Wednesday, October 17, 2018

UPDATE: Tom Clements' life was in danger but authorities did nothing, lawsuit says

Posted By on Wed, Oct 17, 2018 at 2:05 PM

click to enlarge San Agustin: A victim of malicious prosecution, lawsuit says. - COURTESY EL PASO COUNTY SHERIFF'S OFFICE
  • Courtesy El Paso County Sheriff's Office
  • San Agustin: A victim of malicious prosecution, lawsuit says.
UPDATE:

So far, we've heard from three defendants named in the lawsuit.

A spokesperson for Sheriff Bill Elder says via email, "The Tom Clements Homicide is still an active investigation. The Sheriff’s Office will not be commenting on pending litigation."

The El Paso County Attorney’s Office said in an email it's reviewing the lawsuit and "may have comments in the future.”

The other comment came from 18th Judicial District DA George Brauchler. He, too, issued a statement via email, saying:
It’s a sad fact of life that prosecutors are often sued for doing their jobs by persons who don’t like the fact that they were prosecuted. Such lawsuits are almost always legally frivolous and quickly dismissed by the courts. Anyone can file a lawsuit alleging anything they want. This lawsuit has no basis in fact or law. Once we are served with it, we will file a motion to dismiss, which we anticipate will be granted quickly by the court.

I think that the public should be skeptical of a lawsuit when it was obviously sent to the media before the plaintiff's lawyer saw fit to give us a copy. The first we heard of this was from a reporter.
To be clear, the Independent did not receive the lawsuit from the plaintiff or anyone associated with him.

—————ORIGINAL POST 2:05 P.M. WEDNESDAY, OCT. 17, 2018—————————

A new lawsuit contains explosive allegations that 4th Judicial District Attorney Dan May, El Paso County Sheriff Bill Elder and others improperly abandoned the investigation of the March 19, 2013, murder of Department of Corrections Director Tom Clements on his doorstep in Monument.

The lawsuit, filed Oct. 16 in federal court, also claims a collection of government officials, ranging from prosecutors to sheriff's deputies, including Arapahoe County District Attorney George Brauchler, who's the Republican candidate for Colorado Attorney General, conspired to lie to a grand jury and manipulate evidence in order to persuade jurors to indict Juan San Agustin, Jr. in May 2016.

San Agustin seeks $10 million in damages and other compensation stemming from his alleged "malicious prosecution" on charges arising out of a woman's alleged 2013 false arrest under former Sheriff Terry Maketa, former Undersheriff Paula Presley and San Agustin, although none of those people were present at the arrest, the lawsuit says. (Maketa, Presley and San Agustin submitted notices of claim in November 2016 alleging malicious prosecution.)

Tom Clements - FILE PHOTO
  • File photo
  • Tom Clements
Maketa and Presley were indicted on charges from that incident and others. Maketa was tried twice — in 2017 and 2018 — without a conviction, leading Brauchler's office to abandon the case earlier this year. Brauchler had taken over the case when Dan May recused himself. Charges against Presley and San Agustin were dropped in October 2017.

The indictment was built on a lie, the 45-page lawsuit filed in U.S. District Court in Denver says, noting that electronic card-reader information conclusively disproves that San Agustin was even in the sheriff's building when the woman was interviewed and later arrested.
Named as defendants in San Agustin's case are: El Paso County, District Attorney May, Deputy District Attorney Shannon Gerhart, Sheriff Elder, Undersheriff Joe Breister, County legal advisor Lisa Kirkman, former El Paso County Deputy Robert Jaworski, the Colorado Bureau of Investigations, CBI agent Ralph Gagliardi, Arapahoe County, Arapahoe County DA Brauchler, Arapahoe County Assistant DA Mark Hurlbert, Arapahoe County Deputy DA Grant Fevurly, and 11 "officers John Doe."
But perhaps most fascinating are the allegations regarding the Clements case. Evan Ebel, a member of white supremacist group 211 Crew, shot Clements and was killed days later in a shootout with law enforcement officers in Texas. When San Agustin and others who were investigating the case pressed forward with the Clements' murder investigation, May and Elder closed the case, the lawsuit says.

"In the Summer of 2016, Defendant Elder contacted all agencies that had been involved
with the investigation of the Tom Clements murder and informed them that the investigation was closed," the lawsuit says. "When Governor [John] Hickenlooper found out about this, he called Defendant Elder in for a meeting and ordered the investigation re-opened. Although Defendant Elder complied with Governor Hickenlooper’s demand, the investigation is open in name only, virtually no El Paso County Sheriff’s Office resources are being put towards the investigation."

click to enlarge Former Sheriff Terry Maketa and his wife, Vicki, in the El Paso County courthouse for trial in February 2018. The charges were later dropped. - SEAN CAYTON
  • Sean Cayton
  • Former Sheriff Terry Maketa and his wife, Vicki, in the El Paso County courthouse for trial in February 2018. The charges were later dropped.
May and Elder's decision — despite San Agustin's insistence before leaving the Sheriff's Office in 2014 after Elder was elected that there were co-conspirators involved — stemmed from a mistaken assassination, the lawsuit says.

When May served as a deputy DA in the 18th Judicial District from 2004 to 2008 before being elected as the 4th Judicial District DA in El Paso County, he prosecuted cases against members of the Sureños gang that resulted in lengthening their sentences, the lawsuit says.

Because of that, the Sureños gang put out an assassination request or "hit" on Dan May, the lawsuit claims. The 211 Crew carried out the hit, but got the wrong man. Sean May was shot in an alley in Denver on Aug. 27, 2008, the lawsuit says. The case remains unsolved.
Then there's this shocking revelation, "In or about 2013, law enforcement received a letter from a Department of Corrections inmate, who had heard of the 211 Crew’s plot. The letter warned that Tom Clements’ life was in danger. Law enforcement did not act on the letter at the time it was received."
click to enlarge District Attorney Dan May, at a briefing in August on the shooting of Deputy Micah Flick. He's accused of  refusing to allow charges to be brought against suspected conspirators in the Tom Clements murder in 2013 after learning he could be targeted by gang members behind the murder. - PAM ZUBECK
  • Pam Zubeck
  • District Attorney Dan May, at a briefing in August on the shooting of Deputy Micah Flick. He's accused of refusing to allow charges to be brought against suspected conspirators in the Tom Clements murder in 2013 after learning he could be targeted by gang members behind the murder.
The lawsuit doesn't identify which law enforcement agency received the warning, nor is there a clear accusation, but the insinuation appears to be that law enforcement, including May, fearful for their own lives, declined to prosecute Ebel's co-conspirators.

Regarding the grand jury issue, the lawsuit alleges the defendants "presented false evidence to the Grand Jury, purposely withheld exculpatory evidence, and purposely failed to present complete evidence to the Grand Jury to usurp the independence of the Grand Jury."

From the lawsuit:
Defendants together reached an understanding, engaged in a course of conduct and otherwise conspired among and between themselves to deprive Plaintiff of his due process rights by maliciously prosecuting him, fabricating evidence, manipulating witness testimony,
suppressing exculpatory evidence, and falsify[ing] charges in order to indict, arrest, and prosecute Plaintiff on without probable cause. Defendants’ misconduct was malicious, willful, and committed with reckless indifference to the rights of others. 
Moreover, Hurlbert, the lawsuit says, "negligently or maliciously published false, defamatory statements" about San Agustin by stating that despite the dismissal of the charges, San Agustin was guilty. "This statement was false," the suit says.

After leaving the Sheriff's Office, San Agustin taught at local universities and worked as a private investigator at $100 per hour and as a digital forensics expert at up to $250 per hour.

The indictment "tainted" the former sheriff's commander's reputation, the lawsuit says, and "affected his business and personal relationships, and has caused him embarrassment and humiliation." Besides that, several of the defendants conspired to place San Agustin's name on the Brady list, a list of officers disclosed to defense attorneys due to instances of departing from the truth or being accused of other wrongdoing.

This further dried up his career prospects, the lawsuit says, further defaming his reputation.

"Defendants’ intentionally and willfully interfered with Plaintiff’s economic relationships
in order to cause damage to Plaintiff’s lawful business," the lawsuit says. "Defendants’ interference was perpetuated with actual malice and ill will toward Plaintiff, and with intentional and improper purpose of causing damages. There was no justifiable cause for Defendants’ actions."

click to enlarge Sheriff Bill Elder: Named in a lawsuit alleging malicious prosecution. - FILE PHOTO
  • File photo
  • Sheriff Bill Elder: Named in a lawsuit alleging malicious prosecution.
San Agustin seeks $10 million in damages, along with economic losses, special damages for "mental anguish" and attorney fees and costs.

It's worth noting that San Agustin's lawyers include the firm of Fisher & Byrialsen, which filed a malicious prosecution case against New York City on behalf of one of the five young men erroneously accused in the infamous 1989 Central Park jogger case who were later exonerated. The firm's client was paid in a $12.25-million settlement.

The day the indictment against San Agustin and others was issued, Elder issued a statement, saying, "No one is above the law, including me. For this reason I thank the CBI, the 18th Judicial District Attorney’s Office and the Grand Jury for their diligent work regarding this matter."

We've asked the named defendants to respond to the lawsuit but so far haven't heard back. If and when we hear something, we'll update this blog.

Here's the lawsuit:

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