On Oct. 10 last year, what began as a confrontation between attendees of a right-wing political rally and a “BLM-Antifa Soup Drive” in Civic Center Park as the afternoon wound down morphed into a confrontation between one of them, 49-year-old Lee Keltner, and Matthew Dolloff, 31, who was working security for a TV station. As Keltner sprayed a cloud of mace at Dolloff, Dolloff fatally shot him..
That day, Keltner and his son were heavily armed. Keltner’s son deliberately targeted a Black man in a confrontation and threatened to “cut his [racial slur] up.” He carried several knives illegally, according to Dolloff’s defense attorneys.
Keltner’s phone contained more than a dozen hateful images and writings related to white supremacy, xenophobia and hatred of police, Dolloff’s defense attorneys say.
But on Friday, a Denver District Court judge ruled information about Keltner’s background isn’t relevant in Dolloff’s trial – for now.
Dolloff was working as private security for 9News, though reporting by The Denver Gazette has revealed he did not have a license to work as a security guard in Denver. He now faces a second-degree murder charge, and has claimed self-defense.
Judge Brian Whitney agreed with prosecutors’ assertion that evidence about Keltner’s political views and past tendencies for hostility or aggression would only serve to politicize the trial. At issue for prosecutors to prove in the case is whether Dolloff had a reasonable belief his life was in immediate danger at the moment of the shooting and whether he responded appropriately.
“In this case as it is right now, it’s not admissible because it would simply be something that would inflame the jury and politicize the fight,” Whitney said.
But Whitney didn’t close the door permanently on the defense attorneys’ ability to request to bring in that type of evidence once the trial gets underway. Whitney said Dolloff’s mindset in the moment directly implicates his Fifth Amendment right not to testify. If he chooses to, Whitney said, evidence about what Dolloff may have known about Keltner could become relevant, but it’s not possible to say for sure until Dolloff makes his decision.
“By all intents and purposes from what the court has been presented with today, this was a reaction to a fight. … It’s based on what a witness says up here, and it can change in a heartbeat,” Whitney said.
In Friday’s hearing and in a July 2 court filing, defense attorney Doug Richards argued the prosecutors were trying to control Dolloff’s defense. Evidence about Keltner’s character and political activity matters to his intent, motive and state of mind and the threat he posed to Dolloff and the 9News producer, defense attorneys argued in the filing.
“The prosecution, of course, is free to put whatever spin it wishes on the facts at trial and hope the jury buys it. But the prosecution cannot simultaneously limit the presentation of evidence to its misleading, one-sided version, depriving the jury of all context and competing facts,” says the filing.
But prosecutor Zachary McCabe said his side’s concern is over the relevance of evidence about Keltner’s character to whether it makes anything that happened in the confrontation more or less likely.
“At the end of the day, this is about Mr. Dolloff’s intent. This is about what he was thinking that day,” McCabe said.
Whitney did not rule Friday on a motion by Dolloff’s defense attorneys in a dispute over whether prosecutors have lost or destroyed evidence. The defense has claimed investigators found a second cell phone at the scene that belonged to Keltner containing relevant photo and video evidence, and prosecutors have lost or destroyed it.
However, a criminalist supervisor testified investigators made a mistake when they collected evidence and noted a cell phone found in a pants pocket. Dan Fox said investigators initially mistook Keltner’s vest found at the scene, in the pocket of which was his cell phone, for a pair of pants. Uncertainty about what the clothing item was and later confirming it was a vest likely led to the confusion, he said. He confirmed in his testimony Friday that no pants were found at the scene of the shooting.
Prosecutors have requested more time to call their own witnesses and provide a response to the defense attorneys’ claims.