Capitol Notes

Capitol Notes | Peggy Sue, the Beagle Hound

Seventeen Percent Solution. Our humans were not good to vote during the August election cycle. 17% voted across the state. Election officials are not good to tout low turnout elections. Winning candidates are just grateful for the majorities or pluralities they received from the engaged 17% who did vote, while losing candidates wonder how they may have motivated the apathetic 83% who did not.

November General Election. Tuesday, November 8, 2022, is the date for the general election for governor, all state house seats, the odd numbered state senate districts, and the nine federal house seats. Most interesting to date, is the newly drawn Fifth Congressional District where Andy Ogles (R) of Maury County faces Heidi Campbell (D) of Davidson County. We also have four state constitutional amendments on the ballot. All four may well pass, but Amendment One, with its Right to Work issue will generate the most conversation. Early voting for the November 8 election runs from Wednesday, October 19, through Thursday, November 3. Please ask your humans to vote. Their engagement affects all of us.

Wag of the Tail. We have a new State Attorney General, Joseph Skrmetti. His eight year term began on September 1, 2022. Congratulations are in order. Also a thank you to Herbert Slatery, III whose term as State Attorney General ended on August 31, 2022. We are grateful for the service of these two gentlemen. n

PEGGY SUE is fond of the classic 1957 Buddy Holly song. When hunting legislative news or biscuits, she is hard to contact.

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Hal Hardin carrying Gourley’s clothes from the courtroom.

They were a short distance from the dealership when the car, stopped for a traffic signal or four-way stop, was attacked. Depending on what version of Powell’s story you believe, the incident occurred at the intersection of Elm Hill Pike and Fesslers Lane or Elm Hill Pike and Spence Lane. A black man supposedly opened the back passenger side door of the Chevy, jumped in, and demanded money. Powell, who knew Gourley carried his wallet in his left rear pocket, said Gourley reached into his suit coat pocket as if he was going to take out a billfold. The assailant appeared to think Gourley was going for a pistol, so he pulled a pistol of his own and fired four, possibly five, shots. One went through the seat in which Gourley was sitting. The bullet hit him in the back. Gourley turned to face the shooter and was hit in the chest, and finally there was a shot to the mandible. Two of the three shots were lethal wounds. Powell was hit in the calf of the leg, but said he was unaware of the wound.

The assailant left Gourley’s billfold in the back seat without taking any cash from it. There were two $100 bills folded inside. The assailant ran rather than follow through with the robbery. Powell said the man jumped from the car while it was moving and fled. The closest hospital was General Hospital, and it had an Emergency Room famous for being the closest thing to a trauma center Nashville had in 1968. Instead, Powell drove back to the dealership at high-speed, arriving with the horn honking. He got out of the car and collapsed to the ground. This is when he first realized he was wounded.

Ambulances were called for both. Gourley was transported to General Hospital where he died. Powell went to Vanderbilt. The story of the holdup (today it would be called a carjacking) told by Powell had a few holes in it. There was the provision in the contract between Capitol and General Motors that gave Powell the right to succeed to the franchise in the event of Gourley’s death.

In addition, there was a construction worker at the nearby Kroger warehouse, who said he saw a black car stop and two men get out. They were talking. One man opened the trunk of the car. The other returned to the passenger side front seat. The first man, supposedly Powell, took something from the trunk and got in the back seat. Shortly thereafter, something that sounded like four gunshots rang out. The man in the back seat got out of the car, moved to the driver’s seat, and drove away.

Powell was indicted for first degree murder. Jury selection concluded and the trial began July 21, 1969. It had taken 117 candidates to fill the box. Criminal Court Judge Allen Cornelius presided. The supposed eyewitness was destroyed on cross examination. A .38 caliber pistol, the correct caliber to have been the murder weapon, was discovered months after the shooting by a man looking for bottles on a construction site in the neighborhood. The barrel was stuck into the ground. The pistol had rusted badly and proved worthless for ballistics analysis. But to add more spice to what was already high drama, the pistol was traced to a former Capitol employee, Robert O. “Bob” Frensley, who said he had given it to Powell. When Powell took the stand and told his story, he denied having anything to do with the pistol.

The presentation of forensic evidence was in its infancy in 1969. Powder residue could not be found on Powell’s pants or the calf of his leg where the bullet entered. Could he have shot himself while holding a pistol far enough away from his leg to get this result?

After ten days of trial, all of Nashville was awaiting the press accounts and the transcript of the closing arguments. District Attorney Tom Shriver led off for the prosecution. His presentation lasted an hour and was an item-byitem recap of the facts blended with the prosecution’s theory of the case. There were no theatrics, but that is what Jack Norman Sr. and John Hooker, Sr. were

(continued on page 29)

John Jay Hooker, Sr. & Jack Norman, Sr walking the halls of the courthouse.

there for. Hooker in particular was noted for his eloquence in argument. Without question, when he got on a roll, he could sway a jury. His wife told friends he practiced his final argument for ten hours before her and a mirror. He was ready.

Following Shriver’s summation, Judge Cornelius called a five-minute recess. When the jury returned to the courtroom, Cornelius looked to the defense table and said, “Alright, what says the Defendant?”

Jack Norman, Sr. stood and said, “Charge the jury, your honor.”

Norman, an attorney with great oratorical skill and also a trial lawyer with an ego, made the sacrifice. He jettisoned his argument in order to block his old adversary from the lectern. Hooker was silenced.

Nashville’s trial of the century ended a few hours later with a “not guilty” verdict.

If you found this story interesting and would like to learn more about it, make sure to save the date for the NBA’s Historical CLE on November 3 at the Nashville Public Library.

JOHN C. MCLEMORE represents both debtors and creditors and is best known for his work as a bankruptcy trustee. He is admitted to practice in federal and state courts in Tennessee as well as the US Sixth Circuit Court of Appeals. McLemore is also well known among the local law community as a photographer for NBA events, documenting the people, places, and events that comprise Nashville’s Legal History.

Below: Courtroom sketch of Shriver addressing the jury.

Battle of the Pros iPad Pro 12.9 vs iPad Pro 9.7

We love to buy gadgets as soon as they hit the market. We are fully aware that you pay extra for being an early adopter. Guess we enjoy being broke (and also being the first kids on the block with the new toy). So, it should come as no surprise that we bought Apple’s big screen 12.9 iPad Pro as soon as it hit the market.

The iPad Pro 12.9

We must admit, we were a bit disappointed when we started fooling with it. Yes, the iPad Pro 12.9 was the biggest, fastest Apple tablet ever made. You can buy a really nice keyboard to go with it, and we did. You can also buy a pressure-sensitive stylus/pencil to take notes, sketch, and really create great art. We bought that too. The giant screen is beautiful, and the quad speakers are incredible. The large screen really works well with split screen apps that are now available in the new iOS 9 series. You can watch movies on the right-side of your screen and edit documents on the left, for example. In other words, you can play and work at the same time; which we don’t necessarily recommend but do occasionally enjoy.

But, we were not as overjoyed with our new pricey toy as we thought we would be. First, by the time we added additional storage, a cellular modem, a Bluetooth keyboard, and the pencil, the price tag was creeping up north of $1,200. For that price we could buy a very nice fully functional laptop (keyboard included). In addition, the large size makes the iPad Pro 12.9 seem less portable. Its size almost defeats the purpose of having an iPad. (At least we felt that way after we bought it.) The 12.9” display is so large you really need to carry it in a laptop bag, and it just does not have the portable, compact feel that made the original iPad and its successors so popular. So, while the iPad Pro 12.9 is powerful and has a great deal of potential—especially for graphic designers and media creators— it is not a laptop killer in our opinion.

The iPad Pro 9.7

We’re not sure if the Apple execs heard our complaints about the 12.9 iPad Pro, but we took it as a nod in our direction when they subsequently announced a smaller iPad Pro, the 9.7. Gadget nerds like us and our money are soon parted. So, when the new iPad Pro 9.7 became available, we had to buy one immediately, as well. And, as usual, we were excited in anticipation of delivery of our new gadget. We were certain that the new, smaller iPad would be more portable and more in line with the iPads we had come to know and love, while providing all the “Pro” advantages. Unfortunately, we had become spoiled. After using the iPad Pro 12.9, the screen on the 9.7 seemed tiny (yes, we know we complained that the 12.9 was too big; forgive us for being tech divas). With the 9.7 we began to feel like we were just looking at an iPhone screen. In fact, it was very hard to tell the difference between a regular iPad or iPad Air 2 and the iPad Pro 9.7. Yes, the iPad Pro 9.7 has a faster, more power processor than the iPad Air 2. Yes, Apple has updated the iPad Pro

years, when a new crop of judges is elected. However, the judicial conference does offer a shortened training for judges like Judge Smith, who are appointed to fill vacancies created outside of an election year. Those judges are also invited to attend the next election-year training.

Besides this training for new judges, the judicial confer- cameras. Yes, you can take great selfies ence meets three times each year, gathering judges from and great pictures with the high-resolution across the State to network, ask each other questions, pro- camera that comes with it. Yes, you can vide instruction, and attend CLE classes. And the judicial even record videos in 4k resolution. conference provides a helpful “bench book” with a lot of help- Nevertheless, for just regular users ful information for all sitting judges. The 2022 edition was just it is very hard to tell the iPad Pro 9.7 recently released. apart from the iPad Air. The displays are

One more helpful resource for the new judge is the Ad- nearly identical. They run the same softministrative Office of the Courts. The AOC is designed to as- ware. They use the same apps. There sist in the “administration of the state court system,” and it is just does not seem to be a great advantasked with a number of administrative duties related to that tage to having an iPad Pro 9.7 versus task—such as creating a budget for the state court system, having a regular iPad (especially the providing law libraries for the trial courts, and preparing an sleek iPad Air 2). “annual judicial education plan” for all elected and appointed judges, maintaining statistical information, and implementing an integrated case management system.5 So, returning to your first question—the AOC is probably your best bet to provide information about salary. The AOC also maintains a helpful website (www.tncourts.gov) that has a password-protected area that includes past judicial training sessions, as well as funding for some judges to attend a national judicial conference, though that funding is limited. iPad Pro 12.9 v. iPad Pro 9.7 Returning to the comparison of the iPad Pro 12.9 to the iPad Pro 9.7 (yes, we got a bit sidetracked), we believe the iPad Pro 12.9 is actually a superior product. The high resolution and the four-speaker system take greater advantage of the faster processor and superior display on the iPad Pro models. In addition, you The AOC may be the most reliable resource when looking for have more screen real estate to use answers to your many questions. the split screen feature that is bundled

So, young Judge, you can find the answers you seek by into iOS 9—now 9.3.1. Of course, you looking for guidance from your new colleagues, taking the can use the split screens feature on any instruction provided by the judicial conference, and relying on iPad, but it just works better on the largthe professional assistance available through the AOC. er screen. Th e bottom line is that while

This article represents the opinions of the author and the 12.9 iPad Pro is a bit more cumbernot necessarily those of the Office of the Tennessee Attorney some to carry, you get spoiled once you General and Reporter. have used the larger screen. You do not want to return to a smaller iPad model. JONATHAN WARDLE is an Assistant Attorney Gen- So, in our opinion, the iPad 12.9 is the eral in the Criminal Appeals Division of the Office of winner (but barely) over the iPad Pro 9.7 Tennessee Attorney General, serves on the NBJ Edi- or just a regular iPad. But, here is a word torial Committee and is a Fellow of the Nashville Bar Foundation. to the wise and thrifty. If you are not a spendthrift like us, our best advice is to Endnotes 1 See Tenn. Code Ann. § 8-23-101(d)(3). buy neither “Pro” model and stick with an iPad Air 2. Save your money. n

2 See Tenn. Code Ann. § 16-2-505(c); See also Tenn. Code Ann. § 17-1-401(a), -402(A). 3 In the larger counties, like Davidson County, the local government pays an additional supplement to enhance each secretary’s salary beyond just the State-funded wage. See Tenn. Code Ann. § 17-1401(b). 4 See Tenn. Code Ann. § 17-3-101, 102. 5 See Tenn. Code Ann. § 16-3-803.

Mark Your Calendar

Oct 8 | 2022 Habitat for Humanity Build

Oct 20 | Cocktails for Costumes @ Bastion

Nov 17 | Fall Memorial Service @ Downtown Presbyterian Church

Dec 8 | NBA Annual Meeting & Banquet @ Music City Center