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 court documents. Prosecutors have stated through court documents they plan to focus on fewer than 10 of those alleged incidents.
Molen’s defense attorneys are worried their client’s right to a fair trial will be significantly at risk with the release and copy of the video files, thanks to heavy media attention in the case.
“Several media outlets with substantial conventional and online circulation in the counties comprising the Southern Division’s London Docket Jury venire have covered the case,” stated one of Molen’s attorneys, Brandon D. Marshall, in memorandum filed in August. “Even standard filings, such as motions for discovery, have repeatedly garnered front-page, above-the-fold newspaper coverage, particularly in Pulaski County (i.e. the location of the alleged offenses and the most populous county within the Southern Division’s London Docket).”
Marshall and Molen’s other attorneys, Patrick F. Nash, Joe A. Jarrell, had asked that the court consider either sealing the DVD files from public view, or limiting access to those files to viewing, and not copying.
“(Molen) has grave concerns that, given his status as a law enforcement officer and the media’s interest in his criminal case, the filing of (prosecutors’) videos will substantially jeopardize his right to a fair trial,” stated Marshall in the initial memorandum. “... If filed, all the videos could presently serve to do is feed a growing flame of media attention, create the likelihood of venire-centric, potentially altered viral videos, contribute to the possibility of a carnival atmosphere at trial, and foment prejudice against (Molen) in scads of potential jurors.”
The defense team had noted that an ability to view, but not copy, the videos would not violate First Amendment rights, and would satisfy the need for the flow of information in the case.