no less a person than the North Carolina attorney general declaring them innocent. The accuser was revealed to be a mentally unstable woman who couldn’t keep her story straight from interview to interview. And Duke officials were exposed as people so in the thrall of political correctness that they preferred to leave their students to mob justice rather than confront their own radical faculty members.

Now, two years after the fact, those same Duke officials — at this point defendants themselves — suddenly remember that it’s important for pre-trial publicity to not affect the chance of a fair hearing in the halls of justice.

A federal judge in Winston-Salem agreed that lawyers for both sides should speak more softly and carefully when commenting on the case. But he declined to sanction the players’ attorneys, handing Duke a defeat on the matter.

I only wish the judge had stated it plainly, for the purpose of establishing precedent: Chutzpah has its limits.

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