Commonwealth Journal

December 6, 2013

Judge rips Molen plea deal

by Heather Tomlinson
Commonwealth Journal

Somerset — Pulaski County Sheriff’s Deputy Steven Molen’s civil rights case may have ended quietly, thanks to a plea agreement drawn up by both parties. But one federal judge made known his concerns that justice was not served in the case.

U.S. District Judge Danny C. Reeves stated in a 10-page order that the United States government “should not be proud of its actions” in moving to dismiss two federal civil rights charges against Molen in exchange for a guilty plea on a third civil rights case in the Western District of Kentucky.

“Although not proven, the charges in this case are quite serious and should be matters of great public concern,” Reeves said in his order to dismiss the two pending cases against Molen in the Eastern District.

Molen had been facing a total of three federal civil rights charges after he allegedly used excessive force against three victims while “acting under the color of law” in incidents from 2008, 2009, and 2011.

Just this past week, Molen and his defense team — Patrick F. Nash, Joe J. Jarrell, and Brandon W. Marshall — entered into a plea agreement with U.S. prosecutors in Western District Court in Bowling Green. As part of that deal, Molen pleaded guilty to assaulting a victim identified as “C.F.” in court documents.

C.F. has been confirmed as former Burnside Mayor Charles “Chuck” Fourman. Fourman was arrested on August 24, 2008 after he led city and county police on a high-speed chase that began in the city limits and ended in Russell County after around 30 minutes. Molen admitted that he willfully used force against Fourman as the former mayor was lying on the ground in handcuffs. Fourman, according to other law enforcement officers who witnessed the assault, did not resist arrest after the pursuit came to a stop.

And also as part of the Western plea agreement, U.S. prosecutors agreed to drop the pending civil rights charges against Molen in the Eastern District — which is the case Reeves was residing over.

In those cases, Molen allegedly assaulted local tow truck business owner Danny Whitaker in Whitaker’s driveway in 2009, and Molen also reportedly assaulted fellow Pulaski County resident Gordon Cowan in a 2011 incident.

Both victims were identified only by initials in court documents. The Commonwealth Journal independently verified their identities.

At issue in the Eastern District case was material the U.S. intended to introduce as evidence of a pattern of similar behavior. Reeves in his Dec. 5 order even pointed out that on Nov. 27, Molen’s team asked that the court exclude “other similar acts” occurring in 2006, 2007, 2008 and 2009 that allegedly occurred while Molen was performing his duties as a sheriff’s deputy. One of those incidents was the assault on Fourman, according to Reeves.

Reeves also had harsh words for Molen’s employer— Pulaski County Sheriff Todd Wood—  who elected to keep Molen on full-time and as an active deputy on patrol while the cases were pending.

“There is no indication that any internal action was taken by Molen’s employer to correct or punish this behavior,” said Reeves. “And based upon other evidence the government would seek to introduce at trial, it would appear that (Molen) engaged in similar alleged conduct over an extended period of time.”

Fourman’s assault and Whitaker’s alleged assault were just two of several alleged incidents brought up at a 2011 local hearing, requested by Whitaker’s attorney then, Scott Foster. A number of witnesses took the stand that day claiming that Molen had brutalized them. Several Somerset Police officers even testified that they’d witnessed such incidents. Other witnesses who claimed brutality on Molen’s part stated during cross-examinations that they had been drinking when the incidents occurred.

Molen resigned from his position on Nov. 18. Reeves, quoting transcripts from the Nov. 22 pre-trial conference in the Eastern District, said prosecutors felt they had accomplished their goal in the case by following through with the plea agreement.

“We would advise the court that the basis of the dismissal in this is we would have accomplished our goal in addressing the issue with Mr. Molen’s employment, his employment as a law enforcement officer,” said U.S. Prosecutor Ron L. Walker Jr., according to the transcribed conversation included in Reeve’s order. “And those were the primary factors that needed to be considered in this matter.”

Reeves took serious issue with that, and ordered that another hearing be held should the U.S. fail to further explain its decision in accepting the plea deal. The U.S. filed a notice to dismiss the Eastern case within the next several days.

“The court has the authority — and indeed the responsibility — to determine: (i) whether the United States’ actions are contrary to the manifest public interest and (ii) whether the government is acting in bad faith,” Reeves stated. “ ... The court comes very close to finding that the government’s actions are contrary to manifest public interest.”

As part of the plea agreement, Molen was sentenced to six months’ home incarceration (and Molen will be permitted to attend church and do yard work in his yard) and three years’ probation.

“Has the government considered the message it is sending to other law enforcement officials who might be inclined to render ‘rough justice’ when no one is looking or, as alleged in the present case, while witnesses and other law enforcement officials are nearby?” Reeves asked in his order. “Does a term of probation and modified home detention cause other deputy sheriffs to think twice before abusing a belligerent detainee?

“ ... the government’s actions merely demonstrate that it is willing to negotiate a deal very favorable to a defendant accused of several very serious offenses,” Reeves added.

Reeves stated that U.S. prosecutors’ contention that the plea deal helped save judicial resources holds no water.

“There is cost associated with every litigation matter,” Reeves said.

Reeves pointed out there were no indications the trial would be drawn out, and he said much of the government’s evidence would be introduced without “a great deal of effort.

“The government’s attorneys would, however, be required to prepare for trial during the holiday season,” Reeves added.

Reeves also said prosecutors’ argument that the decision was reached after weighing the probability of a conviction in “light of the lack of corroborating video evidence” was weak, as the alleged acts — those which would require testimony from alleged witnesses — were known when the cases were presented to the grand jury. And Reeves said that while a ruling that evidence of prior alleged assaults be considered inadmissible may have weakened the government’s case, U.S. prosecutors never actually asked for a ruling on the issue.

And Reeves also took issue with what he said was prosecutors’ argument that the plea deal was made in consideration of saving the alleged victims’ from having to offer difficult testimony and undergo embarrassing questions on cross-exams.

“ ... Under this rationale, the government will also be less inclined to prosecute other equally-difficult cases (i.e. child pornography crimes),” Reeves said. “Hopefully, ‘difficulty’ has not become the new standard for prosecution in the Eastern District of Kentucky.”

Reeves said that, according to prosecutors, two of the three victims supported the plea deal and the quick resolution. Danny Whitaker, however, did not, and Whitaker made his feelings known to the Commonwealth Journal after news of the impending plea deal began to circulate.

“I really don’t know what to say about this,” said Whitaker on Nov. 15. “I’m not happy with it at all.

“ ... It kind of blows me away that nothing was done with it,” Whitaker later added.

“The government ... fails to explain how this would be substantially different than the situation presented in most cases (civil and criminal),” Reeves pointed out in his order.

Reeves emphasized that U.S. prosecutors’ move is worrying.

“This court is clearly troubled with the manner in which this case has been handled by the attorneys representing the United States,” Reeves stated. “While the public has an interest in the final resolution of criminal matters, it has a more compelling interest in seeing that justice is done.

“ ... The government cannot legitimately argue that the outcome reached ... will provide any measure of deterrence to others who might be inclined to commit similar offenses. Likewise, the outcome does not provide any measure of protection to the alleged victims,” Reeves added. “Perhaps a jury would have returned a not-guilty verdict on the charges ... but at this point, the public will be left to speculate what the result would have been following trial.”