By Mark Hansel
NKyTribune managing editor
A man convicted in the murder of a Fort Mitchell mother of two could be granted a new trial pending the outcome of a hearing next month at the request of Kentucky Attorney General Andy Beshear’s office.
David Wayne Dooley (file photo)
The request comes after a former employee of the Boone County Commonwealth’s Attorney’s Office obtained information that calls into question the conduct of the head prosecutor and the lead detective on the case. The former employee, Nicholas Ramler, shared the information with attorney Steve Wolnitzek, who turned it over to the Office of the Attorney General (OAG).
In 2014, David Wayne 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.
Dooley has maintained his innocence and in a court filing Ramler accuses Boone County Commonwealth’s Attorney Linda Tally Smith of possible misconduct regarding a “Brady Violation” in the case.
The Brady Rule requires the prosecutor to disclose materially to the defense exculpatory evidence in the government’s possession.
A thumb drive, turned over by Ramler, allegedly contains email and text messages between Tally Smith and Bruce McVay, the lead detective in the Dooley case. McVay has since retired.
Information on the drive reportedly indicates Tally Smith may have accused McVay of lying. Sources say that evidence could have helped Dooley put on a defense, but it was withheld from his attorneys.
An order setting a hearing date for the Attorney General’s CR 60.02 motion, which could result in a new trial for convicted murderer David Wayne Dooley (click to enlarge)
McVay’s attorney, Ben Dusing, has stated publicly that his client was involved in a personal relationship with Tally Smith and that the information on the thumb drive was related to that relationship, not the Dooley case.
The Office of the Attorney General has since taken over prosecution of the Dooley case, which has an appeal of his conviction pending. The OAG has asked that consideration of the appeal be suspended while the allegations are investigated.
A two-day hearing at the request of the OAG to consider a motion pursuant to CR 60.02 has been scheduled for December 8 in Boone Circuit Court.
A CR 60.02 hearing allows for a final judgment to be overturned under the following circumstances:
(a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial (c) perjury or falsified evidence; (d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief. The motion shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this rule does not affect the finality of a judgment or suspend its operation.
When a motion pursuant to CR 60.02 is requested it is commonly introduced by a defense attorney on behalf of a client. The Attorney General’s decision to request the hearing suggests that the information contained on the thumb drive at least raises questions about the conduct of the Commonwealth Attorney’s office, and/or the testimony of prosecution witnesses.
If it is determined that Tally Smith withheld evidence or an investigator lied, Dooley could be granted a new trial.
Such a determination could also call into question the credibility of the Boone County Commonwealth’s Attorney’s Office during Tally Smith’s tenure and potentially jeopardize other convictions.
Linda Tally Smith
Tally Smith was the state’s youngest and first female Commonwealth’s Attorney when she took office in 2000.
Sources who have seen information contained on the thumb drive told the Tribune that it would be difficult for Tally Smith to suitably explain its contents or her conduct.
Tally Smith contends that because the information supplied to the OAG is just a small part of the 13 gigabytes on the thumb drive Ramler obtained, it is taken out of context.
The Tribune’s sources say there is no conceivable context that would exculpate the information on the thumb drive.
Tally Smith and her husband, District Court Judge Jeffrey Smith, filed suit against Ramler on October 20 , claiming he attempted to use the information on the thumb drive to blackmail her after she told him at a September meeting he was being reprimanded for poor work performance.
See the NKyTribune’s story about that lawsuit here.
Ramler, who was employed as a full-time law clerk, was subsequently fired after Tally Smith says he became “incensed, belligerent and argumentative.”
The Smiths also allege in the complaint that Ramler “improperly and without authorization” copied the files to the thumb drive and shared personal and confidential information with others.
The counterclaim asserts that Ramler inadvertently discovered the information in performance of his normal duties and that because it was stored on a widely accessible drive, Tally Smith could have had no expectation of privacy.
McVay
Ramler is described in the countersuit as a whistleblower who identified a potential Brady Violation and copied the information to preserve it “out of an abundance of caution.”
The counterclaim also asserts that Ramler was terminated “as a subterfuge to avoid disclosure of the information obtained” and not for poor work performance as Tally Smith alleges.
It was in the answer and counterclaim that Ramler suggested Tally Smith may have committed the Brady Violation.
Ramler also indicates in the counterclaim that Tally Smith intentionally made “untrue defamatory statements” about him, which the suit states amounts to “slander per-se.”
Ramler has asked that the Smiths’ complaint be dismissed with prejudice and that he be awarded punitive damages and other monetary judgments.
Among the questions raised by the thumb drive are why Tally Smith would assemble so much personal information and then keep it on a server that was easily accessible by others.
Circuit Court Judge James R. Schrand will preside over the CR 60.02 hearing. Schrand recused himself from Tally Smith’s civil action against Ramler because of a potential conflict. He presided over the trial where Dooley was convicted of killing Mockbee.
Legal experts say that because Schrand heard the original evidence presented at Dooley’s trial, it is appropriate and just makes sense for him to consider the CR 60.02 motion.
Contact Mark Hansel at mark.hansel@nkytribune.com
