Gov. Jared Polis has appointed Attorney General Phil Weiser as a special prosecutor to probe the 2019 police custody death of Elijah McClain.
“Now, more than ever, we must do everything within our power to foster public trust and confidence in law enforcement and the criminal justice system. That’s why I have appointed a special prosecutor to investigate this case,” Polis said, in a statement. “As a father, my heart breaks for the McClain family.”
As a special prosecutor, Weiser’s first priority may have to be finding someone to figure out how exactly McClain died.
Adams County District Attorney Dave Young issued a fresh statement Thursday that explained why charges were not filed against three officers who restrained an unarmed McClain last August in Aurora — emphasizing that McClain’s manner of death was classified as “undetermined” rather than a homicide, suicide, accident or of natural causes.
That lack of certainty could make it difficult for anyone to be convicted of a crime in McClain’s death, and it led Young to choose not to file a charge.
“Ultimately, while I may share the vast public opinion that Elijah McClain’s death could have been avoided, it is not my role to file criminal charges based on opinion,” Young said. “But, rather, on the evidence revealed from the investigation and applicable Colorado law.”
McClain, 23, was walking back from an Aurora convenience store when someone called the police and said he was allegedly acting suspiciously. He was wearing a mask and dressed warmly on a summer day and waving his hands in the air.
Police tried to question him and the exchange quickly escalated when officers say McClain resisted commands and attempted to grab a gun from a holster as he was being held down.
McClain told police he didn’t have a gun and that he preferred personal space, according to a tape of the incident. Officers eventually placed McClain in a carotid chokehold, now banned in Colorado. He briefly passed out and also vomited a couple of times. Paramedics injected him with ketamine and he went into cardiac arrest while transported to the hospital. He died several days later after he was declared brain dead.
McClain, who was Black and a massage therapist in Greenwood Village, was not suspected of committing any crime.
An autopsy eliminated several possible explanations for McClain's death - it didn't appear to be drugs or natural causes, and he was not broken or severely cut in an accident. A pathologist who conducted the autopsy said he was unsure of how he died.
“The decedent was violently struggling with officers who were attempting to restrain him. Most likely, the decedent's physical exertion contributed to death,” the autopsy report said. “It is unclear if the officers’ actions contributed as well. It is unclear whether the decedent aspirated vomit while restrained.”
No matter how he died, the pathologist’s failure to figure out exactly how and whether the officers were responsible creates a lot of reasonable doubt around any case that could be contemplated against the three officers, Nathan Woodyard, Jason Rosenblatt and Randy Roedema.
In DA Young’s November 2019 decision letter announcing the officers would not face criminal charges, he noted it was not his role to “second guess the actions of the involved officers to determine if they could have reacted to this situation in a different manner.”
“That is left to you and your agency with regards to training and/or changes in policies within your agency as a result of this incident,” Young wrote to the then-Aurora Police Chief Nick Metz.
But after a similar in-custody death of a Minnesota Black man in May sparked international protests against police brutality and calls for police reform, people are now clamoring for a different outcome.
A Change.org petition circulated earlier in the week has garnered more than 2 million signatures and counting from people across the country — including high-profile athletes and politicians. A GoFundMe has raised $1.3 million so far for McClain’s family. City officials throughout Aurora have received thousands of calls and emails about the case, according to the Aurora Sentinel.
The Aurora City Council is looking into an independent investigation, something Mayor Mike Coffman has told other news outlets he could support.
Gov. Polis said through his spokesman on Wednesday that “all Coloradans should be safe walking home from the convenience store, or just being in their own neighborhoods listening to headphones. Unfortunately, I know that is not how many people — especially young people of color — feel in our state today,” he said. “We need to do a better job, and at a bare minimum they deserve a thorough review of the case.”
Adams County Coroner Monica Broncucia-Jordan also did not answer any immediate questions about the inconclusive autopsy, including whether she would seek an inquest, which is when six county citizens could hear testimony and make a determination about McClain’s cause of death.
Young, who was preparing for a murder trial Thursday, declined to say whether he would seek additional details, or an inquest, into McClain’s death.
McClain’s family has filed a lawsuit against the city of Aurora. The family’s lawyer, Mari Newman, said she appreciated the tweets from state officials, but will “believe it when I see it” on whether a truly independent investigation would ever happen.
“In Colorado, the reality has been the only way any family has achieved justice is bringing their own case through the civil justice system,” Newman said. “Of course, I wish and hope that at some point the government will appropriately step up but I’m not going to hold my breath while that is happening. It shouldn’t take millions of signatures and international media pressure for the government to stand up and do what’s right.”
Newman has hired a toxicologist who has looked at McClain’s autopsy and determined he had metabolic acidosis, which can occur when the body is under sustained physical or psychological distress. He was having trouble breathing. And then medical professionals injected him with a dose of ketamine that was too large for McClain’s slight frame, she said.
McClain’s family has been prominent at the police protests and at the State Capitol in recent weeks, talking about their son’s life and mission. McClain was described as a slight, gentle man who was a vegetarian because he didn’t like to eat animals.
“He was not a criminal, he wasn’t a thug or a bum,” said Sheneen McClain, his mother, at a hearing at the Capitol in favor of the state’s police reform legislation. “He was peaceful, he refused to argue with others … The three officers who stopped him did so with malice in their heart … He was not allowed to live that night … The nightmare my family has experienced at the hands of Aurora, Colorado officials and authorities is appalling and inhumane.”
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