Commonwealth Journal

July 31, 2013

Molen’s lawyers file motions for discovery with feds

Deputy is facing civil rights charges

by Heather Tomlinson
Commonwealth Journal

Somerset —

The case of a Pulaski County deputy accused of violating victims’ civil rights while on the job continues to march toward a trial date. 
Lawyers Patrick F. Nash and Joe A. Jarrell, the defense team for Steve Molen, on Wed-nesday filed sever-al requests for dis-covery from U.S. prosecutors.
The motion is the latest in a case that has moving forward at a clip-ped pace toward a tentative Sept. 9 trial date in U.S. District Court in London, set by U.S. District Judge Danny C. Reeves.
Molen in late June was indicted on two counts of violating the civil rights of two victims in incidents from October 2009 and October 2011. The two victims, identified only as D.W. and G.C. in court documents, are local tow truck company owner Danny Whitaker and Pulaski County resident Gordon Cowan. 
The indictments state that Molen “willfully deprived (the victims) of the right, secured and protected by the Constitution of the United States, to be secure in his person against unreasonable seizures, which includes the right to be free from the use of unreasonable force by a person acting under color of law.” 
Molen has pleaded not guilty to both federal charges. 
Nash and Jarrell are asking that the U.S., led by prosecutor Patrick Molloy, make accessible to the defense any and all evidence prosecutors have gathered in their case against Molen. 
In one of three requests filed on Wednesday, Nash and Jarrell are asking for evidence pursuant to Brady v. Maryland.
“Under Brady, the government should disclose any evidence in its possession that is both favorable to the defendant and material to the issues of guilt or punishment, and which is not otherwise covered by defendant’s request under Rule 16(a) ...”
Those pieces of evidence include “ ... disclosure of the existence of witnesses favorable to the defendant, witness statements favorable to the defendant, evidence tending to affect the credibility of evidence to be used by the government, promises of non-prosecution made to a government witness, any other arrangement between the government and a witness that is beneficial in any way to the witness, and any other evidence exulpatory of defendant.”
Nash and Jarrell, in a second request, ask for access to the prosecution’s evidence pursuant to Rule 16(a). In that request, the defense team is asking for any and all evidence by the prosecution, including any written or recorded statements from Molen as a result of interrogation or his testimony before a grand jury, a copy of Molen’s prior criminal record, books, papers, documents, “tangible objects, buildings, places” and more, all of which are in the possession of the U.S. that may be important to the defense team’s preparation for the case, results of reports of physical and/or mental exams, and written summaries of any testimony the U.S. plans to use against Molen. 
The motion also asks that any additional evidence uncovered by the prosecution promptly be made accessible to the defense. 
Also filed on Wednesday was a request by Nash and Jarrell that prosecutors “ ... provide reasonable notice in advance of trial to counsel for defendant of the general nature of any evidence the government intends to introduce at trial pursuant to Rule 404(b) ...”
In Molen’s case, evidence introduced under 404(b) is evidence which may point to other similar alleged acts carried out by Molen in incidents separate from the two the federal indictments stem from. 
Although Molen isn’t going to trial for those alleged incidents, U.S. prosecutors can attempt to establish some type of pattern suggesting a history of similar behavior through 404(b) evidence. 
Although no mention has been made of what the 404(b) evidence may be, Molen has become entangled in civil lawsuits in the past based on accusations that he’d used excessive force on alleged victims. 
Whitaker filed a civil lawsuit against Molen in 2010 stemming from the Oct. 2009 incident mentioned in the federal indictment. The lawsuit was filed in early October 2010 and was resolved and dismissed in federal court in February 2011. 
Whitaker’s suit claimed that Molen had beaten Whitaker after he attempted to carry out a traffic stop on the towing service business owner. Whitaker did not pull over, but instead proceeded to his own home, where he came to a stop in the driveway and exited his vehicle. Whitaker through the lawsuit accused Molen of punching him and kicking him during the incident — allegedly in the view of Whitaker’s wife — among other actions. 
Molen had contended, through the arrest citation detailing the incident, that Whitaker had acted aggressively toward the deputy after he came to a stop — and after Molen allegedly “clocked” Whitaker driving around 70 mph in a 55 mph speed zone and witnessed him running a stop sign.   
Molen also claimed in the citation that he was forced to subdue Whitaker, and that the other man was fighting back.
It was during a 2011 hearing, requested by Whitaker’s attorney at that time, Scott Foster, that a number of witnesses testified that Molen had allegedly assaulted them in the past. 
Eleven witnesses took the stand during that hearing, including three Somerset Police officers —  Billy Bolin, Joe Criswell and Eric Klepper —  who allegedly witnessed Molen’s assault on others. A video recording was played during the hearing that allegedly showed Molen striking a victim who had already been placed on the ground during an arrest. 
Former Burnside mayor Chuck Fourman also took the stand during the hearing. Fourman was arrested in Aug. 2008 after he led city and county police on a high-speed chase that began in the city limits and ended in Russell County. 
Fourman testified that after the chase ended and he was arrested, someone approached him and kicked him in the groin while he was in a prone position on the ground. Although Fourman stated he didn’t know which officer struck him, Bolin testified he saw Molen strike Fourman.
Numerous other witnesses testified during the hearing about the alleged brutality on the part of Molen, but several of them, during cross-examinations, stated they had been drinking when the incidents occurred. 
Molen was the target of another lawsuit, filed in 2011 by Kevin McCoy, that was eventually dismissed as well. 
And the current criminal case against Molen may not be the last. Molloy, the U.S. prosecutor, during a July 11 hearing before U.S. Magistrate Judge Hanly A. Ingram in London, stated he was anticipating a third case against Molen to be brought before a grand jury, this time in U.S. District Court in the Western District of Kentucky, stemming from an alleged incident that he said occurred “just over the county line in Russell County.”
A motions hearing is set for Aug. 13, and a final pretrial conference is set for Aug. 23.