OFFICE OF THE DIsTRICT ATTORNEY

BRETT D. BARKEY, DIsTRIcT ArFORNEY

14TH JUDICIAL DISTRICT
SERVING GRAND, MOFFAT AND ROUTF COUNTIES

July 7, 2016

MEMORANDUM REGARDING DECLINATION OF CHARGES AGAINST DAVID

KLEIBER
I.

Introduction.

On July 6, 2015, Acting ChiefJerry DeLong ofthe Steamboat Springs Police Department
notified me that a recording had been discovered of an interaction between then-Detective David
Kleiber and Steven Torres, who was suspected of firing shots down a stairwell at a Steamboat
Springs restaurant. Mr. Kleiber sought to interrogate Mr. Torres late on June 8, 2012, or in the
early morning hours of June 9, in the Steamboat Springs Police Department building. A
profanity-filled shouting match begins between the two with Mr. Torres repeatedly invoking his
right to counsel and Mr. Kleiber repeatedly saying I dont care. At one point, Mr. Kleiber
verbally threatens Mr. Torres, saying Ill knock your ugly fucking mug off. Mr. Torres made
no statements about the incident.

Mr. Torres was later charged with three counts of Attempted First Degree Murder Extreme
Indifference. A jury acquitted him of that charge and convicted him of a lesser charge of Felony
Menacing and three counts of misdemeanor Reckless Endangerment in Routt County Case
201 2CR78. Mr. Torres was sentenced to four years in prison. I was the lead prosecutor in the
trial.

When I listened to the recording on July 6, 201 5 with Acting Chief DeLong, I immediately
recognized that it had never been provided to the District Attorneys Office. Not having been
provided to our office, it had never been provided to Mr. Torres defense counsel in discovery.
Acting Chief DeLong gave me a copy of the recording and I immediately provided a copy to Mr.
Torres defense counsel.
A few days after receiving this new recording, Mr. Torres defense counsel provided me a
transcript from a preliminary hearing in Mr. Torres case where then-Detective Kleiber testifies,
under oath, that there was no recording of his conversation with Mr. Torres. The preliminary
hearing had been handled by another prosecutor in our office. Listening to the recording and
reading the apparently conflicting testimony from Mr. Kieiber, I became concerned that Mr.
Kleiber had not been candid with the court in possible violation of Colorados perjury statute,
18-8-502, C.R.S.
GRAND COUNTY

P.O. Box 168

HOT SULPHUR SPGS,

970-725-3371

FAX

CO $0451

970-725-3446

RoUrr COUNTY

MOFFAT COUNTY

221 W.

VIcToRY WY.

CiuIG,

970-824-7041

#302

CO $1625
FAX

970-$24-9190

P.O. Box 770129

STEAMBOAT SPGS,

970-$70-5200

FAX

CO $0477
970-870-5201

Kleiber Declination Memo Page 2

II. Investigation.
I therefore requested that Chief Investigator Doug Winters of our office initiate a criminal
investigation. I also requested the assistance of the Colorado Bureau of Investigation, and a CBI
agent was assigned to the case. Although delayed by other major investigations of higher
priority, the investigation has now been completed.
I have reviewed the investigation. Among the most pertinent information was an interview from
an officer no longer with the department who indicated that he made the recording in question
with his departmental-issue digital recorder. This officer indicated that he transferred the digital
recording to the department s server. He indicated he was not the officer who would have been
responsible for making sure the recording got to the DAs Office. He also indicated he did not
know ifMr. Kleiber was aware ofthe recording or not.
Investigators also interviewed the officer who discovered the recording. He could not recall
specifically in which computer or on what drive he found it, or exactly when he found it, but
thought it could have been as early as sometime in 2013.
During the investigation, this office received a letter from Mr. Kleibers attorney indicating that
Mr. Kleiber denied any knowledge whatsoever of a recording.

III. Law.
In a prosecution for perjury in the first degree under 1 8-2-502, C.R.S., the People must establish
beyond a reasonable doubt each of the following elements
1
2.
3
4.
5.
6.
7.

That the defendant,

in the State of Colorado, at or about the date and place charged,
knowingly,
in any official proceeding,
made a materially false statement,
which he did not believe to be true,
under an oath required or authorized by law.

Iv. Analysis.

The exchange between Mr. Kleiber and the defense counsel at the preliminary hearing in Mr.
Torres case on February 14, 2013, was as follows:

Kleiber Declination Memo Page 3

Q What room was Mr. Torres in at the Steamboat Springs police department when you
contacted him?
A What we call the library. It doubles as an interview room.
Q Okay. So its equipped with video recording equipment?
A It is, yes.
Q And was the video recording equipment running?
A I had not had an opportunity to put it on yet.
Q Okay. So your contact with Mr. Torres was not recorded?
ANo.
The issue at trial would be whether we could establish beyond a reasonable doubt that Mr.
Kleiber knowingly made a materially false statement which he did not believe to be true. Mr.
Kleiber denies knowledge ofthe recording. The other officer present said he could not
remember where the recorder was and whether Mr. Kleiber would have known about it. The
contrary evidence is circumstantial: the clear, un-muffled acoustics ofthe recording would seem
to indicate that Mr. Kleiber was very close to and therefore would likely have been aware of the
digital recorder. However, 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 j ury would
find beyond a reasonable doubt that Mr. Kleiber committed perjury in the first degree.

V. Statute of Limitations.
It might have been possible to charge Mr. Kleibers conduct toward Mr. Torres as Harassment (a
misdemeanor), in violation of 18-9-1 1 l(1)(h), C.RS. or Second Degree Official Misconduct (a
petty offense), in violation of 18-8-405, C.R.S. Whatever the merits might have been of such
charges, prosecution ofeither is barred by the statute oflimitations, 16-5-401, C.R.S.
For Harassment, the statute of limitations bars prosecution after eighteen months from the date of
the incident. Time expired in December 2013. For Second Degree Official Misconduct, the
period is six months from the date of discovery of the misconduct. The investigation indicated
that the recording had been discovered by another Steamboat Springs officer as early as in 2013.
On this evidence, the statute of limitations period for the petty offense would have run sometime
in 2014 at the latest.

VI. Conclusion.
Mr. Kleibers interaction with Mr. Torres, as documented in the recording, is disturbing and
grossly unprofessional. It is certainly not consistent with the high standard of conduct I witness
being exercised every day by law enforcement officers across the 1 4th Judicial District.
Nevertheless, for the reasons I have set out above, I have determined that there are no
prosecutable charges to bring regarding this incident. The matter will therefore be closed.

Kielber Declination Memo Page 4

VII. Colorado Criminal Justice Records Act.

The District Attorneys Office is a criminal justice agency under the Colorado Criminal Justice
Records Act (CCJRA), 24-72-301(3), C.R.S. This memorandum records an official action
under the CCJRA, 24-72-301(7), C.R.S., and shall be available for public inspection, 24-72303(1), C.R.S.
The investigative file in this matter is criminal justice record subject to the CCJRA, 24-72301(4). As custodian of the record, I am required to balance privacy interests against community
interests in determining, in the exercise of my discretion, whether it is in the public interest to
allow public inspection of this record. Freedom Colorado Information, Inc. v. El Paso County
Sheriffs Department, 196 P.3d 892, 898-99 (Cob. 2008); Harris v. Denver Post Corp., 123 P.3d
1166, 1175 (Cob. 2005).
To begin, I believe Mr. Kleiber has a significant privacy interest in this matter particularly
because it will not proceed to prosecution. He like all citizens is presumed innocent until proven
guilty in a court of law. 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.
I have 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. 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.
For those reasons, I conclude that Mr. Kleiber s privacy interest outweighs the community
interest in monitoring law enforcement. Further, I conclude that releasing redacted records
would not adequately protect Mr. Kleibers privacy interest. Therefore, I have determined that,
in the exercise of my discretion, it would be contrary to the public interest to allow public
inspection of the investigative file in this matter.

Barke
flictrint Attnrnr