By Mark Hansel
NKyTribune managing editor
An electronic filing on March 9 by the attorney for convicted killer David Wayne Dooley provides key insights into the argument she will use to seek a new trial for her client.
David Wayne Dooley
A CR 60.02 hearing to determine whether Dooley will be granted a new trial is scheduled to begin Monday in Boone County Circuit Court.
In 2014, Dooley was convicted of killing Michelle Mockbee, a coworker at Thermo Fischer Scientific in Boone County.
Mockbee was bludgeoned to death outside her office in the company’s facility at the Northern Kentucky Industrial Park in May, 2012.
Attorney Deanna Dennison indicates in the filing that while Dooley was serving a life sentence Boone Commonwealth’s Attorney Linda Tally Smith was contemplating the “serious ethical ramifications” she could face for misconduct that occurred in his case.
The explosive allegations not only call into question whether Dooley received a fair trial, but also the integrity of Tally Smith and investigators in the Boone County Sheriff’s office
The filing states that Tally Smith learned that the two primary detectives working Dooley’s case lied to her about the contents of a surveillance video tape from the hours prior to Michelle Mockbee’s murder and she feared that lie could taint the entire case.
It also provides details of Tally Smith’s relationship with the lead detective, Bruce McVay, in the months following Dooley’s conviction, which it claims show that the problems with the Dooley case were not limited to the exculpatory information on the surveillance tape.
The filing indicates Tally Smith acknowledged that Bruce McVay’s Boone County employment file received by the defense before trial was “sanitized” and that he had a reputation for manipulating audio and video recorders in interrogations to obtain incriminating statements. She also pondered what might happen if anyone on the “defense side” found it.
The filing states, “This is not conjecture. These are their own words,”
The introduction of the Defendant’s Memorandum in Response to the Commonwealth’s Motion pursuant to CR 60.02 states Dooley has clearly professed that he did not murder Michelle Mockbee and that the result of his trial has not weakened his resolve.
A CR 60.02 hearing allows for a final judgment to be overturned under certain circumstances, including if newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or if perjury occurred or falsified evidence was introduced.
If it is determined that Tally Smith withheld evidence or an investigator lied, Dooley could be granted a new trial.
An excerpt from the introduction portion of the Memorandum in Response states:
“With no clear motive, no murder weapon, no DNA, and no blood or fiber evidence linking Dooley to the murder, the Commonwealth requested and received an indictment from the grand jury (nearly four months after the murder) and, after nearly two years of delays, tried his case to a jury. To account for the absence of any meaningful physical evidence, Tally Smith in closing argument compared the Dooley prosecution to a puzzle with some missing pieces; you can lose a few without altering the picture.
Five months ago, an employee of the Commonwealth’s Attorney uncovered a trove of electronic materials on their shared, networked file storage system. Following disclosure to the OAG of a few of the text messages shared between Tally Smith and Bruce McVay, the OAG substituted as counsel of record for the Commonwealth and filed its Motion under CR 60.02, requesting the Court review the allegations of non-disclosure.”
When a motion pursuant to CR 60.02 is requested it is commonly introduced by a defense attorney on behalf of a client. In this case the Kentucky Attorney General’s office requested the hearing.
This led to speculation that the information contained on the thumb drive raises questions about the conduct of the Commonwealth Attorney’s office, and/or the testimony of prosecution witnesses.
The information contained in Dennison’s filing strengthens that argument.
In the request for a new trial the motion indicates “Many essential facts in this case never made it into the hands of the defense, and cites, Bedingfield v. Commonwealth, 260 S.W.3d 805, 809-10 and Brady v. Maryland, which states, in part:
“When newly discovered evidence is of such a nature that it is manifest to the conviction, substantially impacts the testimony of a material witness, or would have probably induced a different conclusion by the jury had the evidence been heard, then assuredly, the interests of justice demand that a criminal defendant is entitled to have such evidence set before the court.”
Tally Smith
Additionally the motion alleges that prior to beginning Dooley’s trial, authorities obtained and withheld material, exculpatory information from the defense that undoubtedly affected the jury’s consideration of the evidence and the credibility of the Commonwealth’s witnesses and improper withholding of Brady Material.
The filing states, Under Brady v Maryland ”a violation of the defendant’s right to due process of law occurs where the government fails to turn over evidence favorable to the defendant on an issue of guilt or mitigation/sentencing.”
The 22-page filing provides details that question the thoroughness of the investigation and some of the trial testimony. It is the information related to Tally Smith’s relationship with McVay that could have implications far beyond whether Dooley is granted a new trial.
The memorandum indicates that among the most recurring themes throughout the information obtained from the Commonwealth’s Attorney’s office is Tally Smith’s view of McVay as a liar, both on personal and professional level. It states the content of this email is one of many expressing the same perception.
“What I don’t think that you are comprehending is that I had a deeper “circle of trust” with you than I have ever had, or will ever have, with any other officer (or any other person for that matter). Even if I was aware that you had lied here or there on cases, I wouldn’t have wavered in that loyalty to you and “having your back.” However, since I now know that even after we have developed a deeper level of trust, you have also LIED TO ME. So since I now know that you are willing to lie ABOUT CASES and you feel comfortable lying TO ME, I don’t know that I will ever be able to trust anything that you say to me … ever. Definitely not about how you feel, but especially about cases.”
McVay’s attorney, Ben Dusing, has stated publicly that his client was involved in a personal relationship with Tally Smith. Tally Smith was at that time and remains married to District Court Judge Jeffrey Smith.
The filing states the following excerpt appears in an 18-page letter drafted by Tally Smith to Bruce McVay, that was apparently last edited by Smith in July, 2015:
“Truth be told, I got very frustrated with you multiple times during the early trial prep. There is no way you didn’t know it. Most of my frustration centered around the surveillance video. I’m sure I was pretty sharp about it at times, because I was scared to death of what was on that video that was ‘unknown.’ I didn’t trust that you had put the time into it that you assured me that you would. So I kept pushing you. And you kept assuring me that you would “get it done.” So I’m sure that you can understand that I was disappointed when you admitted to me that there was something on the video that you and Everett [Stahl] decided not to tell me about. You both left me in a position that I could have gotten my ass handed to me during the trial. I understand that you both thought that you were doing the right thing to avoid upsetting me, but … now I know. And I get to live with the worry that someone on the defense side will find it at some point, and that we’ll all wind up in trouble over it. And the entire case will be tainted because of it.”
The memorandum states that the letter and text messages clearly indicate that at some point following Dooley’s trial, Tally Smith learned of something on that tape that threatened the integrity of the verdict:
“…[Y]ou allowed me to go through a complete f…ing murder trial without telling me the truth about that video, and now that I know it, what the f… am I supposed to do now?
Since you were so willing to hide something in Dooley from me that could cause serious ethical ramifications for me, what is my obligation to protect the younger attorneys in my office from being placed in that same situation by you?”
If the statement is accurate, it suggests that Tally Smith knew she was hiding information that should have been provided to Dooley’s lawyers at some point.
In another correspondence introduced in the filing, Tally Smith again addresses McVay’s integrity.
McVay
“I didn’t question your integrity on the job. You broadcast your lack of integrity on the job. You talk openly about these things in front of the others in C.I. like you are proud of the things you do. Searching cars to see if you need a search warrant? Turning off audio/video while interviewing people?
And what really scares me is that there is a brand new group of detectives who are actually looking to you as a mentor. They are left with the impression that it is actually okay to do the things that you do. And since they have seen that you and I are close, they talk about these things in front of me like they think that I am actually okay with these things, too. In the last two months alone, I’ve had a number of the new ones suggest that they would just “pull a Bruce.” “Pulling a Bruce” … it is actually a phrase that they all use. Each time they say it, I stop them and ask them to clarify what that means. And to them that means either
(1) searching something PRIOR to getting a search warrant to see if they need to bother getting a search Warrant
(2) schmoozing a female to get something they need or information from them or
(3) turning OFF an audio or video and threatening someone to get them to talk.
Prior to the Dooley trial prep, when people told me these types of things about you, it made me distrustful of you. But when I got to know you better, I believed that it either had to be urban legend OR that maybe, just maybe, the whole Dooley experience had turned everything around for you and you weren’t like that anymore.
But the truth is, it’s NOT urban legend. . . .”
The suggestion that McVay not only engaged in questionable conduct, but, in his role as a mentor to younger detectives, encouraged them to engage in similar behavior could potentially call the outcome of other investigations into question.
The memorandum indicates that in another correspondence, Tally Smith addressed the failure of a recording device that was supposed to be used to record McVay’s first interview of Dooley.
“Deanna Dennison is a smarter attorney than [Chris Roach and Tom Pugh, the attorneys in Dooley’s murder trial] and KNOWS that your credibility should have been a central issue because of the recorder failure in Dooley’s first interview. . . .”
The memorandum indicates Tally Smith referenced McVay’s “sanitized” personnel file and a conversation with the detective’s supervisor, who suggested McVay had a problem with alcohol, in another correspondence.
Information contained in retired Boone County Detective Bruce McVay’s personnel file while he was a member of the Florence Police Department was included in attorney Deanna Dennison’s Memorandum in Response to the Commonwealth’s
Motion (click to enlarge).
“[Deanna Dennison] knows that your BCSO personnel file that was given to Roach & Pugh was sanitized. I.e., that it contains no reference to your suspension for having refused to come to the door of your house when Roger Paul was dispatched to the call from your wife’s ex-husband about you driving home drunk from Shakey’s. And something about a side swiped car… Not clear on that. BUT …. The point is ….
#1 …. I specifically asked you about that, and you lied straight to my face & said nothing like that ever happened.
#2 …. She somehow knows about it, which is one of the reasons why she wanted to talk to you. So she’s already loading guns to get ready for an 11.42 in case the appeal fails, which will include requesting the Florence personnel file ….that you were worried that they would request but would never tell me what it contains.
What you never knew is that Everett was only assigned to work with us on trial prep because I was not the only one that was concerned. In fact, one of your supervisors and I actually met early on about it and he told me in no uncertain terms that he believed that you were a “high functioning alcoholic.” He said that he believed that when you disappeared from the office during the day without mentioning where you were going, that you were leaving to drink … just to get through the work day. He said that you would return to the office smelling like mouth wash. In light of the stories that have circulated about the missed call out on Moore & the story I had heard that you had tried to invoke the “home base rule” when someone tried to pull you over on suspicion of DUI, I was concerned. Right, wrong or indifferent, it made me worry about you and it made me worry for you. As such, the Sheriff agreed for Everett to be taken off the road to work with us full time because they believed that I needed all the help I could get to be ready for trial.”
If the allegations, which Dennison states are in Tally Smith’s “own words,” are proven to be true, it is a strong indication that the Commonwealth’s Attorney certainly knew after, and had suspicions during Dooley’s trial, that there were improprieties.
The evidence submitted represents just a small portion of the information contained on the thumb drive now in the possession of the Attorney General’s office.
David Dooley’s CR 60.02 hearing is scheduled to begin at 1 p.m. Monday, at the Boone County Courthouse, located at 6025 Rogers Lane, in Burlington. Circuit Court Judge James R. Schrand, will preside.
Attorney General Andy Beshear has indicated that even if Dooley is granted a new trial, he believes there is sufficient evidence to convict him again.
Contact Mark Hansel at mark.hansel@nkytrib.com
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