NASHVILLE, Tenn. (Jan. 14, 1997)-- The Eldridge family, minus one member murdered four years ago and facing the loss of another to prison, rolled in the heavy artillery Tuesday as their war with District Attorney General Bill Gibson's office goes into what they hope is the final battle.

Harvard Law School Professor Alan Dershowitz dug in next to Frank Buck, chairman of the Tennessee House's Judiciary Committee, and in oral arguments before the Tennessee Court of Criminal Appeals denounced Gibson's use of two private prosecutors during used-car dealer Fabien Eldridge's 1993 attempted murder trial.

Dershowitz said the combination of factors leading to Eldridge's conviction clearly amounted to prosecutorial misconduct.

Cookeville lawyers Michael Knowlton and David Day, who were hired by Robert Fahey to prosecute Eldridge for beating him up during a 1992 altercation, already represented Fahey in a civil case against Eldridge arising from the same facts. Knowlton and Day stood to make as much as $1 million, Eldridges lawyers argued. Buck especially decried the appointment of the prosecutors without consulting the defense.

"I get sick and tired of the problems we have with ex parte orders," Buck told the three-judge appellate panel on the court's opening day. "Judges don't sign orders without talking to somebody."

"I thought the Canon of Ethics meant what they said,"Buck said.

Dershowitz said it was "such a clear violation" that the private prosecutors were in control of the criminal case, especially since "the private prosecutors admitted they went into settlement negotiations" in which they said if Eldridge would settle the civil suit for between $250,000 and $300,000, "Mr. Fahey would have no objection to the [criminal] case being dropped."

Dershowitz made several other points during his 20-minute presentation. He said Eldridge never waived his right to object to the appointment of the private prosecutors because he was not informed of their appointment, and "could not waive what he didn't know."

He said Eldridge's defense attorney did not argue about the waiver because defense lawyers have a stake in the system in which they can get paid for being private prosecutors.

"The defense attorney himself had a case in which he was a private prosecutor at the time," Dershowitz said.

Deputy Attorney General Kathy Morante told the court that before asking that Knowlton and Day be appointed, Gibson's office had contacted the Board of Professional Responsibility, which disciplines lawyers for unethical behavior. She did not say who had contacted the Board, or what the Board's response was.

However, The Pit contacted the Board on Tuesday to ask if there was a record of that contact, and to learn whether the full details of Day and Knowlton's participation in the civil case were communicated to the Board.

Charles High, a disciplinary counsel at the Board, said he could not discuss the legality of private prosecutors taking cases in which they had related a civil interest because a case with similar facts was being researched by the Board. He said that because the Board's work is for the most part confidential, he could not comment.

However, High told The Pit that regardless of whether Gibson's office had contacted the Board, the Rule 9, Sec. 26.5 of the Rules of the Supreme Court states that "the only opinions that bind our board are formal written opinions." High said there was no such formal written opinion in the Eldridge matter. High said that an oral, informal, advisory opinion is not binding on the board, and the rule states such oral opinions "shall offer no security" to the person seeking it.

The charges against Eldridge stem from a fight with Robert Fahey on Nov. 10, 1992, at Fahey's home. Fahey is the former boyfriend of Eldridge's deceased sister, Darlene. Darlene Eldridge died 11 days after the fight from injuries she received in a Nov. 1, 1992, fire at her home. Her death was ruled murder after the fire was determined to have been intentionally set.

At least one court document shows police considered Fahey a suspect in the murder of Darlene Eldridge.

Fahey said in an interview that he hired Cookeville lawyers Day and Knowlton as special prosecutors because he "wanted (Fabien) Eldridge put away."

Meanwhile, although Fahey and Eldridge blamed each other for starting the incident, Gibson's office facilitated Fahey's case but blocked Eldridge's attempt to bring charges against Fahey, the Eldridges allege, by denying Eldridge the opportunity to take his complaint against Fahey to the grand jury.

The facts of the case are these: Fahey testified that Eldridge burst into his home Nov. 10, 1992, while Eldridge's sister was hospitalized from injuries she received in a Nov. 1, 1992, arson fire. Fahey testified that Eldridge tried to cut his throat with a buck knife. He said Eldridge burst into the residence and started a fight with Fahey while Fahey was quietly watching television after a dinner of canned spaghetti.

The buck, or fixed-blade knife Fahey said Eldridge used was never found. But another one was.

Eldridge and another man, Michael Chambers, stated Fahey came after Eldridge with a kitchen knife. That knife was found. It had blood on it and it was taken as evidence.

A lab test of fingerprints and blood would have told who had been holding the weapon, and who had been cut. But during the investigation and months that followed, the knife disappeared. The blood and prints were never checked.

A jury found Fabien Eldridge guilty. He is appealing his 9 1/2 year sentence.

In the appellant's opening brief, Eldridge's lawyers raise the following issues:

• "In the absence of an effective waiver by the defendant, the state's near total abdication of control over his criminal prosecution to [Fahey's] private civil attorneys violated [Eldridge's] state and federal constitutional due-process rights, where [Day and Knowlton] were actively litigating a related pending civil lawsuit seeking a $3 million damage award, made a settlement offer to the defendant designed to settle the criminal and civil cases together, and engaged in a pattern of overreaching designed to advance their client's and their own financial interests.

• "The evident[]' misplacement' of [a] blood-covered knife . . . and their failure to notify the defense of the uniqueness of the knife violated the defendant's rights under the Tennessee Constitution's Law of the Land clause and the federal constitution's due process clause.

• "The trial court's jury instruction on attempted second-degree murder erroneously failed to inform the jury that specific intent to kill was a required element of the offense."

Eldridge's lawyers also allege that Knowlton and Day tried to shake down their client for $300,000 in exchange for reducing or dismissing the criminal case and as settlement in the civil case.

In conclusion, Eldridge's lawyers state: "Because the conflicting loyalties, interests and motives of the private prosecutors as manifested by their conduct throughout the criminal proceedings, has so infect[ed] the prosecution with the possibility that private vengeance has been substituted for impartial application of the criminal law, because the 'evident[]' 'misplace[ment]' of the bloody fourth knife deprived the defendant of highly material and potentially powerful exculpatory evidence, and because the jury instruction given by the trial court unconstitutionally diminished the mens rea [criminal intent] required to establish the offense for which the defendant was convicted, the defendant's conviction must be reversed."

Meanwhile, the state pointed out that another witness, Stacey Clouse, who lived near Fahey, "was awakened at about 10:30 p.m." on Nov. 10.

"He heard a car running and looked out," the appellate brief of the State of Tennessee says. "In the front yard of the apartment complex, he saw a man and a woman arguing. He went out into the front yard and saw a big guy who said he was going to 'kill the son-of-a-bitch.' The woman was crying. He saw the woman go back into the car while the big man went up on the porch. The headlights from the car were on. He saw a shiny object in the man's hand which he believed to be a knife anywhere from 5 to 8 inches long. The big man whom he later identified as [Fabien] Eldridge, gave no hesitation and went right into the door of the house in a forceful way, using his head and shoulder. There was a shorter man on the porch the entire time. He heard a commotion inside and heard Eldridge say, 'Bob, I'm going to kill you, you son-of-a-bitch.'

". . . When police arrived at the scene, they found Eldridge's wife in the street hysterical. When officers shined a flashlight into an open door of the victim's home, they saw Eldridge on top of the victim on the couch. Eldridge's [hand] was raised in a fist position. The officers told Eldridge to stop and he froze with his fist cocked back. The victim, Fahey, was covered with blood from the top of his head down past his knees. Fahey had lacerations on both sides of his nose. He had also been bitten on his nose and he was not wearing any [clothes] except underwear.

"Eldridge's wife kept saying something about Eldridge's sister who was dying and that she was trying to stop what was going on, that she did not know that this was where Fahey lived and that her husband was trying to get vengeance for what Fahey did to Eldridge's sister. Eldridge also told the officer that the court system wouldn't take care of anything so he would take care of it. He was talking about something that happened to his sister."

In its argument, the state says Eldridge has no right to contest the participation of Knowlton and Day in the prosecution because the prosecution was supervised by the district attorney's office, and because Eldridge did not contest their participation at the time.

"Eldridge, like any party, is simply not entitled to relief if he invited error, waived error or failed to take whatever steps reasonably available to cure an error," the state argues.

The state argues that "despite Eldridge's attempts to characterize this as a situation where the district attorney ceded all authority to private attorneys, that is simply not true. When Eldridge contended below that the district attorney gave up control to the special prosecutors, the trial judge held that [t]he Court finds just the opposite . . . . The affidavits and oral testimony of the district attorney and special prosecutors given in response to this motion, clearly indicates the district attorney maintained control over the prosecution of this case."

The state argues that "there is no authority directly on point to support [the] legal conclusion" that Eldridge's constitutional rights were violated by the special prosecutors representing Fahey in a civil suit.

"Further, since the State in fact controlled the prosecution of the case, particularly settlement negotiations, any interest of the special prosecutors based upon their financial interests was entirely ameliorated."

The state goes on to argue that failure to produce the lost knife did not violate Eldridge's constitutional rights, nor was the court's instruction to the jury on attempted second degree murder an error.

In Eldridge's reply brief, his lawyers argue that the criminal trial in Putnam County "was essentially a swearing match in which the prosecution's case rested almost exclusively on the questionable credibility of the complainant Robert Fahey."

Eldridge argues that witness "Clouse did not come forward with his story until over a month after the altercation, only after he had met privately with Fahey."

"Even then, Clouse chose to speak, not with the police, but with Fahey's private attorneys who had already been retained by Fahey to prepare the $3 million civil suit against [Eldridge]."

The brief goes on to suggest that Clouse had sought legal "advice" from Fahey's civil lawyers about defaulting on a car Clouse had bought from Eldridge's car lot.

Marshall Judd, the public defender who represented Michael Chambers, Eldridge's co-defendant in the case, told The Pit that the case was clearly riddled by prosecutorial misconduct.

First, Judd said, it was misconduct to allow Fahey to take his claims to the grand jury but to deny the same opportunity to Eldridge.

"I think it was misconduct," said Judd, a former FBI agent. "I think it's their right [to go to the grand jury]. To say one person can go and another can't is wrong. It's misconduct. To say we can pick and choose who goes to the grand jury is wrong.

"The grand jury is supposed to be an investigatory body, to subpoena, but the grand jury foreman allowed the district attorney to run the grand jury."

Judd said the case arrives at the appellate court's door step "with the presumption that everything has been done correctly. Fabien Eldridge has to prove it was an error."

Judd said the private prosecutors "exceeded their authority."

"Ben Fann allowed them to assume more authority than they should have had. I would say they substantially ran the case."

Judd said he agreed with the view that private prosecutors "are generally civil lawyers who are not familiar with the criminal law, and they frequently make errors."

He said Knowlton and Day "did a lot of the interrogation of the witnesses."

"They did a good job, but they may not have known a lot of rules."

But the state's position that Gibson's office was in control of settlement negotiations was news to Judd, he said.

"I can say [the private prosecutors] made a settlement offer of $300,000 to me to forward to Eldridge's attorney," Judd said.

"The state was never involved in the monetary aspect at all. That part was just not true."

Asked if the offer to settle the criminal and civil cases for $300,000 was extortion, Judd said "yes."

In an interview with The Pit , Eldridge said: "They been coming after me for four and a half years. I got a sister been dead four and a half years and nobody's investigating that, and here they've been prosecuting me because Bob Fahey's feelings got hurt. Along the way here, somebody's got to grow up."