Kirk Osborn, RIP

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According to the pundits, the North Carolina attorney general’s office is likely to drop all charges soon against Reade Seligmann, Collin Finnerty, and David Evans in the Duke Non-Rape, Non-Kidnapping, and Non-Sexual Assault case. Yet, perhaps the man who is more responsible than anyone else for laying the groundwork that ultimately destroyed the prosecution’s case will not be there.

Kirk Osborn, the attorney who first represented Seligmann, died this past weekend of a massive heart attack. He was the attorney with whom I had the most personal contact. He was not a source of information for me — indeed, I have approached no one close to the case — but at the same time, we encouraged each other. I praised his work, and he praised my articles.

Recently, Osborn had moved to the background of this case, but in the very dark days of April and May of 2006, he was able to do some things that quietly undermined the case of Michael B. Nifong, and the savvy Osborn bears much of the credit for how Nifong’s career is imploding along with the case. When he died, Osborn could see the end both of the criminal case and Nifong’s sorry tenure as Durham County District Attorney.

To understand where this article is leading, one first needs to know what happened last April 17 when Nifong obtained indictments for Seligmann and Finnerty. According to the official "timeline" of the rape of Crystal Gail Mangum, the assault supposedly took place after 12:15 a.m. on the morning of March 14.

However, at that very time, Seligmann had taken a cab to a nearby bank and was standing in front of an automatic teller withdrawing cash, the teller taking a photo of the young man as he exited the cab. Indeed, Seligmann had an electronic record and the word of the cab driver, Moez Elmostafa, an African immigrant.

Since he represented Seligmann, Osborn went to the DA’s office to let Nifong know that he had important exculpatory information about his client. Nifong sent someone out to Osborn with this message: "If you think your client is innocent, then we have nothing to talk about." At that moment, Osborn knew that Nifong was trying to frame the young men.

Seligmann’s bond was set at $400,000, which was paid, and Seligmann was released. At a subsequent hearing for Seligmann in May, Osborn ultimately set a trap and the arrogant Nifong walked into it. People who saw the hearing, however, might not have recognized that it represented an important "tipping point."

In fact, the whole thing started out badly. The New Black Panthers, a black hate group from Atlanta, came to Durham spewing death threats to the lacrosse players and demanding that Duke University let them on campus to "interview" the players. Surprisingly, Duke refused to allow them inside.

However, Nifong was happy to see the NBP and "briefed" them on the case in a personal meeting. Other Nifong supporters rallied around the NBP and made all of the usual murderous declarations that one might expect from such a gathering.

Seligmann then walked to his bond hearing, and Osborn put his body between the young man and the howling mob. Durhamites and the NBP screamed death threats to Seligmann, and then the mob moved into the courtroom, where they continued to make open threats, Nifong saying nothing to discourage this outrage and supporting it with his silence and his body language. The judge at the hearing was Ronald Stephens, a former Durham prosecutor and Nifong’s old boss; Stephens clearly was on Nifong’s side and hostile to the defense. While he told those making death threats to be quiet, he refused to remove the miscreants from the courtroom, thus making sure everyone understood that Seligmann was as good as guilty, in his opinion.

When Osborn asked the judge to reduce the bond from $400,000 to $100,000, Nifong laughed out loud — and received no admonishment from the judge for his obnoxious outburst. Nifong also openly made fun of Seligmann’s counsel, including Osborn. Later, however, Osborn made perhaps the most significant request in the entire case: the request that all hearings be recorded and transcribed, something that Stephens resisted at first, but ultimately agreed to do as Osborn was stubborn and persistent.

Osborn insisted that everything be on the record, which is important. In that hearing, as well as subsequent hearings, Nifong made statements about evidence and other things that ultimately proved to be lies. Those false statements were the basis of much of the action the North Carolina State Bar has taken against him, and it is very likely that Nifong will be disbarred.

Because his statements were part of the record, Nifong had nowhere to hide when the December 15, 2006, hearing exposed his lies to the world. Yet, long before most people had jumped on the anti-Nifong bandwagon, Osborn understood that Nifong was lying — and trying to frame his client.

One has to understand that defense attorneys do not make a career out of attacking prosecutors. Indeed, improper statements about prosecutors can lead to one being drummed out of the law profession, and attorneys are loathe even to broach the possibility of a frame-up. Thus, when Osborn began filing motions to have Nifong removed and released Seligmann’s own timeline (and photograph at the bank teller) to the press, he was doing so in peril of his own career.

Indeed, at that time, it seemed that Nifong was going to win. The press was on his side, Durham voters were on his side, much of Duke University’s faculty and administration was on his side, other prosecutors in the state were on his side, and the first two judges who were in charge of the case, Stephens and Kenneth Titus, were on his side. The judges seemed all-too-happy to grease the skids and no one in a position of authority was willing to intervene to stop the railroading.

The case was extremely stressful to Osborn, something he said in his emails to me. He was especially angry about the May hearing when Nifong "treated us like dogs." In another email, he said that we had to make sure that Nifong never would be able to practice law again; strong words, very strong words.

In the end, Osborn’s heart did not stand up to all of the stress that Nifong and his minions caused with their endless lies. Yet, while Nifong is in disgrace, Osborn is praised. The Seligmann family issued the following statement:

We are heartbroken over the death of Kirk Osborn.

Kirk stood up for Reade at great personal cost. He stood by Reade and together they faced the mob that was outside the Durham County Courthouse a year ago; Kirk never flinched and faced both that mob outside the Courthouse and the bias within the Courthouse with the courage that he showed throughout this case. He passionately believed that the truth would emerge and that the world would know of the injustice that was done that day and every day of this baseless prosecution.

While it is now plain to anyone with any reason and objectivity that there was no sexual assault and that Reade has been the victim of an unprincipled prosecution, we are nonetheless saddened that Kirk did not live to see the day when Reade will be completely exonerated. While that day will come, it will now come too late for Kirk to share in it. When that day does arrive, it will be as a direct result of Kirk’s courage, skill and passionate belief in the truth.

Our hearts go out to Kirk’s family. We ask that everyone remember them in their prayers. We will never forget Kirk and his sacrifices for Reade and for justice. Kirk’s fight for the truth and for justice in this case met the highest standards of ethics and professionalism and stand in stark contrast to those who condemned Reade. He is an example of what a lawyer should be.

We will be forever grateful to Kirk and will never forget what he has done for us.

In their article on Osborn’s death, Joe Neff — one of the few journalists who really understood this case — and Benjamin Niolet, both of the Raleigh News & Observer, wrote:

Osborn was aggressive early with his defense. He filed a motion seeking to have Durham District Attorney Mike Nifong removed from the case, accusing the prosecutor of going after the lacrosse players to win votes.

Osborn’s court filings announced to the world that despite Nifong’s assurances that a rape occurred, Seligmann had phone records, receipts, security camera images and a cab driver that would show he was almost a mile away when the woman said he was participating in her rape.

Seligmann’s alibi, which Nifong protested proved nothing, helped convince many that the allegations against Seligmann, Dave Evans, 23, and Collin Finnerty, 20, were untrue.

After the State Bar charged Nifong with ethics violations, he asked the state Attorney General to take over the case. Two veteran prosecutors are reviewing the case and will decide whether to press forward.

The case will never go to trial, and that is in large part because Osborn was willing to step forward in the early days when the press and the legal profession were downright craven. All of us who care about justice owe much to this man. Indeed, Kirk Osborn, rest in peace. We will miss you, and miss you greatly.

March 27, 2007

William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute.

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