Something unseemly is happening in northern Kentucky: the relationship between Boone County’s elected Commonwealth Attorney and a homicide detective is unraveling in a public way. It turns out that communications between prosecutor Linda Tally Smith and detective Bruce McVay reside at the heart of a murder defendant’s effort to obtain a new trial. Both Tally Smith and McVay have recently testified that they had an affair after David Dooley was convicted in 2014 for the murder of Michelle Mockbee. Because a former intern in the prosecutor’s office turned over to authorities information stored on the office drive, Dooley’s defense team eventually learned that the prosecution withheld important exculpatory evidence before trial. While Tally Smith and McVay—the lead prosecutor and lead detective on the case—point the finger at each other for this ethical blunder, the details surrounding their relationship threaten to obscure an important point: regardless of whether one or both of them knew about the evidence before trial, the State’s failure to disclose it represents a constitutional violation that may have jeopardized the fairness of Dooley’s trial. Mr. Dooley continues to maintain that he is innocent.

The crime in question is one that has been seared into the local community’s conscience. As one local account made clear, “The shock of Michelle Mockbee’s murder has never left Northern Kentucky. Not since the day her battered body was found outside her office in a Boone County industrial park in 2012.” Although the State lacked physical evidence to support its case against him, the jury convicted Mr. Dooley, and the judge sentenced him to life imprisonment. While he prepared to appeal his conviction, his lawyers found out that a key surveillance video was never shared with the defense before trial. According to the Cincinnati Enquirer:

Dooley’s defense . . .  has focused largely on a minute-long surveillance video taken 10 hours before Mockbee’s murder on the same property. The defense has argued Tally Smith and McVay withheld existence of this footage. The video showed a man walking up to the building, appearing to pull on the door, and then walking out of frame. Defense witnesses, mostly attorneys from his trial, have said this proves others had access to the property and could have committed the crime.

Nobody appears to dispute that this video was suppressed. Instead, the drama that unfolded at a recent multi-day post-trial hearing centered on whether Tally Smith knew about the video or if McVay had kept it from her. In her testimony, Tally Smith “pointed the finger back at the lead detective . . . accusing him of withholding information from her.” On the other hand, detective McVay claims that he told Tally Smith about the video before trial.

While Tally Smith and McVay claim that they began their romantic relationship only after Mr. Dooley’s trial, post-trial revelations call into question their pre-trial conduct. Defense lawyers found an email in which “McVay . . . wrote he didn’t tell Tally Smith about [the man in the surveillance video] because she appeared stressed.” If true, his chivalry was misguided, and it resulted in an unethical outcome. Other communications suggest that Tally Smith herself later began to question McVay’s judgment and truthfulness. One text message Tally Smith sent to McVay in particular sounds the alarm: “Now that I know what a complete (expletive) liar you are, I am going to grapple with (expletive) ethical issues with every case in which you are involved.”

At the post-trial hearing in Mr. Dooley’s case, Tally Smith elaborated on her concerns about McVay’s work:

She began to suspect in subsequent cases that McVay either lied or didn’t do the work properly. On the stand, she cited a June 2015 homicide in which McVay was sent to get surveillance video and told her the suspect wasn’t on the video. Tally Smith said she learned the suspect was on the video. In another case, the police report didn’t match what he told her, she said. She later said on the stand she felt she overreacted against McVay. “I, pardon my language, lost my (expletive),” Tally Smith said on the witness stand. “In my mind, this is the first time ever that I believe he lied in connection with his job.” She began saving text messages and communications between her and McVay, in case it would call into question other cases, like the Dooley case.

While her concerns about possible ethical problems indeed seem well-founded, remarkably there is no indication that Tally Smith ever disclosed McVay’s credibility-crushing missteps to relevant law enforcement agencies or to defense lawyers in any case on which he worked. Her own professional judgment is compromised, not necessarily because of the sexual relationship she and McVay pursued, but because of her failure to come clean about his misconduct until forced to do so under oath by defense lawyers investigating a Brady violation.

Most damning of all is this snippet from a long letter Tally Smith wrote to McVay (and claims she never sent): “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.’” In an eye-opening and thorough piece, the Northern Kentucky Tribune called on the prosecutor to resign. It observed, “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.”

Legally, it is irrelevant which agency failed to disclose the video. The Supreme Court long ago made clear in Kyles v. Whitley that any failure to disclose exculpatory evidence is attributable to prosecutors even if another law enforcement agency is actually responsible for its suppression. In short, prosecutors have a constitutional obligation to make sure that every agency involved in investigating a crime shares every shred of potentially exculpatory evidence with the prosecution, who in turn has a duty to disclose to the defense. Rather than accepting responsibility, Tally Smith instead testified that she still thinks Mr. Dooley is guilty. But, whether Mr. Dooley deserves a new trial does not turn on the prosecutor’s subjective impression of the strength of her case.

McVay no longer works with the Sheriff’s office. He retired in October of 2016 after the department opened an investigation into his conduct on the Dooley case. (If this story needs just one more salacious detail, it can be found in McVay’s past. He once received a six-month suspension without pay “when it came to light he participated six years earlier in a Ku Klux Klan-themed sketch.”) Tally Smith, however, continues to serve as the Commonwealth Attorney in Boone County. Despite public and internal political pressure to resign, she has refused. One cannot help but wonder how many investigations and prosecutions were tainted by the reckless duo.

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