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Prosecutors move to dismiss charges against ex-El Paso County Sheriff Terry Maketa

Author: Lance Benzel - February 17, 2018 - Updated: February 17, 2018

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After two mistrials ended in near convictions, special prosecutors on Friday moved to dismiss felony corruption charges against former El Paso County Sheriff Terry Maketa.

Lead prosecutor Mark Hurlbert said Maketa’s back-to-back mistrials damaged the chances for conviction because both juries threw out some charges — limiting the scope of their evidence and making it difficult to show a new panel the “totality” of his alleged abuses of power.

“Ultimately, we came to the conclusion that we couldn’t prove the case beyond a reasonable doubt anymore,” said Hurlbert, a prosecutor in the 18th Judicial District Attorney’s Office, which handled the case.

The decision comes less than two weeks after a jury acquitted Maketa of two misdemeanor counts and split 10-2 for conviction on two felonies.

Authorities also plan to dismiss charges against ex-Undersheriff Paula Presley, Maketa’s second-in-command, the office confirmed. All charges against a third former sheriff’s official, ex-Cmdr. Juan “John” San Agustin, were tossed in October.

Prosecutors fell short of obtaining any convictions in what they called serious abuses of power during Maketa’s rocky third term in office. His alleged schemes involved jailing a domestic violence victim to protect a personal friend; a bid to secure career-ending sanctions against a trio of insurgent deputies; and a series of politically motivated investigations meant to tar political rivals.

Attorneys for Maketa and Presley did not return voice mails seeking comment.

Within hours, news of the dismissal had generated political ammunition against 18th Judicial District Attorney George Brauchler, a Republican candidate for attorney general.

Although he didn’t personally try the case, Brauchler’s “repeated dismissal of charges and failure to notch a single conviction against Maketa shows he’s either incompetent or actively helping a fellow Republican escape justice,” Colorado Democratic Party spokesman Eric Walker said in a written statement.

Maketa, a popular three-term sheriff, was a rising star in the El Paso County Republican Party, frequently cited as a potential candidate for higher office.

Brauchler wasn’t available Friday for comment, spokeswoman Vikki Migoya said. During his interview, Hurlbert confirmed that Brauchler signed off on the dismissal.

The 18th Judicial District comprises Arapahoe, Elbert, Lincoln and Douglas counties. The office agreed to assist with a Colorado Bureau of Investigation probe into Maketa at the request of 4th Judicial District Attorney Dan May, who recused his office citing potential conflicts. A judge appointed them to try the case after a grand jury voted to indict the trio.

Maketa, 53, was initially indicted alongside Presley on nine counts, including felony counts of false imprisonment, second-degree kidnapping, extortion and victim tampering. San Agustin was charged with two counts.

The prosecution was troubled by the resignation of Hurlbert’s former co-counsel, Grant Fevurly, which forced a trial postponement, and by the dismissal of kidnapping and false imprisonment charges before Maketa went before a jury.

In his motion to dismiss the case, filed on Friday, Hurlbert cited the thin margins that kept Maketa from conviction, citing reporting in The Gazette that jurors deadlocked 11-1 for conviction at his first trial and fell two votes short of securing convictions on extortion-related felonies at his second mistrial, declared on Feb. 5.

Hurlbert defended his team. “I firmly believe that we tried two very good cases at a very high level,” he said.

The dismissal is unlikely to play a significant role in Brauchler’s bid for attorney general, said Colorado College professor emeritus and political scientist Bob Loevy, calling Maketa’s trial a “county issue” with little relevance to voters statewide.

The charges “are not likely to have traction politically,” Loevy said.

Daniel Cole of the El Paso County Republicans called the Democrats’ criticism of Brauchler a “weak attempt” at politicizing the decision.

Brauchler, Cole said, would treat “any other defendant the same way.”

The forewoman at Maketa’s first trial, Mary Mraz, previously told the newspaper she would be “disappointed in the system” if Maketa weren’t held to account for what she saw as crimes.

Mraz blamed a lone holdout who refused to believe “any of the witnesses” and seemed to have a fondness for Maketa, referring to him as “Terry” throughout deliberations.

“I think she was not maybe a plant, but I don’t think she was honest when she answered the questionnaire that she didn’t have an opinion coming into it,” she previously told the newspaper.

A juror at Maketa’s second mistrial said all but two panelists were convinced that he was guilty of two extortion-related counts for threatening to terminate a $5 million jail contract unless a medical services provider agreed to fire a former ally who had crossed him: “There was a lot of evidence,” she said.

In dismissing the case, Hurlbert acknowledged that “a lot” wasn’t enough.

“Ultimately, we were able to take it to the people of El Paso County, and they spoke,” he said.

The motions to dismiss Maketa’s and Presley’s cases must first be granted by a judge, which is widely seen as a formality.

It’s unclear if the judge’s dismissal will come before Maketa’s next scheduled court appearance on Feb. 27.

Jakob Rodgers of The Gazette contributed to this story.

Lance Benzel