By Mark Hansel
NKyTribune managing editor
David Dooley’s lawyers have filed a motion to dismiss the sex charges recently levied against their client, alleging vindictive prosecution and lack of prosecutorial jurisdiction.
David Dooley at a 2017 hearing to determine if he would be granted a new trial in the 2012 killing of Michelle Mockbee. He was ultimately granted a new trial because it was determined evidence that might have aided in his defense was withheld from his attorneys. He is now charged with use of a minor in a sexual performance. His attorneys have filed a motion to have the charges dismissed on the basis of vindictive prosecution (file photo).
Dooley was indicted by a Boone County Grand Jury on August 21 on charges of use of a minor in a sexual performance, a Class B Felony, and possession of matter portraying a sexual performance by a minor, a Class D Felony.
He is awaiting retrial in February in the May, 2012 killing of Michelle Mockbee at the Thermo Fisher Scientific facility in Boone County, where both worked.
Dooley was convicted of murder in that case in 2014, but that decision was overturned in May, 2017, when it was determined evidence that might have aided in his defense was withheld from his attorneys.
He was granted a new trial, which is scheduled to begin in February.
The alleged victim in the charges of use of a minor in a sexual performance said the abuse occurred when she was between the ages of four and seven.
The Office of the Attorney General has appointed Special Prosecutor Jon Heck to represent the Commonwealth in both the Dooley retrial and on the new charges. Commonwealth’s Attorney Linda Tally Smith has been removed from proceedings concerning Dooley.
In testimony before the Grand Jury, Boone County Sheriff’s Detective Tracy Watson explained how authorities became aware of the allegations against Dooley in 2014 and why the OAG elected to seek an indictment at this time.
“Back in June, I was assigned to reopen the case against David Dooley. That case, back in 2014, a child had disclosed, she was 14 years old then and she had disclosed that (Dooley) sexually abused her…back in 2004 through 2007. I reviewed, I pulled those tapes, she had been interviewed at what’s called the child advocacy center. They record all their interviews. I had reviewed those recordings to see what her disclosure had been then. Back then I also reviewed the case file. It had been decided at that point that Mr. Dooley was facing some serious charges. And he had received some serious jail time, or was going to receive some serious jail time. So, it was decided then with the family, not to put the juvenile through any kind of prosecution at that time, and the case was closed. Things had changed by the time I got it this past June and he was facing the possibility of not having jail time any more. So the family decided at this point to go forward with sexual abuse investigation and criminal charges.”
A court filing states former Boone County Detective Bruce McVay was made aware of the allegations of sexual conduct with a minor against David Dooley in 2014, but he chose not to pursue charges (file photo).
Dooley’s attorneys, Deanna Dennison and Jeff Lawson, state in the filing Watson’s testimony is, in part, the basis for the request to dismiss the charges based on vindictive prosecution.
“If somebody is successful in advocating for their constitutional right to a new trial, or exercising any constitutional right and in doing so, is subjected to additional prosecution because of the exercise of that right, then that is textbook vindictive prosecution,” Lawson said. “There is testimony at the Grand Jury that substantiates that claim.”
In its filing, Dooley’s attorneys also state the suggestion that Dooley was facing substantial jail time when the case was closed contradicts the timeline of the disclosure.
“Detective McVay and the Commonwealth Attorney knew of the disclosure on March 14, 2014, more than six months prior to the start of the first trial.”
Former Boone County Sheriff’s Detective Bruce McVay was the lead investigator in Dooley’s first murder trial. The inference is that investigators would not, or should not, have closed the investigation based on the outcome of a trial that had not yet begun if they believed McVay was guilty of sex crimes against a young child.
The case against Dooley was by no means a slam dunk the first time around and testimony before the Grand Jury on August 21 indicates there is speculation that he will be acquitted in the retrial.
AG: “When the substantial prison sentence was no longer necessarily a reality, the family decided to go forward again.”
David Dooley is led from court at a pretrial hearing. His attorneys, Deanna Dennison (left) and Jeff Lawson (center), say the recent charges filed against him should be dismissed on the basis of vindictive prosecution and lack of prosecutorial jurisdiction (file photo)
Dooley’s attorneys believe a bill of particulars will strengthen their case for vindictive prosecution. A bill of particulars is a detailed, formal, written statement of charges or claims by a plaintiff or the prosecutor given upon the defendant’s formal request to the court for more detailed information.
In the filing, Dooley’s attorneys state:
“While not clear from the record exactly how Detective Watson was ‘assigned to reopen’ the case in June 2018, it likely will become clear that neither the alleged victim nor her mother made the initial contact with authorities in 2018; in fact, just the opposite: the Commonwealth approached (the mother) and her daughter to request the allegations be resurrected.”
It is important to point out that the charges were initiated by the alleged victim in this case, who is now an adult. The defense identifies this as “another crime he did not commit,” but does not address Dooley’s defense in detail. That would be argued in court and decided by a jury when, or if, the case goes to trial.
“This case about the alleged child victim, of course it’s an awful allegation, but it was made in 2014, it was known to the detectives at the Boone County Sheriff’s Department, it was known to Commonwealth Attorney in 2014, and they did not elect to pursue charges at that point,” Lawson said.
Dooley’s attorneys cited several precedents of case law, including Thigpen v Roberts, 468U.S. 27, 30 (1984), to strengthen the case for vindictive prosecution.
“The Commonwealth’s actions and the circumstances that led to the new indictments exhibit a presumptive retaliatory motive to deter, or punish the Defendant for exercising his legal rights.”
The defense also argued that the charges be dismissed based on a lack of prosecutorial jurisdiction.
“The OAG has no statutory authority to act as special prosecutor in Boone 18-CR-550…It is clear from case law that the OAG has no authority to prosecute alleged sex crimes, apart from the authority to engage in special prosecutions…”
David Dooley’s attorneys say OAG Special Prosecutor Jon Heck (standing), does not have prosecutorial jurisdiction in the recent charges filed against their client (file photo).
Tally Smith was defeated by attorney Louis Kelly in the May Republican primary.
Kelly has no challenger in the November General Election and is not subject to the same restrictions regarding prosecution of Dooley. He will take office in January and would seem to have discretion to prosecute the case involving the sex charges, if he sees fit, in just a few months.
The initial investigation of sexual misconduct by the Cabinet for Health and Family Services, based on allegations from family members, was closed in 2005.
The defense attorneys introduced statements from the alleged victim’s mother during the subsequent investigations, including this statement from June 5, 2012:
“…the only person that ever accused him of anything wrong was actually my family had accused him of molesting my daughter, and I fought that; I mean, I was there, I was around, he did not molest my daughter.”
In an email to McVay in August, 2012, who was then investigating the Mockbee killing, the alleged victim’s mother states:
“I have asked my daughter indirectly if she recalls anything inappropriate (every) happening between her and David when I was not around. She has no memory of any negative or inappropriate actions toward her. She only remembers him yelling at me and the boys a lot.”
Nonetheless, and regardless of how she came to the decision, the alleged victim has decided to press charges at this time. There is no statute of limitations on these crimes in Kentucky.
An August 20, letter from Dooley’s attorneys to Heck suggests these latest charges might be related to the OAG’s consideration to request a change of venue. The suggestion was based on comments it states were previously made to the defense team.
“The decision to initiate the charges against Mr. Dooley, while he is on the cusp of his retrial, is an obvious decision to intentionally taint the jury pool against him based on allegations that law enforcement and the Cabinet have been well aware of for nearly 14 years.”
Dooley’s attorneys say the second charge, possession of matter portraying a sexual performance by a minor, is baseless.
A court filing states a computer that has been held as evidence since 2012, but only examined recently, found one thumbnail file it considered an artifact of child pornography. The filing states the origin and contents of the image was called into question by the defense expert, as well as the Commonwealth’s own examiner.
“The commonwealth found a single lingering vestige of an alleged file of child pornography not created or saved by David Dooley (or anyone else), but rather by Windows, itself.”
Heck has referred all requests for comment about the case to Terry Sebastian, communications director for the OAG, who released this statement:
“We cannot comment given we are prosecuting this case. I would just refer you to the indictment.”
An evidentiary hearing is scheduled for Oct.3, at which time the defense is expect to request a ruling on its motions to dismiss.
Contact Mark Hansel at mark.hansel@nkytrib.com
