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Final prosecution witness places former El Paso County Sheriff Maketa at center of missing file conspiracy

Author: Lance Benzel - July 8, 2017 - Updated: July 8, 2017

Former El Paso County Sheriff Terry Maketa waits inside of the Terry R. Harris Judicial Complex on the first day of his jury selection for the trial on Tuesday June 27, 2017. (Photo by Dougal Brownlie, The Gazette)

Prosecutors on Friday called their final witness against ex-Sheriff Terry Maketa – a former confidant whose allegations could be considered the closest thing to a smoking gun in the corruption trial.

Jacqueline Kirby, the sheriff’s executive assistant for a decade, was revealed as the source of the claims that Maketa and his second-in-command, Undersheriff Paula Presley, were in possession of the so-called Elder file even as they accused several deputies of stealing it.

She described a February 2013 meeting at the Sheriff’s Office at which Maketa and Presley were discussing a disciplinary file belonging to then-sheriff’s candidate Bill Elder that went missing from a locked Internal Affairs room two months earlier.

“He looked at the undersheriff and said, ‘You need to bring me the file,'” Kirby recalled on the stand. “Undersheriff Presley said, ‘I’m going to have to go home and get it.’ And he said, ‘Well, that’s what you need to do.'”

Hours later, Kirby walked past Maketa’s office and saw him and Presley going through an “old banker’s box” containing multiple files, she said. Presley closed the office door as Kirby passed, and she didn’t get a look at the records.

In a corruption case steeped in nuance and conflicting stories, Kirby’s testimony may be the prosecution’s best chance at convincing jurors that Maketa knowingly maneuvered to destroy the careers of deputies who had crossed him under the false pretense they had taken the file.

Whether the bombshell actually landed could become clear by early next week. The case is expected to proceed to closing arguments, then go to the jury for deliberations, as early as Monday afternoon. Maketa, 52, has yet to announce whether he will testify. He faces seven counts, including four felonies, on allegations that he resorted to extortion, witness tampering and other crimes during his troubled third term in office.

The defense, led by Denver attorney Pamela Mackey, moved swiftly to remove the sting from Kirby’s claims by suggesting that she changed her story before trial to exaggerate the strength of the evidence against Maketa.

During cross-examination, Mackey cited a 2015 interview with the Colorado Bureau of Investigation in which Kirby allowed for the possibility she could have been wrong about the closed-door meeting with Maketa and Presley.

In that interview, Kirby said if Maketa and Presley weren’t discussing the Elder file, “it sure had something to do with it.”

On the stand, Kirby stood her ground: “As far as I understood, it was the missing Elder file.”

The defense also emphasized testimony by sheriff’s Cmdr. Jeff Kramer, who attended the same meeting.

Kramer recalled Maketa and Presley referring to disciplinary records of some kind involving Elder, but said it wasn’t made clear if the two were discussing the Elder file – an Internal Affairs report said to be up to 2 inches thick.

Another person said to be at the meeting, Lt. Joseph Roybal, said he had no recollection of being there. Testimony by Roybal and Kramer seemed to challenge Kirby’s recollection that the two of them looked at her in shock after Presley’s apparent admission.

Discussion of the February 2013 meeting came after the jury heard from Elder, who introduced another wrinkle in the saga over the missing file, claiming it didn’t exist. Elder, who was elected sheriff in 2014, denied he had ever been the subject of an Internal Affairs investigation.

Wearing his gray sheriff’s uniform, Elder told jurors that he worked for the Sheriff’s Office from 1979 to 1998 and left with no Internal Affairs findings against him.

Elder said that after his departure, he was notified that a former subordinate, Sgt. Bill Claspell, was under scrutiny for how Claspell calculated compensation time for deputies, based on a method he had learned from Elder, his former boss.

That audit happened in May 1998, two months after Elder’s departure, the current sheriff testified, denying he played any role in the disappearance of a disciplinary file.

“I didn’t think there was an IA file,” he said. “Therefore I didn’t direct anybody to steal it.”

The defense advanced an alternate theory about the file discussed by Maketa and Presley, saying it actually belonged to Claspell, who ended up being disciplined over time keeping errors. That explanation plays on earlier testimony that after Elder’s file went missing, Maketa and Presley sought to recreate it using elements of the Claspell file.

Kirby, who said she used to spend Friday nights at the Maketa household, also testified that she overheard a phone call in which Maketa threatened to yank a jail contractor’s $5 million-a-year contract unless they fired an employee named Wendy Habert.

Habert led all three of Maketa’s successful campaigns for sheriff, but she earned Maketa’s wrath partly because she refused to help Presley mount a run to succeed him as sheriff, Kirby said.

“He was extremely angered and betrayed that she was giving her support to Elder,” Kirby said. “Loyalty was very important to Sheriff Maketa.”

At the conclusion of the prosecution’s case, 4th Judicial District Judge Larry E. Schwartz denied a motion by the defense to dismiss charges for lack of evidence.

The defense began its case by presenting testimony suggesting Habert was fired for cause, an attempt to undercut extortion charges alleging that Maketa targeted her because of a feud over the election and a sexual harassment complaint she lodged against a supervisor.

Maketa’s attorneys also called former sheriff’s Bureau Chief Al Harmon, who told jurors that he had serious concerns over policy violations by three deputies allegedly targeted by Maketa. All were sanctioned for breaking the rules, he said, not for political reasons.

Testimony resumes at 8:30 a.m., Monday, a day on which Maketa is expected to say if he will take the stand in his defense.

Lance Benzel