PRESUMING
FELLOW DEPUTIES AND THE QUESTIONS NOT ASKED
Colleagues of the boy’s father quickly concluded suicide, raising a question: Was justice done in the barn 28 years ago?
Emergency vehicles filled Columbet Avenue that winter evening in 1989 when 10-year-old Joshua Klaver was found hanging in his family’s barn. As law enforcement officers began to arrive, just about every one of them was a friend or acquaintance of Josh’s father, Santa Clara County Sheriff’s Deputy K.W. Klaver.
Joe Fortino and Luis Mitre were the first deputies to reach the home. Fortino saw K.W. Klaver in the driveway, upset and perspiring. He knew right away this was no ordinary call.
The two men were close colleagues, fellow deputies who often spent coffee breaks together.
“Do you think we lost him?’’ Fortino recalls Klaver asking him.
“They’re still working on him,” Fortino responded. “Hope for the best.”
BOND ON THE SOUTH COUNTY BEAT
There’s always been a bond among Santa Clara County Sheriff’s deputies in the “South County.” Many live or work in the rural towns of Morgan Hill, San Martin and Gilroy, where on a good day the air smells like garlic in the morning and strawberries in the afternoon. Fortino and Mitre — both retired now — became next-door neighbors on five-acre parcels not far from the Klaver place.
Josh’s mother, Kathy Atkins, has insisted for years to anyone who would listen that the tight-knit fraternity of law enforcement failed to thoroughly investigate Josh’s death. She accused Klaver’s fellow deputies of ignoring red flags that may have cast suspicion on him and showing up at his side when trouble arose over the years.
But more than 25 years later, figuring out what investigators did — and did not do — in the barn the night of Josh’s death was difficult. For one, neither the sheriff’s nor district attorney’s offices would turn over their reports because the case was under investigation again and no one had been charged. I had heard the initial report produced the night of Josh’s death was so slim that the sheriff’s department had to reinvestigate — twice, first in 1990, then in 2014 — calling back witnesses and returning to the barn. And I ultimately learned that a key piece of evidence mysteriously disappeared, compromising those subsequent investigations.
You might think that from the outset a sheriff’s department would increase scrutiny of a case involving one of its own — or call in an outside investigator — for public confidence, if nothing else. But after I tracked down the sheriff at the time, two deputies dispatched to the barn that night, a homicide investigator and other experts, something started to become clear: A solid investigation from the start might have saved everyone from years of speculation and pain. Perhaps it could have implicated his father. But it also might have established, once and for all, that Josh committed suicide and cleared Klaver for good.
HOW RARE ARE SUICIDES FOR 10-YEAR-OLDS?
Ten-year-olds still have baby teeth. They’re still in grade school and play hide and seek. Suicide? At 10? In 1989, the Centers for Disease Control and Prevention recorded only eight suicides among children that age across the country — and the incidence has remained steady ever since. By age 14, the numbers jump to well over 100 suicides a year.
In 1989, sheriff’s investigators and a coroner quickly concluded Josh was one of those rare cases.
Bob Winter, the Santa Clara County sheriff at the time, said he never had reason to believe otherwise.
Winter is retired now and living in the Sierra foothills. But he used to raise cattle on his ranch near the Klaver place, and he told me he considered Klaver “not just one of my employees. He was a friend of mine.” From time to time, Winter asked Klaver to butcher a steer for him.
Klaver was a reliable deputy who was confident and needed little supervision, the former sheriff said. “He was Mr. Independence.” When he first heard about Josh’s death, Winter said he was “shocked and sympathetic,” and accepted that it was a suicide.
Klaver “was, of course, devastated by the loss,” Winter said. When I asked him whether the sheriff’s department should have looked more closely at the case because of its close ties to Josh’s father, he said, “It never occurred to me.”
‘SHE WAS STACKING THINGS AGAINST HIM’
When I caught up with Deputy Fortino at his ranch in Gilroy last summer, he told me that he still keeps up with Klaver. They share emails and jokes, he said, even though he always considered Klaver “a little too macho for me.”
Wearing a faded Del Toro Trucking ball cap, he leaned against his big white truck at the end of his driveway as we discussed what he remembered about that night. What he said then surprised me.
Not only was he aware of the custody battle between Klaver and Josh’s mother, he said, but he knew about the child abuse allegations against Klaver, too. Klaver had told Fortino himself, complaining about it during their coffee breaks.
“He said it was a bunch of B.S. and she was stacking things against him,” Fortino said. “He’d say things like, ‘The bitch is trying to get custody of the kid. It’s all about the money. It’s about more than the kid. It’s about monthly support,’ and all this stuff.”
“Did you believe him?” I asked, struck by the frank way he talked about it.
“Yeah, seemed like,” Fortino said. “He fought for custody of that kid. He wanted that kid. He would brag about him.”
I would have thought the abuse accusations might have raised concerns after Josh’s death, but they apparently went nowhere with Fortino.
Klaver was never arrested or charged with child abuse. Had investigators taken a closer look, however, they would have found in the family court file that Josh’s mother wasn’t the only one making allegations. Josh’s older stepbrother who was
a sheriff’s deputy, a Child Protective Services worker, and some others had all testified under oath about the abuse during a custody trial. (And if there were issues over money, as Fortino suggested, court records suggest they were mostly centered on the cost of Josh’s therapy.)
Sgt. Jerry Egge, a now-retired homicide investigator, vaguely remembered hearing something about the custody case and “an incident” at the school. But he doesn’t remember any mention of violence. He doesn’t remember what Josh’s stepfather, Dennis Atkins, recalls — that Atkins called Egge repeatedly and showed up at his office after Josh died to beg for a deeper investigation.
“I explained to him about the court and the abuse going on and that we were going the next day to see the judge,” Atkins told me. And, he emphasized to Egge, Josh was just 10.
To him, Egge seemed unmoved. But Egge told me years later that, of course, he found the violent death of a boy so young alarming. How couldn’t he? The sergeant was never called to the barn that night, but he said he decided to head to Klaver’s a few days after Josh’s death to take a look for himself — and to express his condolences.
“I went out there because it was a deputy sheriff,” Egge told me, “a family member-type thing.”
Egge and Klaver walked through the barn together, but Egge was reluctant to ask many questions.
“I felt kind of bad asking him when he was broken up,” he said. “I didn’t press him for the facts, like exactly how did you cut him down? No, I didn’t press him.”
I asked Egge if he had any regrets, if he thinks he should have investigated further.
“To tell you the truth, I felt, ‘How can I follow up on this anymore?’ But who would I follow up with? Who was the witness?” Egge asked. “Did it occur to me he’s killing him to prevent her from getting the child? No, not at all.”
Besides, Egge told me, “just because someone has a prior history, it doesn’t mean somebody killed somebody.”
How could he prove it anyway? Egge asked.
“Could the kid know how to tie a rope?” Egge asked. “You can’t tell me he can’t tie knots. Would K.W. hoist him up there and just drop him down? That’s why I have to go by the coroner’s report. You would have thought he would have scratches, a broken jaw or something like that.”
So Egge dropped it. He didn’t even file a supplemental report on his visit to the barn.
When he looked into Klaver’s eyes that day, he told me, it seemed “like he had his soul sucked out of his body or something.”
If Klaver had anything to do with his son’s death, Egge said, “he was an awfully good actor then. If that was a put on, he certainly convinced me.”
WHAT HAPPENED TO THE ROPE?
The hypothetical motive that Egge tossed out and quickly dismissed in our conversation was nothing more than speculation, and it’s difficult to even begin to comprehend why any father might kill his son. But investigators are supposed to contemplate the unthinkable: A fit of rage during an argument? A need to keep something silent? A punishment gone too far? An accidental killing staged as a suicide?
When investigators quickly size up a death as a suicide, it’s one of the biggest mistakes police can make, former New York City Police Department homicide Commander Vernon Geberth told me when I gave him a call to ask for an outside opinion.
“I can almost guarantee the original investigation was incomplete, unprofessional and all the things that should have been documented and taken to their ultimate conclusions were not done,” said Geberth, who wrote the textbook “Practical Homicide Investigation” that many agencies use to train officers.
After I went over the basics of the Klaver case — the custody dispute, the child abuse findings, the close ties among deputies — Geberth was appalled: “They should have sealed the scene and called for the state to come in,” he said. “You have a member of your department in the middle of a custody battle reporting a suicide? What could raise more red flags than that?”
Certainly, it’s easy for an outsider to criticize, but Geberth said something I heard again and again about Josh’s case: “Justice cannot be done if the police don’t do their job initially like they’re supposed to.”
If the case wasn’t investigated properly the first time, it’s impossible to recreate the scene later, he said.
That was especially striking when I learned this: As Dr. Michelle Jorden, the county’s medical examiner, started reevaluating Josh’s death more than two decades later, she couldn’t locate some key files. And a crucial item apparently was thrown away or never booked into evidence — the rope from which Josh was found hanging.
The rope was missing? What did that mean? There were no photos of the rope — and no details about a chair found under the meat rail — but plenty of questions. Jorden would later tell me the three things listed about the rope in the report were that it was a horse’s lead rope, 8 feet long and woven. But the width of the rope was missing too.
Was the rope strong enough or pliable enough for a 10-year-old boy to tie a sturdy knot and jump? Did its width match the marks on Josh’s neck? How was it possible for the coroner to reach a conclusion without it? And then there was the most fundamental question of all: How could it have disappeared?
I asked Fortino, one of the first deputies to arrive that night. He said the rope wasn’t his responsibility. He never saw the body or the rope. Getting details was the job of Luis Mitre, Fortino said, the beat cop responsible for writing the report.
Mitre happened to live right next door, but he wasn’t home the day I visited Fortino, so I parked at the curb in front of his house and called him.
When he picked up, he said he didn’t want to talk about that night despite my several attempts to ask. “Stop it. Behave,” he told me. As far as he recalls, “the rope was booked into evidence.”
Then he hung up.
WHAT WOULD THE AUTOPSY REVEAL?
Egge remembers things differently. He says that Mitre’s report crossed his desk several days after Josh died and “there was no rope booked into evidence at all.”
But if the death didn’t appear suspicious to deputies at the time, he said, “they wouldn’t even keep it, probably.” Egge told me that wasn’t so unusual. He said he had responded to countless unattended deaths, including suicides, that became a matter only for the coroner.
“If there’s an overdose of pills, and there are pills by their desk, did someone force them down their throat?” Egge said. “Do you investigate?”
Josh’s body was sent to the morgue without the rope, which led back to the question: How did the coroner perform the autopsy without it?
I pulled out a copy of the two-page autopsy report from my growing file and found a signature for Dr. Parviz Pakdaman. He was the assistant medical examiner on duty when Josh’s body was transferred from the hospital. He hadn’t worked for the coroner for 16 years when I called him at home in Los Gatos, and he didn’t remember the case offhand. But he offered to go down to the medical examiner’s office and review the file.
“It’s an interesting case,” he said afterward. There had been “a very brief mention” by an investigator about custody problems, he said.
When he got down to the autopsy, however, he was surprised that the rope was missing. It is standard procedure for the rope to stay with the body to match the rope burns on the neck.
“The rope had been removed at the scene and had not been submitted to the investigator,” Pakdaman said. “By the time I saw the child, there was no rope with the body.”
Still, he measured the bruises on Josh’s neck, noting the “well defined ½-inch abrasion mark” that circled his upper neck. He also jotted down other unexplained marks: “ill-defined” bruising on the front of his right shoulder and “abrasions and bruise marks” covering his kneecaps.
He didn’t consider them signs of abuse or foul play.
“My impression was that this was a suicide,” he said, “and that’s it.”
‘COMPLETELY UNRESOLVED’
So what did this add up to? A mother and stepfather say they were ignored when they brought up Klaver’s past abuse and their concerns over the looming meeting the next day between Josh and a judge. The original investigators, including sheriff’s deputies and a medical examiner, say nothing looked suspicious.
I needed to find someone who wasn’t so personally tied to the case. I found that person watering the side yard of his suburban home in San Jose’s Almaden Valley — Dale Sanderson, a retired Santa Clara County deputy district attorney. He remembered the case right away — it had always bothered him.
He described it as “one of those cases that, at least in my mind, was shelved for another day, and that’s one of three or four, in my opinion, that were completely unresolved,” said Sanderson, who retired in 2011 after working for the district attorney’s office for more than 25 years.
He was careful not to share details because he hadn’t seen the case file in years, but he said: “I don’t think a full and complete investigation was ever done.”
For one thing, he said, as helpful as autopsies can be for investigations, conclusions reached by coroners are only half the story.
“They deal with a small amount of evidence, the physical evidence and the pathological evidence,” Sanderson said, “but they’re not the end-all and they never have been. I prosecuted a man for sexual assault when the coroner said it was a SIDS (sudden infant death syndrome) case.”
Besides, he said, “because you find a child hanging, how is it you know the child committed suicide, or was hung by another — at the hands of another? How is the coroner going to know that?”
He doesn’t blame the investigators for gathering little information about that night. “I don’t think it’s anyone’s fault,” he said. Imagine showing up to find a dead child, distraught parents, a colleague, he said. “I don’t think they’re thinking along the lines of ‘we have to do everything we need to do to secure a crime scene.’’’
He doesn’t remember exactly when he first laid hands on the case, but it may have been in 1990, when it went to the Child Death Review Team more than a year after Josh died. The group of pediatric professionals and law enforcement officers examines all unexpected child deaths to determine if abuse or neglect were factors. They were the ones who requested the sheriff’s office do a second — and deeper — investigation.
The team had been established in the mid1980s by the district attorney’s office when it became clear that police investigators were too readily closing child death cases as accidents when, in fact, the deaths may have been caused by parental abuse.
I mentioned the missing rope to Sanderson and other looming questions about the investigation.
“You only get one shot at a crime scene,” he said. “After that, it’s been compromised. … Same goes with witnesses. Time goes by, biases come into play.”
But there’s something else that always bothered him about the case — Bobbi Klaver, K.W. Klaver’s wife at the time who came home to the tragedy.
From reading her statement back then, Sanderson said, “I’m not going to say she was uncooperative, but she certainly had little if any information.
“I always thought she was an untapped source, if not a wealth of information.” Someone should talk to her, he said. About her husband.
About what happened that night.
COMING TOMORROW: The Facebook message that kick-started the investigation.