Video files showing a Pulaski County deputy sheriff’s alleg-ed brutal acts will be open to the public as his case continues to trial, but a federal judge has opted to disallow copying of those files in the face of fair trial concerns.
“ ... The potential for public benefit from copying the exhibits is less than the potential harm to the fair and orderly administration of justice, including the defendant’s right to a fair trial,” stated an order handed down last week and signed by U.S. Magistrate Judge Hanley A. Ingram.
Ingram is over-seeing Pulaski County Sheriff’s Deputy Steven Molen’s case as it moves through the court system in U.S. Eastern District Court in London, Ky.
Molen was indicted in the Eastern District in June on two counts of violating the civil rights of two victims in incidents from October 2009 and October 2011. The two victims 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 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.
Ingram, in his order, seemed to agree with the defense.
“If copied, the ease with which the exhibits could be edited, manipulated, and disseminated increase that risk of prejudicial pretrial publicity,” states the order. “Any actual prejudice is speculative at this point, but the risk of such prejudice is real.
“ ... Access and the derivative free flow of information is ensured by the filing of the exhibits and making them generally available for viewing by the public or media,” Ingram continues in his order.
Ingram ordered U.S. prosecutors to deliver the DVDs to the court for filing no earlier than Monday, Sept. 16.
Molen’s trial in the U.S. Eastern District 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.
U.S. District Judge Danny C. Reeves is expected to oversee the trial.
Molen is currently facing an indictment in federal court in the Western District of Kentucky. A grand jury in Bowling Green in August handed down a charge 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. Molen pleaded not guilty to that charge as well.