Federal prosecutors are readying what appears to be an extensive case against a local sheriff’s deputy accused of violating victims’ civil rights by using excessive force.
“There will be more than just the ordinary amount of discovery you may anticipate with a case such as this,” said prosecutor Patrick Molloy, with the U.S. Attorney’s Office in the Eastern District of Kentucky, on Thursday during an arraignment.
Pulaski County Sheriff’s Deputy Steve Molen was indicted late last month 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.”
During Thursday’s hearing in U.S. District Court in London, Molen, appearing with his attorney, Patrick Nash, of Lexington, pleaded not guilty to both charges.
Molen appeared before U.S. Magistrate Judge Hanly A. Ingram, who stated that U.S. Eastern District Judge Danny C. Reeves intends to try the case by Sept. 9, 2013 — leaving a narrow window for evidence discovery and motions to be filed in the case.
“It may be a tight schedule,” said Molloy.
Molloy stated that the U.S. intends to bring a number of things to light in the case, including several videos, eyewitness testimony and grand jury testimony by “agents involved in the events.”
Molloy also said the U.S. plans to introduce something called 404(b) evidence, which may point to other similar alleged acts carried out by Molen in cases unrelated to the two the indictments stem from.
Molloy also stated that he is 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.”
Nash, Molen’s attorney, said he has worries about the quick turn-around on the trial date.
“I fear this is an overly-ambitious schedule,” said Nash.
Also discussed during the approximately 30-minute hearing were the conditions of Molen’s release. Molen is still active with the sheriff’s department, and he remains on unsupervised release while his case moves forward.
Molloy said he had concerns about Molen possessing a weapon during his release, and stated there could be a way to limit Molen’s duties to ensure he doesn’t need a weapon.
“I just have to think there are reasonable alternatives to having a firearm,” said Molloy, who noted Molen’s duties could be kept to the office.
“I think the law is pretty clear on a felony charge,” added Molloy. “Once you’re arraigned, you are prohibited from possessing a firearm.”
Ingram said he somewhat disagreed with Molloy, and stated Molen may need to retain his service weapon while carrying out his duties as a deputy.
“I don’t know the circumstances in which he (Molen) might need one (a gun) or be put in harm’s way,” said Ingram.
Ingram stated that Molen would be required to remove his personal guns from his possession while his case is active. He will be able to keep his service weapon.
Molloy predicted the trial could be at least a week long.
Molen has been accused of using excessive force over the past several years. 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 the 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.