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Retrial of ex-Sheriff Maketa uncertain after acquittal on 3 charges, hung jury on 4

July 11, 2017 Updated: July 13, 2017 at 2:39 pm
Caption +
Ex-El Paso County Sheriff Terry Maketa leaves the courtroom with his defense team after being acquitted on three of seven charges after a jury hangs on the remaining charges Tuesday, July 11, 2017, in the 4th Judicial District Court inside the Terry R. Harris Judicial Building in Colorado Springs, Colo. (The Gazette, Christian Murdock)

Prosecutors are weighing whether to retry former El Paso County Sheriff Terry Maketa after a jury acquitted him of three counts and hung on the remaining four, resulting in a partial mistrial.

"That's something we haven't decided just yet," special prosecutor Mark Hurlbert said. "Hopefully, we'll have a decision in the next few days."

The long-awaited case - involving sweeping allegations of corruption by one of the county's best-known lawmen - was left steeped in irresolution on the trial's ninth day.

Yet even as the bulk of the charges against him remained, Maketa, 52, claimed victory.

"Twelve jurors could not unanimously accept the prosecution's case," he said as he walked out of the courthouse alongside his wife, Vicki. "We're thrilled. It was a victory. Now we're going to go home and spend some peaceful time together."

Maketa was indicted in May 2016 by a county grand jury, which issued a stunning new volley of allegations against him after claims of workplace bias and financial mismanagement led to his departure from office two weeks before the end of his third term.

The split verdict was delivered about 4 p.m. Tuesday after roughly a day of deliberations. Within a few hours of receiving the case, the jury forewoman had sent two notes to clerks, saying the panel was too divided to reach a full accord - leading to fruitless requests by the judge that they try to resolve their differences through discussion.

The jury acquitted Maketa of witness tampering, conspiracy to commit witness tampering and one count of official misconduct, a misdemeanor. It failed to reach unanimous verdicts on felony counts of extortion and conspiracy to commit extortion - which together carry a possible prison sentence of two to six years - and two misdemeanor counts of official misconduct.

The question of whether a second trial will be held could be answered at 9 a.m. Monday, when the presiding judge, Larry E. Schwartz, will convene a conference call with attorneys in the case to discuss next steps.

Maketa, who posted a $10,000 bond on the day of his May 2016 arrest, remains free on bond.

Members of the six-man, six-woman jury were escorted to a jury parking lot by two court clerks and two members of the courthouse security.

They declined to speak with reporters or attorneys in the case, leaving key questions unaddressed, including what they came to believe about the saga of the so-called Elder file, which dominated testimony.

That file was said to document misconduct by current Sheriff Bill Elder during an earlier stint as a sheriff's lieutenant, but it went missing from a locked room at the Sheriff's Office in February 2013, as Elder mounted his campaign for sheriff.

The issue kept Elder in constant focus at trial as attorneys debated who stole a disciplinary file and why, with defense attorneys blaming Elder's supporters and suggesting that Elder lied about having never been the subject of an internal investigation.

Elder testified that upon retiring in 1998, he hadn't been notified of disciplinary action against him, leading him to doubt the file even existed, despite testimony by two current deputies who say they saw it before it disappeared.

By the prosecution's admission, testimony about the missing Elder file spawned a "mess" of contradictory claims and cross-allegations.

In declining to discuss the verdict, jurors also evaded the question of how they split on the deadlocked counts, depriving prosecutors of valuable information as they consider whether to take the case to a different jury, experts say.

Hurlbert, an assistant district attorney in the 18th Judicial District, covering Arapahoe, Douglas, Elbert and Lincoln counties, declined to discuss what factors would come into play in deciding on a potential re-trial - except that resources wouldn't decide the issue.

"As far as resources, we don't have a problem coming down there and trying the case again," he said.

Hurlbert complained to the judge about serious preparation problems before trial, citing the unexpected resignation in May of his co-counsel, Grant Fevurly. On Wednesday, he said he and Fevurly's successor, Chris Wilcox, arrived fully prepared for trial.

He declined to address other questions, citing the active charges in the case.

The 18th Judicial District Attorney's Office - led by gubernatorial candidate George Brauchler - was assigned the case after El Paso County District Attorney Dan May recused his office, saying he wanted to avoid the appearance of bias. At least one El Paso County prosecutor took the stand against Maketa, accusing him of fashioning a "hit list" of employees whose careers he wished to damage.

The witness-tampering charges quashed by the jury had alleged that Maketa coerced county jail nurse Kelli McMahan to drop domestic violence allegations against her boyfriend, then-deputy Travis Garretson, who was said to be a friend of Maketa.

McMahan, who testified on the opening day of testimony, faced withering questioning by Maketa attorney Pamela Mackey over her evolving accounts of why she recanted her claims - once accusing Undersheriff Paula Presley, not Maketa, for coercing her to lie.

The official misconduct charge dismissed by the jury involved allegations that Maketa ordered a politically motivated investigation into then-Deputy Charles Kull, an Elder supporter who had been hit with repeated disciplinary findings under Maketa.

Two other official misconduct counts - relating to former Fire Marshal James "Jim" Reid and Sgt. Emory Gerhart - are among the surviving charges. Gerhart and Kull both received county settlements after filing employment claims.

Maketa also faces two remaining felonies - extortion and conspiracy to commit extortion - on allegations that he threatened to yank a $5 million-a-year contract from Correctional Healthcare Companies Inc., a county jail contractor, unless it fired a jail contract employee named Wendy Habert.

Habert is a one-time Maketa confidante who ran his three successful campaigns for sheriff - one of many examples of how alliances shifted during Maketa's turbulent final term in office.

She testified that she earned the sheriff's wrath when she refused to help Presley run a campaign to succeed him. Their rift deepened after she reported a jail commander for sexual harassment, she said.


The Gazette's Jakob Rodgers and Rachel Riley contributed to this story.

This story has been corrected to reflect that former sheriff's employee James "Jim" Reid did not file an employment claim or receive a civil settlement.

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