Sheriff's deputy accused of using excessive force goes to trial in December
by Heather Tomlinson Commonwealth Journal
A Pulaski County sheriff’s deputy accused of violating two victims’ civil rights by using excessive force during their arrests won’t be going to trial until Dec. 17, 2013.
U.S. District Judge Danny C. Reeves on Tuesday granted a continuance request from Deputy Steven Molen’s defense team. Attorneys Patrick F. Nash, Joe A. Jarrell and Brandon D. Marshall had stated in their request that the request for discovery process had turned up so much evidence from federal prosecutors that they would be unable to fully prepare for a trial date of Sept. 9.
Reeves and U.S. Magistrate Judge Hanley A. Ingram, who is overseeing the hearings leading up to Molen’s trial, agreed that a tight trial schedule would deny Molen’s defense team reasonable time to prepare.
In Ingram’s order, filed electronically on Wednesday, several facets of the defense team’s request for continuance were mentioned.
“ ... Defense counsel indicated that discovery is complete except for a few minor matters, but that several factors necessitate an extension of the trial date, including: 1) review of 2,500 pages of discovery produced; 2) review of 40 videos and 14 audio files produced; 3) a possible forthcoming related indictment of (Molen) in the Western District of Kentucky; 4) the need to investigate more than 40 potential fact witnesses; and 5) the need to engage a use-of-force expert,” stated Ingram.
Molen’s attorneys requested a trial date in approximately three months, and Ingram ordered that the new trial date be set for Dec. 17, 2013 at 9:30 a.m. in U.S. District Court in London.
Molen was indicted in June 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.
According to U.S. Prosecutor Patrick Molloy and Ingram’s statement, a third federal indictment may be on its way, this time in U.S. Western District Court in Bowling Green. Molloy, during Molen’s arraignment in July, stated the alleged incident happened “just over the line in Russell County.”
U.S. prosecutors during the arraignment announced their intention to offer what’s known as Rule 404(b) evidence, or evidence of other crimes or wrong acts that may be used in court for proof of motive, opportunity, intent, or other factors.
The request for discovery — a process during which one party can access evidence produced by another party — turned up 53 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 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.
The U.S. has stated it only intends to focus on fewer than 10 of those alleged incidents. But that still leaves a mound of evidence prosecutors expect to use in the case.
“The Court finds that the failure to grant a continuance of the length outlined above would deny the defendant reasonable time necessary for effective preparation, taking into account the exercise of due diligence,” stated Ingram in the order. “Further, the ends of justice served by continuing the trial date in this case outweigh the best interest of the public and the defendant in a speedy trial.”
Molen’s defense team has also asked that video files in DVD format, produced by prosecutors, be sealed. U.S. Attorney Kerry B. Harvey on Monday filed a notice stating the U.S. would be entering a video depicting a Sept. 3, 2006 incident and a video of a July 1, 2007 incident at the sheriff’s office in Somerset as exhibits in the trial.
Ingram, in his response to the defense attorneys’ request, said the motion would be taken under advisement.
A pretrial conference in the case, originally scheduled for Aug. 23, has been continued to Nov. 22. A motions hearing is set for Oct. 15.
Whitaker, one of the alleged victims, 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.
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 a 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 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, an SPD officer testified he saw Molen strike Fourman.
Molen was the target of another lawsuit, filed in 2011 by Kevin McCoy, that was eventually dismissed as well.