DA will not prosecute former SSPD detective
Steamboat Springs — District Attorney Brett Barkey has decided not to prosecute a whistleblower, whose community letter led to resignations and new leadership at the Steamboat Springs Police Department.
Former detective Dave Kleiber was being investigated for perjury related to a 2012 case involving Steven Torres, who fired a gun down the stairs of a downtown bar.
“Brett Barkey’s ‘investigation’ of my contact with Steven Torres was driven by his personal malice and retribution towards me because I left law enforcement and was providing effective investigative services for local defense counsel,” Kleiber said in a statement Friday.
In March 2015, Kleiber distributed his scathing letter that was critical of the leadership at the police department. The city hired an independent investigator to look into the accusations.
Toward the end of that investigation, on July 6, Interim Police Chief Jerry DeLong turned over an audio recording to the District Attorney’s office of Kleiber interviewing Torres about the gun incident, according to a memo released by Barkey on Thursday.
DeLong said Friday that an officer going through old audio files brought the recording to his attention.
“He said, ‘You need to listen to this,’” DeLong said.
The officer who discovered the recording could not be reached for comment Friday.
According to Barkey, the audio recording was never turned over to the District Attorney’s Office while the Torres case was being prosecuted.
The perjury allegation was the result of testimony Kleiber gave during a preliminary hearing in the Torres case.
According to court transcripts, Kleiber testified that the interview he did with Torres had not been recorded.
During the District Attorney’s Office investigation into whether Kleiber lied under oath, they discovered the recording had been made by another officer who no longer worked at the department.
“He indicated he was not the officer who would have been responsible for making sure the recording got to the District Attorney’s Office,” Barkey’s memo states. “He also indicated he did not know if Mr. Kleiber was aware of the recording or not.”
During the perjury investigation, the District Attorney’s Office received a letter from Kleiber’s attorney stating Kleiber did not know about the recording.
“…Without direct evidence from a witness and only circumstantial evidence to weigh against Mr. Kleiber’s denial, I conclude that it is unlikely that a jury would find beyond reasonable doubt that Mr. Kleiber committed perjury in the first degree,” Barkey wrote in his memo.
In the memo, Barkey states it might have been possible to charge Kleiber with harassment or second-degree official misconduct, but the statute of limitations had expired.
Those accusations stem from the context of the interview Kleiber had with Torres.
According to Barkey, the interview was a “profanity-filled shouting match” that begins with Torres invoking his right to speak with an attorney and Kleiber “repeatedly saying, ‘I don’t care.'”
Barkey wrote that at one point, Kleiber verbally threatened Torres by saying “I’ll knock your ugly (expletive) mug off.”
“Mr. Kleiber’s interaction with Mr. Torres, as documented in the recording, is disturbing and grossly unprofessional,” Barkey wrote. “It is certainly not consistent with the high standard of conduct I witness being exercised every day by law enforcement officers across the 14th Judicial District.”
Kleiber said Friday, that after cordially introducing himself to Torres, Torres immediately became extremely volatile, combative and physically out of control.
“He spit at me and then hacked up phlegm in an attempt to spit at me a second time,” Kleiber said. “Under federal law, state statute and SSPD Department policy, I could have used physical force to subdue and control Mr. Torres. But for everyone’s safety, I chose to attempt to control him utilizing only verbal commands and my presence, which, after about three minutes, ultimately was successful. When Mr. Torres requested an attorney, it was my obligation to stop any further questioning of him, which is exactly what I did.”
Kleiber’s attorney, Charles Feldmann, has previously stated that the perjury investigation was a form of retaliation against a whistleblower.
“There is no basis whatsoever for those assertions,” Barkey said in an email Friday. “A District Attorney is an independent elected official whose duty is to evaluate, and if appropriate, prosecute criminal conduct. My office is independent of city governments and other law enforcement agencies. Here, we received a report of possible criminal conduct, took it seriously, investigated it with the help of the Colorado Bureau of Investigation, and I made a decision not to proceed with prosecution based on my independent analysis of the facts and the law. That is what we do.”
In Barkey’s memo, he preemptively denied a request for the public release of the Kleiber investigation records.
Barkey wrote that Kleiber’s privacy interest outweighs the community interest in monitoring law enforcement.
“He like all citizens is presumed innocent until proven guilty in a court of law,” Barkey wrote. “Public release of these records would not afford Mr. Kleiber the opportunity to confront and rebut the information with the protections and rights afforded in the criminal justice system.”
Barkey said that in making his decision not to release records, he also weighed the community’s interest in monitoring the operation of its law enforcement agencies and their employees.
“In that regard, I am aware that Mr. Kleiber no longer works in law enforcement,” Barkey wrote. “I am also aware that the Steamboat Springs Police Department has changed leadership and much of its staff since June 2012. Thus, the oversight interest diminishes.”
Despite the preemptive records request denial, the Steamboat Today submitted a records request Friday, and Barkey denied the request.
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