Motion filed to drop charges against former El Paso County sheriff, undersheriff

Posted by Roberto Cline on February 17, 2018

Terry Maketa walking into the courtroom on June 27, 2017.

COLORADO SPRINGS, Colo. – Less than a month after a retrial for former El Paso County Sheriff Terry Maketa that resulted in a deadlock for some charges and acquittal for others, prosecutors filed a motion to drop the outstanding charges.

Maketa was accused of extortion and official misconduct in the firing of a former El Paso County Jail employee, but jurors couldn’t convict him on the felony extortion charge.

Also announced late Friday was a motion filed to dismiss all remaining charges against former El Paso County Undersheriff Paula Presley. That announcement came just hours after prosecutors said they filed the motion to drop Maketa’s charges.

“From the beginning, this has been a case that demanded transparency. 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,” Assistant District Attorney Mark Hurlbert said in a statement. “Twice juries thoughtfully and carefully considered the allegations. While we are disappointed with the outcome, we respect their decision and appreciate the seriousness with which they dispatched their duties to the court as well as to their community.”

That means Maketa will avoid facing a third trial for the charges.

A victim in the case, Wendy Habert, said the decision to drop the extortion charges "is incredibly disappointing."

"However, I fully understand and comprehend the reasoning behind the decision. Dropping these charges and not proceeding with a third criminal trial does not, in any way, mean he is innocent of these felony charges," Habert said.

Previous Story

After 14 hours of deliberations, the jury acquitted former El Paso County Sheriff Terry Maketa of two misdemeanor counts, and they could not agree on the felony charges against Maketa on Monday. There is a scheduled status hearing for Tuesday, February 27 at 8:30 a.m. to decide what’s next.


Jurors returned to the El Paso County Courthouse Monday to deliberate the fate of former Sheriff Terry Maketa, accused of extortion and official misconduct, but jurors told the judge they had difficulty reaching a consensus on the extortion charge Monday afternoon.

The judge told the jurors to read the Allen instructions, which means they would return to deliberating and double their efforts to find a verdict. They resumed deliberating shortly after as Maketa exited the courtroom with a smile.

This is a developing story and will be updated throughout the day.

Friday Story:

The jury has been released for the day and will continue deliberating Friday to determine Terry Maketa’s fate in the former El Paso County Sheriff’s retrial.

He is being tried again on charges of extortion, conspiracy to commit extortion, and two counts of official misconduct. A previous jury deadlocked on these charges last summer.

If convicted of the most serious charge against him – extortion – Maketa could face up to six years in prison.

Day seven of the retrial began with closing arguments.

Prosecutor Chris Wilcox started by reminding the jury of the fact that Maketa’s former employee at the El Paso County Jail, Wendy Habert, was fired without cause.

The man who fired her, Rich Hegsted, couldn’t get a reason why he had to fire her from Maketa. All he knew was that Maketa was very upset with Habert — so much so, that he threatened to cut off a $5 million dollar contract with Hegsted’s company if he did not terminate Habert.

Wilcox brought up Jackie Kirby’s testimony, when she said, "Anyone who Maketa perceived as disloyal to him was met with his wrath." Wilcox said that Correctional Health Companies (CHC), the company Habert worked for, felt that wrath and fired her so they wouldn’t lose their contract with the Sheriff’s Office.

The jury heard from the defense three witnesses who said Habert was hard to work with. Wilcox said there were "100 possible reasons" Habert could have been fired, but not one of them was used. Instead, no one knew the reason.

That fact illustrates Maketa’s intent, and is the cause for the extortion charge. Extortion — without legal authority and with the intent to induce CHC against CHC’s will to perform an act, made a substantial threat to cause economic hardship to CHC, and threatened to cause the results by causing an unlawful act to be performed.

Wilcox argued the entire case boils down to POWER, and the abuse of that power, by threatening economic hardship to get his way.

He moved on to address the conspiracy charge, that says Maketa had the intent to promote or facilitate the commission of the crime of extortion.

He said that comes from the fact that Maketa was angry Habert refused to run Undersheriff Paula Presley’s campaign to become sheriff, so he and Presley conspired to have Habert fired.

Wilcox laid out this timeline to prove his case:

Sept. 2 — Bill Elder Parade, when Habert publicly came out in support of Bill Elder for Sheriff. Maketa despised Elder and did not think he should become sheriff. The prosecution said Maketa targeted people who supported Elder.

Sept. 5 — Molatch incident. Habert said one of Maketa’s commanders, John Molatch, sexually harassed her at the jail.

Sept. 11 — Habert documents Molatch’s harassment

Sept. 12 – — Maketa calls Habert the following day, telling her he was angry about this claim and didn’t believe there was any truth to it

Sept. 16 — Just four days later, Maketa has a discussion with CHC to get rid of Habert.

Wilcox said again, there was no justification for the firing, and the timeline shows just how quickly Habert was fired after she upset Maketa.

He asked the jury to return a verdict of guilty.

Then he moved on to the official misconduct charges. He said Maketa was a public servant, and with intent to obtain a benefit for himself or another or maliciously to cause harm to another, he knowingly committed an act relating to his office but constituting an unauthorized exercise of his official function.

He reminded the jury of when Maketa tried to have two of his employees, Jim Reid and Ray Gerhart, put on the Brady List. The Brady List is known as a "career killer" because it documents anyone who’s had trouble telling the truth or been in trouble with the law.

Amy Fitch, the prosecutor who gets the list of names and decides whether to add them to the Brady List or not, testified that when she got the list from Maketa’s office, she immediately thought it was a "hit list or list of Maketa’s enemies."

When she asked for more information about why the men should be on the list, Maketa refused to answer. She did not add the men to the list. Wilcox said that was because neither of them belonged on it.

He moved to the missing Bill Elder file next and reminded the jury that the file was missing for seven months before an official investigation began. He said, "Maketa wanted to wait and see if someone would talk? Ladies and gentlemen, you don’t set out to create a cold case."

Wilcox finished by saying, "This was an abuse of power that crossed the line into these criminal acts, and we’re asking you to hold him accountable."

Defense Attorney David Kaplan followed up, jumping right onto prosecution’s "100 possible reasons Habert could have been fired."

He reminded the jury of the defense’s witness testimonies — three people saying Habert overstepped her role, made their jobs harder, and was a challenging employee.

He said Maketa knew of this and was only trying to make sure CHC was providing the best care possible to the inmates at the jail, so he had to take action.

And as far as adding the men to the Brady List? Kaplan argued that he was bound to provide that information to the District Attorney’s office and it would keep his department running smoothly and efficiently.

Kaplan went back to discuss Habert’s firing in more detail, saying Maketa often called Chris Capoot, the founder of CHC, and threatened the contract if a problem wasn’t taken care of. That’s because Maketa "wanted things done and wanted them done right."

He reminded the jury of Habert’s supervisor who testified about having to write Habert up.

He said, "This is not Maketa making things up… this is Habert’s superior inside CHC said how horrible she that she had to write her up."

He argued that was proof that Prosecution did not prove the case beyond a reasonable doubt.

Then he moved on to the missing Elder file.

He said Maketa did try to figure out who could have taken it, but the case went cold when he realized how many people had access to those files.

Maketa decided several months later that this missing file didn’t look great for his time in office, so he ordered people to investigate.

Ray Gerhart was found to have deception on his lie detector test, which is why Maketa submitted him to be audited for the Brady List, Kaplan argued.

He went on to say, "That brought us in here, to this important place, this important room, where justice is served…

A place where someone who spent 12 years as sheriff of El Paso County, was responsible for 700 employees and 1,400 inmates, who took care of the biggest fire in state history and the floods after, who had to do an investigation into the murder of the Executive Director of the Department of Corrections… now, he’s sitting in this room branded as a criminal…

Ok, so people didn’t want to work for him… but crime? Extortion? No.

Terry Maketa should not walk out of this room branded as a criminal. He should be found not guilty of the charges."

Prosecution stood to rebuttal and reminded the jury that this is a case about the "why."

Why Maketa wanted Habert fired: because refused to run Presley’s campaign and supported Bill Elder instead, and because she filed a sexual harassment complaint against Maketa’s commander.

Why Maketa wanted Reid and Gerhart on the Brady List: to make sure they couldn’t get another job in law enforcement.

Prosecutor Mark Hurlbert ended by saying," We’ve proven beyond a reasonable doubt that it’s not about whether Habert was a good or bad employee, or whether Reid and Gerhart did wrong. It’s about this man and the why."

Jury began deliberations about 11:30 Thursday morning. They took about eight hours to deliberate the verdict at Maketa’s first trial.

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