On the day Lee Keltner died, he attended a right-wing rally in downtown Denver with a man who bore a tattoo associated with a far-right group and another who wore the patch of an outlaw motorcycle gang.
During the rally, Keltner’s son referred to a Black man with a racial slur and threatened to “cut (him) up,” according to court filings. He was carrying several knives. And Keltner, 49, was carrying a concealed gun.
But whether a jury should hear that information — and other details about the day — is a nuanced legal question that’s now being debated in the high-profile murder case.
Unlicensed security guard Matthew Dolloff, 31, was charged with second-degree murder after he shot and killed Keltner as Keltner left the rally on Oct. 10. Dolloff is claiming self-defense.
The Denver District Attorney’s Office argued in court filings that some information about Keltner’s political views, and about the character of the people he attended the rally with, should not be allowed as evidence in the case because it is not relevant and is likely to improperly sway jurors.
Dolloff’s attorneys took the opposite stance, arguing that Keltner’s affiliations, the broader context of the rally and attendees’ actions that day are relevant because they impacted Dolloff’s state of mind as he fired the fatal shot.
Debates about what evidence can be presented to juries happen in most murder trials, with judges making decisions to limit or allow evidence that are aimed at eliminating extraneous or highly inflammatory information so jurors can focus on the core of the case, legal experts said.
“The idea is that when you manage the information that comes to the jury, you are putting them in a better position to come to the truth than if it were just a free-for-all,” said Aya Gruber, a law professor at the University of Colorado Boulder.
Still, Dolloff’s case stands out both because of the ingrained political issues and because he is claiming self-defense — a move that in many ways flips the script of a normal case, the experts said.
“In the end, this is about a man being shot to death and whether legally — not politically — it was justifiable self-defense,” said Doug Cohen, an attorney and former prosecutor who is not involved in the case. “But jurors bring their political beliefs into the jury room, and both sides seem to be well aware of that.”
Dueling rallies
If the case goes to trial, jurors will be asked to decide whether Dolloff committed second-degree murder when he shot and killed Keltner.
The shooting happened on a day when two ideologically opposed groups gathered for what was advertised as “dueling” political rallies in Denver’s Civic Center. On one side were the conservative “Patriot Rally” attendees. They were met by left-leaning protesters who’d gathered for what was billed as a “BLM-Antifa Soup Drive.”
Throughout the day the two groups were kept well apart from each other — a couple hundred feet — with police forming a buffer between them. The sides shouted at each other occasionally and chanted.
It was when the rallies wound down and participants began to leave the core police-controlled area that the Keltner encountered Dolloff.
In a confrontation captured on video and by a Denver Post photographer, Keltner and a handful of others were arguing with a counter-protester near the Denver Art Museum when Keltner suddenly shifted his focus to a 9News producer who was filming the argument with a cellphone. Keltner told the producer to put the camera away and said he was going to “(expletive) him up.”
Dolloff, who was working as a security guard for Denver television station 9News, stepped between the two and physically blocked Keltner, who was holding a can of bear spray. Keltner slapped Dolloff in the face. Dolloff pulled a gun from his belt and shot Keltner as Keltner discharged the bear spray.
Under Colorado law, a person can use deadly force in self-defense only if that person reasonably thinks using less force won’t be sufficient, and the person reasonably believes he or someone else faces an immediate threat of being killed or seriously hurt.
There is no duty to retreat under state law, but the action taken in self-defense must be generally proportionate to the attack, attorneys said.
Jurors in self-defense cases must consider what the person claiming self-defense knew or believed when he used the deadly force in order to decide whether the person acted reasonably, said George Brauchler, former district attorney for the 18th Judicial District.
“It’s only relevant if he knew about it,” Brauchler said of the disputed evidence in Dolloff’s case.
Political leanings
Prosecutors have asked District Court Judge Brian Whitney to exclude details about Keltner’s political views and the character of those he attended the rally with, in part because they don’t believe Dolloff knew much of that information when he pulled the trigger.
In court filings, Dolloff’s defense attorneys have alleged Keltner was a regular in “right-wing extremist circles,” using the code name “Twisted” and posting online under the username “Twist Ted” about wanting to “put the boots to some antifa scum.” The defense also alleges Keltner was aggressive at previous rallies and that he attended the event in Denver intending to “start trouble.”
At the rally with Keltner that day was a man wearing a “Sons of Silence” motorcycle gang patch, the defense says, as well as a man with a tattoo on the back of his head of the year 1776 encircled by stars, which the defense says is associated with the Three Percenters, an anti-government militia group.
Prosecutors said Dolloff did not know that information when he pulled the trigger, and that allowing that information to go before a jury would be unfair.
“While the inquiry of whether Mr. Keltner has a reputation for violence may be relevant, its probative value is substantially outweighed by the danger that it would confuse the issues and mislead the jury to consider Mr. Keltner’s character when he is not the person on trial,” Assistant District Attorney Zach McCabe wrote in a July 2 motion. ”…This trial is not about whether Mr. Keltner was the initial aggressor or whether he has a reputation for violence.”
Additionally, there’s no evidence, McCabe wrote, that Dolloff overheard Keltner’s son use the racial slur and make the threat, although Dolloff was standing nearby. And it’s not clear that Dolloff was aware of Keltner’s concealed firearm, McCabe said.
A spokeswoman for the DA’s office declined to comment while the case is pending.
The prosecutor’s motion to exclude the evidence also raises the question of Dolloff’s political beliefs, saying that if such details about Keltner are allowed into evidence, it opens the door to explore Dolloff’s leanings, which they say are liberal.
“A simple Google search for Mr. Dolloff yields results reporting participation in protests that can be construed as contrary to Mr. Keltner’s affiliations,” a footnote in the motion reads, linking to media coverage of the case.
Flipping the script
The prosecution’s request to exclude and limit evidence flips the script of a typical case, legal experts said. It’s more common to see prosecutors pushing for information to be allowed, while the defense fights to keep it out, Cohen said.
“Here they’re arguing the opposite,” he said “It’s like conservatives arguing for tax increases and liberals arguing for tax cuts.”
Still, the jury in Dolloff’s case must consider whether Dolloff’s actions were reasonable, and part of doing that involves putting themselves into his shoes, Dolloff’s attorney, Doug Richards, said.
“Imagine you are walking through a gang neighborhood and you’re approached by people who are clearly showing they are affiliated with the gang, either through words or clothing or conduct — you’re going to take that information and use it when you make a determination of what is reasonable under the circumstances,” he said.
He added that because Dolloff was working as a security guard, he was paying close attention to the entirety of the surroundings and participants that day.
Dolloff is scheduled to be in court Friday afternoon for a motions hearing. The judge could hear arguments from both sides, then make the call on what evidence will be allowed in the case. He’ll likely draw a line somewhere between the two sides’ positions, said Stan Garnett, former Boulder County district attorney.
“He’ll try to let there be enough context for the jury to understand what it was like to be the defendant in the situation,” he said, “but he’s not going to want the trial to become a referendum on the Black Lives Matter movement or any greater issues.”