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Tribune analysis: Commonwealth’s Attorney Tally Smith should resign; state AG should investigate


NKyTribune analysis:

Boone Commonwealth’s Attorney Linda Tally Smith should resign her position immediately, out of respect for the office she was elected to.

Tally Smith

The testimony and exhibits provided in the recently completed CR 60.02 hearing that will determine if convicted killer David Wayne Dooley will get a new trial are confirmation of Tally Smith’s failure to uphold the high standard required of her position.

In 2014 Dooley was convicted of killing Michelle Mockbee, a Fort Mitchell mother of two, on May 29, 2012.

Dooley and Mockbee were coworkers at Thermo Fisher Scientific. Mockbee was bludgeoned to death at the company’s facility in the Northern Kentucky Industrial Park.

The Attorney General’s office requested the CR 60.02 hearing when questions arose about Tally Smith’s conduct in the case.

Much has been made of the video that shows a “random dude” walking on the grounds of Thermo Fischer Scientific 10 hours before Mockbee was killed. If Circuit Court Judge James R. Schrand determines Tally Smith did withhold that, or other evidence, from Dooley’s defense team then a convicted killer could receive a new trial.

Calls for Tally Smith’s resignation — coming from multiple sources — are about much more than the Dooley hearing however.

Tally Smith suggests those calls are prompted by her conduct in the Dooley investigation. While that alone would provide justification for those asking her to step down, it is the totality of Tally Smith’s behavior while in office, from the time of that investigation, and continuing until today, that warrant her removal from office.

Convicted killer David Wayne Dooley is led into the courtroom in shackles during a hearing to determine if he will get a new trial. (file photo).

Tally Smith has betrayed the trust and lost the confidence of the people who elected her to prosecute criminal cases in the Commonwealth. She not only engaged in conduct that is inappropriate for someone in her position, she has implicated the Boone County Sheriff’s office and jeopardized any number of cases that she, and investigators whose integrity she has publicly questioned, were involved with.

The Northern Kentucky Tribune has learned that the Kentucky Attorney General’s office has been asked by a public official to conduct an investigation into whether Tally Smith actions constitute malfeasance in office and/or criminal activity that could be subject to prosecution.

In a widely disseminated response to an inquiry, Tally Smith has indicated she does not intend to resign, which is unfortunate. In the response, she states that she did not withhold evidence in the Dooley trial, a fact that is disputed by Bruce McVay, the lead detective in the case at the time and Tally Smith’s former lover.

If it is determined that Tally Smith did withhold evidence and lied about it, then not only should she be removed from office, she would also be guilty of perjury.

It is unfortunate that the Tribune has to publicly chronicle some of the violations of inappropriate conduct that Tally Smith has engaged in. Her refusal to resign, and the untenable position it places her office in, however, make it not only necessary but compulsory.

The admission by Tally Smith and McVay that they engaged in a months-long sexual relationship while she was (and still is) married to District Court Judge Jeffrey Smith certainly calls her character and ethics into question.

Before the affair began, she now says she believed McVay to be sleazy and a womanizer, yet she chose to engage in a sexual relationship that jeopardizes the integrity of her office and the careers of both her and her husband.

Bruce McVay preparing to testify at a hearing to determine if convicted killer David Dooley will get a new trial. McVay’s testimony contradicted that of Commonwealth’s Attorney Linda Tally Smith (inset) who stated she did not know about the contents of a crucial video prior to Dooley’s murder trial.

Tally Smith claims the affair began after Dooley was convicted, but there are questions about how their personal relationship tainted her judgment regarding McVay. A letter written by Tally Smith and obtained by the Tribune provides some insight.

An 18-page letter to McVay, which Tally Smith said was never sent, provides details in her own words of some of the behavior. It also details the lengths she went to, or would have gone to, to protect her lover.

“What I don’t think that you are comprehending is that I had a deeper “circle of trust” with you than I have ever had, or will ever have, with any other officer (or any other person for that matter). 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.” However, since I now know that even after we have developed a deeper level of trust, you have also LIED TO ME. So since I now know that you are willing to lie ABOUT CASES and you feel comfortable lying TO ME, I don’t know that I will ever be able to trust anything that you say to me … ever. Definitely not about how you feel, but especially about cases.”

Tally Smith clearly made the decision to put her loyalty for her lover above the rights of those she was charged with giving a fair trial. It is not clear, yet, if she did that, but the admission that she would is not acceptable.

At Dooley’s CR 60.02 hearing, Tally Smith appeared to minimize the impact of the letter by saying it was personal and akin to a diary or journal entry.

Defense attorney Deanna Dennison pointed out that people have been convicted of crimes for things that are written in diaries. Often, she argued, things written in a personal journal contain the person’s most honest statements and admissions.

In another passage, Tally Smith talks about the “random dude” video.

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.”

Instead of worrying about getting her “ass handed to me” at trial, if she truly had no knowledge of what the video contained, the appropriate thing to do was to report the video’s contents as soon as she became aware of them.

Deanna Dennison, left, an attorney representing David Dooley challenged Tally Smith’s assertion that she did not withhold crucial evidence from the defense team. Chris Roach, an attorney on Dooley’s trial defense team is at right. He testified that he had not seen crucial evidence prior to Dooley’s murder trial (file photo).

Whether Tally Smith knew about the video before the Dooley trial, which McVay insists she did, she certainly knew about it on or before July, 2015, the last time she edited the letter. Her acknowledgement that “the entire case will be tainted” is certainly an admission that it is information that should have been released, but it did not come out until just before Dooley’s retrial hearing.

Another passage in the letter calls McVay’s conduct, as well as those of officers she claims he mentored, into question.

“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 off 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.

Tally Smith’s own allegations call into question any case McVay investigated. In addition, it raises questions about the integrity of other investigators that “are left with the impression that it is actually okay to do the things that you do.”

The problem is that there is no indication Tally Smith ever reported any of this to Sheriff Michael Helmig or anyone else in the Boone County Sheriff’s office administration.

If Tally Smith had knowledge of potential misconduct by a number of investigators in the Boone County Sheriff’s office and failed to report it, that is a serious breach of faith and responsibility.

If her statements aren’t true, she has impugned the integrity of the Boone County Sheriff’s Department and jeopardized any number of investigations and convictions, with baseless accusations.

Either would seem to be unacceptable behavior for a Commonwealth’s Attorney.

Any defense attorney would seemingly grasp onto this statement as potential evidence that Boone County Sheriff’s Department investigators allegedly used improper tactics to obtain evidence or confessions.

Yet another passage suggests McVay was an alcoholic who drank on the job.

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.

The implication is that Boone County Sheriff’s administrators believed a lead investigator in charge of high-profile cases, including murder investigations, drank on the job yet did nothing about it. The supervisor has never been identified, but the suggestion that the Sheriff’s Department would condone such actions and jeopardize cases is disturbing. If the allegation is fabricated, it raises serious concerns about Tally Smith’s behavior and her fitness to serve as Commonwealth’s Attorney.

The Northern Kentucky Tribune has obtained a summary of an internal investigation by the Boone County Sheriff’s office that took place in October, 2016 after questions arose about McVay’s conduct. Specifically the department examined the conduct of McVay concerning the investigation in the Michelle Mockbee homicide and possible testimony in the subsequent trial and conviction of David Dooley.

It states, “records heretofore have not yielded any information to suggest (McVay) violated policy & procedure.”

What Tally Smith seemingly fails to grasp is that her admitted knowledge of all of these incidents, and the decision not to report them, makes her as culpable as those she claims have committed the transgressions.

Deputy Attorney General J. Michael Brown and Special Prosecutor Shawna Kincer presented the case for the OAG’s office during David Dooley’s retrial hearing. Commonwealth’s Attorney Linda Tally Smith was replaced after questions about her conduct during the Dooley murder trial arose.

At trial there was a reference to McVay’s “sanitized” personnel file. There was evidence that information contained in a file presented to Dennison was omitted from the file given to Dooley’s first defense team in 2014.

The defense argued that either the information was not included in the 2014 file provided by the Sheriff’s office, or that it was omitted before the defense team received it. Either way, information requested by Dooley’s defense team was withheld.

The 18-page letter written by Tally Smith was introduced as evidence, but copies supplied through open-records requests have entire pages redacted.

The Northern Kentucky Tribune respects the privacy of parties not directly involved in this matter, but the failure to provide so much of the information contained in the document seems to go beyond protecting the innocent.

Tally Smith’s suggestion that the letter is private falls short when considering she left it on a drive in the Commonwealth’s Attorney’s office that could be, and ultimately was, accessed by employees.

By admission of all parties involved, there are thousands upon thousands of documents, screen shots and other information that Tally Smith saved, and documented on a server in the Commonwealth’s Attorney’s office that her employees had access to.

That evidence was captured on a thumb drive by a former employee and turned over to the Kentucky Attorney General, which is the primary reason the OAG’s office took over the Dooley case.

There are also questions about when and why Tally Smith stored all of the information, which by some counts includes 40,000 documents and the equivalent of hundreds of thousands of pages of text. While Tally Smith should not be expected to account for her every minute, the amount of time it must have taken to store all of these documents had to be a distraction from her work.

Tally Smith states in her response to the inquiry asking about her resignation that “it is disrespectful to the process for people to presume they know the full story by the limited amount of information that is able to be conveyed through media coverage.”

The Tribune’s response: “Provide us, and the public, with the information we need to make a more informed decision.” The information contained on that thumb drive would be a good place to start.

It is important to point out that the Northern Kentucky Tribune is not calling for a new trial for David Wayne Dooley. The Tribune respects the integrity of Circuit Judge James R. Schrand and is confident that he will examine all of the evidence presented at the CR 60.02 and make a decision that respects the rights of David Wayne Dooley and the memory of Michelle Mockbee.

If it is determined that Dooley is granted a new trial, Tally Smith’s determination to remain Commonwealth’s Attorney only makes the prosecution more difficult.

She challenged the integrity of McVay and fellow investigator Everett Stahl at the retrial hearing and in her correspondences. McVay’s testimony at the retrial hearing directly contradicts that of Tally Smith, which raises credibility questions.

The Attorney General’s office would have to prosecute Dooley for a killing that occurred five years ago, relying on evidence from an investigation it did not participate in, using key witnesses who spent a week contradicting each other’s testimony. If Dooley’s new defense team presents additional evidence from the thumb drive at a new trial, as it almost certainly will, there is no telling what information about Tally Smith, McVay and others might be revealed.

It is only a matter of time before others convicted of crimes come forward and, through their attorneys, ask for convictions to be overturned or request CR 60.02 hearings. If Tally Smith’s integrity is questioned, she would have to be removed from those cases as well.

The Northern Kentucky Tribune asks Tally Smith to recognize the untenable position her decision to remain Commonwealth’s Attorney creates for the Attorney General and, in fact, her own office. The only reasonable conclusion is that she should step down.

Attorney General Andy Beshear should conduct a complete and thorough investigation of Tally Smith, to include the allegations she has made against the Boone County Sheriff’s Office and its investigators.

The integrity of the judicial process and the right of every person to fair and equal treatment under the law is sacrosanct.


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6 Comments

  1. Bill McIntosh says:

    Quite honestly one of the best written, bravest editorial pieces. Linda Tally Smith must go. Immediately. She is a complete embarrassment to the entire state.

  2. Jackie Steele says:

    Our justice system in Boone County is so tainted because of her conduct and revelations that the citizens in Boone County have no confidence in her, her office and the Boone County Police Department. She should resign immediately and there be a thorough investigation into her office and the Boone County Police Department. It is going to take a long time to correct this corruption. I am thankful it has been exposed and sorry it is such an embarrassment to our beautiful little community, our county and the entire state!

  3. Lori Schwartz says:

    How has the BCPD allowed a police officer with a known drinking problem and a history of unethical behavior remain a police officer? As a long-time resident of Boone County, I am deeply concerned about what the “norm’ is in the BCPD. One bad apple should not spoil the barrel, and I am sure there are good officers in Boone County. I sincerely hope the leadership takes a long look at how and why Bruce McVay was allowed to maintain his employment with the county for years when, according to Linda Tally Smith, he had a known reputation for not following the rule of law.

  4. Chiquita King says:

    Nobody had a problem with it until she was caught with her hand in the banana jar. Everybody knew of the corruption in Boone County but now that its in the open, y’all fleeing like rats on the Titanic.

  5. Nathan Hodges says:

    I’m writing this letter in response to the article the tribune ran on March 12, 2017 titled “Explosive Allegations against Commonwealth’s Attorney, investigators contained in Dooley Filing.” The article does a fine job informing the public of the allegations against the Commonwealth’s Attorney Linda Tally Smith. As a lifelong Boone County resident I can honestly say none of this surprises me. What does surprise me is the fact that Linda Tally Smith is still holding her position as a Commonwealth attorney after these E-mails were released. Proof of her withholding evidence in a trial in her own E-mails is not only grounds for her removal, she should be disbarred. The trial of David Dooley has been a joke among residents since it gained national attention on Dateline. After studying the facts available to the public it has always been difficult to see how a jury convicted David Dooley. Zero physical evidence, no motive, and now proof of misconduct on behalf of the state. The man never deserved to go to jail. I have always known that the Boone County Sheriffs’ office is on the “good ol’ boy” system but these revelations makes a person feel like it’s time for a thorough investigation into not only Linda Tally Smith, but the entire local government of Boone County. The attorney general needs to step up and start cleaning house. Quite frankly I have lost all confidence in local law enforcement.

  6. Dean Knolls says:

    You didn’t think the contents of “the thumb drive” would stay secret forever, did ya ? There is another kind of high profile case that will be quite embarassing to ALL Boone officials, when it is revealed. Tally Smith made some bad personal choices which time can heal, who hasn’t ? This issue has nothing to do with her because she was lied to by McVay before arrest was ever made. No wonder she says “Especially About Cases”. Makes sense now why McVay unexpectedly “Retired”.

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