We write with a fairly short update of a Kentucky story we first covered back in April. A murder prosecution was called into question because the Commonwealth Attorney who prosecuted the case, Linda Tally Smith, and the lead detective, Bruce McVay, had an affair that both unraveled personally and threatened to unravel the conviction of David Dooley. While the details of the relationship and its breakdown certainly ramped up public interest in the case, the constitutional concern the defense raised was that the prosecution had failed to disclose important video evidence that would have supported the defense’s case and impeachment evidence that would have undermined McVay’s credibility. In May, after the evidentiary hearing, Boone County Circuit Court Judge J.R. Schrand granted Mr. Dooley a new trial.

The Judge’s order, located here, is not based upon Tally Smith’s relationship with McVay. Rather than deciding the case on the basis that Tally Smith had a duty to disclose to the defense her concerns about the detective’s credibility, the court focused on the State’s failure to properly disclose surveillance footage that would have bolstered the defendant’s claim that someone else committed the murder of Michelle Mockbee. In light of the detailed evidence he received about the discovery process, Judge Schrand did not find the Brady violation to be intentional, but nevertheless held that the State failed to meet its obligation to share information about another person who may have been at the crime scene according to the security tapes.

Surprisingly, the court entirely avoided confronting the core claim that Tally Smith wrongly failed to share her concerns about McVay’s credibility with the defense, despite her documented assurance that she would lie for him. As we noted in our previous post:

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.”

Despite the court’s fairly narrow ruling, the court of public opinion continues to issue a harsh verdict about Tally Smith’s behavior. With respect to Mr. Dooley’s retrial, the Attorney General’s office, not Tally Smith’s, will take over the case. And, according to local reports, a special prosecutor has been appointed to look into Tally Smith’s conduct at the request of the Boone County Attorney. The Boone County’s head executive, Gary Moore, made this statement: “The ruling today by Circuit Judge J.R. Schrand casts a dark shadow over the Commonwealth Attorney . . . . Although the Commonwealth Attorney is not a county office, as the chief elected official for Boone County, I believe Linda Tally-Smith has lost the public’s trust, thus calling into question her ability to effectively execute her duties in our criminal justice system.” Finally, although Tally Smith has resisted pressure to resign, a new challenger has declared that he will try to unseat her in the 2018 election.

News from another Kentucky county reveals that the Commonwealth Attorney there may soon experience similar headaches. A judge recently recused Lynn Prior, the Commonwealth Attorney for Christian County, in the murder prosecution of Jarred Tabor Long. Prior had a romantic relationship with Captain Ed Stokes of the Christian County Sheriff’s office, and the judge found that the possible appearance of impropriety was sufficient to warrant recusal in a case where the prosecutor has an intimate relationship with the lead investigative detective. Like Tally Smith, Prior had fully resisted the idea that her relationship with Stokes required any changes: she called Mr. Long’s motion to recuse her “a futile, last minute attempt to derail this trail and avoid the inevitable.” Not so, after all. The fact that Mr. Dooley was granted a new trial and Prior has now been recused should underscore that prosecutors must take seriously the concerns people express when professional relationships with other law enforcement officers turn personal.

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