By Mark Hansel
NKyTribune managing editor
An attorney for the whistleblower that formerly worked in the office of Boone Commonwealth’s Attorney Linda Tally Smith has questioned the impartiality of the Kentucky State Police investigation into her conduct.
Wolnitzek
Steve Wolnitzek, who represents Nicholas Ramler in civil litigation against Tally Smith and her husband, District Court Judge Jeffrey Smith, says the lead counsel for the Kentucky State Police has indicated support for Tally Smith’s reelection campaign, while the Commonwealth Attorney’s conduct remains under investigation by the KSP.
Despite the ongoing investigation by a special prosecutor assigned by the Kentucky Office of the Attorney General (OAG) and calls for her resignation, Tally Smith is seeking re-election and has an opponent in the May Republican primary.
Wolnitzek provided a link to the Re-Elect CWA Linda Tally Smith Facebook page, on which the KSP attorney, Shawna Kincer, posted a “like” emoji in response to a Tally Smith Campaign video.
Kincer previously worked as a special prosecutor for the OAG and served in that capacity in the David Wayne Dooley CR 60.02 to determine if the then-convicted killer would get a new trial.
Dooley’s conviction was thrown out after Circuit Judge James R. Schrand determined that evidence that could have aided in his defense was withheld from defense attorneys.
Dooley remains in jail, and is scheduled to be retried later this year.
Letter written to Special Prosecutor Shane Young, by attorney Steve Wolnitzek regarding concerns about the impartiality of the investigation into the conduct of Boone Commonwealth Attorney Linda Tally Smith (click to enlarge).
In a letter to Hardin County Commonwealth’s Attorney Shane Young dated February 14, Wolitzek expressed his concerns regarding the objectivity of the investigation. In June, Young was assigned by the OAG to investigate Tally Smith’s conduct, as it relates to the criminal investigation of Dooley, for possible illegal actions. He assigned the Kentucky State Police Drug Enforcement and Special Investigations (DESI) Unit to conduct the investigation and report its findings to his office.
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.
“It would seem to me that Ms. Kincer’s ‘liking’ a post of Ms. Tally Smith would call into question the impartiality of any investigation where members of the Kentucky State Police are involved,” Wolnitzek wrote. “It certainly looks strange to me, and I would think to members of the public at large, that an investigative agency looking into criminal wrongdoing appears to be actively showing support for someone under active investigation by that agency.”
Wolnitzek said he has not gotten a response from Young, the Commissioner of the KSP, Attorney General Andy Beshear, or Gov. Matt Bevin, all of whom were copied on the letter.
In response to a call from the NKyTribune, Young said Monday the investigation of Tally Smith is ongoing and he doesn’t think Kincer has a role in it.
Shawna Kincer, right, at the CR 60.02 hearing for David Wayne Dooley. Kincer was assigned as a special prosecutor to replace Boone Commonwealth’s Attorney Linda Tally Smith at the hearing. Kincer now works as counsel for the Kentucky State Police, the agency that is investigating Tally Smith’s conduct (file photo).
“The DESI Unit is kept pretty much separate from the rest of the KSP and that is by design,” Young said. “I don’t think (Kincer) would have any reason to interact with them.”
Young added that he has not sought, or given, input to the DESI unit during the investigation because he wants its findings to be impartial. In September, Young said he thought the investigation was winding down, but six months later it is still ongoing.
While Wolnitzek is not directly involved in the Dooley case, his client, Nicholas Ramler, has played a key role in events that led to Dooley being granted a new trial.
In 2014, Dooley was convicted of killing Michele Mockbee, a mother of two, at the Thermo Fisher Scientific facility in Boone County 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.
The Office of Attorney General Andy Beshear requested a CR 60.02 hearing to determine if Dooley should be granted a new trial because of questionable conduct by Tally Smith.
Some of that conduct was revealed in a thumb drive containing thousands of pages of document Ramler copied from a public server while an employee of the Commonwealth’s Attorney’s office.
Tally Smith said Ramler is a disgruntled employee and turned the thumb drive over to the OAG after he was fired. Wolnitzek, contends his client is a whistleblower who provided the thumb drive to the OAG because of its content, as it relates to Tally Smith’s conduct.
Tally Smith
While most of the contents of the thumb drive remain protected because of the pending litigation, a portion was released as evidence in the Dooley retrial (CR 60.02 ) hearing. This includes the revelation that 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 admitted to the affair, but she said it began after Dooley was convicted in 2014. Dooley’s attorneys at the CR 60.02 hearing, Deanna Dennison and Jeff Lawson, also 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.
Tally Smith said she didn’t know about the video prior to the trial, a statement McVay disputed under oath in his testimony, but admits to knowledge of the tape at some point after the trial in a correspondence with McVay that was captured on the thumb drive.
“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.”
Despite those concerns and the acknowledgement that the tape was evidence that probably should have been available to the defense, there is no indication that Tally Smith told anyone in authority about it until its existence was revealed on the thumb drive.
David Wayne Dooley was granted a new trial when Circuit Court Judge James R. Schrand determined that evidence that might have aided in his defense was withheld from his attorneys. In 2014, Dooley was convicted of killing Michelle Mockbee at the Thermo Fisher Scientific plant where both worked, in 2012. The retrial hearing raised questions about the conduct of Boone Commonwealth Attorney Linda Tally Smith, which resulted in an investigation that is ongoing (file photo).
In May, Schrand, who presided over the original trial, as well as the CR 60.02 hearing, overturned Dooley’s conviction and granted him a new trial. Schrand is also scheduled to preside in the retrial, which is expected to begin later this year.
Tally Smith has said she cooperated fully with the OAG and Dooley’s defense team for the CR 60.02 hearing and testified for two days under oath. She says she has done everything asked to demonstrate that she has not done anything wrong, as it relates to her position as Commonwealth Attorney.
The OAG, issued the following statement regarding the Tally Smith investigation:
“The Attorney General’s office, who is handling the Dooley retrial, appointed a special prosecutor for the Linda Talley Smith investigation. That appointment removes any jurisdiction from the office with regard to Ms. Smith.”
The OAG’s office has previously indicated that Young was assigned special prosecutor in order to avoid the appearance of a conflict of interest because of its role in the Dooley CR 60.02 hearing and retrial. The office declined comment to a question regarding a potential conflict of interest by Kincer, due to her role as a special prosecutor in the Dooley retrial hearing and possible support of Tally Smith’s re-election campaign.
It is not just Kincer’s transition to KSP that concerns Wolnitzek, it is her support of Tally Smith’s candidacy, despite her knowledge of the information contained on the thumb drive.
Some emojis are more powerful than others. This Facebook ‘like’ by Kentucky State Police Head of Legal Counsel Shawna Kincer has raised questions about the impartiality of that agency’s investigation of Boone Commonwealth’s Attorney Linda Tally Smith
Other evidence from the thumb drive made public at the CR 60.02 hearing, which were all statements written by Tally Smith includes:
* A correspondence that indicates McVay was an alcoholic and that his supervisor in the Boone County Sheriff’s office was aware of it:
“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.”
* A correspondence in which Tally Smith indicates McVay regularly violated policy and encouraged younger investigators to follow his lead:
“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 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.”
The last point is significant because in his testimony at the Dooley trial, McVay stated he had to rely on notes from an interview with the defendant because his recording device malfunctioned.
*A correspondence in which Tally Smith admits she would cover for McVay if he cut corners on investigations:
“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.’”
Despite the impact these statements, if true, might have on investigations and/or trials, there is also no indication Tally Smith ever revealed the information to anyone in authority until after it was brought to light on the thumb drive.
Legal experts the Tribune has consulted with say Tally Smith’s written correspondences to McVay are almost certainly ethical violations and might well be considered criminal conduct. The Kentucky Bar Association, which has the authority to discipline Tally Smith, has not taken any action against her and she remains an attorney in good standing.
Kincer’s post on Tally Smith’s re-election Facebook page might well be the type of thing that is done thousands of times a day on social media sites.
Wolnitzek maintains, however, that Kincer’s access to the evidence revealed at the CR 60.02 hearing, and information on the thumb drive that is not public, is disturbing and her “like” amounts to an unfathomable vote of support for Tally Smith’s campaign.
Her position of authority within the agency that is investigating Tally Smith, he says, just makes it all the more troubling.
Contact Mark Hansel at mark.hansel@nkytrib.com
Thank You NKY Tribune for staying on top of this story. INCREDiBLE !!! How can this attorney (Kincer) have any Ethics, knowing what LTS has stated ?? Corruption Abounds deeper than we May know because of this ! Why isn’t Mr. Young more involved in investigation is beyond understanding. Has he lifted a finger to be active in this? KSP investigating their own is like the Fox guarding the hen house. Although it has been reported that the KSP and Sheriffs department have always been at odds with one another. KSP offered their help a few years ago in a murder investigation in Boone and Helmig basically told them to mind their own business…… Still Unsolved ! You have to know that Kincer is sticking her nose in investigation, no doubt about it! Are they purposely waiting until after investigation to release their findings ? We tend to have short memories, stay on top of this please NKYT !