The Mills/ Toarmina Case: It Ain’t Over ’Til It’s Over.

Will D.A. Bill Gibbons prosecute the two defendants? And how much did Sheriff A.C. Gilless know about corruption in his office?

by Phil Campbell

t’s not over yet.

Shelby County Sheriff A.C. Gilless may have been re-elected by an unexpectedly close margin last month, and U.S. District Judge Jerome Turner may have thrown out all but one count of the case against A. Ray Mills and Stephen D. Toarmina, but it’s not over.

Attorney General Gibbons’ hesitation to prosecute Mills and Toarmina may undermine the tough-guy, crime-ousting persona that he’d like to maintain with the public.

Mills, Gilless’ ex-number-two man, and Toarmina, the armed Memphis grocer who used a special deputy’s badge to pull over and intimidate motorists, can still be prosecuted on state criminal charges for selling county law-enforcement jobs at thousands of dollars a pop.

Turner, in fact, stated from the bench that “it’s disappointing” that District Attorney Bill Gibbons hasn’t done anything yet. Gibbons may still act, but so far his lackluster “no comments” suggest that the district attorney is in no hurry to prosecute the former allies and employees of Gilless, a professional colleague and a fellow Republican. There are political as well as legal considerations for Gibbons. If he doesn’t prosecute within the statute of limitations, and if Turner’s ruling survives a federal court appeal, then the DA’s tough-guy “No Deals” reputation could be tarnished.

As for Gilless, he used his campaign money and party affiliation – he expediently joined the GOP for this election – to survive the August vote, overcoming by a 9 percent margin the challenge of former Memphis Police Department director Melvin Burgess, arguably the most credible candidate he could face. Fortunately for Gilless, whose advance polls had indicated a far larger margin of victory, the criminal trial of Mills and Toarmina, who were indicted April 18, 1996, was delayed until just after the election. Negative press and television coverage about the Sheriff’s Department was stalled until that trial, when witnesses and extensive documentation confirmed – to the satisfaction of the jurors, anyhow – the accusations of federal prosecutors.

With the completion of the criminal trial, a federal civil suit against Gilless can proceed. He’s being sued by Harold Hays, a former employee who blew the whistle on Mills and Toarmina. As the head of the Sheriff’s Department’s internal affairs office for six months, Hays had reported his suspicions to Gilless about the scam Mills and Toarmina were running. A day later, Hays was fired for “management differences.” But years later, Gilless isn’t taking any action to fire the very “special deputies” who would seem to have bought themselves a job in his department, leaving doubt how badly Gilless wants to send a message of reform to the public and to his department.

The D.A. On the Spot

Gilless isn’t taking any action to fine the “special deputies” who would seem to have bought themselves a job in his department, leaving in doubt his commitment to reform.

To justify federal jurisdiction, prosecutors had tried to show that Mills and Toarmina’s activity involved interstate commerce. That turned out to be difficult, considering that the bribes that Mills and Toarmina took were local payoffs for a Shelby County law-enforcement agency. Defense lawyers raised the interstate commerce issue before the trial, but Turner agreed to wait and see what came out at trial. After the jury returned guilty verdicts for both men, he cited the technicality to overrule their decision. One count against Mills – a $4,500 incident of job-selling involving Special Deputy Robert Wilson – was allowed to stand. He is scheduled to be sentenced November 13.

At the same time, however, Turner, who was appointed to the bench in 1987 by then-President Ronald Reagan, noted that this case could be prosecuted on a state level, especially against Toarmina.

“This is a case in which the government’s proof supported, in some cases strongly, the allegations of extortion against Mr. Toarmina, and it is disappointing that Mr. Toarmina has not been prosecuted by the Shelby County District Attorney’s office,” Turner noted. “Where serious crimes are being committed, whether by ordinary citizens or high-ranking officials, it is the responsibility of law-enforcement officials of the jurisdiction whose laws are suspected of being violated to investigate and, if the evidence is sufficient, to prosecute.”

Turner’s outspokenness and willingness to challenge other governmental entities are typical of this onetime ally of Governor (then U.S. Congressman) Don Sundquist. Turner once overruled the Clinton Justice Department’s motion to change the trial venue of former U.S. Representative Harold Ford Sr. (who went on to be acquitted of bank-fraud charges by a special jury of rural West Tennesseans).

Why didn’t then-DA John Pierotti prosecute the Mills/Toarmina case instead of prosecutors from the U.S. Attorney’s office? Mike Cody, who was the U.S. Attorney in Memphis during President Carter’s administration, notes that it wasn’t unusual for federal prosecutors to take a case when the issue of prosecution could involve conflicts for local prosecutors.

“DAs have to work with sheriffs on a day-to-day basis. That was one reason,” Cody says. “The second and more important reason was [that] federal prosecutors could use the grand jury in a way state prosecutors could not. You could bring in FBI agents and witnesses, and there was a huge difference in handling cases.”

During the 1980s, federal prosecutors in Tennessee convicted scores of Tennessee sheriffs on various corruption charges. And Cody’s successor, Hickman Ewing Jr., was known as an especially aggressive prosecutor of public corruption cases. Turner seems to be suggesting a major change in the way public corruption cases are handled.

The statute of limitations may be the biggest enemy of a potential state prosecutor’s case. The prosecution of most forms of bribery, including the buying and selling of public offices, must begin within four years of the time the incident allegedly occurred. The federal government charged Mills and Toarmina for actions that took place between February 1991 and January 1995. That gives Gibbons just four months to act, even as the DA has implied that he’d like to wait to see if federal prosecutors can successfully appeal Turner’s decision.

Gibbons’ hesitation undermines the carefully fostered crime-busting persona that he’d like to maintain with the public. The DA has boasted that more than 160 drug dealers have been evicted from apartments in Shelby County through a program he started a year and a half ago. Though still unproven as a long-term law-enforcement policy, the “No Deals” campaign has been a public-relations success. The county has been overwhelmed in the past several months with radio spots, billboards, and bumper stickers warning criminals to think twice before committing a violent felony.

One might think Gibbons would snap up this case. It’s easy to present and prosecute because the feds have already laid the case out, record by record, witness by witness.

The DA, however, is keeping mum. “There is not much I can say at this point,” he said last week. “We are in communication with the U.S. Attorney’s office and are looking at various options. That’s really all I can say at this point.”

The Flyer asked Gibbons if he had a reaction to Turner’s expression of disappointment in the DA’s office.

“I’d rather not get into that,” Gibbons responded.

Gibbons was then asked if there was only one option in this case – to prosecute or not to prosecute.

“It’s more complicated than that,” he replied. Gibbons wouldn’t elaborate, nor would he give a timetable for any action on his part.

Gilless’ Teflon Coating

Despite Turner’s technical ruling, jurors who listened to all the evidence found Mills and Toarmina guilty. But the material also created other unresolved issues. Betty J. Wilbern, a juror who lives in Westwood, said the trial raised questions about how pure the county’s top law-enforcement official kept himself in the early to mid-’90s.

“I still would say Sheriff Gilless has some involvement within this,” Wilbern said. “I believe he had a knowledge of things that were going on. He left Mills in charge of a lot of things. People were giving him large contributions, and he didn’t know any of [the reasons for] that? That was just too hard for me to believe.”

If only Melvin Burgess had been able to put Wilbern in a campaign commercial, he might have seized the second most powerful office in county government. Instead, he ran three ads. In two of them, he basically sat behind or walked around a nice desk and talked about who he was and how he’d like to run an effective sheriff’s department. He didn’t mention Gilless at all, nor the questions swirling around the incumbent sheriff regarding his abilities to manage a public organization with 1,650 employees.

“They made one ad with me talking to some children,” said Burgess, who discussed his six-month campaign from his modest South Memphis seafood restaurant. “I’ve always courted these young children. I sense that they are our future. What we need to do to turn this [county] around is [education]. Education is the key.”

Ray Mills, who as Chief Deputy under Sheriff A.C. Gilless seems to have had ample reason to smile.

Gilless, however, knew that the keys to winning an election involve something more: money and party support. As the incumbent, Gilless raised more than twice as much money as Burgess. Yet he only won by 9 percent of the vote, a marginal win considering that Gilless’ camp at one time boasted he would crush Burgess by a 3-to-1 margin.

Burgess also suffered from lackluster Democratic support at a time when the party is begging for credible candidates. Mayor Willie Herenton endorsed Gilless, perhaps only because Herenton had fired Burgess four years ago as his police director. Burgess had refused Herenton’s order to fire an officer without first following proper department procedure. The ex-director was vindicated when that police officer, Mike Wagner, successfully sued Herenton for wrongful termination.

Asked why he lost to Gilless, Burgess replied that he didn’t get as many early voters as he had hoped. It took a little probing to get him to analyze his campaign strategy.

On the one hand, Burgess said he often devoted half his speeches to questioning Gilless’ management style. “I did say, a lot of times, I talked about what the incumbent sheriff had said,” Burgess says. “I always talked about that. I always made comments like: ‘The sheriff, by his own admission, said that he’s not a hands-on operator. The sheriff, by his own admission, says that he trusted too many people.’ ”

The former police director says he didn’t do a lot of negative campaigning because he didn’t think he had to. Everyone, Burgess felt, already knew about the questions surrounding Gilless.

But the local mainstream media didn’t cooperate. The Commercial Appeal endorsed Gilless, noting, ironically, that he had more experience as an administrator. “Unfortunately, [Gilless] put too much trust in his former chief deputy, A. Ray Mills,” the July editorial noted.

The campaign continued into August, and Gilless won in a low-turnout election that drew just over 25 percent of local voters.

Then the trial of Mills and Toarmina started, a full 28 months after they were indicted. The August 10th trial date was set April 27, 1998. The timing was certainly fortunate for Gilless, a lackluster campaigner with a history of being uncomfortable around the media. And it was a week too late to help Burgess.

Had the trial started a few weeks earlier, Burgess would almost certainly have benefited from the media attention. After the trial, the CA questioned the very administrative skills it had praised in its endorsement. A recent editorial called for a “top-down attitude change” in the sheriff’s department. “Nothing at the trial tied Gilless to the money-for-jobs scheme of his subordinates; he repeatedly insisted he was unaware of any money changing hands. Yet the sheriff cannot escape responsibility for tolerating a climate in his department that allowed such activities to occur,” the editorial read.

The editorial was responding to the trial, as well as one of the sheriff’s latest decisions. Gilless says he might not fire the deputies who bought their jobs from Mills and Toarmina.

“In talking it over with various people, I don’t think I am,” Gilless says. “At this point I haven’t made a decision on it.”

“I’m under the impression that they thought that they were making a campaign contribution, which they weren’t,” he adds, evading one question and begging another. “They’ve all turned out to be good employees.”

Loose Ends

Harold Hays is in Germantown right now, possibly smiling in vindication. The ex-FBI officer is a Germantown police captain, safely employed but unwilling to say anything to the press about Gilless; he apologetically defers all questions to his attorney.

Between working for the FBI and for the Germantown police, Hays had been Sheriff Gilless’ internal-affairs director in 1994. It took only six months for him to get fired. Hays had to report to Mills about his investigations, but after a short while he started getting reports about Mills himself. Hays took advantage of an out-of-town trip by the chief deputy to bring his findings to Gilless. Hays and the sheriff’s legal advisers then presented his evidence to then-DA John Pierotti. The next day, Mills came back into town and had Hays fired. Gilless approved; the sheriff says that Hays was fired because, the day before he would sit down with Gilless, Hays refused to disclose the exact nature of the meeting he requested.

“I’m the sheriff, and he was head of the internal-affairs unit,” Gilless says. “When I ask him a direct question, he should give me a direct answer.”

Now Hays will have his day in court. Once again the focus will be Mills and Gilless. And there may be more damaging testimony about Mills and more allegations of corruption in the Sheriff’s Department.

If so, who, if anyone, will prosecute?