By HEATHER TOMLINSON
Lawyers for a local sheriff’s deputy facing accusations of violating victims’ civil rights through use of excessive force are asking that video evidence to be used by prosecutors be sealed from public view.
Attorney Brandon W. Marshall on Tuesday filed the memorandum supporting the defense team’s request that two video files, expected to show 404(b) evidence — or evidence of prior similar behavior — against Pulaski County Sheriff’s Deputy Steven Molen be either sealed from public view entirely or released under restrictions.
The case in federal court in the Eastern District of Kentucky has garnered much attention from local and state media outlets since Molen was indicted in late June on two counts of civil rights violation.
That media attention is behind Molen’s request that the two videos, estimated to contain collectively about 30 minutes of footage, be sealed.
“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,” Marshall stated in the memorandum. “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).”
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 has pleaded not guilty to the charges.
It was during an Aug. 13 hearing that federal prosecutors stated they intend to file two disks containing video footage as 404(b) evidence. 404(b) evidence is evidence of other crimes or wrong acts that may be used in court for proof of motive, opportunity, intent, or other factors.
A request for discovery turned up the numerous uncharged incidents to be used as possible 404(b) evidence, which allegedly occurred between October 2005 and May 2012, a span of six-and-a-half years.
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 of the video files.
“Whether it be broadcast television or hometown newspapers, modern media outlets routinely disseminate video footage online and through the airwaves. These electronic video files can be readily hyperlinked, copied, shared and commented upon by lay people and not only via the media’s source sites, but also through digital media swapping sites, web logs (also known as “blogs”), and social media sited such as Facebook, YouTube, and Twitter,” stated Marshall in the memorandum. “ ... Today’s prospective jurors have limitless, 24-hour access to Internet-based video files. Modern jurisprudence must take heed of this fact, as well as the fact that not all sources of online content are neutral arbiters of fact.
“ ... One need do nothing more than search (Molen’s) name on the social media site Topix.com in order to find hundreds of online posts, many pronouncing (Molen) guilty before trial, that are plainly agenda-driven attempts at swaying public opinion,” Marshall continued. “(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 ... 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.”
Marshall, in the memorandum, also offered an alternative to sealing the files and requested that U.S. District Judge Danny C. Reeves order that the videos be made available to the public and media for viewing, but not copying should he feel that the filing is necessary.
“ ... the media enjoys no constitutional right to copies of audio or video tapes, even those filed as evidence during a criminal trial,” Marshall stated. “ ... Nor does the media’s common law right to access to court records trump a defendant’s right to a fair trial. ... From Mr. Molen’s perspective, no legitimate end of justice will be more effectively met by the dissemination of the videos; but grave consequences to his constitutional rights to a fair trial may thereby occur.”
Molen’s trial in U.S. District Court in London is slated for Dec. 17, 2013. A pretrial conference in the case is scheduled for Nov. 22. A motions hearing is set for Oct. 15.
Molen is currently facing an indictment in federal court in the Western District of Kentucky. A grand jury in Bowling Green last week handed down an indictment of one count of depriving a victim of civil rights while carrying out his duties as a deputy.
That indictment stems from an Aug. 24, 2008 incident and involving victim C.F., who has been identified as former Burnside mayor Charles “Chuck” Fourman. No hearings have yet been filed in that case.