Retrial of David Dooley, charged in 2012 killing in Boone County, takes a small step forward

The process of setting a retrial date for David Wayne Dooley in the murder of Michelle Mockbee moved a step closer Wednesday.

David Wayne Dooley, charged with killing Michelle Mockbee at the Thermo Fischer Scientific facility in Boone County where both worked in 2012, addressed Judge James. R Schrand Wednesday. Schrand overturned Dooley’s conviction in May and granted him a new trial (photos by Mark Hansel).

While on the surface nothing appeared to change at the pretrial conference, which lasted only minutes, there was at least one detail that drew attention.

Special Prosecutor John Heck represented the Office of the Attorney General (OAG) at the proceeding. Heck has not previously been identified as a member of the prosecution team.

After a short conference at the bench of Boone County Circuit Judge J.R. Schrand, there was no public discussion of any significance, and another court date was set for August 3.

The events leading up to the retrial have received national attention and the NBC program Dateline sent someone to cover the hearing, but on the court docket, it was just another case. The families of Dooley and Mockbee waited in the courtroom for nearly two hours for the case to be called.

In 2014, Dooley was convicted of killing Mockbee, a mother of two, at the Thermo Fisher Scientific facility where both worked.

Mockbee was bludgeoned to death at the facility, located in the Northern Kentucky Industrial Park, shortly after arriving to work early on the morning of May 29, 2012.

Dooley has always maintained his innocence.

At the request of the The Office of Attorney General Andy Beshear, a CR 60.02 hearing was requested to determine if Dooley should be granted a new trail. The Boone Commonwealth Attorney, Linda Tally Smith, engaged in an affair with the lead investigator in the case, then Boone County Sheriff’s Det. Bruce McVay.

Tally Smith and McVay have admitted to the affair, but she said it began after Dooley was convicted in 2014. Dooley’s attorneys at the retrial hearing, Deanna Dennison and Jeff Lawson, argued that video surveillance of a “random dude,” seen walking on the property hours before Mockbee was killed, was never given to Dooley’s trial attorneys. There has been no visual evidence presented that shows the man left the property prior to the killing.

David Dooley’s wife, Janet Dooley, said after Wednesday’s pretrial conference she is confident her husband will be acquitted. “It’s not a think – I know we’re going to win and prove his innocence, and he’s going to come home,” she said. “And that’s all we’re looking forward to.”

There were also several correspondences between McVay and Tally Smith, including one in which the Commonwealth Attorney stated she would have the investigator’s back if he ever lied on cases.

The correspondences were contained on a thumb drive given to the OAG’s office by an attorney for Nicholas Ramler, a former employee of the Commonwealth Attorney’s office. The notes were among several thousand pages of documents contained on the thumb drive that was stored on a server in the Commonwealth Attorney’s office.

The Tribune has asked for a copy of the contents of the thumb drive, but the request was denied because it is part of an ongoing investigation. Tally Smith and her husband, District Court Judge Jeff Smith, whom she was married to at the time of the affair, are involved in civil litigation with Ramler regarding his decision to copy the contents of the server onto the thumb drive.

In May, Schrand, who presided over the original murder trial and the CR 60.02 hearing, and is scheduled to hear the retrial, overturned Dooley’s conviction and granted a new trial.

Dooley’s wife, Janet Dooley, said she is confident Dooley will ultimately be acquitted.

“There’s no way we can bring back Michelle (Mockbee),” she said. “But we can help Michelle by proving Dave’s innocence. So maybe Kentucky will look deeper into this and find the true person that did this to her.”

Boone Commonwealth Attorney Linda Tally Smith (seated, foreground) was in the courtroom Wednesday for other cases on the docket. The Kentucky Office of the Attorney General took over prosecution of Dooley when question’s arose about Tally Smith’s conduct, but she remains Commonwealth Attorney.

Members of the Mockbee family declined to comment Wednesday, but have previously indicated they believe the right man is in prison for the killing.

Tally Smith was handling other cases Wednesday, and watched as Dooley was led into the room in shackles and stated his name for the record. The OAG’s office took over the Dooley prosecution when the questions about Tally Smith’s conduct in office arose, and despite calls for her to resign, she remains Commonwealth attorney.

Heck’s appearance representing the OAG’s office Wednesday was significant.

Deputy Attorney General J. Michael Brown and Special Prosecutor Shawna Kincer represented the OAG’s office at Dooley’s CR 60.02 hearing. Tally Smith was the prosecutor at the original murder trial.

Heck would not comment on whether he will be representing the OAG at trial and referred all questions to Terry Sebastian, Communications Director for the Attorney General’s office.

Sebastian did not return a call for comment late Wednesday afternoon.

Sources tell the Tribune Kincer has recently stepped down from her position with the Office of the Attorney General and is not expected to participate in the new trial.

Legal experts the Tribune has consulted with say that all of this works in Dooley’s favor.

While neither Kincer, nor Brown participated in the original trial, they at least familiarized themselves with the case in the time leading up to and during the CR 60.02 hearing. If Heck replaces Kincer on the prosecution team, he will essentially be starting from scratch with a case that is more than five years old.

The case was largely circumstantial to begin with and the integrity of both the Commonwealth Attorney and the lead investigator, two figures who were an integral part of the original prosecution, has now been called into question as well.

A date for the retrial is expected to be set at the August 3 pretrial conference.

Contact Mark Hansel at mark.hansel@nkytrib.com