By Mark Hansel
NKyTribune managing editor
The Special Prosecutor assigned to investigate Boone Commonwealth Attorney Linda Tally Smith for her conduct during the prosecution of David Wayne Dooley said “the investigation is still ongoing.”
Shane Young, Commonwealth Attorney for the Ninth Judicial Circuit, has taken on the role of Special Prosecutor in the OAG’s investigation of Boone Commonwealth Attorney Linda Tally Smith (provided photo).
Shane Young, Commonwealth Attorney for the Ninth Judicial Circuit (Hardin County), was asked to take on the role of Special Prosecutor in June by the Kentucky Office of the Attorney General (OAG).
In 2014, Dooley was convicted of killing Michelle Mockbee, a mother of two, at the Thermo Fisher Scientific facility in Boone County where both worked.
Mockbee was bludgeoned to death outside her office in the company’s facility at the Northern Kentucky Industrial Park in May, 2012.
Dooley was granted a new trial in May, after Circuit Court Judge James R. Schrand ruled his attorneys in the 2014 trial did not have access to evidence that could have been used in his defense. Tally Smith was prosecuting the case at that time.
A few weeks later, the OAG assigned Young to the role of Special Prosecutor to investigate Tally Smith.
A letter to Young obtained by the Tribune through an open records request and signed by Assistant Deputy Attorney General Michael A. Wright gave the Special Investigator “sole judgement” over investigations and prosecutions.
“Pursuant to KRS Chapter 15, you are hereby-appointed as Special Prosecutor to conduct all investigations and/or prosecutions that may, in your sole judgement be warranted from the events surrounding the actions or inactions of Linda Tally Smith during the course of the case of Commonwealth of Kentucky v. David Wayne Dooley, Boone Circuit Court, 12-CR-00622.”
The OAG indicated in the letter that it would provide Young with all materials needed to begin an investigation.
Young said he has turned the materials over to the Kentucky State Police Drug Enforcement and Special Investigations (DESI) Unit to conduct an investigation.
It is important to make the distinction that the DESI Unit was selected specifically for assistance with the special investigation and the questionable conduct Tally Smith is being scrutinized for is in no way drug related.
Young said procedure dictates that a Special Prosecutor assigns a law enforcement agency to examine the material presented and conduct an investigation, then present its findings for review.
Despite being the subject of an investigation by the OAG, Boone Commonwealth Attorney Linda Tally Smith (right) recently announced plans to seek reelection at the Boone County Senior Citizens picnic (file photo)
The June letter from the OAG indicates the assignment of a Special Prosecutor is necessary to avoid a “conflict of interests or at least the appearance of impropriety” if the OAG were to investigate Tally Smith.
The OAG took over prosecution of the Dooley case from Tally Smith in September, 2016 after questions arose about her conduct in relation to the case. The Attorney General received a letter from attorney Steve Wolnitzek at that time indicating that he possessed information that may indicate Tally Smith committed a “Brady violation,” in relation to the prosecution of Dooley.
Brady v. Maryland was a landmark case that established the prosecution must turn over all evidence that might exonerate a defendant.
Upon receipt of the information, the OAG took the unusual step of filing a request for a CR 60.02 hearing to determine if Dooley should be granted a new trial. Usually it is defense attorneys that ask for a new trial.
Dooley’s attorneys had appealed his conviction with the Kentucky Supreme Court, but that ruling was held in abeyance pending the outcome of the CR 60.02 hearing and became moot when Schrand threw out the conviction.
The evidence Wolnitzek provided to the OAG included a thumb drive that contained the equivalent of thousands of pages of documents, including correspondences between Tally Smith and then-Boone County Detective Bruce McVay, the lead investigator in the Dooley case.
Wolnitzek’s client, Nicholas Ramler, had worked in the Boone Commonwealth’s Attorney’s Office and copied the information from a public server, where Tally Smith had stored it.
Tally Smith is involved in civil litigation against Ramler, claiming he used the thumb drive to blackmail her in an attempt to keep from being fired. Wolnitzek says his client is a whistleblower.
Included on the thumb drive is evidence of an affair between Tally Smith, who is married to District Judge Jeffrey Smith, and McVay. Both Tally Smith and McVay admitted to the affair at the retrial hearing.
Also on the thumb drive was information about a video of a man seen walking on the Fisher Thermo Scientific property just hours before Mockbee was killed.
Dooley’s original trial attorneys, Tom Pugh and Chris Roach, say they didn’t see that video before trial, and hadn’t seen at all until the retrial hearing, nearly five years after Mockbee was killed. They say it would have been a key element in their defense of Dooley.
Tally Smith also claims she didn’t see the video before the trial and didn’t even know it existed until McVay told her about it months after Dooley was convicted.
McVay, however, said under oath that Tally Smith was aware of the video before Dooley’s 2014 trial began.
In a letter to McVay, Tally Smith admits that she had become aware of the video at some point and realized it potentially presented issues with regard to Dooley’s conviction, but did not reveal that information until the contents of the thumb drive came to light.
“…[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?”, she writes in the letter.
She also states in a correspondence that she would have McVay’s back if he cut corners on cases and that such tactics were referred to as “pulling a Bruce,” by other investigators in the Sheriff’s office.
In the decision granting a new trial, Schrand determined there was “no intentional withholding of any Brady Material prior to trial.” He did, however, rule that the defense was entitled to know about the man walking on the property hours before Mockbee was killed.
Neace
In a letter to the Office of the Attorney General dated March 23, which the Tribune also obtained through an open records request, Boone County Attorney Robert Neace calls for Tally Smith’s conduct in the Dooley case to be investigated. The portion of the letter where Neace specifically identifies his concerns has been redacted, but they are later referred to as potential criminal actions.
In a June 2 response to Neace, the OAG states Young has been assigned as Special Prosecutor to investigate the claims.
The Tribune has also requested a copy of the thumb drive from the OAG, but has only been granted access to the information made public at the CR 60.02 hearing, because the additional contents are part of ongoing investigations.
Young said, at this point, he is still waiting for the Kentucky State Police DESI Unit to complete the investigation and reveal its findings. At that time, Young said he will review and discuss those findings with DESI investigators and contact the OAG about the recommended next steps in the process.
Despite the revelations at the CR 60.02 hearing, calls from elected officials and the Boone County Republican Party for her to resign and the ongoing investigation of her conduct, Tally Smith recently announced plans to seek reelection in 2018. She remains married to District Judge Jeffrey Smith, who is also up for reelection next year.
The Dooley retrial is expected to take place early next year.
Contact Mark Hansel at mark.hansel@nkytrib.com
