Prosecutors pursuing claims of corruption involving ex-El Paso County Sheriff Terry Maketa dismissed all counts against one of his two co-defendants Monday, telling a judge their case had effectively fallen apart days ahead of a trial.
The about-face came as former sheriff’s Cmdr. Juan “John” San Agustin prepared to face a jury beginning Nov. 7 on charges of kidnapping and false imprisonment, both felonies. The announcement set off a round of clapping from his supporters in court.
“This case has been built on nothing,” one his attorneys, Iris Eytan of Denver, said in fiery comments in court in which she suggested San Agustin was indicted for political reasons.
San Agustin, 47, stood at Eytan’s side during a media briefing after a judge accepted prosecutors’ request to drop charges. He declined to address questions. Eytan said the dismissal wasn’t contingent on any agreements to testify at upcoming trials for Maketa or a third person charged, Paula Presley. She wouldn’t say if she expected her client to be called as a witness at their trials.
The eleventh-hour dismissal was the latest sign of trouble from a prosecution team that previously lost a key member, who resigned amid complaints of mental exhaustion, and was also forced to dismiss charges ahead of Maketa’s first trial, which ended in partial deadlock in July. Maketa is scheduled for a Jan. 23 retrial. The case is being handled by the 18th Judicial District Attorney’s Office, which was assigned to prosecute after El Paso County District Attorney Dan May recused his office, citing the potential for conflicts of interest.
In a legal filing submitted before a scheduled court appearance for San Agustin, lead prosecutor Mark Hurlbert said the prosecution was weakened by a variety of factors, including a victim who wouldn’t return phone calls and two problematic witnesses – one who couldn’t be found despite “herculean efforts” and another who was tarnished by an unrelated scandal.
“We simply cannot prove this case beyond a reasonable doubt,” Hurlbert told 4th Judicial District Judge Larry E. Schwartz during comments in court.
Hurbert told the judge the dismissal should “in no way” be construed as a sign of San Agustin’s innocence – a statement Eytan dismissed as “hooey.”
San Agustin was indicted in May 2016 alongside Maketa and Presley. While his co-defendants were charged with nine counts alleging various misdeeds, San Agustin was linked by a grand jury to a single act: that he allegedly colluded in a scheme to jail a domestic violence victim, Kelli McMahan, in order to protect the man she accused, Travis Garretson, an-ex deputy described by prosecutors as a personal friend of Maketa.
In his legal filing, Hurlbert said CBI agents have been unable to track down Garretson.
McMahan, a former jail nurse who moved to Alabama in the wake of her arrest, had likewise stopped returning phone calls and messages from CBI investigators, Hurlbert said. Messages sent to her cellphone and Facebook page by The Gazette went unanswered Monday.
A key witness linking San Agustin to the alleged scheme, former sheriff’s Lt. Robert Jaworski, was tarnished by a scandal that erupted after the grand jury concluded, Hurlbert said in his motion. As reported in The Gazette, Jaworski, a 28-year veteran of the office, abruptly retired after using a racial epithet to refer to President Barack Obama, sheriff’s officials said.
During her comments in court and at the news conference after the hearing, Eytan revived claims that San Agustin was targeted in what she characterized as a bid to silence him after he criticized how the CBI, Sheriff Bill Elder and local prosecutors handled their investigation into the 2013 slaying of then-Colorado prisons chief Tom Clements.
“I don’t know what else it could have been,” she told reporters. Prosecutors with the 18th Judicial District previously dismissed claims of a cover-up, and Judge Schwartz shot down a legal motion based on the arguments.
Vikki Migoya, a spokeswoman for the 18th Judicial District Attorney’s Office, declined to address whether prosecutors intend to drop similar charges against Presley, who remains scheduled for a Feb. 27 trial.
Maketa, 52, was acquitted of charges related to McMahan at his previous mistrial. The former sheriff is on course to be retried on four remaining counts, records show.
San Agustin left the office in 2014 as the Maketa administration unraveled amid complaints of sexual impropriety, financial irregularities and abuse of power. He also worked for a decade as a part-time instructor at the University of Colorado at Colorado Springs, teaching courses in forensic investigation and other topics in criminal justice, said university spokesman Tom Hutton.
San Agustin taught his last course at UCCS in September 2015 and has no continuing relationship with the university, Hutton said.