Former El Paso County sheriff’s investigator sues alleging malicious prosecution 

“Wait until this nuke drops”

click to enlarge Juan “John” San Agustin Jr. takes his case to court. - COURTESY EL PASO COUNTY SHERIFF’S OFFICE
  • Courtesy El Paso County Sheriff’s Office
  • Juan “John” San Agustin Jr. takes his case to court.
A former El Paso County Sheriff’s Office investigator dropped a bombshell on Oct. 16 when he filed a lawsuit alleging he was prosecuted wrongfully in retaliation for aggressively investigating the March 2013 murder of Department of Corrections Director Tom Clements.

Juan “John” San Agustin Jr., also alleged in his 45-page lawsuit that officials, including a Colorado Bureau of Investigation agent, lied to a grand jury to secure an indictment against him, former Sheriff Terry Maketa and former Undersheriff Paula Presley in May 2016, only to see all the charges ultimately dismissed more than a year later.

The case was prosecuted by 18th Judicial District Attorney George Brauchler’s office after 4th Judicial District Attorney Dan May cited a conflict of interest.

Brauchler, the Republican candidate for Attorney General, mocked San Agustin’s claims in an email to the Independent, saying such cases are “almost always legally frivolous” and are filed by those “who don’t like the fact that they were prosecuted.” He also predicted a quick dismissal and accused San Agustin of shopping the story to media before giving it to the 
13 named defendants.

“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,” Brauchler said. “The first we heard of this was from a reporter.” (The Indy was not tipped to the suit by San Agustin or anyone associated with him.)

But Maketa, breaking his long-kept silence, tells the Indy via text message that Brauchler is the one the public should be skeptical of.

Calling Brauchler’s comment “two faced,” he notes that when he, San Agustin and Presley were charged, “[Brauchler] released the indictment to the media long before providing a copy to the attorneys of those he indicted. Our attorneys got a copy from a media representative who stated they got it in a press release from the DAs [Brauchler’s] office. This is after he told one of the attorneys he would get it to them before any findings are released.”

Presley, in a separate, unsolicited exchange, echoes that version. “As CBI agent [Ralph] Gagliardi called me to tell me I was indicted which I knew nothing about I was simultaneously receiving calls from the media who already had it,” she tells the Indy via text message. “When Gagliardi called me, he said it had been released to the media. I didn’t get the indictment until the next day maybe the following [day].”

The lawsuit’s claims outline an alleged plot to discredit San Agustin by indicting him for crimes associated with an arrest he had nothing to do with, as retribution for his investigation of Clements’ murder.

Clements was shot and killed by Evan Ebel on his doorstep after Ebel stole clothing from a pizza deliverer, whom he also killed, to use as a disguise. Ebel was killed in a shootout with Texas authorities days after Clements was killed.

Named as defendants in the lawsuit are: El Paso County, District Attorney May, Deputy District Attorney Shannon Gerhart, Sheriff Bill Elder, Undersheriff Joe Breister, County legal advisor Lisa Kirkman, former El Paso County Deputy Robert Jaworski, the Colorado Bureau of Investigation, 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.”

The suit’s most explosive allegations:
That “law enforcement” failed to act in response to a letter from a prison inmate that Clements’ life was in danger. The lawsuit doesn’t elaborate.
That May refused to prosecute killer Ebel’s crime gang 211 Crew co-conspirators out of fear for his own life.

The second claim is rooted in the Aug. 27, 2008, shooting death of Sean May, a prosecutor with the 17th Judicial District. The claim says an assassin, directed by the 211 Crew at the behest of the Sureños crime gang, was to kill Dan May, who prosecuted Sureños members while working for the 18th Judicial District before being elected DA here in 2008. But the killer got the wrong man, the claim alleges. The case remains unsolved.

Dan May became aware he was the intended target after Clements’ murder, the lawsuit says. San Agustin urged May to prosecute Ebel’s 211 Crew co-conspirators, but May refused, the lawsuit says.
Meantime, in 2014, May asked the CBI to investigate Maketa, according to the suit. One focus zeroed in on Kelly Trull, an El Paso County jail nurse. She alleged in August 2013 she was assaulted by her boyfriend, then-Deputy Travis Garretson, and later reported it to jail employee Wendy Habert and Undersheriff Breister. Garretson was arrested and suspended from his job.

But Trull and Garretson remained living together, and a month later, Trull told a sheriff’s investigator she lied when she accused Garretson of assault. She also admitted to drunken driving and assaulting Garretson, the lawsuit says; deputy DA Gerhart determined there was cause to arrest her for harassment and DUI.

In September 2014, the CBI finished the investigation but found no wrongdoing in the Trull case, the lawsuit says.

When it became clear Elder would win the November 2014 sheriff’s election, San Agustin, who didn’t support him, left the department.

On March 16, 2016, a Denver Post story quoted San Agustin saying he had urged May to prosecute Ebel’s conspirators but that May and Elder dropped the case. Gov. John Hickenlooper, Clements’ personal friend, later ordered Elder to reopen it. (The lawsuit contends the investigation is “open in name only,” but the Sheriff’s Office issued a statement in response saying the probe is “active.”)

After the Denver Post article appeared, the lawsuit says, May asked Brauchler to reopen the Maketa investigation. “In April of 2016,” the lawsuit says, “Defendant Undersheriff Joe Breister, openly stated that if Maketa, Presley, and Plaintiff ‘want to talk to the press just wait until this nuke drops on them,’” the lawsuit says.

On May 25, 2016, a grand jury indicted Maketa and Presley on a variety of charges and San Agustin on two counts from the Trull incident — second degree kidnapping and false imprisonment.

But the lawsuit claims that indictment was built on lies to the grand jury by Detective Lisa Kaiser, then-Sheriff’s Bureau Chief Al Harmon and then-detective Jaworski, who testified San Agustin participated in Trull’s arrest, though the lawsuit says electronic key card records show he left the building 19 minutes before an arrest decision was made. CBI agent Gagliardi also lied when he told the grand jury the key card data showed San Agustin was in the building, a falsehood, the lawsuit says.

Those and other statements were designed to “usurp the independence of the Grand Jury,” the lawsuit asserts.

Charges against San Agustin were dropped in October 2017. Brauchler’s office tried Maketa twice without winning a conviction and then abandoned the case. Presley’s charges also were dropped.

San Agustin seeks $10 million in damages and other compensation, including for mental anguish. After leaving the Sheriff’s Office, San Agustin worked as a private investigator at $100 per hour and as a digital forensics expert at up to $250 per hour. The indictment “tainted” his reputation, the lawsuit says, thereby undermining his business and causing him embarrassment and humiliation.” In addition, several of the defendants conspired to place San Agustin’s name on the Brady list, which lists officers who have departed from the truth or had other problems and is released to defense attorneys.

“Defendants’ interference was perpetuated with actual malice and ill will toward Plaintiff, and with intentional and improper purpose of causing damages,” the lawsuit contends.

The Sheriff’s Office and county declined to comment on the lawsuit. May’s office and the CBI didn’t respond to two emails seeking comment.

San Agustin’s lawyers include the firm of Fisher & Byrialsen, which won a $12.25-million settlement from New York City for one of the five young men erroneously accused in the 1989 Central Park jogger case.

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