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Two weeks before trial, Terry Maketa prosecutors file eleventh-hour delay request

May 18, 2017 Updated: May 19, 2017 at 6:17 am
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Former El Paso County, Colo. Sheriff Terry Maketa and his defense team including high-powered attorney, Pamela Mackey, leave El Paso County courthouse in Colo. Springs, Colo. Thursday, June 9, 2016. It was the first court appearance for Maketa and two subordinates since being indicted on charges including extortion, false imprisonment and kidnapping. CAROL LAWRENCE,THE GAZETTE

Less than two weeks before disgraced ex-El Paso County Sheriff Terry Maketa is set to go to trial, prosecutors have issued a distress call - telling a judge in a request for a delay it will be "impossible" for them to be prepared.

The eleventh-hour disclosure comes at a perilous time for the prosecution.

Maketa, who pleaded not guilty in December to nine counts alleging corruption in office, has a constitutional right to a trial by a June 17 deadline. Prosecutors have asked a judge to postpone Maketa's May 31 trial date, and a hearing is set for 10 a.m. Friday.

If a judge rules against a postponement, prosecutors must proceed to trial, prepared or not, or risk having the case dismissed.

"This is a sign of trouble for the prosecution, no doubt about it," said Richard Tegtmeier, a veteran Colorado Springs defense attorney with no ties to the case.

A blunder on such a high-profile case - alleging that one-time Republican powerhouse Maketa resorted to extortion, kidnapping and other crimes in flexing his muscle - could have political consequences for 18th Judicial District Attorney George Brauchler, who is mounting a run for governor.

Vikki Migoya, an 18th Judicial District spokeswoman, declined to comment because legal filings discussing the issue were restricted to attorneys in the case by a judge's order.

The request for a delay was filed Tuesday, a day after the sudden resignation of Grant Fevurly, the junior member on the team of two prosecutors assigned to the case. The 18th Judicial District is handling Maketa's prosecution at the request of El Paso County District Attorney Dan May, who wanted to avoid the appearance of impropriety because of his long professional association with Maketa.

In a court filing, Fevurly cited "significant burnout, stress and anxiety" from his work as a prosecutor, saying he needed to resign "for the sake of myself and my family." The document in question wasn't publicly accessible at the time of this story's publication, but a source with access to the filing read its contents to The Gazette.

The prosecutor assigned to replace Fevurly, Christopher Wilcox, said it would be "physically impossible" to get up to speed for trial. Evidence includes 26,000 pages of discovery, 763 pages of grand jury transcripts, more than 5,000 media files, and 94 hours of audio and video recording, Wilcox said in the filing.

Maketa's legal team, led by high-profile Denver attorney Pamela Mackey, who previously represented now-retired NBA star Kobe Bryant, is nearly certain to object. The judge must find "extraordinary circumstances" before granting an exemption to Maketa's speedy trial rights, said Phil Cherner, a retired Denver attorney known for defending Chuck E. Cheese killer and Colorado death row inmate Nathan Dunlap.

Whether Fevurly's last-minute resignation meets that standard is likely to face scrutiny by presiding District Judge Larry E. Schwartz, he said.

"Did they see this coming?" Cherner said the judge is likely to ask. "What things have they done to come up with solutions? How complex is the case?"

The judge is also likely to consider the significant experience of lead prosecutor Mark Hurlbert, attorneys say.

"The prosecution is going to argue this wasn't expected," Tegtmeier said. "If I were defense counsel, I'd certainly want to attack that. They've got an entire DA's office - investigators, access to a police department. This is not just one guy trying a case. It's an entire organization."

There is little uncertainty as to the consequences of violating the speedy trial principle, attorneys say.

"If the judge finds there's been a speedy trial violation, then come deadline this case will get dismissed if it hasn't gone to trial," Cherner said.

Maketa's co-defendants are due for separate trials later this year - former Undersheriff Paula Presley on Oct. 3 and former Cmdr. Juan "John" San Agustin on Nov. 7.

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Contact Lance Benzel: 636-0366

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