On June 19, 2002, in the midst of a well-publicized crackdown on spas and massage parlors, the Metro Nashville Police Department’s Vice Division executed a search warrant on a midtown dive called the Tiki Club. It was a shotgun space at 1915½ Church St., partitioned inside into small, semi-private cubicles. Its owners said they were running a nude dance club, legit, on a Use & Occupancy permit they’d gotten a month before. The only thing not permitted inside the Tiki Club was sex for sale.
Yet on three separate occasions, according to Metro vice detectives, police informants said they were offered exactly that by the club’s “dancers.” That the Tiki Club had picked the moment Metro was raiding the city’s seamiest adult nightspots—32 had closed or were padlocked from early March through May 6, 2002—to risk a prostitution bust left the members of the Vice Division shaking their heads. What did not surprise them was when a familiar figure showed up from out of nowhere—the defense attorney known to the vice squad as “Herbicide.”
John Herbison told Sgt. Rob Forrest, the vice-division veteran leading the operation that night, that he just happened to be driving by on his way back to the office to file a brief and wondered what was going on. But Forrest wasn’t buying it. “He’s sort of like a bad penny,” Forrest says. “He represented several of the places among the 32 we investigated, and we had grown accustomed to seeing him in that industry over the years.”
Karl Dean, Nashville’s director of law from 1999 to January of this year (when he stepped down to run for mayor), agrees. “There were several lawyers representing the places,” Dean says, “but he probably had more than anyone else.”
It wasn’t the first time Dean had tangled with the attorney who specializes in constitutional issues and appellate work, but who freely admits that his “strongest interest is in adult entertainment law.” When the Metro Council—led then by Council member Chris Ferrell, now publisher of the Scene—passed an adult entertainment ordinance in 1997, Herbison leapt eagerly into the fray. He jumped in to represent one of Nashville’s most notorious retail establishments, Metro News (a.k.a. The World’s Largest Adult Bookstore), and its equally infamous owner Jerry Pendergrass. While Dean hardly agrees with Herbison’s stance, he does offer the defense attorney professional respect.
“He knows the law very well,” Dean says, “and he is a very zealous advocate for his clients. He is a true believer in what he does.”
On that, at least, he and Herbison agree.
“Temperamentally, I enjoy tangling with the government,” Herbison says. He leans his large frame back in a chair, hands folded across his T-shirt-clad stomach. A small smile—some call it a smirk—curves though his goatee. “Philosophically, I don’t think that the government should be choosing our reading material. I also have a problem with the government concerning itself with what motivates people to have sex and with what happens between two consenting adults.”
Herbison’s clients form a rogues’ gallery of the socially and morally scorned. They have grabbed their share of lurid headlines. There was the woman charged with criminal transmission of the HIV virus through repeated, unprotected sexual encounters with unsuspecting men she met in bars. There was Jamie Rouse, who in 1995 joined the ranks of high school killers when he shot three people at his school in Giles County. Certainly no one could forget Byron “Low Tax” Looper, who in 1998 murdered state Sen. Tommy Burks in the front cab of his truck.
But it was what happened between two adults on the evening of August 15, 1996, that catapulted Herbison into the national spotlight. As part of the team representing Perry March, the former Nashville lawyer accused of killing his wife Janet Levine March, Herbison ended up in the media glare of one of Nashville’s most sensational criminal trials. Reporters and TV crews from across the nation were glued to the proceedings. The March case was covered by tabloids and cable news channels and broadcast live on Court TV. And when the murder and conspiracy cases last year resulted in a 56-year sentence for March, among those at the defense table was John Herbison.
Herbison makes an unlikely TV star. He wears his brown hair to his shoulders, and appears much taller than the 6-foot-2 he claims. Anything but a slick-suited lawyer, he usually looks as if he slept in clothes he pulled from a laundry basket in the dark. For courtroom appearances such as the March trial he puts on a suit, but otherwise he did not primp for his 15 days of coast-to-coast fame. Steve Lefkovitz, a bankruptcy attorney who spends three hours every Saturday night with Herbison at WLAC on their radio program Legally Speaking, remembers making a suggestion to his friend and colleague before the March trial was to begin.
“I said, ‘John, you’re going to appear on television in the most famous case out of Nashville in decades. Don’t you think you should get a haircut?’ ” Lefkovitz says. “He looked at me sort of surprised and said, ‘I just did.’ I told him he should get his money back.
“John is brilliant, an absolute genius,” Lefkovitz adds. “But he also makes me think of the stereotypical absentminded professor, so focused on the matter at hand that he doesn’t even know what season it is.”
Supporting evidence is found on a subfreezing night in February, as the disheveled attorney sits in the Music Row studios of WLAC radio. To his left is Steve Lefkovitz; across the table sits the show’s host, attorney and longtime friend Ed Fowlkes. Though Herbison’s shapeless red sweatshirt and worn blue jeans are somewhat appropriate, given the bitterly cold weather, his wet hair and bare feet in sandals suggest he just emerged from a pool in mid-July.
But when he begins to discuss a case—a father who left his daughter in a car in hot weather, resulting in her death—he is the picture of intense concentration. He closes his eyes, furrows his brow and twists the mic cord first around, then off, then around two fingers of one hand. Though he is clearly well informed on the particulars of this case and several similar ones, translating those issues into language the lay listener can understand is another matter.
“On this show, we talk about cases, trials, verdicts that came out the week before and how those cases might affect our listeners,” Ed Fowlkes says. “The rule of thumb is two minutes per case. John will dissect each one—he goes back to the basics, cites case law. At least once a show I have to stop him and say, ‘John, all they want to know is if their tree falls on their neighbor’s house, are they liable?’ ”
Even Herbison’s jokes are a challenge, Fowlkes says. “He has a very sly sense of humor, and he loves to tell jokes, but they are over most people’s heads,” he says. “If you don’t know who Caligula’s third cousin was, you just won’t get it.”
Easier on the ear than the sparring legal eagles is the live music between segments. Each time Fowlkes announces it’s time to take a break, the door to the studio opens. Veteran professional musicians Mike Lattimore on banjo and Ray Kirkland on guitar mosey in. They position themselves in front of one mike as Herbison picks up his baby blue bass guitar and leans into another. In a deep rumble of a voice, he offers, “Here’s an old Hank Thompson song, ‘Six Pack to Go,’ ” and the unlikely trio—with Fowlkes occasionally offering accompaniment on mandolin—are off. Herbison has a surprisingly good voice: he claims his range is two-and-a-half octaves, from high A to low D. Fowlkes first met Herbison at the old honky-tonk Dusty Roads, where they both took advantage of the club’s lenience in allowing amateurs to “play off the wall.”
“John will not miss an opportunity to sing,” Fowlkes says. “He sings well, but he doesn’t have a pretty voice. Some songs he does real well, and some he doesn’t, but he doesn’t know the difference.”
It is an incongruously innocuous scene, considering that at its center is a man whom vice detectives compare to a weed killer. To enemies of smut and licentiousness, John Herbison is anything but a Prairie Home Companion. There is little in Herbison’s family or childhood that foreshadowed his life today as a defender of pornographers, prostitutes and murderers.
Born in 1955, just across the Wilson County line in a rural area served by the Old Hickory post office, he is the second youngest of four children. His father Jerome was a partner in a garage business, The Tune-Up Shop, and his mother Margaret kept the books. In 1960, the Herbisons purchased one of the first homes in a new subdivision and settled into suburban life typical of the era. John began Mt. Juliet Elementary School a step ahead of his class, having been taught by his mother and older sister to read when he was just 3. His father was a part-time pulpit preacher for the Pine Creek Church of Christ, the denomination in which he was raised attending church the standard three times a week—twice Sunday and on Wednesday nights. He remembers his father performing full-immersion baptisms in Pine Creek.
“I was an involved and willing participant when I was young,” Herbison says. “I especially enjoyed the singing, the four-part harmony.”
Religion was fundamentalist and politics were conservative in the Herbison home. But like many of that generation, in that era, teenaged John took a turn to the far left of the rest of his family, who to this day remain firmly on the right.
“I started developing my political opinions when I was in [McGavock High School] reading columns from larger cities that ran in The Tennessean,” Herbison says. “I developed a liberal point of view. I opposed capital punishment—it was just a gut feeling then that something was wrong. Now I feel even more strongly about it, but can articulate it better. I was anti-abortion for years until pro-lifers started killing doctors, and that didn’t seem very pro-life to me. I support the rights of self-determination, so I came to support choice, particularly under certain conditions of rape, severe abnormalities, the health of the mother, but I cannot morally condone it.
“I became skeptical of some of the Church of Christ doctrine and teachings, especially the way they treated women. Their concern with other people’s faith, the proselytizing, the way disputes frequently became vitriolic, those things never set well with me.”
In spite of that, after graduating in 1973, 75th in a class of 767, he considered enrolling in the Church of Christ-affiliated Freed-Hardeman University with the intent of studying the Bible and entering the ministry. “I thought that I could possibly be of service in that way,” Herbison says. “But I was having theological concerns about taking things as literally as they did, and I could not reconcile with that.”
Instead, he enrolled at University of Tennessee-Nashville and studied political science, intending to go to law school. Eleven years later, in 1984, he graduated from MTSU with a degree in political science and minors in mass communication and general business. Along the way he married, supported his wife while she went to the Nashville School of Law, went to school part-time and worked in a Winn-Dixie grocery store, rising to dairy and frozen-food manager.
“I was doing it to keep the bills paid, but ultimately, that did not seem a good use of my time,” Herbison says. In the fall of 1984, he entered law school at UT-Knoxville.
“It was an adjustment academically, different than any other form of study,” he remembers. “It’s very difficult at first, but when you become accustomed to thinking like a lawyer, it becomes easier. Socially, I found myself among a lot of smug, self-satisfied white boys whom I would have expected to find at Vanderbilt, but not there. I became more liberal in college.”
He also gravitated to criminal and tort law. “Protection of individual liberty is very important to me,” Herbison says, a statement he repeats as frequently as a mantra. “I am quite skeptical of government, a skepticism that has grown through practice.”
He graduated and became a father in the spring of 1987. While in law school, he clerked for Arnold Peebles Jr., a renowned prosecutor in the ’70s who later went into private practice as a criminal defense attorney. When Herbison returned to Nashville, Peebles provided him with office space and work. His first lawsuit, in November 1987, was representing Choo Choo Video, an adult bookstore in Chattanooga that was one of six padlocked there in public nuisance actions. It not only whetted his interest in adult entertainment law, but introduced him to a man who would become a long-term client, Nashville adult-entertainment mogul Jerry Pendergrass. It also gave him his first taste of the pleasures of pushing moral hot buttons in a courtroom.
“The city said it was not the merchandise being sold but the activities taking place there with regard to peep shows,” Herbison says. “I was cross-examining the head of the vice squad there, who said he had seen a substance on the floor he thought was semen. I asked him what it looked like, what it smelled like, what it felt like, was he sure it was semen? He got mad, my boss was not happy, but they were the only store that got permission to remove the inventory from the property, and they re-opened elsewhere.
“I remember driving back to Nashville and thinking, ‘I can do this kind of law.’ I saw it as an abuse of government power. They were failing to acknowledge their true motive, which was to control the availability of pornographic material in Hamilton County.”
When Peebles was disbarred for charges related to bribery in December 1988, Herbison inherited several of his clients—who happened to be in the adult entertainment field—and began sharing office space on Eighth Avenue with attorney Dan Alexander, whom he met in law school. That office at 1205 was next door to 1203 Secrets, one of the several “massage parlors” that proliferated on that north-south corridor within the adult entertainment district. Since 1991, he and Alexander have shared space in the rear of a squat building at 2016 Eighth Ave. S., not visible from the street and marked only by a small, barely noticeable sign. It is easy to pass by, even when you are seeking it.
In 1990, the state of Tennessee established a public defenders network, consisting of 12 private attorneys contracted to do appellate work for cases that had been tried by public defenders. Herbison was one of the 12. “I gained a reputation as someone who had a talent for doing that kind of work,” he says. “Some people find that work to be very tedious—you have to read the records very carefully. I enjoyed it.”
Legally Speaking partner Lefkovitz testifies to Herbison’s skill in the field. “John is a walking encyclopedia of legal cornucopia. He knows more case law off the top of his head than I know from studying law my whole life. Some people use Westlaw (a popular online legal reference guide), I log on to Herbison. If I have a constitutional law question, he will have an answer faster and more informed.”
Attorney Fletcher Long got to know Herbison during that 2002 Metro crackdown on massage parlors, several of which were his clients as well. “The police call us whorehouse lawyers, we prefer to think of ourselves as First Amendment advocates,” he chuckles. He confirms Herbison’s reputation as a formidable expert.
“John is someone who tells the court what the law is, and the court is not inclined to argue with him,” Long says. “He has the unique ability to hold forth with supreme authority. When you are speaking with him, if he disagrees with something you have said, your inclination is to think, ‘I must be wrong.’ ”
One of Herbison’s first high-profile clients was Jamie Rouse, the 17-year-old who in 1995 brought a .22 caliber semi-automatic rifle with him to Richland High School in Giles County. Two teachers and a freshman girl were shot; one teacher survived. Rouse was convicted on four counts and sentenced to two life sentences without parole to be served consecutively, and two additional 25-year sentences to run consecutively. On appeal, Herbison argued that because two life sentences were metaphysically impossible, they should also be a legal impossibility. He did not win that argument.
“The court of criminal appeals did reduce the 25-year sentences to 21 years, so after Mr. Rouse is reincarnated the second time, he will only have to serve 42 years,” he explains, with a nod to the absurdity of the notion. “You have to have a gallows sense of humor to contend with this line of work.”
Herbison also worked on the appeal of Byron “Low Tax” Looper, who in October 1998 murdered Tommy Burks, a popular Democrat who held the Putnam County, Tenn., state Senate seat Republican Looper was vying for. In 2000, he was convicted and sentenced to life in prison without the possibility of parole.
“The principal issue on appeal was whether certain witnesses should have been permitted to testify regarding the assertion that Looper was in Georgia shortly after the murder and therefore could not have committed the crime,” Herbison says. “That was not successful.”
In contrast, his initial legal work on behalf of Perry March was quite successful. He remembers meeting March in Memphis in 1996, where lawyers representing adult entertainment businesses were conducting a joint strategy session in response to state action on the industry. It was just weeks before Janet March went missing.
“He introduced himself and gave me his card,” Herbison recalls. “I remember being surprised at the firm [founded by Janet Levine March’s father] because I didn’t associate them with that kind of work. But Perry was pretty enthused and eager about representing his client. Shortly after, his attention was diverted from that case.”
The next time Herbison saw March was in Mexico, where he had moved with his children a few years after Janet disappeared. Perry March had remarried and had a child. March’s in-laws, Carolyn and Lawrence Levine, had taken their grandchildren out of Mexico and back to Nashville. Through an intermediary, in 2001, March contacted and hired Herbison to help get them back. Herbison flew to Guadalajara to meet his client.
“We ran across a federal statute tailor-made for this type of situation, the International Child Abduction Remedies Act,” Herbison says. “ICARA is a treaty signed by dozens of nations regarding the removal, or abduction, of children from one country to another. From the filing of the lawsuit to the order being issued to return the children to their father was nine weeks. Perry’s brother Ron accompanied the children from Nashville back to Mexico. I was very pleased with the outcome of that case.”
He also successfully represented March in his appeal of the wrongful death suit filed against March by his in-laws, in which they were initially awarded $13.5 million.
In August 2005, Herbison was again contacted by March. This time he was calling from a jail in Los Angeles. He had been taken from Mexico on Aug. 3 to face charges of murdering his wife. On Aug. 12, March flew back to Nashville with Det. Bill Pridemore and Sgt. Pat Postiglione and was booked into the Criminal Justice Center. It was there that Perry March met inmate Russell Nathaniel “Nate” Farris, and things began to unravel.
“It started out as a pretty good case from a defense perspective,” recalls Herbison, who was initially hired to represent March on the murder charge and who teamed up with attorneys Bill Massey and Lorna McClosky. (Colleague Ed Fowlkes would represent him on the theft charge, and later Fletcher Long was retained by Perry’s late father Arthur March to represent him on the conspiracy to commit murder charge.) “There was no physical evidence; the statements he had made to police were not inculpatory. It appeared to be a weak circumstantial case.
“Things started to take an unfortunate turn on the plane ride back from L.A. in his conversations with the police. The civil suit had generated a lot of animosity between he and the Levines, so his state of mind with regard to that bore on him while he was in jail with Nate Farris. And Perry did not react well to confinement.”
Shortly after he was jailed on the theft and murder charges, Perry March and his father Arthur March were charged with conspiracy to commit murder, having allegedly hatched a plan with Farris for him to murder the Levines.
When asked if it is difficult for an attorney to represent an attorney, Herbison replies, “I’ve represented lawyers who were ideal clients and lawyers who were not. With regard to the civil suit, Perry was very good, with helpful suggestions. With regard to the other, he was off the charts.”
Fowlkes puts it another way. “My motorcycle mechanic Panhead Phil has a sign at his shop. It says, ‘Labor: $50 an hour. $125 an hour if you watch. $225 an hour if you help. $500 an hour if you’ve worked on it before.’ Perry March did all of the above.”
On June 8, 2006, Perry March was found guilty of conspiracy to commit murder. On Aug. 17, the jury convicted March of the second-degree murder of his wife. Subsequently, Davidson County Criminal Court Judge Steve Dozier sentenced him to a total of 56 years in prison.
In December, Herbison, who with Massey and McClusky are all working pro bono, filed notice of an appeal. They are waiting on the completed transcript of the two trials, which will be extensive. “I don’t know all the issues yet,” Herbison says. “One we will urge most strongly in the murder case will be the tapes of the conversation with Nate Farris, and the admission into evidence of the conversation on the plane between Perry and the police.”
Herbison expects the brief to be completed by the end of the year. The next step will be to go before a three-judge panel culled from the Court of Criminal Appeals, who will decide if a new trial is or is not warrantable.
While that outcome is uncertain, there is one thing John Herbison knows for sure. “If there is a new trial, present counsel will not represent him,” he says. “I could, but I chose not to. I think I’ve had quite enough of the Perry March experience.”
Adding to the very public Perry March ordeal was a private one that the public did not know, one that he shared with few of his colleagues. His second wife Ellena, whom he had married on Valentine’s Day 1997 after answering her personal ad in The Tennessean—“Dynamite comes in small packages. See if you can light my fire!”—was diagnosed with diabetes two years later. Her health deteriorated dramatically, and Herbison became her caretaker for the next several years.
“Her illness and the Perry March case going south led to some pretty severe depression in my life,” Herbison says. “It became difficult to stay on task.” On May 2, just before the conspiracy trial was to begin, his wife passed away. “My wife’s long illness was more difficult than her death,” he says. “It took quite a toll.”
But for the most part, he kept his personal suffering to himself, all while being vilified on the Internet, at office water coolers and on talk radio by Nashvillians who believed Perry March should burn in hell—a place already inhabited by porn purveyors and flesh peddlers—and that his attorney should join him there.
“There are some people who won’t represent someone charged with murder, or owning a porn store, or prostitutes,” Fowlkes points out. “What most people think is despicable, John regards as his duty to represent the law.”
“I like being able to make my services available to unpopular people,” Herbison says. “I think it is important that liberty, personal rights, constitutional rights be protected independent of popular opinion. As for myself, popularity is not one of the reasons I got into criminal law.”
But as disliked as he may be among law enforcement officials and the general public, he is held dear by many of his colleagues: by Dan Alexander, with whom he has a 22-year-relationship; by Janice Boone, his legal secretary of 15 years; and by friends such as Fletcher Long, whose son is Herbison’s godchild.
“When John is your friend, he is your friend in every way,” Long says. “He would go through a wall for you, fall across a grenade. He is extremely loyal, and I have no better friend. People who don’t know him would find this hard to believe, but when John loves, he loves with the purity and innocence of a 3-year-old. I think he is disappointed within his personal and romantic relationships when that love is not returned in the same degree it is given. People would be surprised to know what a true romantic John Herbison is.”
Even for cynical veterans of the justice system, hope springs eternal. Herbison readily admits that he would like to meet someone, fall in love and marry again. To that end, a few months ago he signed up for eHarmony.
“Janice’s sister met someone through eHarmony and they got married,” Herbison says. “I thought I would give it a try. I filled out the questionnaire and sent it in. They turned me down. They said that they would not attempt to match me.”John Herbison smiles. But for a moment, his eyes reveal the hurt of a world-weary soul. And in his face, there’s the wistful softness of a 3-year-old boy.
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