Former El Paso County Sheriff Terry Maketa retrial decision could carry political implications

Former El Paso County Sheriff Terry Maketa leaves the courtroom after being acquitted on three of seven charges after a jury hangs on the remaining charges Tuesday, July 11, 2017, in the 4th Judicial District Court inside the Terry R. Harris Judicial Building in Colorado Springs, Colo. (The Gazette, Christian Murdock)

In failing to resolve the criminal case against ex-El Paso County Sheriff Terry Maketa, a District Court jury forced a dilemma on a candidate for governor.

A veteran political observer says the decision on whether to retry the embattled lawman on four remaining counts could have political costs for Republican gubernatorial candidate George Brauchler, who leads the 18th Judicial District Attorney’s Office, which prosecuted the case.

If Brauchler’s office decides to drop Maketa’s charges, Brauchler could be accused of letting a fellow Republican skate on sweeping allegations of corruption.

If his office pushes for a new trial, he could alienate parts of the Republican base in El Paso County, where Maketa has his sympathizers.

“It’s a media disaster,” said Bob Loevy, a retired Colorado College political science professor and longtime political analyst in El Paso County. “To have this stretch into the gubernatorial primary and then possibly the general election in 2018, the Republican Party doesn’t need that at all, not in its most significant county.”

El Paso County boasts more Republicans than any county in the state. Although it doesn’t always have the numbers to sway a general election, it does have the potential to decide which Republican makes it past the primary, Loevy said.

Brauchler, perhaps best known as the prosecutor of the Aurora theater shooter, is part of what could be a crowded field of Republicans vying for a shot at succeeding term-limited Democratic Gov. John Hickenlooper. Brauchler did not personally prosecute the Maketa case, which ended in a partial mistrial last week when a jury acquitted the former three-term sheriff on three counts and failed to reach a verdict on four others.

But he will be personally involved in the decision whether to retry Maketa, lead prosecutor Mark Hurlbert said after the verdicts.

The impending Maketa decision comes at a time when signature-gathering has already begun for the governor’s race. Republican caucuses – another path to getting onto the ballot – are the first week of March.

Whether prosecutors intend to retry Maketa could become clear at 9 a.m. Monday, when attorneys in the case will join 4th Judicial District Judge Larry E. Schwartz for a courtroom conference call to discuss the next step. Brauchler’s office was assigned the case after El Paso County District Attorney Dan May recused his office, saying he wanted to avoid the appearance of any bias or impropriety. Brauchler declined through a spokeswoman to address questions for this story, citing the still-active case.

From a legal standpoint, the decision could come down to whether prosecutors believe a different jury could convict on the remaining counts.

How the Maketa jury split is so far a mystery, because panelists declined to address reporters and attorneys after delivering verdicts.

“I think both sides would make an effort to find out how the jury reached the decisions it did,” said retired Denver attorney Phil Cherner, who represented Chuck E. Cheese killer Nathan Dunlap at trial. “There’s a big difference between 11-1 in one direction and 10-2 in the other direction. That’s going to impact both sides’ decisions.”

If the split verdicts tilted toward guilty, it could help prosecutors justify the time and expense of a second trial, attorneys say.

“It’s tremendously expensive to retry a case like this just as it is to defend,” said longtime Colorado Springs defense attorney Richard Tegtmeier.

Cherner disagreed that prosecutorial resources would dictate the decision.

“I don’t think that’s much of a factor,” Cherner said. “For a major metropolitan District Attorney’s Office with thousands of cases on their desks, a two-week trial is nothing spectacular, even 50 miles down the highway.”

Expenses could also be a factor in how Maketa weighs his next steps, especially if plea negotiations are ongoing.

His defense team – led by Pamela Mackey of Denver, known for representing former NBA superstar Kobe Bryant – probably charged in excess of $100,000, several attorneys told The Gazette. Tegtmeier called that figure “way, way low.” Colorado Springs attorney Danny Kay, also unaffiliated with the case, said that Maketa’s legal bill will likely approach $500,000, including expenses from jury consultants and mock trials to test arguments in advance.

El Paso County spokesman Dave Rose said the county wasn’t responsible for paying any of Maketa’s legal fees to defend the criminal case. How Maketa bankrolled his premier defense team is unclear.

Family members and supporters generally pitch in, attorneys say, and prominent people may have access to deep pockets.

“It wouldn’t surprise me if there’s a defense fund out there,” said attorney Phil Dubois of Colorado Springs.

Dubois said it’s “almost inconceivable” that Maketa’s fee would cover a second trial, meaning he’d have to reach just as deep to hire Mackey’s team for a second round.

Tegtmeier said defendants who cannot afford a second round may be more inclined to plead guilty to make serious charges go away – a factor that he said isn’t lost on prosecutors.

Political considerations for Brauchler turn on Maketa’s complicated standing in El Paso County.

Before his administration imploded near the conclusion of his final term, Maketa was described as a “golden boy” and a “rising star” in El Paso County Republican politics – praised for his defense of gun rights and floated as a candidate for higher office once he was term-limited as sheriff.

Although some Republicans were repelled by allegations against him, “many others” remain loyal, and could register their frustrations at the ballot box if Maketa is brought to trial a second time, Loevy said.

But not everyone agrees that Brauchler needs to fear political consequences.

Joshua Dunn, a political science professor at the University of Colorado-Colorado Springs, said the two-week trial this month lent him “political cover.”

If prosecutors drop charges, they can argue that retrying Maketa would be a waste of judicial resources with slim hopes for success, Dunn said. If they request a second trial, Brauchler could argue that allegations of corruption in office are serious enough to merit it. Among the remaining counts are two extortion charges alleging that Maketa threatened to yank a $5 million-per-year jail health care contract unless the contractor fired a woman who had crossed him politically.

Said Dunn: “There might be some people – there might be many – who are still very loyal to Maketa. But I also get the sense that there are people who are really disgusted with his behavior.”

Those supporters might object to a retrial, “but they’re not going to shed a tear over it,” he said.

“My sense is that it’s likely to be a wash either way,” Dunn added.

Daniel Cole, who served as executive director of the El Paso County Republican Party during Maketa’s waning days in office, agreed that El Paso County is a titan when it comes to the primary season – the most important county in the state.

But he dismissed the idea Maketa has any remaining stock with once-passionate supporters, despite his partial acquittal.

“I see no evidence that Maketa has lingering support in El Paso County,” said Cole, who is now a spokesman for the state Republican Party. “In fact, I literally couldn’t name a single person that still supports Maketa.”

Even though Maketa was accused of devising phony investigations in a bid to derail the campaigns of then-Republican sheriff’s candidates Bill Elder and James “Jim” Reid, the Maketa case shouldn’t be viewed in political terms, Cole argued.

“It’s not as if his political affiliations led him to favor one candidate over another,” Cole said. “Political affiliations were irrelevant to the consideration because they weren’t a variable.”

Whatever Maketa’s lingering support, political observers agreed there’s little question his political career is over.

El Paso County residents – especially members of the influential evangelical base – are unlikely to forget reports that Maketa, who is married, pursued sex from subordinates, nor the image of him posing for a shirtless selfie that ran on the front page of The Gazette next to a story detailing lurid text messages to a woman under his command.

“Obviously there was wrongdoing, and he acknowledged it,” Cole said. “He won’t be vindicated for that. The criminal charges are one thing, but there’s no way he’ll ever be able to repair his reputation completely.”

If the remaining charges are tossed, Maketa would evade criminal culpability, but suspicions are likely to remain, Dunn said.

“It’s still just kind of lingering out there,” he said. “He would never be completely clear.”

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