Updates: The trial of the paramedics charged in Elijah McClain’s death

· Nov. 28, 2023, 2:23 pm
231222-MCCLAIN-TRIALS-PARAMEDICS231222-MCCLAIN-TRIALS-PARAMEDICSHart Van Denburg/CPR News
Paramedics Peter Cichuniec, right, and Jeremy Cooper, left, walk into the Adams County Justice Center on Friday afternoon, Dec. 22, 2023, where they are on trial for their roles in the death of Elijah McClain.

What to know


Friday, Dec. 22

6:46 p.m. Scenes from outside the courtroom

231222-MCCLAIN-TRIALS-PARAMEDICS-SHENEENHart Van Denburg/CPR News
Tears fall from Sheneen McClain’s face outside the Adams County Justice Center Friday night, Dec. 22, after a jury found two paramedics guilty on lesser charges in the death of her son, Elijah McClain.
231222-MCCLAIN-TRIALS-PARAMEDICS-SHENEENHart Van Denburg/CPR News
Omar M Montgomery embraces Sheneen McClain as they listen while MiDian Holmes speaks with reporters outside the Adams County Justice Center Friday night, Dec. 22, after a jury found two paramedics guilty on lesser charges in the death of Elijah McClain.

6:17 p.m. Both paramedics convicted of criminally negligent homicide

Two Aurora paramedics were convicted of criminally negligent homicide for giving Elijah McClain, a Black, unarmed 23-year-old massage therapist, a fatal dose of a powerful sedative and not doing enough to help him while he struggled on the ground in handcuffs. One paramedic was found guilty of assault for unlawful administration of drugs.

Supervising paramedic Peter Cichuniec, 51, and Jeremy Cooper, 49, gave McClain an overdose of ketamine a few minutes after he had been violently detained by police and was catatonic as he was handcuffed and pinned to the ground. Cichuniec was found guilty of the sentence enhancer charge of assault.

Both were found not guilty of reckless manslaughter, which is a more serious charge than criminally negligent homicide.

Read the full story here.

4:23 p.m. The jury has reached a verdict

4:33 p.m. Jury at an impasse

Hart Van Denburg/CPR News
Peter Cichuniec leaves the courthouse while the jury deliberates. Dec. 22, 2023

The jury considering the fate of two Aurora paramedics charged in the death of Elijah McClain is at an impasse. After two days of deliberating, the jurors told the judge Friday afternoon that they were in agreement on five of the six felony charges that  Peter Cichuniec and Jeremy Cooper face, but they were split on the sixth charge and felt stuck.

Judge Mark Warner brought them all in the courtroom, with attorneys, reporters and Sheneen McClain, Elijah McClain’s mother, present. He asked them all individually, “Do you believe you’re hopelessly deadlocked?” And then he asked, “Do you think more deliberation would help you?”

Most of the 12 jurors answered ‘yes’ to the first question, but half said they thought further talking could help them work their way out of it.

Warner then played part therapist to them, saying it was their duty to try and come to agreement, “if you can do so without violence to your individual judgment.”

He told them, “you are not advocates, you are the sole judges of the facts.”

Warner then sent them back to the deliberation room. He told attorneys that he would keep the courthouse open later Friday, until 7 or so, to see if they could reach a verdict before the Christmas holiday on Monday.

Prosecutors and defense attorneys discussed various options with the judge: Do they bring back a verdict on five of the six charges and say they’re hung on the last one? Does the whole thing become a mistrial?

None of it is known at the moment.

Everyone continues to wait, including Sheneen McClain, who is sitting with supporters and advocates a few feet away from the courtroom doors.

— Allison Sherry, reporting from the courtroom


Thursday, Dec. 21

4:07 p.m. Supporters of the McClain family have low expectations for the outcome of this trial

The jury continues deliberations today in the trial for two Aurora Fire paramedics Jeremy Cooper and Peter Cichuniec, who administered ketamine to Elijah McClain on August 2019.

Sheneen McClain, Elijah’s mother, and supporters sat in the front row behind the state prosecution during Wednesday’s intense and emotional close arguments. Afterward, two supporters expressed low expectations for the outcome of the trial.

“I thought that the defense was doing what the defense does to create confusion and to draw people away, or draw the jury away from the facts,” said Hashim Coates, a political strategist. “The intentional lie, the deliberate actions that are taken anytime that it's a non-white body. The person is just always considered X, Y, Z, but it also showed the intent to cover up the wrong motive, and I really hope that the jury looks at that part and realizes that that witness is not credible at all.”

During closing arguments, defense attorneys argued that systemic issues with law enforcement prevented paramedics from properly treating McClain on-scene. Epitome of Black Excellence in Partnership CEO Midian Holmes felt the defense tried to sell the jury a fairytale that Cooper and Cichuniec were caring for McClain.

“It was not effective. They leverage strategies to again mention systemic problems, yet they don't want to say the part out loud that they are perpetuating those same systemic problems that they bring up in their defense,” Holmes said. “So I was not, I've never been impressed with those that want to stand in defense of brutality, especially with the histories that we all have access to from the prosecution”

Coates and Holmes expressed appreciation for the prosecution for ensuring the jury that the men ignored McClain’s need for help and highlighting Cooper’s contradicting testimony of checking on 23 year-old’s vitals at the scene.

An emotional moment occurred when state prosecutor Jason Slothouber played body-worn camera footage of paramedics ignoring McClain’s pleas for help and responding to the sound of an officer sneezing. Coates said he was troubled that McClain still showed compassion under those circumstances. 

“I'm troubled by the fact that even in that moment, his humanity was ignored,” Coates said. “They continued to vilify him through their actions as being unhuman, as being a beast, as fitting.”

Holmes says she has no hope when she walks into the courtroom. But, she has a high expectation for humanity.

“It is not lost on me that there are people in that courtroom that feel it appropriate to approach a mother that is reliving and grieving the loss of her son and offer their sentiment of loss, or sorry, when they are defending her son's murderers,” Holmes said. “That is not lost on me. So when I say I walk into that courtroom with expectancy, at the very least, I expect you to honor the space that she should be afforded.”

— Tony Gorman, reporting remotely

9:40 a.m. Sheneen McClain speaks out about the trial

As a jury in Adams County deliberates whether to convict paramedics charged in her son’s death, Sheneen McClain remains frustrated and is ready to “put some boxing gloves on.”

Read the full story here.

8:30 a.m. The jury is deliberating

CPR News reporters are at the courthouse and watching remotely from the newsroom as we wait for the jury to deliver its verdict.

Wednesday, Dec. 20

6:59 p.m. Closing arguments

In their final message to a jury in Adams County, prosecutors on Wednesday leaned hard into the inaction of the medical professionals on the scene as Elijah McClain grew physically sicker in the custody of police. 

State Solicitor General Shannon Stevenson painted a callous picture of the 14 minutes Aurora Fire Rescue paramedics Peter Cichuniec and Jeremy Cooper were on the scene while McClain was pinned to the ground and handcuffed by police officers before he lost his pulse in the ambulance.

Lawyers representing the paramedics tried to introduce doubt to the prosecution’s claims that their clients’ actions —  or inactions —  on the scene amounted to criminal negligence. They also tried to raise doubt that giving McClain ketamine in a dose 50 percent higher than he should have received amounted to criminal recklessness.

Read the full story here.

— Allison Sherry, reporting remotely

2:59 p.m. A moment with Sheneen McClain, Elijah's mom

Sheneen McClain, mother of Elijah McClain, appeared in court for the first time since the trial's opening statements. She sat in the front row behind the state prosecutors and staff. She was later joined by MiDian Holmes and Hashim Coates, community activists.

As Judge Mark Warner read the jury instructions in front of a packed courtroom, the jurors followed along with their individual copies. More of the defendants’ supporters filed into the courtroom as each instruction was read.

231220-MCCLAIN-TRIALS-PARAMEDICS-SHENEENHart Van Denburg/CPR News
Sheneen McClain, right, leaves the Adams County Justice Center Wednesday, Dec. 20, 2023. This was he first day during the trials of paramedics Jeremy Cooper and Peter Cichuniec, who face charges in the death of her son Elijah, that she attended court. She left the courtroom before defense attorneys began their closing remarks.

The state’s closing arguments were presented by Solicitor General Shannon Stevenson. She laid out the poor decisions and risks throughout the night of Aug. 24, 2019, when the paramedics gave McClain ketamine.

When Stevenson said Jeremy Cooper and Peter Cichuniec ignored McClain dying and played body worn camera footage of him handcuffed and injected with the ketamine, Sheneen McClain became emotional. Holmes put her arms around her as she wiped the tears from her eyes. There was the sound of other people crying in the courtroom.

The defendants sat stoic as Stevenson presented her arguments. The jury also showed no emotion.

During the break, I briefly spoke with Sheneen. She said she has low expectations for the outcome of this trial. She didn’t return to the courtroom after the break.

— Tony Gorman, reporting from the courtroom

1:34 p.m. Closing arguments will begin after the jury instructions this afternoon

Wednesday, the defendants appeared upbeat. Before the jury arrived, Aurora Fire paramedics Jeremy Cooper and Peter Cichuniec were talking to family, friends and colleagues and engaged in conversation. The defendants’ side of the courtroom has been full throughout the entire trial.

The jury instructions have been pushed to 12:30. Cooper and Cichuneic both requested and were granted permission to skip the legal proceedings required to settle on the jury instructions.

During those proceedings today, the defense requested to change alternate jurors. Cooper’s attorney Shana Beggan said two jurors kept nodding off during the trial. The hearing device of another juror was also a concern, she said.

State prosecutor Jason Slothouber argued that the stretch breaks have kept the jury awake and attentive throughout the trial. He added he was aware of one juror falling asleep but not two. The request was denied.

— Tony Gorman, reporting from the courtroom


Tuesday, Dec. 19

5:52 p.m. In trial for death of Elijah McClain, defense attorneys argue that paramedics followed protocol

Defense attorneys for two paramedics rested their case on Tuesday after spending four days trying to raise doubt in the jury’s mind that their clients, Peter Cichuniec and Jeremy Cooper, deviated from any standard of care in treating Elijah McClain four years ago.

Throughout the testimony, jurors heard from a number of expert witnesses who said that both Cichuniec and Cooper took proper precautions when they gave McClain the sedative ketamine, which the coroner has said was a crucial reason the 23-year-old died. 

Read the full story here.

— Justice reporter Allison Sherry reporting remotely

1:31 p.m. The trial for Aurora Fire paramedics Jeremy Cooper and Peter Cichuniec continued with more testimony on Thursday

Before the jury entered the courtroom in the morning, state attorneys raised concerns over the defense’s lack of jury instructions that could affect scheduling heading into the Christmas holidays.

Defense attorneys for Cooper called Robyn McKinley to the stand. McKinley is a lieutenant EMT for the Memphis Fire Department in Tennessee and has worked there for 23 years. For the  Elijah McClain case, she reviewed transcripts from investigation interviews, body-worn camera footage, and protocol used by Aurora Fire and Rescue.

During the defense examination, McKinley told the jury that Cooper and Cichuniec did not do anything outside of their training protocol. She said that McClain appeared to be agitated, which is a symptom for excited delirium.

“He seemed very strong. He had several officers on top of him. He was steadily aggressive,” McKinley said. “He kept moving around even though they were giving commands. He continued to fight all pressure points. So that would lead me to believe that he was suffering from excited delirium.”

According to the Aurora Fire protocol on ketamine, the sedative was the only form of medication used to treat excited delirium at the time. McKinley testified that the paramedics aren’t instructed to kneel next to the patient or put their hands on them before giving ketamine. She said once the patient is sedated, they must be put into restraints and have their vitals assessed. In this case, McClain was handcuffed and on the ground.

State prosecutor Jason Slothouber focused on the use of equipment and the paramedics’ response time during cross examination. McKilney said that the paramedics’ decision to transport McClain to medical equipment on the ambulance was faster than bringing it to him.

“I think it took less time to just load him up and take him straight to the ambulance. As I stated previously, going back to get equipment would take some time,” McKinley said. “Gathering it all up and bringing it back to Mr. McClain would take some time. Then hooking it up and getting it going and then getting him back to the ambulance would take more time and just taking him straight to the ambulance.”

Slothouber also questioned details of McKinley's report. She wrote McClain’s response to officers detaining him saying “I intended to take my power back.” But, she failed to include other quotes from the body worn camera footage prior to paramedics arrival because she didn’t feel it was necessary.

“Time is alway of the essence” was a theme that Slothouber used in his cross examination. He questioned McKinley on McClain suffering from respiratory depression between the time of his detainment to being loaded into the ambulance. She told the jury she read that in the patient care report. She said she wasn’t concerned with the McClain’s breathing during that time period.

Slothouber: You're also aware that when you look at Mr. McClain on the gurney, he's clearly experiencing respiratory depression.
McKinley: I can't say that he was or wasn't.
Slothouber: Well, are you aware that his rate of breathing went from about 40 breaths per minute while he was on the ground to only about 12 when he was on the gurney?
McKinley: Twelve was sufficient.
Slothouber: That sort of dramatic collapse in somebody's breathing rate is concerning
McKinley: As a medic. It's not concerning to me.
Slothouber: It would not be concerning to you if one of your patients went from 40 breaths per minute down to 12.
McKinley: If I had sedated him, no sir.

After McKinley was excused, a defense attorney for Cichuniec called emergency medical physician Dr. Eric Hill back to the stand. He previously testified for the state in this trial, but the defense wanted to ask him questions beyond the scope that the prosecution set.

— Tony Gorman, reporting from the courtroom


Monday, Dec. 18

5:05 p.m. Jeremy Cooper, the other paramedic called to the scene, takes the stand

Paramedic Jeremy Cooper took the stand after his colleague, Peter Cichuniec, spent the morning testifying.

Cooper, like Cichuniec, walked his defense lawyer through what he remembers about the night of Aug. 24, 2019, when Elijah McClain had been stopped by police, taken to the ground and given a carotid hold.

He told the jury that he was shocked and upset when an Aurora officer picked McClain up and slammed him to the ground as he was handcuffed. 

“I didn't want any more injuries or any more of that type of behavior to happen. So my route of doing that was to try to de-escalate by telling him, ‘OK, let's just leave him here’ and try to calm everything down,” Cooper said. 

He also described a scene in which an officer slapped McClain on the face to check for responsiveness after the ketamine was injected. An exchange between Cooper and Shana Beggan, his defense attorney.

Cooper: So one of the officers when I asked that, the one that was at the shoulders or the chest around that area, actually slapped Elijah in the face a few times.
Beggan: How'd that make you feel?
Cooper: It pissed me off. It's not very professional. It's certainly not how I meant to have them check on his behavior. 

The paramedic echoed what Cichuniec testified — that it appeared to him that McClain’s condition fit the signs and symptoms for excited delirium. And in 2019, the protocol was to administer ketamine. Cooper told the jury how he decided to give McClain 500 milligrams of the powerful sedative. 

“Ketamine is a weight-based drug. There's no real good training of how to estimate weight,” Cooper said. “So what I've always done in my career is I know how big I am at any given time and I use my mask compared to what I'm seeing to try to judge. It's an estimate of what I believe the weight to be.”

Jason Slothouber, assistant attorney general prosecuting the case, spent most of the cross-examination comparing what Cooper told the court on Monday and what he told the Aurora detective in 2019 during the police’s internal investigation. Parts of his story did not match up. 

Slothouber: You were conscious of the risk of respiratory depression from the administration of ketamine?
Cooper: Yes.
Slothouber:  You were conscious that that risk goes up as the dosage goes up?
Cooper: Wasn't aware of that specifically, but no.
Slothouber: Let's please publish the jury exhibit two 50, part two, slide 12. Now, sir, this is one of the training slides that you received on ketamine, right?
Cooper: Yes, sir.
Slothouber:  And in the second sentence it says, large doses increase likelihood of harmful side effects, emergency reactions, and potentially respiratory depression. That was what's in the training slide, right?
Cooper: Yes, sir. I'm sorry, I thought you were referring to side effects and the protocols. I was trying to remember the side effects there. Yes, you are correct.:
Slothouber: So you were conscious of the risk that overdoses increase the risk of respiratory depression and large doses increase that likelihood? 
Cooper: Yes, sir. 

The state also pointed out another inconsistency between the body worn camera footage and what he told Aurora police in 2019. 

Slothouber: But when you did your interview with Detective Ingui, he asked you about Mr. McLean being on the gurney, and you told Detective Ingui that he was still somewhat combative
Cooper: In seeing the body cam video now, and remembering that question, yes, I did misspeak there.
Slothouber: And specifically you were wrong in saying that he was still somewhat combative because he wasn't combative at all.
Cooper: Yes, sir. At that time of being placed on the gurney, I remember saying that, and from my observation of where I was, I misspoke that that was what he was doing. 

When Beggan returned to questioning Cooper, she went back and tried to address the inconsistencies and the argument the state built on Monday. Her last question to Cooper was about what he was trying to do the night of Aug. 24, 2019. 

“I was trying to administer care to take care of Elijah, to get him to the hospital safely,” Cooper said. 

The trial resumes Tuesday at 8:30 a.m.

11:54 a.m. Peter Cichunic, one of the paramedics called to the scene, takes the stand

Peter Cichunic was called to the stand Monday morning, the first time the jury will hear a real-time account from one of the paramedics charged in the death of Elijah McClain. 

Cichuniec was asked about the scene the night Aurora Fire Rescue was called by police to where officers had 23-year-old McClain restrained. He depicted the scene as crowded and “a lot of commotion going on.” 

“We got on scene, there were a heavy amount of police cars. More than we're used to seeing, to put it mildly,” he said.

He also testified that the way in which Aurora police and Aurora Fire Rescue worked together was not part of a standard protocol. 

“In 2019, we had no policy in place. It was always said, once they come out of handcuffs, then they're our patient. Until then, APD — it is their scene. It is, they're in control,” he said. 

He also said that this call seemed out of the ordinary because of the police officers’ interaction with McClain.

“This call was a little different because I saw three officers struggling more than I've seen on the thousands of combative calls that I've been on before. It just seemed a little different to me,” Cichuniec testified. He also said he heard the officers repeatedly giving McClain orders to stop resisting. 

He told the jury that he saw one officer using physical force on McClain, but couldn’t recall what the officers were saying to each other. He said that action stopped Jeremy Cooper, the other paramedic on trial, from taking McClain’s pulse.

“I can't recall exactly what I heard from either one of them, but I saw one of the officers pick Mr. McClain up and just body-slammed him hard into the ground,” he said.

The state, on cross-examination, highlighted that body slam, playing the body-worn camera footage for Cichuniec, showing that Cooper did not move to bend down to check on McClain. State attorney also asked about McClain’s position of being prone, face to the ground, when the paramedics arrived on scene. Paramedics are trained that prone is not the recovery position. 

The state also pointed out some inconsistencies about what Cichuniec knew about the scene — the paramedic testified that he knew they were coming upon a person wearing a mask who was “making no sense,” but neither the APD nor AFR reports included the note about the person’s state of mind.

Cichuniec also testified about McClain’s condition while they were at the scene.

“He needed help. We needed to help him,” Cichuniec told his defense attorney. He said McClain appeared to be suffering from excited delirium. The only option the paramedics had at the time to treat excited delirium was using ketamine. 

The state also pushed back on this point, asking about how the dosage, which should have been weight-based, was 500 milligrams. 

Cichuniec also described the life-saving measures they took once McClain was on a gurney and in the ambulance, including suctioning his airway and ultimately performing CPR once they realized he didn’t have a pulse. 

After the state was done questioning Cichuniec, his defense attorney reiterated the narrative that the paramedics did not have control of the scene and followed protocol for treating excited delirium. Cichuniec explained his reasoning for the large dose of ketamine — which only came in 300, 400 and 500 mg doses. 

“Excited delirium, it could kill you. And if we don't work fast, he could die. And I don't want to under medicate someone to go down to the 400 and then have to pick up the phone to call a doctor to ask for more medication after I waited the one to five minutes to see if it took effect and if it didn't. I mean, time is of the essence. So I went off the training and went up to 500,” he said.

Cichuniec was excused as a witness, and the court called for a lunch break. The defense will be asked to call another witness after the jury returns.


Friday, Dec. 15

4:08 p.m. Heart specialist testifies Elijah McClain died from struggle with police, not ketamine from paramedics

A heart specialist testified for defense attorneys on Friday afternoon that Elijah McClain likely died from a cardiac event sparked by his struggle with police — not the ketamine administered by paramedics.

Dr. Sri Sundaram, who works at the South Denver Heart Center, told the jury that he viewed McClain’s autopsy report and looked at medical records from his hospital admittance before he was declared brain dead.

Sundaram said McClain had indications of a small heart attack or “spasm” and had elevated troponin levels, which is a protein that is usually low or non-discernable in a healthy heart. He said he believed McClain had some blockage of a heart vessel after his struggle with police, which explains why he repeatedly vomited on the scene.

Sundaram said vomiting is a sign “your heart is in real trouble.”

He said, “You’re already having that ventricular tachycardia, then he goes to ventricular fibrillation and then he goes into asystole.”

Cardiac asystole is when a heart stops completely. McClain’s pulse stopped in the ambulance after paramedics gave him an overdose of ketamine. They briefly revived him, but when he got to the hospital, he had another heart attack and never regained consciousness. He was declared brain-dead a few days later.

Sundaram said the records showed proof of problems with the left anterior descending artery, or LAD. 

In McClain’s first autopsy performed by Dr. Stephen Cina, Cina opined that McClain could have had a narrow descending artery but that it played no role in his death. Cina didn’t preserve the heart in whole, so no one else could look at it to offer another opinion. 

In his second, amended, autopsy, Cina said that McClain’s cardiac valves, upon a re-examination, were “unremarkable.”

“One explanation for all of this is he already has a compromised vessel, gets into a confrontation, vomiting,” he said. “That’s one unifying explanation that can explain everything that happened to him. The proof is the EKG and the echocardiogram -- they show the problems, the exact problems of that territory.” Prosecutors are cross-examining Sundaram this afternoon — including re-introducing evidence to the jury that McClain was a long-distance runner and very active.

— Justice reporter Allison Sherry reporting remotely

1:38 p.m. Defense's paid expert witness testifies paramedic didn't properly check Elijah McClain's pulse

A long-time paramedic acknowledged to the jury on Friday that Jeremy Cooper did not properly check Elijah McClain’s pulse before administering an overdose of ketamine which ultimately led to his death.

Gary Ludwig, a decades-long paramedic/EMT and currently a training expert from Missouri, is an expert witness paid for by defense attorneys representing Cooper and Peter Cichuniec. Both Aurora Fire Rescue paramedics face felony charges for giving McClain ketamine at a dose almost double what he should have received for his body weight. 

After a violent struggle with police, and the sedative, McClain’s pulse stopped and he never regained consciousness.

But on the stand on Friday, prosecutor Jason Slothouber, in cross-examination, got Ludwig to admit that body-worn camera footage does not show Cooper taking McClain’s pulse before giving him 500 milligrams of ketamine. 

It is part of a long narrative prosecutors have sought to prove in weeks of testimony about Cooper and Cichuniec’s reckless negligence in handling McClain as a patient.

In a 17-page report written by Ludwig for defense attorneys, he said that Cooper did check his carotid pulse before administering the ketamine.

Slothouber, though, played body-worn camera footage from police officers of the incident to the jury, which showed Cooper clutching a needle in one hand and his other hand showed four fingers splayed across McClain’s shoulder -- not neck.

“You can clearly see that other hand, right?” Slothouber said.

“Yes,” Ludwig replied.

“Mr. Ludwig, all four fingers of his hand splay down flat on Mr. McClain’s shoulder,” the prosecutor said. “It is literally impossible for him to be taking a carotid pulse from the shoulder.”

“Yeah, I interpreted that as he was checking the carotid pulse when I watched that video,” Ludwig said. 

“OK, fair to say you were wrong and he did not check a carotid pulse here?” Slothouber said.

“I think it's fair to say that I misjudged what I was looking at,” Ludwig replied.

Slothouber also established to the jury on Friday that paramedics Cooper and Cichuniec called for McClain to receive ketamine before they were actually told that he was exhibiting signs of “crazy strength” on the scene. 

Throughout this trial, defense attorneys have tried to prove that McClain was suffering from “excited delirium” at the time and that is why the paramedics called to the scene followed the protocols to treat him with ketamine, which was an approved antidote at the time.

Again, using body-worn camera footage, Slothouber showed video of the paramedics telling the officers that they were going to give McClain ketamine.

Officers responded, “perfect.”

And afterward, the officers relayed to paramedics that McClain was showing signs of strength, including doing a push-up with all three officers holding him down on the grass. None of that can be seen in the body-worn camera footage though.

In asking Ludwig about this, Slothouber said, “Excited delirium is different than someone just struggling with police, right?”

“Correct,” Ludwig said. 

“Someone resisting police doesn’t mean they’re suffering from excited delirium?”

“That’s right,” he said. 

Defense attorneys expect to call additional witnesses this afternoon.

— Justice reporter Allison Sherry reporting remotely


Thursday, Dec. 14

5:12 p.m. Defense expert witness says he doesn't believe ketamine played a role in McClain's death

A Michigan forensic pathologist told an Adams County jury on Thursday that he didn’t believe ketamine played a role in Elijah McClain’s death because he would have died anyway from aspiration.

An expert witness for defense attorneys representing Aurora Fire Rescue paramedics Jeremy Cooper and Peter Cichuniec, Dr. Ljubisa Dragovic said he reviewed McClain’s autopsy reports, photos available, and body-worn camera footage. 

He said McClain died because of “anoxic encephalopathy” —  a brain injury —  because he didn’t get enough oxygen after he basically drowned in his own vomit.

Body-worn camera footage shows McClain repeatedly vomiting, both inside a mask and also on the grass as he was handcuffed and lying prone or on his side. Dragovic said during the struggle with police, it appeared that McClain inhaled a fatal amount of gastric fluid and he would have died. He said his manner of death would have been “an accident.”

“He was aspirating with the active confrontation,” he said. “They thought he was fighting, but he was thrashing … he couldn’t breathe.”

As for the overdose of ketamine given to McClain on the scene after he was already mostly catatonic, Dragovic said, “I don’t believe it had any effect on this situation.”

His opinion defies the results of the official autopsy, done by Dr. Stephen Cina. In that report, Cina concludes that McClain died from ketamine. It also contradicts the testimony of the medical experts the state has called to the stand including Dr. David Beuther and Dr. Roger Mitchell. 

State prosecutors are pinning their cases against Cichuniec and Cooper on their recklessness in giving McClain, an otherwise healthy 23-year-old runner, a dose of ketamine, a sedative, almost double what he should have received for his body weight. 

On cross-examination, the state prosecutors pressed Dragovic on what materials he used to come to his conclusion and whether he thought Cina or Mitchell were wrong.

The defense called up Gary Ludwig, an EMT instructor from Missouri, to testify about paramedic training and protocols.

The trial will continue tomorrow at 8:30 a.m.

— Allison Sherry, at the courthouse

2:40 p.m. The defense calls Dr. Kennon Heard as its first witness

Attorneys for Cooper called Dr. Kennon Heard to the stand. Heard is an emergency medical physician and medical toxicologist at UC Health and Professor of Emergency Medicine-Medical Toxicology and Pharmacology  at the University of Colorado Medical School. 

Heard explained to the jury that ketamine is widely used because it is less likely to cause respiratory depression. 

“Ideally it maintains the idea that (the) top part of your brain that's awake and responding is not working," Heard said. “But the part of your brain that controls your breathing, your blood pressure and your heart rate tends to be less affected.”

When asked by Cooper’s attorney, Mike Pellow, about the dosage of ketamine that McClain received on-scene, Heard said that the 500mg McClain received was outside of Aurora Fire’s protocol due to McClain’s body weight. But Heard said that the ketamine in McClain’s blood concentration was therapeutic.

“It's a little bit towards the lower end. But, it's in the range where if a dose was given with the intent to treat a patient with sedation for a procedure for an operation. This is within that somewhere to what we'd see in that situation,” Heard said.

During the cross-examination, state prosecutor Jason Slouthouber questioned Heard on administering ketamine in pre-hospital settings. Heard had used the example of the military and battlefields as why the sedative would be used prior to hospital arrival.

“Well, I think because patients, especially in a pre-hospital setting, are inherently in a state of flex, we don't know whether they're going to get better. We don't know whether they're going to get worse,” Heard said. “And the only way we can figure that out is by seeing what their heart rate is doing and what their blood pressure is doing.” 

Heard testified that his experience giving large doses to  patients with the sedative has only occurred in emergency room settings with equipment on-hand in case of further emergencies.

— CPR News justice reporter Tony Gorman, reporting from the courtroom

1:00 p.m. Judge Warner strikes down two counts each for Cooper and Cichuniec

Aurora Fire paramedics Jeremy Cooper and Peter Cichuniec were granted motions of acquittal for two counts each of second degree assault and crimes of violence for both men. Attorneys argued that Cooper and Chicuniec did not use ketamine as a deadly weapon against Elijah McClain — and Judge Mark Warner agreed.

“Mr. Cooper and Mr. Cichuniec were trying to avoid the ultimate result that occurred in this case by employing ketamine,” Cichuniec attorney’s Micheal Lowe said. “And, that puts it more in the context of they were trying to avoid using it as a weapon and in fact we're using it in the manner that they had been trained.”

Warner granted the motion before the jury was seated Thursday morning. 

“With respect to whether or not the defendant's Cooper and Cichuniec intended to use the ketamine as a weapon, which is the first step in the analysis of whether it's a deadly weapon. The evidence is not substantial and sufficient to support a conclusion by a reasonable mind beyond a reasonable doubt as to that element,” Warner said.

— CPR News justice reporter Tony Gorman, reporting from the courtroom


Wednesday, Dec. 13

4:37 p.m. The State rests case

Read the story here

State prosecutors rested their case against two Aurora paramedics charged in the death of Elijah McClain after the testimony of forensic pathologist Dr. Roger Mitchell on Wednesday afternoon.

The court returned from the lunch break with additional questions from Colorado Solicitor General Shannon Stevenson. Mitchell was questioned about his autopsy review and findings about Elijah McClain’s heart. 

In his testimony, Mitchell said that he examined sections of McClain’s heart, and he found that there were no changes that affected the narrowing of coronary arteries on the heart. Mitchell ruled out a heart issue as a contributing factor in McClain’s death. 

Stevenson: I wanted to clarify something, a question that [Cooper’s attorney Mike] Pellow had asked you, and this was about Dr. Cena's findings with respect to the heart. Did Dr. Cena find that a narrow coronary artery had any contribution to Elijah McLean's death?
Mitchell: Not ultimately. Remember there was an original examination that was undetermined. A lot of information wasn't available to that original pathologist. That information became available and then another opinion was issued. And in that second opinion, the heart findings were not in that second opinion.
Stevenson: And even in his first opinion, is it fair to say he didn't find it a cause? He just found it a contributing factor
Mitchell: That is correct.
Stevenson: What does that mean? A contributing factor?
Mitchell: Contributing means that it is not the primary cause of death but could affect the primary cause of death and it usually other diseases that are not the primary cause of death would be the contributing cause.
Stevenson: And then he ultimately decided it wasn't even a contributing cause?
Mitchell: That is correct. 

Mitchell also clarified that McClain didn’t overdose on the ketamine because the dose he received wasn’t at a toxic level. Like in Tuesday’s testimony from anesthesiologist Damon Robinson, he said McClain should have received a lower dose of the sedative.

“When you have an overdose that causes death, then usually that cause of death is not competing with or adding to another cause,” Mitchell explained. “Elijah McClain's case is a bit complex because he was suffering prior to getting the ketamine that had him suffer more. So the ketamine was not a solution or antidote to his condition. When he got the ketamine, it actually potentiated or increased his likelihood towards death.”

McClain suffered from hypoxia, acidosis, and aspiration before the paramedics arrived on scene. He had vomited in his mask while he was detained by Aurora Police officers. Mitchell concluded his testimony by saying the actions of the paramedics caused McClain’s death.

The prosecution rested its case.

The trial will resume at 9:30 a.m. Thursday.

— CPR News justice reporter Tony Gorman, watching remotely


Tuesday, Dec. 12

3 p.m. Ketamine testimony

The state brought in an expert anesthesiologist, Dr. Damon Robinson, to testify on ketamine and other sedatives on Tuesday in the trial of the two paramedics charged in the death of Elijah McClain in 2019.

State prosecutor Ann Joyce focused on the use of ketamine. Robinson had reviewed the care reports and body-worn camera footage from the night of McClain’s encounter with police.  Robinson told the jury how the dosage of ketamine is based on body weight. 

According to patient care reports written by Falck Rocky Mountain EMT Ryan Walker, McClain was listed at 160 pounds. Peter Cichuniec’s report listed McClain at 187 pounds. Hospital records showed that McClain arrived at 143 pounds. 

Jeremy Cooper administered 500 milligrams of ketamine to McClain. Robinson said he should’ve received 325 mg. Based on Cichuniec’s report, he should’ve received 425 mg.

“That amount is for a 220-pound individual, it should have been 80 pounds greater than his weight,” Robinson said. “The 500 milligrams of ketamine moves beyond the sub-anesthetic dose or the pre-hospital dose and moves to the general anesthetic level as the general anesthetic level is going to be above 6.5 milligrams and he receives 7.5 milligrams.”

General anesthesia is generally used in surgical settings to make a patient unconscious and often a breathing tube is inserted because that dose could cause respiratory depression, Robinson said.

“There's a weak correlation between dose and respiratory depression with ketamine and the dose can influence respiratory depression,” Robinson said. “If you're already in a state of hypoxia, it's going to further that hypoxia. If you're in a state of metabolic acidosis, you're going to get to a place of acidemia and that's going to cause potential cardiac arrhythmias and also will potentiate the risk for anoxic brain injury.”

Previous testimony from forensic pathologists determined that McClain was suffering from hypoxia, lactic acidosis and aspiration after officers used the carotid hold on him. That hold cut off the blood flow to McClain’s brain and briefly rendered him unconscious. He also had vomited into his ski mask before the paramedics arrived. Robinson noted from body-worn camera footage no one checked McClain’s body weight on scene.

Going into the morning break, attorneys on both sides engaged in a heated debate over Robinson’s expertise on particular topics.  

During cross-examination, Cooper’s attorney Mike Pellow questioned Robinson about medical articles, one of which he sent to the Colorado Attorney General’s Office that dealt with ketamine and dissociative sedation. Pellow asked whether ketamine had a clinically important effect on airway integrity and respiration. Robinson reiterated that it can be weakly associated with respiratory depression The article’s lead author was Dr. Steven Green.

“Dr. Green goes on to state that the administration of ketamine given IV rapidly will cause respiratory depression,” Robinson said. “The weakness within Dr. Green's study is that they're all kids, and the average age of those patients are 5. That's a different population that we're dealing with when we're dealing with the decedent.”

Shortly after the lunch break and a line of redirect questions from the state, Robinson was excused and so was the jury. The state will start tomorrow morning with a witness who is flying into Denver Tuesday night.

— CPR News justice reporter Tony Gorman, reporting from the Adams County Court


Monday, Dec. 11

5:44 p.m. Former paramedic testifies

Part of the state’s argument against paramedics Peter Cichuniec and Jeremy Cooper is that they did not follow protocol when they arrived on the scene where Aurora police had taken Elijah McClain to the ground and restrained him.

To that end, Travis Chambers, a former Falck paramedic who trained others on signs and symptoms of excited delirium and the appropriate doses of ketamine in pre-hospital settings, testified Monday afternoon.

Chambers was the instructor for Falck and Aurora Fire Rescue and trained in 2018 when both Cichuniec and Cooper would have been required to take, although Chambers testified that he did not remember them in his classes specifically.

In 2019, ketamine was considered a safe and useful treatment for excited delirium, a term that is not rooted in science and has been criticized as a catch-all for in-custody deaths, especially for people of color.

Chambers described some classic signs of what he trained on excited delirium.

“So things that make your body act like it needs to work harder or make you excited or that elicit your sympathetic nervous system — what some people might've heard of the fight or flight response,” Chamber said. “Anything that increases our heart rates, blood pressure, things like that is heavily associated with the development of this disorder or this disease process.”

Chambers reiterated what other witnesses in the case have said — that ketamine doses come in 300 mg, 400 mg and 500 mg, or small, medium and large. And while the sedative was widely accepted for use to calm agitated patients, it was not without risk.

“There's an increased risk of adverse side effects when dosing ranges exceed or higher dosages per pound or per kilogram of body weight,” Chambers said.

McClain was given 500 mg of ketamine by paramedics on the night of Aug. 24, 2019. That dose is for someone who weighs 220 pounds; McClain weighed about 140 pounds. The paramedics thought that McClain was suffering from excited delirium and gave him the largest dose they could without calling a physician.

Chambers told the jury that while other agencies have standardized, formally or informally, the use of 500 mg of ketamine in all cases of excited delirium, the Aurora protocol was to give ketamine based on weight.

“There were rumors of other agencies … who utilize ketamine either openly or culturally had a practice of giving any patient they believed to have excited delirium 500 milligrams. We wanted to emphasize that the intention of the protocol was to give it as a weight-based dose, not as a blanket dose for each individual,” Chambers said.

On cross-examination, defense attorney Shana Beggan argued that the paramedics were following protocol — that the information they received from the police, that McClain had superhuman strength and was “on something” — led Cichuniec and Cooper to believe they were treating excited delirium. An exchange between Beggan and Chambers on the condition:

Beggan: You trained people that it's a life-threatening situation.
Chambers: Yes, correct.
Beggan: And so the whole point is rapid intervention, correct?
Chambers: Yes.
Beggan: And the whole point is you assess the situation and if you're in an excited delirium, you do the rapid intervention, correct?
Chambers: Correct.
Beggan: And the rapid intervention that was being unrolled was ketamine administration, correct?
Chambers: Yes.

Chambers was excused from the witness stand at the end of the day on Monday. Court will resume Tuesday at 8:30 a.m.

11:48 a.m. Trial resumes with testimony from 'foundational witnesses'

An Aurora crime scene investigator Amanda Kelsey was on the stand Monday morning, the first witness to testify since the proceedings were put on hold last week. The state admitted the photos she took at the site where police detained Elijah McClain and paramedics injected him with the power sedative ketamine.

Kelsey was also responsible for taking photos of the autopsy that was performed on McClain. Most of the questions for Kelsey involved admitting most of the photos she took as evidence for the jury. The state continued to call other foundational witnesses: Aleesa Gonzalez, an EMT for Rocky Mountain Falck, and Maddison Freeman, a friend and coworker of Elijah McClain. Gonzalez was one of the EMTs who arrived on the scene where McClain had been violently detained after Aurora Fire and Rescue arrived.

She told the state attorney that she wasn’t afraid for her safety at the scene “because it looked like Aurora PD had the patient restrained and under control.” She testified that she was concerned that McClain was prone on the grass, that is face down.

“We want to make sure that they're breathing OK. I don't know the amount of pressure that was put on him, but you want to make sure that their breathing is adequate,” she said.

She also said no one on the scene, police or paramedics, was addressing the concern about his position. She told the jury that as she was waiting to place McClain on the ambulance stretcher, neither Peter Cichuniec nor Jeremy Cooper talked to McClain or took his pulse or other vital signs. Gonzalez was the first person to begin CPR on McClain when he was in the ambulance and paramedics realized McClain did not have a pulse.

Freeman was asked about why McClain might have been wearing a jacket on a summer night. She told the jury that he always said he was cold, and told Freeman that he had anemia from being vegan. She was excused as a witness before the lunch break. The trial will continue this afternoon at 12:30 p.m.

– CPR News justice editor Alison Borden, watching remotely


Wednesday, Dec. 6

4:55 p.m. Trial pushed back until Friday

1:10 p.m. Scheduling conflicts force a half day, court to continue Thursday

The trial for the two paramedics charged in the death of Elijah McClain was cut into a half day on Wednesday because of scheduling conflicts.

The state called Aurora Police Officer Alicia Ward back to the stand to finish testimony for the state and be cross-examined by Peter Cichuniec’s and Jeremy Cooper’s defense attorney. Both the state and the defense asked questions about who was in charge of the scene and whether she saw Aurora Fire Rescue paramedics treat or otherwise interact with McClain, who was in handcuffs and restrained by at least one officer.

The state called in Aurora Detective Matthew Ingui, who was part of the internal investigation for the department over the death of McClain. He testified that he interviewed both paramedics as part of that investigation and that the interviews were recorded on video.

As soon as the state entered the video as evidence, prosecutor Jason Slothouber played both tapes in full for the jury.

Cichuniec and Cooper both told APD that McClain was experiencing excited delirium and their protocol for that condition is to administer ketamine.

The trial will continue Thursday at 8:30 a.m.

– Alison Borden, watching remotely


Tuesday, Dec. 5

4:30 p.m. The paramedic who measured out the ketamine testified

Ryan Walker, the paramedic who furnished the 500 milligrams of ketamine that the coroner says ended Elijah McClain’s life, said he was concerned when handing the dose over that it was too much for McClain's body weight.

Walker, now a paramedic in Arvada, said that in his report on the August 24, 2019 incident, he estimated McClain’s body weight at roughly 160 pounds and yet he knew he was handing over a dose of a powerful sedative for someone who weighed 220 pounds. But Walker told an Adams County jury in the trial of the paramedics charged in McClain’s death that he gave it over to Peter Cichuniec anyway, who was the one who asked for it. He also said that McClain had a heartbeat and he was watching his chest go up and down as they walked with him on a gurney from the scene to the ambulance a hundred or so yards away.

McClain lost his pulse in the ambulance and Walker said they intubated him.

He told the jury that he never saw McClain throw up, but he saw evidence of vomiting around his mouth.

The forensic pathologist who performed the autopsy, Dr. Steven Cina, said McClain aspirated, which means he breathed vomit and saliva into his lungs, but he wasn’t sure when that occurred — in the ambulance or on the scene with police.

Cina initially called McClain’s cause of death “undetermined” but changed it after a grand jury investigation produced documents and videos he hadn’t seen. He changed McClain’s cause of death after seeing additional evidence to “complications from ketamine following forcible restraint.” Pressed by defense attorneys on whether he felt pressured by the attorney general’s office to make that change, Cina said no.

“I didn’t get pressure from anyone,” he said. “This was based on my findings, my review … If none of this would have happened, I don’t see a reason why he would be dead today.”

— Allison Sherry, watching remotely

3:27 p.m. Notes from inside the courtroom

Nearly every day of the trial, the defendant side of the courtroom has been filled with supporters of Jeremy Cooper and Peter Cichuniec. There are family members, firefighters, and paramedics who support the paramedics charged in the death of Elijah McClain. I’ve been at the court for these trials and, previous defendants didn’t draw a crowd of support like this.

During the afternoon break today, one of the firefighters told me that the Aurora Fire Rescue’s union president was present. He stayed in the courtroom for the break with the defense attorneys.

Today, Cooper’s attorney Shana Beggan said there have been some jurors who have been falling asleep throughout the entire trial. When I spoke to her, she didn’t specifically say which ones.

The demographics of this jury appear similar to the previous trials. From what I can tell, it consists of mostly white males. Five women are seated. It also appears that there are four people of color, but no Black people.

The overall mood of the court has been quiet.

– Tony Gorman, reporting from the Adams County Court

1:10 p.m. Experts in toxicology and forensic pathology take the stand

The witnesses called Tuesday morning in the trial for the two paramedics charged in the death of Elijah McClain were experts in toxicology and forensic pathology. 

Michael Lamb, a forensic toxicologist at National Medical Services Laboratory, testified about the amount of ketamine that was found in McClain’s system.

Lamb said McClain had 1,400 nanograms, which is one-billionth of a gram, of ketamine in his blood sample sent to the Pennsylvania lab. That blood sample was taken by a hospital nurse 45 minutes after McClain was given the ketamine by paramedics Jeremy Cooper and Peter Cichuniec on the scene.

They face reckless manslaughter and criminally negligent homicide charges. McClain was declared brain dead at University of Colorado Hospital several days after his encounter with Aurora police and paramedics on Aug. 24, 2019. 

The forensic pathologist who performed an autopsy on McClain in 2019 also testified Tuesday morning. Dr. Stephen Cina issued his original autopsy on McClain in November 2019, about two and a half months after McClain died.

Cina told jurors on Tuesday that he wrote that report without seeing all the video evidence he initially asked for — including body-worn camera footage that clearly shows McClain deeply sedated within a minute of receiving ketamine. 

He said that evidence sparked a very unusual move on his part: He changed the autopsy from an “undetermined” cause of death to “death by ketamine after forcible restraint.” The manner of death is still undetermined.

Cina also testified about what he found in the autopsy, including the condition of McClain’s lungs.

“The most significant findings is sometime over the course of this incident, either before the ketamine administration or after or perhaps both. He had inhaled some vomit into his lungs, which had resulted in significant inflammation,” Cina testified.

He also spoke about how he ruled out “excited delirium” — a severely agitated state that paramedics believed McClain was suffering from. 

“Excited delirium usually causes hyperthermia, a fever, which I didn't see a record of,” Cina said. “In the excited delirium cases I've seen, usually the excited delirium is associated with a stimulant drug most commonly methamphetamine and cocaine. None of that was in his blood. So to me, I didn't think it was excited delirium.”

Cina will continue with a cross-examination after the lunch break.

– Alison Borden, watching remotely


Monday, Dec. 4

5:39 p.m. Court adjourned as an Aurora Police Department sergeant explained he hoped the paramedics at the scene would've done more to help Elijah McClain.

The supervising sergeant on scene the night Elijah McClain was violently detained and lost his pulse said he was worried about McClain’s deteriorating condition and was hoping the Aurora Fire Rescue paramedics on the scene would do more to help him.

“I was concerned because there wasn’t much happening … with medical treatment,” said Sgt. Dale Leonard, a supervisor at the Aurora Police Department. 

In the trial of Aurora Fire Rescue paramedics Jeremy Cooper and Peter Cichuniec charged in McClain’s death, Leonard testified that, generally, when medics arrive on a scene, officers are accustomed to letting them take over on the medical care of the suspect. 

McClain was in handcuffs and said multiple times to officers that he couldn’t breathe. No one told the paramedics that, though when they arrived. 

Body-worn camera footage shows Leonard crouching down and asking McClain what drugs he was on, once he was in handcuffs.

Cooper asked Leonard if McClain spoke English.

Leonard replied, “He speaks English.” 

He told the jury that paramedics didn’t follow up with additional questions about McClain’s health condition. 

“Were you waiting for them to do something?” said Jason Slothouber, senior assistant attorney general. 

“Yes,” Leonard said.

Leonard also said neither he nor his officers, that evening prevented Aurora Fire Rescue paramedics and EMTs on the scene from helping McClain.

Mike Pellow, a defense attorney representing Cooper, pushed Leonard on how much information the police gave to paramedics. 

“Did your officers say he threw up in his mask?” he asked Leonard.

“No,” Leonard replied.

“Would that have been important information?” Pellow said.

“Yes,” Leonard said.

Pellow also said that paramedics don’t carry the “keys” to the handcuffs or have any power over people who are in custody.

Leonard will continue to testify on Tuesday morning.

– Allison Sherry, watching remotely

1:35 p.m. The Aurora Fire Rescue firefighter Daniel DeJesus was back on the witness stand on Monday morning. 

The defense’s first line of questioning involved the four years that have lapsed since the night of Aug. 24, 2019. Shana Beggan asked DeJesus whether he recalled Jeremy Cooper and Peter Cichuniec doing anything other than trying to provide Elijah McClain medical treatment. 

“No, ma’am,” DeJesus said.

Beggan tried to highlight the actions of the Aurora officers as preventing the paramedics from doing their jobs. 

Cooper and Cichuniec face felony charges for the death of McClain, who was restrained by police and injected with a too-large dose of ketamine for his body weight. He died several days after that night. 

DeJesus’ testimony also detailed some of the actions of the paramedics that weren’t captured on police body-worn camera footage, including putting McClain on high-flow oxygen and the chest compressions of CPR after they discovered the 23-year-old did not have a pulse. 

Part of the defense’s argument about how Aurora Fire Rescue were following protocol and providing medical care showed up in questioning. Beggan and DeJesus::

Beggan: Did you feel as a firefighter that you were doing everything you could in that moment to help Mr. McClain
DeJesus: I do feel that, yes.
Beggan: Did you feel your team was doing what they could to help Mr. McClain?
DeJesus: I do, yes. 

Another Aurora Fire Rescue firefighter, Austin Bradley, then took the stand. As the state attorney began questioning him about what he saw on the scene, what McClain was doing and what the medical team was doing, the defense lodged no fewer than a dozen objections over relevance and Bradley’s expertise. 

Still, state attorney Jason Slothouber continued:

Slothouber: Do you recall anybody trying to explain to Mr. McClain what ketamine does to a person? 
Bradley: No, I do not.
Slothouber: Which one of you asked Mr. McClain for his consent to receive the ketamine? 
Bradley: I don't recall anybody did.
Slothouber: Would it have been safe to ask Mr. McClain for his consent to receive ketamine? 
Bradley: Yes.
Slothouber: Would it have been your job or the paramedic's job to ask Mr. McClain for consent to receive Ketamine?
Bradley: Paramedics.
Slothouber: Did either of the paramedics explain to you why they weren't doing their job to get consent to give ketamine? 
Defense attorney: Objection. Argumentative. 
Judge Mark Warner: Sustained. 
Slothouber: Did either of the paramedics explain to you why they were not seeking Mr. McClain's consent to receive ketamine? 
Bradley: No.

Bradley will be back on the stand this afternoon.

– Alison Borden, watching remotely


Friday, Dec. 1

5:08 p.m. Court adjourned after hours of testimony from a pulmonologist who examined McClain's medical records, hours of police body-worn camera footage

Dr. David Beuther wrapped up his testimony Friday afternoon after hours of testimony about his investigation into McClain’s medical condition while being restrained and after the 23-year-old was injected with ketamine.

The state’s last question to the national pulmonologist was about his opinion about whether the paramedics should have ever been at the scene. 

“I think that's difficult to say because he needed medical attention right there on the ground before he was given ketamine. He needed emergent medical attention at that point, so I would've called 911 if I saw him like that, at that moment, to try to get some help and get him to a hospital,” Beuther said. “So I don't think the right answer is to not have paramedics. The right answer was not to give the ketamine. 

The defense continued to call into question Beuther’s credibility and his degree of medical certainty regarding his opinions about McClain’s worsening condition on the night of Aug. 24, 2019. One exchange between defense attorney Shana Beggan and Beuther:

Beggan: So when Mr. McClain was very ill, as you put it, critically ill, before got the ketamine, you have no clue whether or not he would've survived at that point in time without more intense intervention, do you?
Beuther: No, I believe he would've survived.
Beggan: You believe that prior to getting the ketamine without anything else, he would've survived?
Beuther: Most likely, yes.
Beggan: So do you remember testifying differently that he was critically ill and you couldn't say without intervention whether or not he would've survived?
Beuther: I am not able to give you 100 percent on anything in medicine. So my testimony and my past statements have all been consistent that it is more likely that he would've survived. In fact, it's my testimony, I believe that most likely he would've survived with the right intervention. But there are no guarantees. There's risk of harm. And it is in my earlier 2023 statement that had we just stopped before the ketamine, there was serious risk of bodily harm, an injury, even death, but more likely he would've survived. 

Aurora Fire Rescue firefighter Daniel De Jesus was the next witness on the stand. 

De Jesus was on an engine crew that arrived after Elijah McClain had been forcibly detained by police. State attorneys asked De Jesus to walk the jury through his arrival on the scene, what the protocols are for firefighters, his and others positions on the body-worn camera footage, and his interaction with Aurora Police officers and the medical care given to McClain. 

The state appears to be laying the foundations for the argument that Peter Cichuniec and Jeremy Cooper failed to follow Aurora Fire Rescue protocol. An exchange with prosecutor Krista Batchelder and De Jesus:

Batchelder: Do you recall if anyone ever asked Mr. McClain how you're doing?
De Jesus: No, I don't recall that.
Batchelder: Did anyone ever ask him what's going on?
De Jesus: I wasn't there for the whole scene, but I don't recall that, no. 
Batchelder: Did any of your crew ask if he was taking any medications
De Jesus: To Mr. McClain? No. 
Batchelder: Did anyone on the crew ask how could he be helped?
De Jesus: No ma'am.
Batchelder: Did anyone on the crew ask him what his name was?
De Jesus: Not that I heard, no. 

De Jesus’s testimony in the afternoon was largely yes or no questions about minute-by-minute video of the encounter. Another exchange:

Batchelder:  Had anyone at this point taken Elijah's Pulse?
De Jesus: No ma'am. I don't believe there was a chance to take his pulse there.
Batchelder: Had anyone tried?
De Jesus: No, ma'am.
Batchelder: Was any equipment removed from the one trauma bag to help get his pulse?
De Jesus: No.
Batchelder: Had anyone made sure his airway was clear
De Jesus: Visually? Yes, but we didn't open his mouth. No.

The state will continue questioning De Jesus when court resumes at 9:30 a.m. Monday. 

Alison Borden, watching remotely

3:59 p.m. Colorado strikes “excited delirium” from all law enforcement diagnosis, training documents

Also Friday, a state regulatory board voted to strike the controversial diagnosis from all training documents starting in January. This was passed at the state Peace Officers Standards and Training board meeting unanimously and without debate.

Advocates have long been critical of the diagnosis, which was mostly a law enforcement term used to characterize suspects acting hyperactive or agitated during police encounters. 

The term has a history of being racially charged: The Virginia Law Review looked at 166 in-custody deaths between 2010 and 2020 and found that 56 percent attributed “excited delirium” to Black and Latino victims. Critics say the diagnosis is often used to absolve law enforcement from culpability when someone dies in custody.

State officials also voted to strike other terms from law enforcement training manuals, including “cocaine psychosis” and “sudden in-custody death.”

1:35 p.m. Testimony from an expert witness in previous trials takes the stand

The trial against two paramedics charged in the 2019 death of Elijah McClain continued Friday with testimony from Dr. David Beuther.

State prosecutors have called Buether, a pulmonologist from National Jewish Health,  as an expert witness in previous trials. Beuther examined McClain’s medical records and hours of police body-worn camera footage and wrote a report and a supplement investigating McClain’s death.

He told the jury Thursday that inadequate patient monitoring and inadequate assessment contributed to McClain’s death.  Buether said that the ketamine, which was injected by Jeremy Cooper and Peter Cichuneic, contributed to McClain’s death.

State prosecutor Amy Fowler began the morning by asking Beuther would he have given ketamine or any sedative to a person who had been vomiting? McClain had vomited in the ski mask he was wearing and officers used the carotid hold on him twice. Beuther said he wouldn’t.

“Because the vomiting causes stomach contents to come up into the throat and any medicine that alters your level of consciousness and awareness can make it more difficult to ensure that you're coughing and expelling that rather than breathing it in,” Beuther told jurors. “So it presents a risk of aspiration of that vomit into the lungs.”

Beuther also told the jury that he wouldn’t have given sedatives to someone who has low oxygen levels. He said the situation would make him more cautious.

“This assessment without it, it's kind of like driving in the dark with a blindfold on and just proceeding with a procedure or giving a drug is kind of like hitting the gas,” Beuther said. “When you can't see out your windshield, what you want to do is hit the brakes and slow down. And so without at least some basic assessment, you would not want to proceed.” 

Beuther walked the jury through minutes of McClain’s worsening medical condition on the body-worn camera footage from multiple. He testified that McClain’s health started to deteriorate after he was detained, taken to the ground and placed in a carotid hold, which cut off blood flow to his brain, by officers.  

“The other thing that I noticed is that his voice was clear in that prior video and during this time it was quite muffled and then suddenly became more clear,” Beuther said. So I think it would be reasonable to guess that the mask was on and that it was off at some point. And from an assessment standpoint, I hear evidence of either dry heaves or vomiting kind of sound.”

Beuther said that McClain experienced hypoxia, a lack of oxygen to your body, and acidosis, acid in your bloodstream from physical exertion, on scene.  

Defense attorney for Jeremey Cooper Shana Beggan questioned Buether’s expertise during cross-examination. She objected multiple times while being questioned by the prosecution. 

Before breaking for lunch, Baggan also focused on McClain’s medical history. McClain had been hospitalized for asthma multiple times and had a heart murmur as a child.

— Tony Gorman, watching from CPR News office


Thursday, Nov. 30

5:38 p.m.: Court adjourned after a day of the state's foundational arguments

The state continued to lay the foundations for their arguments against the two paramedics charged in Elijah McClain’s death with witnesses that have all made appearances at the previous two trials.

Dr. Marc Moss spent the rest of his time on the stand talking about acute respiratory distress syndrome, or ARDS, a lung injury that allows fluid to leak into the lungs that can be fatal. Moss said McClain suffered from the condition at the time Moss was his physician. 

State attorneys asked Moss why McClain suffered the respiratory distress syndrome. The doctor said it was a difficult question to answer.

“I think with the evidence that I obtained from caring for him and then reviewing the x-rays, it is very likely that Mr. McClain had an aspiration event that caused his ARDS,” Moss said. 

On recross, Moss gave a pointed answer to a defense attorney. 

Defense: I understand you said ARDS could have been caused by, or most likely was caused by, an aspiration event, but you are not saying that that is what caused the cardiac arrest?

Moss: I think what you guys are trying to do is to split up something into individual one line answers that connect point A to point B in a very linear way. And it's more complex than that. I wish it wasn't. So you have a very complex situation when someone's this sick and you're trying to say did point A lead to point B to lead to point C. And in reality there are multiple points … there are seven A's and seven B's or whatever and you're trying to say one line and what connects them and it's complicated. 

And if you're asking me the question: What caused the ARDS, could it be one thing or another thing? There's no definitive test to that. You're asking my opinion. 

So when you said, ‘Can you differentiate the heart lung stuff,’ the answer is, no, I can't. If you're going to ask me to render my opinion of what I think is the most likely I can give you an opinion of that. Doesn't mean it's what a hundred percent happened. 

Ron Ryan, an investigator for the attorney general’s office was next on the stand. State attorney’s asked him about the location of McClain’s encounter with police and the evidence that was collected from that night, including the jacket and ski mask that McClain wore. 

The rest of the day at court, an international lung and asthma pulmonologist who examined Elijah McClain’s lungs, medical records and the body-worn camera footage testified. 

Dr. David Beuther, a pulmonary critical care physician at National Jewish Health, told an Adams County jury that he filed both an initial and supplemental report on McClain’s death in a grand jury investigation in 2021. Beuther reviewed McClain’s extensive medical records, images, x-rays and police camera footage. 

He said Thursday that ketamine was what ultimately killed McClain, but the police restraint made the otherwise healthy 23-year-old more at risk for respiratory distress and death. 

“The primary cause of his death was the effects of this drug ketamine, which was the major factor that contributed to him stopping breathing and then after stopping breathing, his heart stopped, which caused low oxygen to his brain and then a brain injury,” Beuther said.

He continued. 

“While the primary thing that caused his breathing to stop was the ketamine. There were factors that made that much more dangerous or much more likely to have caused that to happen, including that his lungs were very compromised with having aspirated material into the lungs. And so the lungs were injured and his positioning didn't allow him to clear that out of his lungs, that he had some other factors that made him more vulnerable to the effects of the ketamine and to being more at risk for stopping breathing.”

Most of Beuther testimony sounds familiar to what he’s testified in the trials for Nathan Woodyard, and Randy Roedema and Jason Rosenblatt. But on Thursday state attorneys expanded their questions about McClain’s death to not only police restraint, but patient care. 

“Inadequate patient monitoring and inadequate assessment of the patient were significant contributors to his death,” he said.

The state continued to question Beuther until the court adjourned at 5 p.m.

The jury will return Friday at 8:30 a.m.

— Alison Borden, CPR News systems editor, watching remotely

12:28 p.m.: Prosecutors have started making their case

State prosecutors on Thursday began paving the way to prove that two Aurora paramedics were required to give care and comfort to patients and failed to do so with Elijah McClain.

On the stand, Aurora Fire Rescue Deputy Chief Allen Robnett told jurors that paramedics are required to give “care and comfort” and that both defendants Peter Cichuniec and Jeremy Cooper were up to date on their training at the time of McClain’s death in August 2019.

Robnett also said that paramedics carry a number of kits at any given time on a fire engine and in almost all instances should be carrying whatever is needed directly to the patient.

“Initiating patient contact by the initial responder is required,” he said. “They have suctions, monitors, ALS, a narcotics kit, OB-GYN kits … There is a plethora of equipment that is available to a medic to determine what they need on the scene.”

Body worn camera footage doesn't show either Cichuniec or Cooper using equipment or carrying any medical kit to the scene in attempt to help or save McClain.

Defense attorneys pressed Robnett, who knows both defendants, on whether they ever had problems with quality of care before.

“Did you ever see Cichuniec ever act with bias or prejudice to anyone?” said his attorney Shana Beggan.

“Absolutely not,” Robnett said.

Testimony continues with Dr. Marc Moss, a critical care pulmonologist at the University of Colorado Hospital, who cared for McClain shortly after he was detained.

He performed multiple brain death examinations on McClain starting on Monday, about 36 hours after he was admitted into the emergency department. He told jurors that doctors did everything they could to save his life.

“When someone is as sick as Mr. McClain, you do everything you can to save his life,” Moss said. “I wanted to give Mr. McClain every opportunity to get better.”

Moss will continue testimony this afternoon.

— CPR News justice reporter Allison Sherry


Wednesday, Nov. 29

5:37 p.m.: Witnesses take the stand

Foundational witnesses took the stand in the trial against Aurora Fire paramedics Jeremy Cooper and Peter Cuchuniec Wednesday afternoon. Nearly everyone who testified Wednesday also testified during the previous trials.

The state called witnesses at quite a clip, questioning four people in an afternoon. 

Raminder Aulakh, the owner of the gas station where Elijah McClain had bought ice teas, took the stand first. She walked the jury through video footage of McClain paying for his drinks and leaving the store, listening to music and doing a little dance.

The second witness was Deborah Furler. She was the dispatcher for the City of Aurora who took the call that prompted police to stop McCain on his way home from the gas station. The entire 911 call was played for the jury. Furler detailed how calls come in, how they are answered and other procedural questions.  

Ethel Nelson took the stand next. She is currently a dispatcher for the City of Aurora Relief Center. Nelson was the dispatcher for the Aurora Fire who took the call on McClain.  Attorneys asked Nelson to explain the codes used on emergency calls. Emergency tones and the dispatch audio was played for the jury. She said no carotid holds were reported during the dispatch call.

The final witness of the day was Lt. Delbert Tisdale of the Aurora Police Electronic Support Division. Tisdale was brought in during the two previous trials as an expert witness on body worn camera footage. He testified Wednesday on how body worn cameras are used and documented. Tisdale was asked to identify officers, McClain and paramedics when the footage was playing for the jury.

The trial will resume Thursday at 8:30 a.m.

— CPR News justice reporter Tony Gorman, from the Adams County courthouse

1:44 p.m.: Opening statements by prosecutors and defense attorneys

State attorneys laid blame exclusively on the actions — and inaction — of  Aurora Fire Rescue paramedics in the death of Elijah McClain during opening statements on Wednesday morning. 

Jeremy Cooper and Peter Cichuniec are charged with manslaughter, criminally negligent homicide, and second-degree assault for their involvement in the death of McClain. All the charges are felonies. They have pleaded not guilty.

Colorado’s Solicitor General Shannon Stevenson told the jury that there are three main categories of evidence that the state will present. 1. The paramedics did not need to chemically restrain McClain who was already incapacitated by police restraint. 2. The paramedics disregarded all of their protocols and training of medical care and ketamine administration. 3. That the 500 mg ketamine injection — the maximum amount they are authorized to give — killed McClain.

“The evidence will show that the defendants’ conduct was not mistaken. It wasn't just careless or sloppy. It was much worse at every single step. They acted with a total disregard for Elijah McClain as their patient as a person, and they killed Elijah McClain,” Stevenson said. 

She said they never put a finger on McClain, never opened their medical bags and disregarded protocols to check 

Stevenson also said that Cooper and Cichuniec overdosed McClain with a too-large dose of ketamine for someone who weighed 140 pounds — and that dose wasn’t needed in the first place. The effect of that dose will likely be a large part of the state’s argument.

“Your common sense will tell you that injecting someone who is barely moving, struggling to breathe, not speaking with a powerful sedative is surely reckless,” she said. “But you're also going to hear from experts in emergency and paramedic medicine who will tell you the defendant's conduct violated the standard of care in numerous ways.”

Stevenson mentioned some of the upcoming witnesses, many of which are doctors and pathologists that have appeared in the previous two trials: Dr. Stephen Cina, the pathologist who performed McClain’s autopsy, Dr. David Buether, a pulmonologist and national lung expert who filed a report on the death, and Dr. Roger Mitchell, a national forensic pathologist.

Stevenson called the paramedics’ interaction with McClain cruel.

“Elijah McClain would've been better off if they had never come. He would've been alive if they had never come.”

The defense’s opening said that Cooper and Cichuniec did follow the protocols — and the information they were told by the police was the only thing they had to make their calls and that information was mistaken if not wholly inaccurate. 

Defense attorney for Cooper Shana Beggan said that the paramedics came upon the scene on that night in 2019 and encountered massive police presence and their immediate concern was safety and what kind of situation they were walking into.

Beggan also said that the police officers told the paramedics that McClain was displaying signs of excited delirium — and the treatment is sedation. 

“They're being told by law enforcement that this person has been fighting all of them. It took all of them to get him to the ground. They're being told that he has superhuman strength. They're being told he has done a pushup with three of them on him, over 700 pounds of men on him,” Beggan said. “They're being told he's been completely resistant to pain control. They're being told he went for a gun. They're being told that he's completely nonsensical. He's clearly on something.”

She placed blame on the Aurora police officers for controlling the scene, restraining McClain and restricting Cooper from doing his job.

“He has no authority to kick those officers off his patient. He has no authority to intervene and he has to calm the situation down. The first time he tries to engage, he sees his patient thrown to the ground and cry out,” Beggan said.

She said that Cooper and Cichuniec were there to help a patient they thought was in a state of delirium and that paramedics were there to treat McClain and take him to the hospital.

“You are to make a rapid assessment. And the goal is sedate, transport to the people that can save his life. And that's what they did,” Beggan said. 

Cichuniec’s attorney Michael Lowe said the paramedics are responsible for just three things on a scene, assessment, stabilization and transport. He reiterated that the paramedics were led to believe that the patient was in the throes of excited delirium and that sedation was the appropriate medical response. 

“This case is not about whether mistakes were made. This case is not about whether protocols were made. This case is about whether in helping Mr. McClain, these two gentlemen committed a crime,” he said.

The state will call its first witness this afternoon. 

— Alison Borden, CPR News systems editor, watching remotely


Tuesday, Nov. 28

The jury has been seated and opening arguments will begin tomorrow.

You care.

You want to know what is really going on these days, especially in Colorado. We can help you keep up.  The Lookout is a free, daily email newsletter with news and happenings from all over Colorado. Sign up here and we will see you in the morning!