By Mark Hansel
NKyTribune managing editor
A hearing that was expected to begin today to determine if convicted killer David Wayne Dooley will receive a new trial was postponed until February to allow his attorney more time to obtain and review evidence.
Dooley (file photo)
Dooley was convicted of killing Michelle Mockbee, a Fort Mitchell mother of two, in 2012.
The request for a new trial results from alleged questionable conduct by Commonwealth’s Attorney Linda Tally Smith and the lead detective on the case.
Dooley and Mockbee were coworkers at Thermo Fisher Scientific when Mockbee was bludgeoned to death outside of the company’s facility in the Northern Kentucky Industrial Park in May, 2012.
Dooley’s attorney, Deanna Dennison, said she needs more time to sift through emails and other documents obtained through an open records request and she is still awaiting some of those.
“We have received some response to our open records requests,” Dennison said. “We received them two-to-three weeks ago, but we don’t even have any of the email communications we requested.”
Dennison said Boone County Attorney Robert Neace indicated he is in the process of obtaining the documents for the county’s IT person and they might be available next week, after they are reviewed.
Left to right, Shawna Kincer head of the Special Prosecutions Office of the Kentucky Attorney GEneral’s Office, Deputy Attorney General J. Michael Brown and Boone Commonwealth’s Attorney Linda Tally Smith await the beginning of the CR 60.02 hearing (photos by Mark Hansel).
“We have received a substantial amount of information through the open records request,” Dennison said. “We are plowing through it and we are getting through it, but we are not through it all. It’s not like we haven’t tried because we have – we’ve kept up with everybody.”
Dennison added that she would like to begin the hearing because she knows there is a lot of interest in the case and the facts surrounding it, but she is “here to do a job for Mr. Dooley.”
“This is a serious matter and we’re not here to make mistakes,” Dennison said. “I want to make sure this is thorough and done right. If I’m going to make any accusations on a 60.02 motion, I need to make sure that I am correct.”
A CR 60.02 hearing allows for a final judgment to be overturned if newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial.
The potential new evidence is a thumb drive provided by a former employee of the Boone County Commonwealth’s Attorney’s Office Nicholas Ramler.
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.
The thumb drive 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 and that evidence, which was not provided to Dooley’s attorneys, could have helped them put on a defense.
Members of Michelle Mockbee’s family attended Thursday’s hearing.
If it is determined that Tally Smith withheld evidence and/or that McVay 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.
Dooley, who has always maintained his innocence, was sentenced to life in prison.
The Kentucky Attorney General’s office has taken over prosecution of the Dooley case, which has an appeal pending.
Shawna Kincer head of the Special Prosecutions Office of the Kentucky Attorney General represented the AG’s office.
Kincer said she understands Dennison’s request for an opportunity to review evidence but would also like to see the hearing move forward as soon as possible.
“At some point, we need to have this hearing because she could be looking for a needle in a haystack,” Kincer said. “A lot of the information and what she needs, she does have, to make the allegations she needs to make.”
The Attorney General’s office has 180 days from Oct. 26, the date it filed to hold the appeal of Dooley’s conviction in abeyance.
The Attorney General’s office made that request and asked for the CR 60.02 hearing after it was provided with the information on the thumb drive.
Boone Circuit Judge James R. Schrand set a date of Feb. 22 for the CR 60.02 hearing, which could last two or three days, to begin. Schrand also presided over the jury trial at which Dooley was convicted of murder in Mockbee’s death.
Dooley’s mother was in the courtroom, but did not want to comment.
Several members of Michele Mockbee’s family were also present including her sister, Jennifer Schneider, who said the hearing brings back some painful memories.
“(Dooley) was convicted for a reason,” Schneider said. “The evidence was there to convict him. If he is granted a new trial out of this, which we don’t know, then we have every confidence that’ll happen again.”
Contact Mark Hansel at mark.hansel@nkytrib.com
