Brauchler's office files to dismiss remaining charges against ex-sheriff Terry Maketa

Posted at 3:59 PM, Feb 16, 2018
and last updated 2018-02-16 19:57:48-05

EL PASO COUNTY, Colo. – Prosecutors on Friday filed to dismiss the two remaining charges against former El Paso County Sheriff Terry Maketa, signaling a possible close to the alleged extortion case.

Earlier this month, jurors in Maketa’s second trial acquitted Maketa of two counts of official misconduct and deadlocked on the two remaining counts: extortion and conspiracy to commit extortion, both felonies.

Maketa was originally indicted by an El Paso County grand jury in May 2016 on nine counts relating to the allegation that he threatened to terminate a $5.2 million contract between the sheriff’s office and Correctional Healthcare Companies, Inc., which was the jail’s health care provider at the time.

Maketa was accused of threatening to end the contract if Correctional Healthcare didn’t fire a woman named Wendy Habert, an employee who had allegedly refused to support the undersheriff at the time, whom Maketa allegedly hand-picked to succeed him as sheriff.

Habert had also said she was fired because she accused a commander with the sheriff’s office of sexual harassment.

But Maketa’s defense argued that Habert was a “problem employee” with prior job performance issues, and that she was fired as such.

18th Judicial District Attorney George Brauchler and his office were appointed special prosecutors in the case in May 2016. The office fought off numerous attempts by Maketa’s defense team to have the case, or portions of it, dismissed outright.

In June 2017, Maketa’s first trial started. Seven of the original nine counts forwarded by the grand jury were brought against Maketa at that trial. But the jury deadlocked on four counts after acquitting Maketa on three in early July. Friday’s filing says 11 jurors wanted to convict Maketa on the deadlocked counts, but one juror wanted to acquit him.

The second trial took place in January, in which Maketa faced the extortion and conspiracy counts, in addition to the two official misconduct counts for allegedly trying to sanction two deputies.

But after a four-day trial and 13 hours of jury deliberation, the jury deadlocked again on the extortion and conspiracy counts. Friday’s filling says 10 jurors wanted to convict Maketa, while two wanted to acquit him.

Prosecutors said they would weigh whether or not to bring a third trial against Maketa, but said Friday that since they would have to exclude certain evidence and only would be allowed to show the jury portions of the case, that it would be better to file to dismiss the charges.

“The defendant’s remaining counts would require presenting to a third jury a very different and limited picture of the conduct in this case,” said the motion to dismiss from prosecutors. “Rather than examining a pattern of activity and the toxic environment discussed throughout the first two trials, a third jury would examine the defendant’s limited conduct surrounding only one individual.”

The filing also says that prosecutors have “consulted with victims, both primary and secondary to the remaining charges” and told them they would be filing to dismiss the remaining charges. The filing also includes a statement from Habert, the victim of Maketa’s alleged extortion attempt.

“The decision to not pursue a 3rd trial and drop the two extortion related felony charges is incredibly disappointing to me; however, I fully understand and comprehend the reasoning behind the decision,” Habert wrote in the filing. “Dropping these charges and not proceeding with a 3rd criminal trial DOES NOT, in any way, mean he is innocent of these felony charges. We all deserve to move on – united, committed and strong.”

“An elected official was charged with misusing the power of his office, and that type of allegation especially merited scrutiny from the people of El Paso County,” said Assistant District Attorney Mark Hurlbert, the lead prosecutor on the case, in a statement. “While we are disappointed with the outcome, we respect [the juries’] decision and appreciate the seriousness with which they dispatched their duties to the court as well as to their community.”

Brauchler, who had been a candidate for governor in the upcoming election but dropped out of the race to run for attorney general, has faced scrutiny from his political opponents and some others throughout the case, who have accused him of going easy on a fellow county Republican.

"There's a reason this news was dumped out on a Friday afternoon before a holiday weekend: George Brauchler doesn't want you to see it," said Colorado Democratic Party spokesman Eric Walker. "Brauchler's repeated dismissal of charges and failure to notch a single conviction against Maketa shows he's either incompetent or actively helping a fellow Republican escape justice. Coloradans deserve an Attorney General who is committed to the rule of law, and won't use their position to help fellow partisans skate on serious corruption charges."

But in his office’s filing to dismiss, Assistant District Attorney Mark Hurlbert wrote that since “prosecutors must believe that they have a reasonable likelihood of success at trial” that the near-unanimous votes by previous juries and “now-truncated nature of the remaining evidence” meant they didn’t face that likelihood of success.

The El Paso County District Court judge will still have to agree with the prosecution to dismiss the charges.