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Featured Liberty and Justice NewsTracker

No DNA Collected from DUI Suspects Under ‘No Refusal’ Law: State

The blood samples collected from suspected drunk drivers under a new “No Refusal” law are not added to a national DNA database used by prosecutors, according to Tennessee state public safety officials.

“Blood samples obtained by a search warrant from a suspected DUI offender are tested for blood alcohol content only,” Department of Safety Spokeswoman Jennifer Donnals said via email. “Those blood samples are not used for any other purpose and are NOT placed in a DNA database.”

“There’s no DNA ever run on those,” said Kristin Helm, spokeswoman for the Tennessee Bureau of Investigation. “I can assure you that’s not the case.”

The state this summer began enforcing a new law that allows cops to seek a warrant to compel people accused of driving under the influence to involuntarily give up a blood sample if they refuse a Breathalyzer or blood test.

State troopers forced eight people to submit to blood tests over the Fourth of July holiday weekend during the first test of the new law, DPS said.

A judge on-site issued warrants requiring the sobriety tests of the drivers, who had initially refused. Another 40 people stopped in Anderson, Bradley, Davidson, Maury and Warren counties submitted to the tests without a warrant. The results of those tests are not yet available.

State officials say the blood collected will not be used to bolster the national Combined DNA Index System, known as CODIS, a database to which Tennessee adds tens of thousands of DNA profiles each year in an attempt to help prosecutors levy charges against crime suspects.

Not least among the reasons is it would be unlawful to do so.

Officials can only collect and keep DNA information from convicted felons and people accused of committing or being a party to a “violent felony,” such as aggravated assault and carjacking. This year, lawmakers added that people charged with five additional crimes would also have to give up DNA samples, including various homicide and manslaughter charges.

Lt. Gov. Ron Ramsey in 2011 wanted to expand that list to all felonies, like large-scale theft and drug crimes and DUIs, but the measure went nowhere.

The state collected 14,586 DNA samples from arrestees and 13,778 samples from convicts in the year ended June 2011, according to the TBI. The TBI handles DNA evidence for the major crimes that make it into CODIS and is in charge of examining blood work to measure alcohol or toxicity of DUI suspects.

The statements from TBI and Safety spokespersons conflicted with that of Safety Department Commissioner Bill Gibbons. The TBI is independent of his department.

Gibbons, a former Memphis district attorney, told TNReport on July 17 that the state does retain a database of DNA records for people accused of driving under the influence. “The state does have DNA records on many individuals, and you can run those results, and it really helps in terms of investigating a particular case, and I again, I think it’s to the advantage of everybody,” Gibbons said. And when asked specifically if the state retained a database of DNA records of people accused of DUIs, he said, “Yes, but how long it’s retained, I don’t know the answer to that. But yes, there is a database, so to speak, of that.”

Howver, that’s not accurate, Donnals said later. “I think Commissioner Gibbons misunderstood your question, and I wanted to make sure you had the correct information,” she said via email later the day of the interview.

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Press Releases

TBI: Crimes at Schools Down 5.5% In Last Year

Press Release from the Tennessee Bureau of Investigation; May 9, 2012:

Study Shows Crime Decreased from Previous Year

Nashville, Tenn. – The Tennessee Bureau of Investigation today released its annual study dedicated to crime in Tennessee’s schools. Produced by TBI’s Crime Statistics Unit, the study spans a three-year period between 2009 and 2011 and is based on numbers submitted by Tennessee law enforcement agencies to the Tennessee Incident Based Reporting System (TIBRS). The state’s first ever school crimes study was released in May of 2009.

The reported number of crimes that occurred at schools decreased by 5.5% from 2010 to 2011 and there was an overall decrease of 6.7% between 2009 and 2011. There were 12,435 crimes reported at schools in 2011 compared to 13,155 in 2010. This report is based on incidents submitted by law enforcement agencies and excludes offenses reported by colleges and universities. Those statistics are compiled in TBI’s “Crime on Campus” report that was released earlier this year.

“School Crimes Report” Quick Facts

  • 2.2% of all crimes reported in the state occurred at a school.
  • Simple assault was the most frequently reported crime at 4,593 offenses.
  • Crimes against persons decreased by 4.3% and crimes against property decreased by 8.2%.
  • More crimes occurred on Friday than any other day of the week and most resulted in no injury to the victim.
  • 47% of the time, the relationship between the offender and victim was acquaintance.
  • The most reported arrestee gender was male at 73%.

It is important to understand the characteristics surrounding school crime and its offenders and victims. This understanding will help schools, policy makers, law enforcement and the public learn how to better combat crime that occurs at these institutions. To view the “School Crimes Report” for 2011 in its entirety, go to the TBI website at www.tbi.tn.gov. Click on “Crime Statistics” from the homepage, then click on the “Statistical Analysis Center” fly-out. The study is listed under “Specialized Reports” on the Statistical Analysis Center webpage.

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Press Releases

TBI: Hate Crimes Up 51% in Tennessee Last Year

Press Release from the Tennessee Bureau of Investigation; April 27, 2012: 

Nashville, Tenn. – The State of Tennessee saw an increase in the number of hate crimes committed in the state and a decrease in the number of law enforcement officers killed or assaulted for the calendar year 2011, according to the Tennessee Bureau of Investigation’s statistical analysis of Tennessee crime statistics and the compiling of two separate, annual reports. Today, the TBI released both “Tennessee Hate Crime 2011” and “Tennessee Law Enforcement Officers Killed or Assaulted (LEOKA) 2011” based on required monthly reporting of local law enforcement agencies crime statistics across the state.

Bias motivated offenses were up nearly 51% to 261 offenses reported in 2011 compared with 173 in 2010. Prior to 2011, a three year analysis of hate bias offenses showed a decline every year between 2008 and 2010. There were 1,810 LEOKA incidents reported in 2011 compared with 1,854 in 2010, a 2.4% decrease.

Hate Crime 2011 Highlights

  • Reported victim to offender relationships revealed that approximately 58% of hate crime victims knew their offenders.
  • About one in every three reported hate crimes were racially motivated at 36.5%.
  • In 2011, males were victimized 5.5 times more often than females and intimidation was the most often reported crime against persons with 60 offenses.

LEOKA 2011 Highlights

Of the 245 Tennessee agencies who reported LEOKA incidents for 2011, three reported officers who were feloniously killed in the line of duty. The Chattanooga Police Department, Dickson County Sheriff’s Office and Memphis Police Department all lost an officer in 2011.

A total of 1,637 LEOKA incidents were cleared resulting in a 90% clearance rate and 88% of those incidents were cleared by arrest.

The most frequently reported weapon type used was personal weapons (hand, fists, feet) at 63%.

Firearms were reported more than 10% of the time which is a 0.7% increase from 2010.

Full copies of these reports can be downloaded from the TBI website at www.tbi.tn.gov. From the TBI homepage, scroll over the Crime Statistics button for a fly-out link to the Statistical Analysis Center webpage. Scroll down the page to find the separate 2011 Hate Crime and LEOKA reports. Additional information can be acquired at www.tncrimeonline.com.

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Featured Liberty and Justice Transparency and Elections

Lawmakers Not Soon Likely to Open TBI Files

State legislators have expressed support for open Tennessee Bureau of Investigation files in theory, but seem less inclined to drum up an effort toward that end in the near future.

While investigative agencies in some other states allow such files to be opened, TBI case files are exempt from Tennessee’s Public Records Act. TNReport interviewed several lawmakers on the matter Tuesday as part of our effort to raise awareness for Sunshine Week.

The most recent source of focus on the issue is the case of former Knox County Criminal Court Judge Richard Baumgartner. The fallout from revelations about the former judge’s drug and alcohol addiction, and his efforts to satisfy those vices while on the bench, led to his disbarment. One of the state’s most infamous cases – that of the rape, torture and murder of Channon Christian, 21, and Christopher Newsom, 23 – is likely to be retried. More retrials could follow.

Throughout the saga, the Knoxville News Sentinel editorial board has repeatedly called for increased transparency, including the opening of TBI files in the Baumgartner case and in general.

The Knox County Commission is considering a resolution — sponsored by its chairman, Mike Hammond — that would ask the Legislature or the governor to take steps to open TBI’s full Baumgartner investigation file to public review. On Feb. 27 Hammond postponed a vote on the resolution for 30 days to see if the judge handling the file would order it be made public.

Special Judge Jon Blackwood said last week that he had “no authority whatsoever” to release what is believed to be over 1,000 pages of the TBI’s Baumgartner case file. Blackwood did release 155 pages of the file in December, but said Friday that if the rest of the file is to be released, the “ball is in the state legislature’s court.”

But legislators aren’t particularly eager to touch the issue, either.

“The push has been there, but you have a judge that has ruled, ‘No, we’re not going to release it,’ and so far, the way our government is set up, when a judge declares something it’s a little hard to overrule that,” said Knoxville Republican Rep. Bill Dunn.

In the case of the Baumgartner file, Dunn said he does favor bringing the entire file to light, eventually.

“Sometimes you get into legal questions, which is beyond my expertise,” he said. “But as a citizen and someone who’s going to be paying all those extra taxes for what happened because of what Judge Baumgartner did, it seems it needs to be released, at least as much as can be released, and then over time we need to see 100 percent of it.”

Aside from the Christian/Newsom case, it’s unclear how many challenges and retrials will result from the legal tree poisoned by Baumgartner’s misdeeds, the News-Sentinel reported last month.

(According to prosecutors) Baumgartner presided over 54 trials during the three years a Tennessee Bureau of Investigation probe showed he was committing crimes related to prescription drug abuse. In that same time period, he handled thousands of pleas, sentencings and probation violation hearings.

Rep. Tony Shipley, R-Kingsport, said he’s “absolutely” in favor of open TBI files and has indeed called for the release of one with his name on it.

Last June, the TBI launched an investigation to determine if Shipley and Rep. Dale Ford, R-Jonesborough, had exerted improper influence over a state nursing board that had disciplined three nurses from their region of the state. No evidence of wrongdoing was found, and no charges were filed.

In January, Shipley told TNReport that he planned to push for a House committee to subpoena the case file. He has not followed through on that pledge.

Now, he said, his duties in the legislature come first, but at some point he will return to the issue of the file, which he said contains the identity of someone who committed a felony by filing a false report.

Of the Baumgartner case, Shipley said he favors openness as a means for holding all public officials to an equal level of accountability.

“Admittedly, I am not as familiar with [the Baumgartner case] as I am this other one. I think if the legislature asks for something, they need to be forthcoming,” he said. “We have detected missteps by the judiciary, we have detected and discovered missteps by the district attorneys and so on and so forth. And they need to be just as accountable to the people as we are.”

Gov. Bill Haslam, formerly the mayor of Knoxville before assuming Tennessee’s highest elected office, told reporters Monday that he didn’t know enough about the details of the Baumgartner case to have an “educated opinion,” and that his feelings on increased transparency with regards to TBI files are balanced by the interests of law enforcement.

“My sense is, whenever there’s information that would be helpful to the public, if there’s not a real reason not to, that should be open,” he said. “But I also realize there’s issues and times with law enforcement when there are really good reasons to keep that information until the whole legal process is worked through.”

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Featured Health Care Liberty and Justice Transparency and Elections

Shipley Wants TBI to Release Records in Probe of Lawmakers

State Rep. Tony Shipley said he plans to push for a House committee to subpoena the Tennessee Bureau of Investigation’s files in the recently concluded inquiry into legislative actions by Shipley and Rep. Dale Ford.

Shipley and Ford were subjects of a TBI probe into whether they had exerted improper influence over a state nursing board that had disciplined three nurses from their East Tennessee area. This week Davidson County District Attorney General Torry Johnson announced that he had found no evidence of any crime and would not pursue charges against the two lawmakers.

Shipley, R-Kingsport, said he would use the House Government Operations Committee, on which he serves as secretary, to seek the files. He would need the support of a majority of the members, and Shipley said he would try to enlist one of them to introduce the matter.

But lawyers for the committee cast doubt on the likelihood of getting the records. Legislative subpoenas are rare, they said, and with TBI pushback the matter could end up in court before any documents were released.

TBI files are among the most secretive documents in Tennessee.

They are exempt from the state’s Open Records Act, a fact which has drawn renewed attention of late, especially with regards to the TBI’s investigation of Richard Baumgartner, a disgraced and disbarred Knox County Criminal Court judge who was abusing drugs and engaging in other illegal activity while presiding over cases.

In the wake of TBI revelations that Knox County court employees and other judges, as well as prosecutors in the Knox County District Attorney General’s Office, may have witnessed Judge Baumgartner engaging in ethically suspect or illegal behavior and did nothing about it, the Knoxville News Sentinel editorialized in favor of the public gaining access to TBI files once an investigation is wrapped up.

“Lawmakers should show courage…and side with the public and its right to know about closed police investigations by eliminating TBI’s exemption from the Public Records Act,” the News Sentinel editors wrote last month.

However,  state law already gives committees from either chamber of the General Assembly the power to subpoena all government records. According to state law, “investigative records of the Tennessee Bureau of Investigation shall be open to inspection by elected members of the general assembly if such inspection is directed by a duly adopted resolution of either house or of a standing or joint committee of either house.”

Once a committee obtained the files, Shipley said it would be his intention to make them open to the public.

“There’s nothing I do here that’s not completely aboveboard or open to the public,” Shipley said. “If I bring it to committee, at that point, I don’t have to call for anything. (It’s) wide open.”

Ford, R-Jonesborough, said he doesn’t care who sees the file, either.

“If you didn’t do anything wrong, why should you care if everything’s made public,” he said. “I couldn’t care less. But it better be the truth, I can tell you that.”

Shipley has turned his ire on Johnson, who said the lawmakers used “particularly heavy-handed” political pressure.

“I’m a huge supporter of the TBI. I’m a huge supporter of district attorneys. I’m a complete law and order kind of guy,” Shipley said. “But even in those organizations you can have jerks that get in there and mess with the constitution because they think they can. And they can’t.”

The TBI launched the investigation last June to determine if the two legislators and employees of the state’s Health Department had committed any crimes, including official misconduct and false reporting, and whether the lawmakers had improperly pressured the Nursing Board to reconsider its decision to discipline three nurse practitioners.

The nurses had been accused of over-prescribing medication at the Appalachian Medical Center in Johnson City, which has since been closed. Shipley and Ford through legislation attempted to shake up the nursing board and its oversight, and raised the specter of doing away with the board altogether. Ford had family ties to an employee and patient at the center.

The board eventually reversed its action against the nurses, though a TBI investigation into their actions remains open.

On Monday, Johnson announced that the state would not prosecute the two legislators. In a statement, he called the case one of “political hardball, but not political corruption.”

Shipley characterized the district attorney’s actions and criticism as a breach of the separation of powers, and the handling of the nurses’ case an “abortion of justice.”

“It is completely inappropriate for them to have stuck their hands into the legislative box,” Shipley said. “The DA made a statement: No criminality found. He should have stopped right there.

“His next comment was totally inappropriate: ‘Heavy-handed politics.’ Well, what was heavy-handed was the TBI’s DA-directed investigation that was blown from Mountain City to Memphis. That was heavy-handed.”

Shipley said he may initiate a legislative probe into where the allegations came from and whether charges could be filed against the individuals responsible for them.

He said the charges of official misconduct should have been seen as baseless from the beginning, because the three criteria for such a charge were impossible in his case. He said there couldn’t have been money or sex exchanged for a vote, because no vote was taken, and that no one’s employment could have been threatened, because he doesn’t have the power to fire anyone on the Nursing Board.

Gov. Bill Haslam recently announced he wants a review of Tennessee’s 22 state boards and commissions. In a statement outlining his 2012 legislative agenda released this week, Haslam expressed his desire to “eliminate duplicative functions and provide more accountability and oversight of these agencies.”

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NewsTracker Transparency and Elections

Harwell: Using Legislation as Influence is ‘Wrong’

Speaker Beth Harwell said she has never used legislation to pressure a department or committee to do what she wants, and that anyone who has would be in the wrong.

The Nashville Republican was responding to questions Wednesday about what she knew about Reps. Tony Shipley and Dale Ford’s involvement in getting the state Nursing Board to reverse its decision to discipline three nurses accused of substandard care contributing to the death of two patients.

“We certainly don’t want in any way (to) appear abusive, and I don’t think that was anyone’s intent, and if it was, they were wrong,” said Harwell.

“I don’t know the particulars of it. I made a point not to know the particulars of it. If they have done something that is wrong or is inappropriate or unethical, they should receive punishment for it, but I don’t know that they have.”

Harwell refused to offer specific comment about the allegations because the issue is under investigation by the Tennessee Bureau of Investigation, although she said she’s not been contacted by the agency.

TBI launched an investigation June 22 into members of the General Assembly and employees within the state Health Department to determine if they had committed any crimes, including misconduct and false reporting, in pressuring the Nursing Board to revisit their decision to discipline the nurses. The complaint sparking the investigation came from District Attorney General Torry Johnson.

“TBI is currently ascertaining the facts surrounding the Board of Nursing reinstating the licenses of three nurse practitioners after two state representatives expressed an interest in the nurses getting their licenses back,” TBI spokeswoman Kristin Helm said in an emailed statement.

The department has been investigating the nurses involved, Bobby Reynolds II, David Stout Jr. and Tina Killebrew. The case began as an over-prescribing case in Johnson City and evolved into a death investigation, according to Helm. She said that case file is now being reviewed by District Attorney General Tony Clark’s office.

Shipley and Ford this year supported legislation to block the Nursing Board’s renewal, create a committee to oversee the board and reduce the number of members on the board in what they say were attempts to get the body to reconsider actions taken against the three nurses, who were accused of over-prescribing medication relating to the deaths of three patients at the now defunct Appalachian Medical Center in Johnson City.

According to the Kingsport Times-News:

In May, Shipley said that as an officer of the Government Operations Committee, he “took the position of blocking the extension of the board,” until they agreed to listen to their argument. He said a yearlong battle ensued before the board finally agreed to take another look at the evidence. During the last three or four months of that period of time, Shipley said he had someone from the Department of Health in his office – from the legislative coordinator “all the way up to a deputy commissioner” – engaged in “sometimes heated discussion” toward that end.

In April, Shipley advocated a House amendment to reduce the number of nursing board members and require having seven board members present before issuing a summary suspension.

Ford elaborated to the newspaper, saying he too has nothing to hide:

“It all stemmed from one thing: I wrote a bill to put in an oversight panel and when they issue a major fine or major penalty of any kind to close your doors, we would look at both sides of the evidence. (The nursing board) said if I would pull that bill they would reconsider the summary suspension on Bob Reynolds, and the state of Tennessee had 38 summary suspensions,” said Ford.

“They reconsidered that and I withdrew my bill. They can come after me all they want. They are welcome to investigate any aspect of my life,” he said. As of Tuesday morning, Ford said he had not heard from the TBI.

Both legislators spoke at length with WCYB News Channel 5 in the Tri-Cities area. Extended video interviews with Shipley can be viewed here, and Ford’s interview is here.

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Liberty and Justice NewsTracker

Reports of Crime Down Statewide, Up In Nashville

While reports of crimes dipped statewide in 2010, crime in Nashville rose, especially sex crimes and burglaries, the Tennessean reports today. The Tennessee Bureau of Investigation released the crime numbers comparing 2010 to 2009 based on surveys from local law enforcement across the state.

From the Tennessean:

While the state and nearby Middle Tennessee counties saw general declines, Nashville saw a slight overall increase, including a 37 percent jump in all reported sex crimes and a 21 percent jump in burglaries, a crime that has stymied police. …

Nashville’s neighborhoods in late 2010 were under siege from brazen burglars who would break in during broad daylight, clean out homes and be gone before alarms or neighbors could alert police.

“The TBI said that 2010 was the third year in a row that reported crimes fell compared with the year before,” the AP reports.

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NewsTracker Transparency and Elections

Portions Of Autopsy Report To Be Withheld: Monroe County DA

The autopsy report of slain Monroe County Election Commissioner Jim Miller was released Friday to Monroe County’s top prosecutor, but the DA says he will not yet make the report public.

The announcement comes two days after the Knoxville News Sentinel reported that medical examiner Christopher Shamblin repeatedly ignored the paper’s open records requests for the report.

Miller’s body was discovered inside a burning vehicle on July 17 in a rural area in Monroe County. He had been shot to death, and his body was found after a deputy spotted Miller’s car ablaze.

Autopsy reports are considered public record. However, Monroe County District Attorney General Steven Bebb told TNReport on Friday that state law allows courts to withhold the reports from public view.

“Due to the nature of the investigation, there are facts that cannot and should not be released at this time,” Bebb said in a press release. “It would be unfortunate if an investigation into the death of a citizen was compromised by the untimely release of information.”

Bebb, who asked the Tennessee Bureau of Investigation to work the Miller case, said his office would be going to court to prevent disclosure of at least some of the autopsy report.

“The remainder of the autopsy report that will not jeopardize the investigation will be promptly provided to any media outlet that requests access,” Bebb said in the release.

The Knoxville News Sentinel made the public records requests to Shamblin on Oct. 15 and Nov. 1. The State Office of Open Records Counsel told the paper that Shamblin was in apparent violation of state open records laws because he failed to respond to the newspaper’s requests.

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Press Releases

TBI Director Gwyn Gets New Term

Press Release from the Office of Tennessee Governor Phil Bredesen, July 1, 2010:

NASHVILLE – Governor Phil Bredesen today reappointed Mark Gwyn as the director of the Tennessee Bureau of Investigation. Bredesen appointed Gwyn to his first six-year term as the agency’s director in 2004.

“Mark has done an outstanding job leading the TBI during the past six years,” Bredesen said. “He led the effort to achieve national accreditation and has the support of law enforcement officials across the state. He is committed to improving the operation and performance of the Bureau and is dedicated to fighting crime in Tennessee. These skills, and the high level of integrity he brings to this position, make him the right person to lead the agency for another term.”

Gwyn was selected from a field of three finalist candidates submitted by the TBI Director Nominating Commission, a five-member panel consisting of representatives from the judicial and legal communities.

“I’m honored to be reappointed to this position and appreciate Governor Bredesen’s confidence in my ability to continue the mission and the work of the TBI,” Gwyn said. “I’ll continue to work with the men and women of law enforcement across this state and with our federal partners to coordinate our efforts and improve our methods of fighting crime in Tennessee.”

As director, Gwyn oversees 420 TBI employees in the agency’s five major divisions: Criminal Investigation, Drug Investigation, Forensic Services, Information Systems and Administrative Services. The Bureau is headquartered in Nashville and operates seven regional and satellite offices across the state.

Since becoming director, Gwyn has overseen the creation of the Technical Services Unit, placing an emphasis on high tech surveillance methods, computer forensics and battling internet crimes targeting children with the launch of a Cyber Crimes Unit. Under his watch, the state’s Fusion Center was constructed within TBI headquarters housing Homeland Security among other programs such as AMBER Alert and Tennessee’s Sex Offender Registry.

Gwyn has committed the Drug Investigation Division to targeting mid- to high-level drug dealers. He has been an active member of the Governor’s Meth Task Force, which crafted legislation designed to stop methamphetamine production across the state. Currently, Gwyn is instrumental in halting the distribution, sale and abuse of prescription drugs.

Prior to his appointment in 2004, Gwyn served as assistant director in charge of the TBI Forensic Services Division where he oversaw the Bureau’s three nationally accredited crime laboratories and 100 forensic scientists and technicians in Knoxville, Memphis and Nashville. Prior to that, Gwyn served as executive officer from 1996 to 2001 where he handled special assignments. From 1988 to 1996, Gwyn served as a special agent and criminal investigator helping coordinate investigations into violent crime, drugs, public corruption and gambling cases. Before joining the TBI, Gwyn served as a patrolman for the McMinnville Police Department.

Gwyn has completed some of the most prestigious law enforcement and leadership training programs in the industry, including the John F. Kennedy School of Government from Harvard University and the FBI Leadership in Counterterrorism Program. He also received extensive terrorism training conducted in Israel by the Israeli National Police while attending the Georgia International Law Enforcement Exchange. Gwyn sits on the IACP Narcotics and Dangerous Drugs Committee as well as the University of Tennessee National Forensic Academy Board. Locally, he is a graduate of Leadership Nashville and serves on the Board of Directors for the Salvation Army and Second Harvest Food Bank.

Gwyn, 47, is a McMinnville, Tenn., native who holds a bachelor’s degree from Middle Tennessee State University.