BURLINGTON, Ky. -- Boone County Commonwealth's Attorney Linda Tally-Smith seemed to know what was at stake when she texted detective Bruce McVay about their sexual relationship.
“I always knew ... there were going to be ethical implications and other work related issues that had the potential of imploding if things ended as badly between us as they have,” she wrote.
She was right.
Tally-Smith and McVay both played crucial roles in the conviction of David Dooley, a Northern Kentucky man accused of bludgeoning his coworker to death. Tally-Smith was the lead prosecutor and McVay was the lead detective.
Now their affair -- and other revelations -- could be the reason a judge gives Dooley another trial. The I-Team has also learned the Office of the Kentucky Attorney General acknowledges an "open investigation ... into potential statutory violations" in the case. The office won't release additional information to protect the investigation.
Sex, lies and video tape
A secret sexual relationship isn't the only potentially-important piece of evidence that emerged after the trial.
Tally-Smith is in the hot seat over allegations she withheld surveillance videoof an unknown man walking through a parking lot next to the warehouse where Michelle Mockbee was killed.
During a hearing last month to determine if Dooley will get a new trial, Tally-Smith told a judge sheturned the video over to Dooley's team. She said she didn't find out it contained the clip of the strange man until after the trial ended in 2014.
Tally-Smith said it was up to McVay to review the video to make sure there were no surprises in it. McVay also took the stand last month. He said he remembered having a conversation with Tally-Smith about what investigators found.
A text message from Tally-Smith to McVay
One of Tally-Smith's own employees discovered emails and text messages between her and McVay last year while he searched for an old case on an office computer.
That employee, Nick Ramler, was a law clerk in Tally-Smith's office. He discovered the messages in March 2016, but didn't tell her until September, when she held a meeting with him about his attitude on the job, according to court records.
Tally-Smith fired Ramler 17 days after the meeting.
"I'm not firing you because of anything you said post-that, but because of your attitude ahead of time," Tally-Smith can be heard saying on a secret recording Ramler made.
Tally-Smith has sued Ramler, claiming he tried to blackmail her with the information about the affair. The messages were taken on a flash drive, along with about 42,000 other files, according to court records.
Attorney Steve Wolnitzek represents Ramler. He notified the Office of the Kentucky Attorney General last September, in part because the emails -- written under the names Carver Davidson and Chiquita Queen -- and text messages include Tally-Smith questioning McVay's integrity.
Tally-Smith also texted McVay with accusations he did not tell her about the unknown man on the surveillance video.
"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," she wrote.
Did Dooley get a fair trial?
Wolnitzek said he questions whether Dooley was unfairly convicted.
"There's a process that we're supposed to go through as an American citizen," he said. "As an attorney, I'm very concerned when it appears that the process was tainted."
Boone County Attorney Robert Neace also called on the attorney general to investigate, and asked Tally-Smith to resign.
"If we do not have faith that a prosecutor is doing the right thing, that foundation is going to crumble," he said.
Tally-Smith's attorney, Luke Morgan, said she won't resign.
"Linda hasn't done anything for which she should resign," Morgan said. "She hasn't done anything that is unethical."
Court records show the attorney general's office found the information it received about the affair and the surveillance video "disturbing," but the records state the attorney general's office believes the commonwealth put on a "clean" trial. The office asked the court for the hearing last month anyway to clear the air.
McVay's attorney, Benjamin Dusing, said his client had made a personal, but not professional, mistake.
"The affair itself is not unethical in the sense of what is ethical under the law," Dusing said.
The I-Team examined personnel files for both Tally-Smith and McVay. Tally-Smith's file is clean.
"She's been the commonwealth's attorney for almost 20 years now, has never had a complaint," Morgan said.
McVay's files with two Northern Kentucky law enforcement agencies show a 30-year career sprinkled with suspensions for misconduct.
"He stands on his record and he served the people of Boone County for a long, long time in a very selfless way," Dusing said.
McVay and Tally-Smith both regret their affair but stand by their work, according to their respective attorneys.
"He did not make any professional mistakes in this case," Dusing said. "The personal mistake, which he regrets, took place after the trial in this matter and did not affect the result at all."
But Tally-Smith's emails to McVay suggest she doesn't feel the same way about his work.
"In the last two months alone, I've had a number of the new (detectives) suggest that they would just 'pull a Bruce.' 'Pulling a Bruce' ... it is actually a phrase that they all use," Tally-Smith wrote. "Each time they say it, I stop them ask them to clarify what it 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."
When the Boone County sheriff learned about the allegations of wrongdoing in the Dooley case against McVay last October, he started an internal investigation. McVay retired later that month and the sheriff closed the investigation, saying they found no misconduct.
"The internal investigation concluded that Detective McVay did not do anything wrong," Dusing said. "And that review included a review not only of the Dooley case, but of all of the other cases that were mentioned in whatever facet by Miss Tally-Smith in her various communications."
Both sides in this case must now submit briefs about a possible retrial to the court by Monday, May 1. A judge will rule or make a decision on whether Dooley gets a new trial any time after that.
Could issues in Dooley's conviction affect other cases?
Pace University professor and former prosecutor Bennett Gershman examined the facts.
"I was stunned by what I read," he said. "I've never seen a case like this."
Gershman said it appeared to be a case of misconduct by both the prosecutor and investigator.
"If I were, for example, the attorney general, I'd want to look at past cases where this prosecutor and this police officer worked together in the case," Gershman said. "I'd want to examine that very closely."
Gershman said he believes Dooley did not receive a fair trial.
"There's no way that this conviction is safe," Gershman said. "There's no way the integrity of the fact-finding process was not undermined."
Family members of the murder victim Michelle Mockbee, who was a wife and mother of two girls, said they see things differently.
"I don't think the video would have mattered all all," Mockbee's sister, Jennifer Schneider, said.
She said she still supports the prosecutor.
"We don't believe that a personal relationship between the two of them has any bearing on the trial," Schneider said.
It's a trial that Schneider said she relives every day.
"It kind of all becomes about the accused and what are his rights, and you kind of forget about the victim in all of this," she said. "We want to make sure that her memory never dies."
