Should Judge Leon Burns and DA Bill Gibson resign?
The appellate court found Gibson's office had relinquished control of the case to private prosecutors hired by the victim, Robert Fahey. The opinion noted that the private prosecutors tried to get $300,000 for their client in return for reducing the criminal charges against Eldridge. The Pit has verified this independently with two witnesses to the offer, Michael Chambers, Eldridge's co-defendant in the case, and Chambers' lawyer, Marshall Judd of the state public defender's office, who got Chambers acquitted.
The appellate opinion written by Judge Joe Riley outlines so many abuses in the prosecution that if the state intended to make Eldridge stand trial a second time "I'd hope the district attorney general will also recuse himself," said Frank Buck, one of Eldridge's appellate lawyers.
On May 16, Buck told The Pit, Burns called him to say he was recusing himself. That means if the state wants to try Eldridge again it will have to go to a different judge. Contacted at home that evening, Burns refused to answer questions about whether or why he had recused himself.
Recusal means disqualification "because of self interest, bias or prejudice," according to Black's Law Dictionary.
"I told Mr. Buck what I had to tell him, and do not feel it necessary to comment further," Burns said.
Gibson said he appointed Cookeville lawyers David Day and Michael Knowlton private prosecutors because his office was "too busy" to prosecute the case. However, Knowlton and Day also represented victim Fahey in a civil suit against Eldridge for the injuries he received in a November 1992 fight in Fahey's residence. That is the fight for which Eldridge's attempted murder charge arises. The prosecutors therefore had a monetary interest in the outcome of the criminal trial and lacked impartiality, the opinion said. Knowlton and Day stood to make as much as $1 million in contingency fees in the civil case.
Gibson acknowledged that he knew Knowlton and Day had the civil case, but said he thought that would make them up to speed on the facts and therefore good prosecutors.
In the appeal, the state argued that Gibson's office contacted the Board of Professional Responsibility, the ethics watchdog of the legal profession in Tennessee, to ask for its blessings on the appointment. However, the board has to date found no record of such a contact. Charles High, a prosecutor with the board, said there was no written opinion, and only written opinions carry weight.
Alan Dershowitz, another of Eldridge's lawyers, has written the board to see if the contact took place. The defense lawyers find it unbelievable that the board would approve of the appointment of private prosecutors who also had a stake in a parallel case.
Judge Burns signed the appointment order but Eldridge's lawyers were not informed until days before the trial, according to Eldridge's appeal, implying there was improper ex parte contact between the prosecution and the judge.
"We thought the court [of criminal appeals in Nashville] would have no trouble seeing what happened here," Buck told The Pit.
Buck said the state denied there was ex parte communication between the judge and prosecutors.
Asked if he believed Judge Burns' denial of a one-sided meeting, Buck said: "Judges don't go around signing court orders without talking to someone."
"I think that any fair reading of the federal cases that were cited would lead someone to a different conclusion."
Now, the state must decide whether to appeal the appellate court's unanimous opinion, which it can do within 60 days of the opinion. The state also must decide whether the facts of a case that Gibson's office was too busy to prosecute the first time around now warrant his resources and a retrial. That will be a tough decision for Gibson, whose term expires next year.
But the facts are not the only thing on Gibson's mind. Eldridge is suing Gibson and the others for alleged civil rights violations in the prosecution. Because the appellate court found the prosecution violated Eldridge's due process rights, the state may retry Eldridge in hopes of getting another conviction or bargaining in an offer to drop a second prosecution in exchange for dropping the civil rights case.
"That's extortion again," Eldridge said. "I'm taking this to the end. I ain't dropping nothing. If they're going to try me again, then come on."
Buck, who is chairman of the state legislature's Judicial Committee, said "The quality of the court system is always governed by the quality of lawyers."
"Obviously, this was not a close case. This was not a case the court should have trouble with. If we old timers in the bar don't stand up and raise the roof, then who's going to?"
This case and the behavior of Gibson, Burns, Knowlton and Day has shined such a disgraceful light on Putnam County justice that when Eldridge's mother went to Harvard and knocked on Professor Dershowitz's door, he signed on.
"Mrs. Eldridge is very persuasive," Dershowitz told The Pit, and although he only takes four or five appeals of the thousand or more he is asked to look at each year, the case of the Cookeville used car dealer made the cut.
Now, some are wondering whether recusal of Burns and Gibson is enough? Should prosecutors and judges resign when appellate courts find they have abused their authority and the law?
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