Tuesday, October 17, 2017

UPDATE: Felony charges dismissed against John San Agustin

Posted By on Tue, Oct 17, 2017 at 12:16 PM

click to enlarge San Agustin during his Sheriff's Office tenure. - FILE PHOTO
  • File photo
  • San Agustin during his Sheriff's Office tenure.
UPDATE: We just heard via email from John San Agustin's attorney, Iris Eytan of Denver.

She called the prosecution of her client "malicious" and claimed the motive was to discredit him due to his opinions regarding the murder of Tom Clements, head of the Colorado Department of Corrections, at his Monument home in March 2013. (San Agustin reportedly believed others were involved besides the shooter, who was gunned down by lawmen in Texas; yet Sheriff Bill Elder tried to close the investigation until law enforcement agencies took issue with that, according to The Denver Post.)

Eytan also asserted that San Agustin was not in the room when the arrest of the domestic violence victim took place. Rather, she said, Chief Deputy DA Shannon Gerhart (now a judge) was there, along with sheriff's Commander Mitch Lincoln and Bureau Chief Al Harmon. Gerhart told a detective there was probable cause to arrest, she said. Meantime, San Agustin was not in the building, and there were no phone calls showing any contact with Sheriff Terry Maketa or Undersheriff Paula Presley, Eytan contends. She also said time cards were not presented to the grand jury.

The dismissal, Eytan says, "was disingenuous." While the 18th Judicial District claimed in its dismissal motion the case fell apart after a key witness, Sgt. Robert Jaworski, was forced to resign for making a racist remark, Eytan says his resignation came before he testified in front of the grand jury.

"It was nothing new," she said, adding that her prior motions that cited that fact were sealed by the judge, so it seemed as if the prosecutors were making a new revelation when, in fact, Jaworski's resignation was a long-standing known factor in the case.

Eytan contends, "They never had any evidence John was involved. Zero."

The Independent contacted the 18th Judicial District DA's Office to respond to Eytan's contentions, and the office declined to comment.

———ORIGINAL POST 10:37 A.M. TUESDAY, OCT. 17, 2017——————————

On Monday, Oct. 16, the 18th Judicial District Attorney's Office dropped felony charges against John San Agustin, a commander during the Sheriff Terry Maketa years.

San Agustin was accused of being party to a scheme in which a woman was persuaded to drop her domestic violence complaint against a deputy said to be favored by Maketa and then was arrested on Sept. 12, 2013, for making a false police report.

The 18th DA's Office took up the case after 4th Judicial District DA Dan May bowed out, citing potential conflicts of interest. Both San Agustin and Maketa supported John Newsome for sheriff back in 2004 when May lost to Newsome. May returned to El Paso County politics four years later and was elected. He's currently in his third and final term.

In its motion, the 18th Judicial DA's Office describes how its case against San Agustin fell apart:

4. After the Grand Jury returned a true bill, it was apparent that former Sergeant Robert Jaworski was going to be a key prosecution witness at trial. The prosecution anticipated that he would have testified that he heard the defendant order the arrest of Ms. Trull. This, obviously, would have been a key piece of evidence. Shortly after the indictment, the People received information that Mr. Jaworski made racial comments towards then President Barak Obama, including calling him “n—-r.” Although the defendant is not African American, he is a person of color and the People believe that evidence of this statement would have been admissible on cross-examination to show bias on the part of Mr. Jaworski, which the People believe would severely damage not only the credibility of this key witness, but the value of his testimony in general.

5. Even with the issues related to Mr. Jaworski, the People believed that they should continue with the prosecution of this defendant, because they anticipated that Detective Lisa Kaiser would be a key witness as well. The prosecution anticipated that this witness would have testified that she felt there was no probable cause for the arrest of Kelli Trull, thereby making the arrest illegal. She also would have testified that she was ordered to arrest Ms. Trull by her superiors, which most likely included the defendant and then Chief Deputy District Attorney Shannon Gerhart. On June 14, 2017, in preparation of trial of co-defendant Terrance Maketa, Detective Kaiser said that it was definitely Chief Deputy District Attorney Gerhart who ordered Ms. Trull to be arrested and not the defendant or any of her supervisors. Again, this called into question the testimony of a key witness.

6. Finally, in late June and early July co-defendant Terrance Maketa was tried to a jury of twelve. The prosecution desired to call another witness whom they thought could offer relevant testimony related not only the co-defendant, but this defendant as well. This witness was Travis Garretson. Notwithstanding tireless, and herculean efforts to serve Mr. Garretson by the Colorado Bureau of Investigation, they were unable to do so, and the People have no reason to believe that there will be a different result in the future.

7. Although several of the charges against co-defendant Maketa resulted in a hung jury, those charges related to offenses unrelated to the allegations against this defendant. In fact, the charges that relate to the defendant resulted in a not guilty verdict in the co-defendant's trial.
Read the entire motion to dismiss here:

It's worth noting that the same charges against Maketa stemming from the alleged incident resulted in not-guilty verdicts at his trial last summer. The jury reached an impasse on other charges, and the DA's Office is pursuing those. Trial is set for Jan. 23.

Undersheriff Paula Presley also has been charged in the same incident, as well as with other charges. Her trial is slated for February.

In November 2016, Presley, Maketa and San Agustin submitted a notice of claim to the county, the Colorado Bureau of Investigation, the Sheriff's Office an many others claiming malicious prosecution, as we reported first (News, Dec. 28, 2016). Read the notice of claim letter here.

Specifically, the portion of that letter regarding San Agustin says he "has been forced to defend against criminal charges that are false, without merit, defamatory and groundless." It also notes his forensic investigation consultant business dried up after the charges were filed, as did his adjunct faculty post at UCCS, and that he's incurred significant attorney fees while being precluded from working with law enforcement due to the charges.
click to enlarge screen_shot_2017-10-17_at_10.15.19_am.png

Dirtyelder.com, a website critical of Sheriff Bill Elder and others, used this illustration, at right, in its commentary about the dismissal of charges against San Agustin.

We've reached out to San Agustin's attorney, Iris Eytan of Denver. If we hear something, we'll circle back.

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