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Maketa, Presley and San Agustin reserve right to sue for malicious prosecution 

click to enlarge Terry Maketa: Flipping the tables. - FILE PHOTO
  • File photo
  • Terry Maketa: Flipping the tables.

Though he's been gone from office for two years, Sheriff Terry Maketa remains a force, or some might say a problem, to be reckoned with. Despite facing criminal charges handed down in a grand jury indictment earlier this year, Maketa and two former Sheriff's Office cohorts refuse to ride into the sunset.

Their defiance — they've all pleaded innocent to the charges and await trials in late May — is on full display in their most recent legal filing.

On Nov. 21, Maketa, former Undersheriff Paula Presley and former commander Juan San Agustin submitted a notice of claim to El Paso County, the Colorado Bureau of Investigation and many others, each of the three seeking $10 million in damages (see document below).

That's the cost, they say, for "malicious prosecution, abuse of process, defamation, extreme and outrageous conduct, false imprisonment, false arrest and intentional interference with prospective advantage."

The 10-page claim letter names 23 people, mostly public employees, as being "involved" in "significant malfeasance, lies and manipulation of the judicial system" that gave rise to "false accusations that form the basis for the charges."

The letter was submitted by Pamela Mackey of Denver, Maketa's criminal defense attorney who's known for her successful defense of high-profile figures, including former Los Angeles Lakers player Kobe Bryant, who faced a sexual assault charge that was dismissed in 2004 after the alleged victim refused to testify.

El Paso County Attorney Amy Folsom pledged via email to "vigorously defend" the county — if a lawsuit is ever filed. Many such notices, she says, are meritless and serve as "placeholders" for plaintiffs, who must give notice within 182 days of an alleged injury to be able to file suit if it's determined they have a viable claim.

Nearly seven years ago, the Independent reported in a cover story ("Star treatment," March 11, 2010) that Maketa favored certain employees, also suggesting he might be romantically involved with the Sheriff's Office comptroller. The report was based on hundreds of pages of internal affairs reports, financial records and personnel documents.

Officials did nothing in response.

In mid-2014, media reports exploded with details of Maketa's sexual involvement with the comptroller based on leaked internal emails and a shirtless selfie he reportedly sent to her.

As Maketa's third and final term wound down, sheriff's officers made allegations of favoritism based on his alleged sexual involvements with certain female employees. Several accusers have since collected tens of thousands of dollars from the county; those who had been placed on administrative leave have been reinstated. Others' claims remain pending.

In October 2014, a law firm hired by county commissioners to investigate the allegations concluded Maketa had inappropriate relationships with three subordinates to whom he granted preferential treatment that violated policy. The firm also found Maketa inappropriately interfered with internal affairs investigations.

Meantime, the CBI investigated criminal allegations at the behest of the 4th Judicial District Attorney's Office. On May 25 this year, an El Paso County grand jury handed down an indictment. Since then, the 18th Judicial District Attorney's Office has stepped in to prosecute to avoid the appearance of a conflict.

Maketa and Presley are each charged with six felonies: extortion and conspiracy, tampering with a witness or victim and conspiracy, second degree kidnapping and false imprisonment. They also face three misdemeanor counts of official misconduct.

San Agustin is charged only with second degree kidnapping and false imprisonment.

The charges arise, according to the indictment, from an alleged incident in which a domestic violence victim was persuaded to change her accusations against a sheriff's deputy and was later arrested; from alleged threats made to the jail medical contractor if a worker, Wendy Habert, didn't manage Presley's sheriff's campaign (she never ran); and from the disappearance of an internal affairs file of now-Sheriff Bill Elder.

All three surrendered to sheriff's offices in other counties and bonded out on $10,000 each.

The claim letter alleges Maketa, Presley and San Agustin — all of whom spent decades in law enforcement — are victims, not the perpetrators.

Maketa started at the Sheriff's Office in 1987 and was promoted over the years to commander and chief of administration. He was elected as sheriff in 2002, 2006 and 2010. He resigned from office in late 2014, two weeks before his final term expired.

Presley started at the Sheriff's Office in dispatch in 1985 and rose to undersheriff by 2012.

San Agustin was a commander for the Sheriff's Office and worked more than 200 death investigations, including many high-profile cases, such as the Jon Benet Ramsey murder, a reinvestigation of the Columbine High School shooting and the Texas Seven capture.

All three, the letter says, are being forced to defend themselves against criminal charges that are "false, without merit, defamatory and groundless."

All are innocent, the letter asserts, and as a result of the charges they are "incurring attorney's fees and litigation-related expenses ... [were] defamed, arrested, precluded from working in law enforcement and [have] suffered extreme emotional distress."

San Agustin had worked as a forensic investigator consultant for attorneys and businesses and taught at the University of Colorado at Colorado Springs, the letter says, but after the indictment was issued, those work agreements were suspended.

Mackey's letter contends that people in the Sheriff's Office, DA's Office and Board of County Commissioners "have been on a mission to demean and degrade" Maketa's public service; they recently were joined by the CBI, the 18th Judicial District's DA's Office and others.

The letter says Mackey would like to spell out details of the misconduct that lies at the root of the campaign against Maketa, Presley and San Agustin, but her motions for dismissal of the criminal charges have been sealed by Judge Larry Schwartz, who ruled early this month that probable cause exists to proceed to trial and that there was no prosecutorial misconduct or grand jury violations, local media reported.

"Keeping the pleadings sealed has not been addressed," Mackey tells the Indy in an interview, "so the public is not privy to the full information about the case. What we put in our pleadings is no more secret than what's in the indictment."

She also said the notice of claim is not a ploy to encourage a plea deal, saying, "There will be no plea bargain."

County Attorney Folsom notes that the U.S. Supreme Court has ruled that witnesses that testify before a grand jury "are entitled to absolute immunity from constitutional claims for their testimony."

Folsom also notes, "In order to prove up a state claim for 'malicious prosecution' a plaintiff must show that there existed no probable cause for the arrest. It is my understanding that the court in this case recently held that probable cause did exist for the indictments."

That would be a hurdle for Maketa, Presley and San Agustin if they do file suit. Another is governmental immunity laws, which limit the amount of actual damages a plaintiff can recover.

Mackey acknowledges this in the claim letter, but adds the three will seek "exemplary damages against public employees for willful and wanton conduct in excess of the limitation." Exemplary damages, sometimes called punitive damages, are designed to impose punishmemt for malicious, fraudulent or grossly reckless behavior.

Those named as being involved in allegedly targeting the three are: CBI Agents-in-charge Ralph Gagliardi, Tim Martinez and Chris Schaefer; CBI Agent Jeff Schierkolk; 18th Judicial District DAs George Brauchler and Mark Hurlbert and Deputy DA Grant Fevurly; Sheriff Elder; Undersheriff Joe Briester; Sheriff's Office Administrator Larry Borland; Sgt. Emory Gerhart; Wendy Habert, who formerly worked for the jail medical contractor and now works for Elder; Lt. Robert Jaworski; sheriff's media relations manager Jackie Kirby; Bureau Chief Mitchel Lincoln; deputies Charles Kull and Cliff Porter; 4th Judicial District DA Dan May and deputy DAs Amy Fitch and Shannon Gerhart; county public services director Jim Reid, and Correctional Healthcare Management workers Kelli McMahan and Carl Anderson.

Also named are county commissioners and Colorado Attorney General Cynthia Coffman.

As of a year ago, the county had spent $821,496 on settlements with employees or ex-employees, attorney fees, and consulting and investigation expenses stemming from claims related to Maketa. No additional claims were paid in 2016, Folsom says.

Payments went to Kull, Gerhart, Porter and Habert, none of whom filed a lawsuit before receiving a settlement.

Commanders Rodney Gehrett, Robert King, Mitch Lincoln, Lt. Cheryl Peck and Sgt. Robert Stone have filed lawsuits.

NOC_For_Public_Release.pdf


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