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Maketa declines to take stand, case goes to jury

July 10, 2017 Updated: July 11, 2017 at 6:16 am
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The trial of former El Paso County Sheriff Terry Maketa has gone to the jury after closing arguments. Maketa, 52, is charged with nine counts alleging that he abused his power during his third term in office with the goal of damaging political rivals and potentially destroying the careers of deputies. Maketa listens to closing arguments at the El Paso County Judicial Building on Monday, July 10, 2017. (AP Pool, KOAA-TV, Adam Knapik)

Whether ex-Sheriff Terry Maketa is the victim of "Monday morning quarterbacking" - or a man who turned his power and authority into weapons - is now for a jury to decide.

The answer could turn one of El Paso County's best-known lawmen into a felon, potentially landing him in prison.

The six-man, six-woman panel received the case about 4 p.m. Monday and was sent home for the day after an hour of deliberations.

Jurors will resume trying to reach a verdict at 8:30 a.m. Tuesday, assessing six days of testimony from about 30 witnesses.

Maketa, 52, faces seven counts, including felony charges of extortion and witness tampering and misdemeanors involving allegations that he tried to destroy the reputations of two sheriff's candidates - including current Sheriff Bill Elder - whom he reportedly considered unworthy of succeeding him.

The former three-term sheriff declined to take the stand in his defense.

"This is about getting rid of the people he wanted to get rid of - nothing more," special prosecutor Chris Wilcox said during closing arguments, saying Maketa fostered a climate of fear and intimidation in which people either toed the line or risked losing their careers.

Wendy Habert, who directed all three of Maketa's successful sheriff's campaigns, learned that lesson when she refused to be campaign manager for Undersheriff Paula Presley, prosecutors say, opening a rift that deepened when she reported a jail commander for sexual harassment.

Maketa maneuvered to get her fired "literally" the day after her complaint, Wilcox said, calling her employers at Correctional Healthcare Companies Inc., a Tennessee-based contractor, and threatening to yank a $5 million-per-year contract unless she was terminated.

The defense countered that Habert's firing was well deserved, citing testimony about her conflicts with co-workers, the foul language she used to Maketa and Presley during heated exchanges, and what they called the jail's troubled performance in accreditation audits.

"We all spend some time in our lives Monday morning quarterbacking," said attorney David Kaplan, calling Maketa's legal troubles the result of workplace gripes that spun out of control.

But in Maketa's case, the game of "the boss should have done this" or "should have done that" was played by attributing nefarious motives to his actions and by ignoring circumstances that led him to act as he did, Kaplan said.

Where critics saw a conspiracy in Maketa's move to fire Habert, the sheriff recognized only a need to improve conditions at the jail while making his office run more smoothly, Kaplan said.

The two sides hewed to similar themes when discussing allegations concerning the Elder file - a disciplinary file dating to the 1990s that was discovered missing in April 2013.

During an investigation that followed, sheriff's Deputy Charles Kull and Sgt. Emory Gerhart were found to have lied about what they knew, and both were tapped for the potentially career-ending sanction of being added to the Brady list, a court document disclosing names of officers who may lack credibility.

The prosecution argued they were targeted because they were Elder supporters, and that claims they "departed from the truth" were based solely on results of a lie detector test involving questionable science and vulnerable to "undue influence" by Maketa.

Defense attorneys highlighted testimony that the test results were independently verified, showing that Maketa had reason to suspect their involvement. Elder's supporters earned scrutiny not through their political preferences, Kaplan said, but by thrusting their workplace into "chaos."

Prosecutors acknowledged they had no "smoking gun" proving who had the Elder file, despite testimony by former Maketa executive assistant Jacqueline Kirby that she attended a meeting in which she heard Presley admit to having it - and Maketa ordering her to go home and get it.

"Admittedly, the Elder file's a mess," Wilcox said, before adding that despite any remaining confusion, the file was used as a vehicle to target rivals with an aggressive investigation.

In an unresolved wrinkle in the case, Elder took the stand earlier and said he wasn't aware of ever having been a subject of an internal affairs investigation, which caused him to doubt that the file existed.

The defense dismissed allegations that Maketa coerced a jail nurse to drop her domestic violence allegations against a deputy who was said to be Maketa's friend. They cited her changing stories and asked why phone records didn't support her claim that the deputy, Shane Garretson, was in constant contact with Maketa.

But those phone records did support that the nurse, Kelli McMahan, spoke with Maketa and Presley about the time she changed her story as alleged, prosecutors said. Maketa initially was charged with kidnapping and false imprisonment on allegations that he ordered McMahan be jailed after she changed her story, but prosecutors said before the trial they couldn't prove that Maketa directed the action.

The timing of various decisions also came into play, with prosecutors alleging that Maketa allowed seven months to pass before directing a criminal investigation into the Elder file in November 2013 - just months from Republican caucuses poised to pick the next sheriff.

An effort to place Kull and Gerhart on the Brady list came nearly a year after they resigned from the office, prosecutors pointed out.

"This was about cleaning house," Wilcox said.

Kaplan told the jury that while others were second-guessing his decisions and suggesting dark motives, Maketa was hard at work overseeing an office of 800 employees and serving as the public face of the Black Forest fire, among other concerns.

"Being sheriff is a job he did well and with pride," Kaplan said in exhorting the jury to acquit.

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