By Mark Hansel
NKyTribune managing editor
The Northern Kentucky Tribune can now reveal that the source of comments regarding the thumb drive that a whistleblower formerly employed in the Boone/Gallatin Commonwealth Attorney’s office released to the Kentucky Office of the Attorney General (OAG) is the Attorney General himself.
Attorney General Andy Beshear acknowledged at this nonprofit event at New Riff Distillery in October, 2016, that he had viewed the contents of a controversial thumb drive. He did not reveal the contents, but told the Tribune there was no context that would explain some of the information regarding the conduct of Commonwealth Attorney Linda Tally Smith contained on the device. The Tribune has previously declined to identify Beshear as the source of the comments, which do not represent a violation of any kind, but is naming him now because the statements were not made in confidence and have been attributed to Boone County Attorney Robert Neace. (file photo).
The comments were very limited in scope and do not represent a violation of any kind, but they referenced a crucial piece of evidence in ongoing litigation that is determined to be confidential and protected from open records requests.
Boone/Gallatin Commonwealth Attorney Linda Tally Smith has claimed for months that the source of comments to the Tribune regarding the evidence is Boone County Attorney Robert Neace, but that is not accurate.
In a conversation with the managing editor of the Northern Kentucky Tribune at a nonprofit event at New Riff Distillery on October 25, 2016, Attorney General Beshear acknowledged viewing the contents of the thumb drive. In response to claims that the information on the thumb drive was taken out of context, Beshear responded that there was no context that would excuse some of Tally Smith’s behavior.
The thumb drive was obtained by a former Commonwealth’s Attorney’s office employee, Nicholas Ramler, from a public server. It raised questions about the conduct of some of those involved in the investigation and trial of David Wayne Dooley, including Tally Smith. The OAG took over the Dooley case prior to the CR 60.02 hearing.
Beshear added at the time that he fully expected information contained on the thumb drive would result in a new trial for Dooley, but was confident he would again be convicted.
Deputy Attorney General J. Michael Brown made similar contents in March, 2017, while acting as Special Prosecutor in the CR 60.02 hearing to determine if Dooley would be granted a new trial.
“We do believe that the Commonwealth got it right,” Brown said. “We do believe that Mr. Dooley murdered Michelle Mockbee. The question is, not just did the Commonwealth get it right, did the Commonwealth do it right.”
In 2014, Dooley was found guilty of killing Michelle Mockbee in 2012, at the Thermo Fisher Scientific Facility in Boone County where both worked. He was sentenced to life in prison.
That conviction was overturned in 2017 and a new trial is expected to begin later this year.
While some contents of the thumb drive were disclosed as evidence in the CR 60.02 hearing, it is important to note that neither Beshear, Brown, or anyone else, has disclosed any of the other information contained on the thumb drive to the NKyTribune.
Tally Smith
For a detailed outline of the contents of the thumb drive that have been made public and other information pertaining to the Dooley case, click here.
The Tribune’s conversation with Beshear was not privileged, or what is commonly referred to as “off the record.” The Tribune chose, however, not to reveal the source of the comments while the CR 60.02 hearing was being conducted because Special Prosecutors from the Office of the Attorney General were assigned to represent the Commonwealth in the proceedings.
In an unusual move, the OAG requested the CR 60.02 hearing, something legal experts the Tribune has consulted with say they had never heard of before. It is almost always the person convicted of a crime that requests a new trial.
With the CR 60.02 hearing now concluded and because Tally Smith, Neace and other Boone County officials associated with the Dooley case are seeking reelection, the Tribune felt it was important to set the record straight.
It’s not clear why Tally Smith is adamant that Neace is providing information to the Tribune. There are certainly others associated with the case, including Boone County Sheriff Michael Helmig and Steve Wolnitzek, the attorney for Ramler, who likely had more access to the information on the thumb drive than Neace did.
Neace has been among the more outspoken individuals calling for Tally Smith to step down in light of the contents revealed on the thumb drive, but he is certainly not alone. Many elected officials have called for Tally Smith’s resignation, as has the Boone County Republican Party, after some contents of the thumb drive were made public and Dooley was granted a new trial.
In an effort to provide the public with accurate information, Tribune reporters have had conversations with just about everyone who has called for Tally Smith to step down, and the substance of those discussions is no different than of those with Neace.
Neace
Below are excerpts from an email Tally Smith’s sent to the Tribune July 4, in response to a story revealing that the OAG had assigned a Special Prosecutor to investigate her conduct, and the Tribune’s response to those allegations (Tally Smith’s comments are italicized).
“As much as you want to deny it, it’s clear that the information is being fed to you by Bob. For example, you sent a 5/23/17 open records request asking for records pertaining to any investigations that have been requested & got a response. But somehow, you magically know to send ANOTHER one a month later (6/29/17) specifically requesting records pertaining to appointment of a special prosecutor to investigate my conduct. I wonder how you knew that a special prosecutor had been appointed to begin with.”
The Tribune first revealed that it had learned of the request for the OAG to investigate Tally Smith’s actions on March 29, 2017.
The Tribune issued an open record request on 5/22/17, asking for the release of the information contained on the thumb drive, as had many other media outlets over the course of several months. The Tribune also, at this time, asked for any requests for investigation of any of the parties involved in the Dooley CR 60.02 hearing.
“We would also ask for any complaints or requests for investigation to the OAG regarding the conduct of Ms. Tally Smith, former Boone County Sheriff’s Detective Bruce McVay, or any other parties involved in Mr. Dooley’s CR 60.02 hearing, or the previously identified civil proceeding. If the OAG chooses not to confirm the status of any ongoing or pending investigations, it is the opinion of the Tribune that the requests for investigation are still public records that are subject to the State open records law.”
That request was denied.
Following up on that request, the Tribune sent an open records request, not referenced in Tally Smith’s email, on 6/26/17, again asking for information regarding the assignment of a special prosecutor. The Tribune also, at this time, renewed its request for the information on the thumb drive.
“Under the Freedom of Information Act (FOIA), the Northern Kentucky Tribune is requesting confirmation of, or information related to, the assignment of a Special Prosecutor, to investigate the conduct of Boone Commonwealth Attorney Linda Tally Smith. The Tribune is requesting all information available, including the name of the Special Prosecutor and any specific information related to the conduct that is being investigated.”
That request was also denied.
On 6/29/2017, the Tribune called the OAG’s office to get a clarification as to why the information regarding a Special Prosecutor was not available, since it was a public record, and by this time, appeared to be common knowledge in Boone County. The Tribune was instructed to limit its request to information regarding a Special Prosecutor and was assisted with the language that might allow the request to be approved.
“The Northern Kentucky Tribune is requesting a copy of any letter(s) to the Office of the Attorney General requesting a special prosecutor be appointed to investigate the conduct of Boone Commonwealth Attorney Linda Tally Smith in the 2014 prosecution of David Wayne Dooley and/or the subsequent CR 60.02 hearing that was conducted to determine if Mr. Dooley would be granted a new trial. Additionally, the Tribune is requesting a copy of any letter from the Office of the Attorney General appointing a Special Prosecutor to investigate the conduct of Mrs. Tally Smith.”
That request was approved and resulted in the story announcing the assignment of Special Prosecutor Shane Young, which was published July 4, 2017. There was no magic involved, just the diligence of a publication following up to obtain information it believed the public was entitled to.
Another local reporter issued a similar request to the OAG and also received the information at about the same time.
“Have you stopped to ask Bob why he is feeding you the information he has been? Or why he is the one pulling the strings & pushing the issues? Or how it is that he is “familiar with the contents of the external HD?”
It is important to clarify again here that Neace has never told the Tribune that he is “familiar with the contents of the external HD (thumb drive).” The person who made that statement to the Tribune was Attorney General Andy Beshear and he did not reveal its contents.
Tally Smith continues to identify Neace as the Tribune’s “source,” including most recently at a candidate event sponsored by the Boone County Republican Party March 28. The problem with that statement is that there is no source, because there is no privileged information being disseminated.
If Tally Smith has evidence that Neace has revealed to Tribune reporters, or anyone else, information from the contents of a device that is under seal in ongoing litigation, or any other privileged information, she should absolutely report it to the appropriate authorities.
The Tribune does not have a pipeline to the OAG to obtain privileged information and nothing AG Beshear has commented on would appear to be a violation of any kind. Were it not for the accusations against Neace, the Tribune might not have revealed its source, but with confirmation from the Attorney General’s office that the conversation is accurate and not privileged, we felt it was necessary.
The comments do, however, raise questions about the information contained on the thumb drive that has not been made public.
On 2/5/18 the Tribune submitted another open records request to the OAG asking for the information on the thumb drive because many of the people referenced here are candidates for elected office and it seems fair that voters have access to information that was stored on a public server, in order to make an informed decision.
That request was denied.
Contact Mark Hansel at mark.hansel@nkytrib.com
Thank you NKYT for your hard nosed determined reporting, to get to the truths of this matter. Reminds me of the old Ky. Post. Please stay on top of this, as elections are near. HOW can public information, NOT BE MADE PUBLIC ? The more you keep digging, the more that will be revealed. Not only about LTS, but about other elected officials. I firmly believe the OAG is withholding information because it could lead to numerous lawsuits against the commonwealth. As far as Boone County is concerned, this has the feel of our current climate in Washington concerning the Justice Department. Rank and File workers Try to do the right thing everyday, but is Rotten to the Core at the top of food Chain in Boone County. From Commonwealth office to the Sherriffs office. The time has come for other whistleblowers in Boone County to come forward. If OAG won’t give us what the people deserve, let us find out by other means. The ole adage is true: There is more than one way to skin a cat ! Again, thanks for your reporting on this. Keep turning over rocks NKYT, you will find the right one with what we need !!