By CHRIS HARRIS
As many as 53 incidents of alleged excessive force involving a Pulaski County Sheriff’s deputy have come to light as a result of his ongoing U.S. District Court case, and the defense is seeking to have the trial delayed.
According to court documents obtained by the Commonwealth Journal, a request for discovery — that is, the process by which one party in a case can obtain evidence from the opposing party — resulted in the government producing evidence for 53 uncharged incidents involving the defendant, Deputy Steve Molen.
In June, Molen 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’s trial is scheduled to begin on September 9.
At Molen’s arraignment in July, the United States prosecution announced its intention to offer what’s known as Rule404(b) evidence, or evidence of other crimes or wrong acts that is not admissible to prove the character of an individual to show that they acted accordingly, but may be admissible for other purposes such as proof of motive, opportunity, intent, or other factors.
The United States said at the arraignment that it expected Molen’s defense to seek to challenge the admissibility of the evidence, which was not at that time specifically identified.
Molen’s defense team, Patrick F. Nash and Joe A. Jarrell, asked that the prosecution make available to the defense any and all evidence gathered in the case.
The request for discovery turned up the numerous uncharged incidents, which allegedly occurred between October 2005 and May 2012, a span of six-and-a-half years.
Since putting proof of all 53 incidents would be a massive, time-consuming undertaking that would stretch the trial out over a period of months, the government does not intend to offer evidence for all them, according to the motion documents. If the U.S. does not identify which of them it intends to offer as 404(b) evidence, the defense will be required to prepare a separate defense to each incident.
The documents state that it is not reasonable to require the defense for each alleged incident when the government will attempt to offer proof for only some of them, and Rule 404(b) requires the government to provide “reasonable notice” of all evidence that will be offered under the rule.
All of the 53 incidents involve Molen making legitimate and lawful arrests, but using “some level of force based on the misconduct of the arrestee,” according to the documents. The expected dispute between the defense and prosecution is whether the force was appropriate in each case, with the government apparently going for the argument that too much force was used, that Molen’s actions were other “bad acts,” and that the evidence is admissible under Rule 404(b).
In determining such admissibility, the first job of a District Court is to determine whether the other “bad acts” actually occurred. If Molen’s actions were indeed proper, then the 53 incidents would not be admissible. The government should now be required to identify which of the aforementioned incident it believes qualify as Rule 404(b) evidence. If the prosecution can prove that the “bad acts” were committed by Molen, it must then identify the specific purpose for which it offers the evidence.
If al the other prerequisites are met, a District Court must determine whether or not the probative value of the 404(b) evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, the potential to mislead the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Another motion filed by Molen’s defense, in addition to the identification of the Rule 4049B) evidence requests the scheduled trial be continued, and the pretrial deadlines and hearings set accordingly.
The court ordered that the prosecution shall responded to those two motions by the defendant on or before Monday, August 12, and that a hearing regarding them is scheduled for August 13 at 1 p.m.
The motion documents by the defense state that “(a) continuance is necessary because the unusually complex nature of this case makes it impossible for the undersigned attorneys to effectively prepare a defense within the time currently allotted.”
That “unusually complex” status is due to the 53 uncharged incidents over a six-and-a-half year time period.
“Under the Speedy Trial act and pursuant to concept of Due Process, it is entirely appropriate for a trial court to grant a continuance, even multiple and/or substantial continuances, in complex cases like the present one, reads the motion.
It also said that the United States has been working on its case for over a year, and the defense attorneys need more than the 49 days allotted to them to prepare defense to the multiple allegations.