In "Exoneration for the Duke Three Is Coming," posted on August 10, 2006, I paid tribute to my choice for the best lawyer representing a party in the Duke case, the late Kirk Osborn.
I never communicated with, much less, met Mr. Osborn, but even before I noticed that Stuart Taylor, Jr., America's top commentator, was suggesting that the charges were bogus and the prosecution was a persecution, Kirk Osborn's powerful performance in the case was making that point, resoundingly.
The other defense lawyers were not signing on to Mr. Osborn's boldest motions, but Mr. Osborn obviously was undeterred.
He did what needed to be done for his client (and the criminal justice system), regardless of whether others concurred.
He knew his client (Reade Seligmann) was not only innocent, but being railroaded.
So he represented his client zealously, whether or not, for himself, well, that boded.
Someone needed to lead the way against a prosecutor who was malicious, not mistaken.
Virtuous and good, Kirk Osborn did it.
As I wrote last August:
"The Duke Three should show that they have been victims of prosecutorial abuse, not just show reasonable doubt as to whether they committed the heinous crimes of which they are charged.
"As Shakespeare wrote in Measure to Measure, Act III, Scene 1, Line 214: 'Virtue is bold, and goodness never fearful.'
"What the defense needs is boldness and strength, not meekness or weakness. The kind of boldness showed by Kirk Osborn, Reade Seligmann's attorney, in moving to remove Mr. Nifong from the case for good cause: 'District Attorney Mike Nifong neglected his duties as a prosecutor to seek the truth and a fair prosecution. He created an actual conflict between his professional duty to search for the truth and his personal, vested interest in getting elected in the following ways: (1) he ignored the actual facts of the case which demonstrate the Defendant [Reade] could not have committed this crime; (2) he made a series of statement to the national media designed to bolster his election chances while prejudicing the case against the Defendant; (3) he improperly injected himself into the photographic lineup proceedings, causing the Durham Police Department to violate its own policies in an effort to provide himself a source of information from which to indict some, indeed any Duke Lacrosse players; and (4) he denied the Defendant a probable cause hearing where the Defendant's actual innocence could have been shown and the gross deficiencies of the prosecution's evidence would have been exposed.'
"Yes, judges have put aside the motion, but they soon will regret it. If the motion is not granted soon, the media may make very good use of it at a propitious moment, to the consternation of the Durham County judiciary as well as Mr. Nifong and his political supporters. Exposing Mr. Nifong and exonerating the Duke Three would be a great public service and great television."
"60 Minutes" later publicly exposed Mr. Nifong. Twice.
The Duke Three have been exonerated by the fair-minded judges in the court of public opinion, the rape charges were voluntarily dismissed by still (but hopefully not much longer) Durham County, North Carolina District Attorney Michael B. Nifong last December), and the countdown is on to the dismissal of the remaining charges by the prosecutors appointed by the North Carolina to replace Mr. Nifong on the Duke case after an ethics complaint and a public statement by North Carolina's 99 other district attorneys convinced Mr. Nifong, the disgraced, to ask to be replaced.
I am delighted with this statement issued by the Seligmann family in response to the news of Mr. Osborn's sudden death:
"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."
To repeat: "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."
Make that: "He is the finest example of what a lawyer should be."
The News & Observer's Joseph Neff and Benjamin Niolet attested to what Hoax expert and Brooklyn College History Professor Robert K.C. Johnson called Kirk Osborn's "critical role in the case":
"Osborn's court filings [on May 1] 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."
To those who resented the way Kirk Osborn represented Reade Seligmann (and they know who they are), I say Kirk Osborn was absolutely right and the North Carolina bar's shining light.
The ordeal suffered by the members of the 2005-2006 Duke University Men's Lacrosse Team and their families and friends would have been worse and longer but for Kirk Osborn.
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.