Gov. Jared Polis’ decision to appoint Colorado Attorney General Phil Weiser as special prosecutor to review the death last year of Elijah McClain after an encounter with Aurora police and paramedics is extraordinary.
In fact, it’s so unusual that experts can’t remember a similar instance in which a district attorney’s decision-making received a second look under an order from a Colorado governor. “The state rarely steps in to investigate, and potentially prosecute, an incident over the individual decisions of district attorneys,” Polis acknowledged in his executive order appointing Weiser to review the case.
That means Weiser’s office will be charting a new path as it pores over the McClain case, which has garnered national attention, prompted protests in Denver and far beyond, and evoked rage at the lack of charges for the officers and paramedics involved.
McClain, 23, died after he was stopped by police officers responding to a report of a suspicious person on Aug. 24, 2019. A struggle ensued and officers used a carotid-pressure hold, which cuts off blood to the brain, to subdue him. A responding paramedic gave McClain an injection of ketamine, a powerful tranquilizing drug, after which McClain stopped breathing and no longer had a pulse.
He died on Aug. 30, 2019, after being removed from life support.
Aurora police, Denver police and local prosecutors investigated the death and then passed their findings onto 17th Judicial District Attorney Dave Young. He declined to file charges, saying he couldn’t prove beyond a reasonable doubt that any of the officers or paramedics who confronted McClain committed a crime.
A spokesman for Weiser said the attorney general won’t discuss the case or how it may be investigated while the probe is ongoing. But The Colorado Sun spoke with experts — including people who formerly worked in the attorney general’s office — and those closely affected by the case to understand how the review may be carried out.
Parsing out the governor’s words
Polis’ executive order appointing Weiser as special prosecutor in the case provides some important clues as to his decision-making and the possible direction of the case.
Most notably, the Democrat cites “widely reported facts (that) are not addressed in any current investigation.” Though he doesn’t specifically address what those unaddressed facts are — his office did not respond to a Colorado Sun question on the matter — he says the “omissions merit a supplemental evaluation of the case by an independent prosecutor.”
The order gives Weiser’s office the ability to solicit the help of the Colorado Bureau of Investigation to, presumably, complete additional investigations into the case beyond the documents, body camera footage and interviews initially collected and completed as part of the initial investigation into McClain’s death.
Polis also is allowing Weiser to deputize “special assistant attorneys general” as part of his investigation, which gives him the ability to bring in attorneys and investigators outside of his office to work on the case.
Finally, Polis has asked the Colorado legislature’s Joint Budget Committee to approve supplemental funds for Weiser’s office to take on the investigation. It’s not clear how much, if any, money Weiser will ask for, but the request could be a good indication of the scope of his investigation.
“We’ve been given a heads up that such a request may be coming but I don’t have any detail beyond that,” said state Sen. Dominick Moreno, a Commerce City Democrat who sits on the budget committee.
The tools at the attorney general’s disposal
The attorney general’s office has two main routes it can take in reviewing McClain’s death.
First, it can simply review the existing records, including documents, interviews and video footage, initially gathered after the fatality and make a decision on whether charges should be filed. Those accusations would likely be submitted in Adams County, where the death happened, and be overseen by lawyers in Weiser’s office.
If the attorney general’s office would like, it can ask the CBI to collect additional information and documents to supplement the material that was already put together.
Second, the attorney general’s office can use the statewide grand jury to investigate the death and determine whether charges should be filed against the police officers and paramedics involved.
Polis’ executive order explicitly states that Weiser “may utilize a state grand jury” — there is actually only one — as part of his investigation.
Special prosecutions and criminal prosecutions out of the attorney general’s office often include the statewide grand jury, a super-secretive panel convened annually with new members. It meets once a week to investigate and review cases.
“I would anticipate that this investigation will be conducted along the vein of past special prosecutions and that the head of the criminal justice section of the office, as well as the chief investigator, will be involved with the attorney general and solicitor general in mapping out the scope and boundaries of the investigation,” said Cynthia Coffman, a Republican who was Colorado’s last attorney general.
Coffman said she anticipates the attorney general’s office will likely focus mostly on reviewing the work that has also already been done to investigate McClain’s death.
If the grand jury route is taken
The grand jury route provides the attorney general’s office with additional resources and powers it may not have on their own.
Namely, the grand jury can issue subpoenas and compel witnesses to testify under secret proceedings as part of their investigation. State prosecutors like to use the grand jury because it can be helpful in gathering information.
The grand jury would ultimately decide whether there is probable cause to file charges against anyone involved in McClain’s death.
“The use of the grand jury is investigative in nature,” said Tom Raynes, who leads the Colorado District Attorneys’ Council. He is a former district attorney who also worked overseeing criminal prosecutions in the attorney general’s office under Republican John Suthers.
“What you’re typically saying when you utilize the grand jury is, ‘this case may have so many issues and so many witnesses that are not willing to talk publicly that we may learn more if we offer the cloak of secrecy offered by the grand jury,’” Raynes said.
Two important, recent changes could provide the public a bit more insight into whether the grand jury takes up the case. Under Senate Bill 217, the sweeping police accountability bill passed by Colorado lawmakers in the wake of George Floyd’s death, the attorney general’s office may have to notify the public if it forwards the case to the grand jury.
Also, because of the legislation, the grand jury may be required to issue a report if they decide not to file charges against any of the officers or paramedics involved in McClain’s death.
Senate Bill 217 was written to apply to district attorneys and not the attorney general, however, so it’s not clear if it applies to the statewide grand jury.
The statewide grand jury is made up of people from across the Denver metro area and can have as many as 23 members. No more than a quarter of the members may be from any one county. The members, whose identities and work are kept strictly confidential, are selected by a judge in consultation with lawyers from the attorney general’s office.
Coffman has her doubts about whether the statewide grand jury will be used. The panel typically investigates multi-jurisdictional crimes — such as auto-theft or burglary rings or massive criminal conspiracies.
“They are not engaged in the cases that have already been reviewed for prosecution by a district attorney’s office,” she said.
Why didn’t the district attorney file charges?
Young, the district attorney overseeing the case, says that when he initially saw the body camera video leading up to McClain’s death he thought charges may be warranted against the officers and paramedics involved.
“My initial impression was it was the ketamine that perhaps caused Mr. McClain’s death,” Young said in an interview with ABC News. “It wasn’t until I received the forensic autopsy report that I learned that that was not in fact the cause of death. In fact, we don’t know what the cause of Mr. McClain’s death was.”
Young says that because McClain’s cause of death was undetermined by his autopsy, he couldn’t pursue charges. In order to file homicide allegations in Colorado, “it is mandatory that the prosecution prove that the accused caused the death of the victim,” Young said.
Besides, the officers’ response to McClain was legal, per Young’s review.
“I would say that force was reasonable and I certainly could not prove beyond a reasonable doubt that the amount of force that was used was not reasonable under the circumstances of this investigation,” Young said in the ABC News interview.
Young also pointed out that McClain had a serious heart condition.
“I stand by my decision,” he told the television network. “It’s unfortunate that people feel that by voicing their opinions that’s going to change the facts and the law. … I don’t condone the officers’ actions out there. In fact, I wish they would have done things differently. But I don’t have the ability to go back into time and say, ‘look, just follow him home. Just observe him for awhile.’”
What charges may apply
It’s not clear what charges the officers and paramedics involved in the case could face.
Young said he went into reviewing the case with the understanding that everything was on the table.
“Every crime was an option, and criminally negligent homicide certainly was there,” he told ABC News. “But a key element to criminally negligent homicide is that the defendant or suspects or the target of the investigation would have had to cause the death of another individual. And I cannot prove that beyond a reasonable doubt. Therefore I cannot file that particular charge in a court of law.”
Since Weiser’s office won’t discuss the case, it’s impossible to know what allegations it may be pursuing.
The FBI, the U.S. Attorney’s Office in Colorado and the Department of Justice’s Civil Rights Division announced Tuesday that the case has been under review for a possible civil rights investigation since last year. Federal authorities have declined to provide details on the probe, however.
How long may it take?
The length of Weiser’s investigation is another big unknown. However, typically special prosecutions of this magnitude move quite slowly.
If the attorney general’s office goes the route of the statewide grand jury, that could especially slow the process down. The panel only meets once a week.
“It could be quick. There are grand jury cases that are two to three sessions,” Raynes said. “But I think the norm is longer rather than shorter.”
Why the review is so unusual
The authority under which the governor appointed Weiser as a special prosecutor in the McClain case is not exactly rare. But the way in which he is using it, to force a review of the death, certainly is.
“It’s never been done without collaboration or recognition of a conflict,” said Raynes, the head of the Colorado District Attorneys’ Council. “And it’s certainly never been done after a decision has been reached.”
The authority, traditionally, has been used in situations where Colorado’s district attorneys feel they cannot adequately or fairly pursue a case.
Last year, for instance, Polis ordered the attorney general to investigate District Attorney Brittny Lewton, who was the top prosecutor for a broad swath of northeast Colorado. She was ultimately indicted by the statewide grand jury on drug and misconduct charges.
Coffman says that during her tenure, from 2015 to 2019, her office never reviewed a law enforcement-involved death.
“I would not have been at all inclined to do that type of review because of the limited prosecutorial jurisdiction of the state attorney general,” Coffman said. “I don’t think it is appropriate. Unless there was an allegation of misconduct on the part of one of those district attorneys in the handling of an officer-involved shooting, then I don’t believe it is appropriate for the state attorney general to step in and review those actions in a local jurisdiction. That’s what we elect local district attorneys to do.”
To be clear, there has been no allegation of misconduct by Young.
Why some prosecutors are concerned
Raynes and Coffman are anxious about the potential consequences of Polis ordering the attorney general to review McClain’s case.
They think there is a slippery-slope argument to be made.
“Arguably, as interpreted and applied in this scenario, the governor is saying that he, at any time, could intervene in any case, at any point in the proceeding, and hand it off to the attorney general,” Raynes said. “That’s kind of the hanging question.”
He would like to see some guidelines put in place for the future because, as is, the law “doesn’t lay out parameters moving forward.”’
“If you do it in this case, where do you stop? Granted, this has gotten a great deal of attention because of the George Floyd case and the fact that people are looking with a new eye at police conduct in some of the high-profile cases like Elijah’s,” she said. “But, where do you stop? If you begin allowing a state attorney general to review a district attorney’s decisions in an officer-involved shooting, then how does an attorney general make those decisions? Are they subjective or are they objective about when to become involved? Is it only when a case rises into the public eye and there is a popular campaign for a case to be reviewed for an attorney general to get involved? It seems to me that this could potentially set a precedent that isn’t a healthy one for the criminal justice system.”
Polis said he came to his decision to ask the attorney general to review the case after meeting with McClain’s mother.
“The governor believes in Colorado’s system of local control but over the course of time, it became evident that the McClain family and others including the governor himself lacked confidence in what the DA found,” Polis’ spokesman, Conor Cahill, said in a written statement. “If there is a case to be prosecuted, the governor has full confidence Attorney General Weiser will root it out and find it. He believes this will be a thorough investigation that will be done in an independent and objective way that inspires public confidence. Now more than ever, it is important to ensure people have trust in the people that protect them.”
Some have been pushing for this all along
The idea of the attorney general reviewing an officer-involved shooting is certainly not new.
In fact, last year, after the fatal Colorado Springs police shooting of 19-year-old De’Von Bailey, there was a push to get Polis to order Weiser’s office to take a second look at the case.
Some lawmakers have floated the idea of having the attorney general’s office investigate every officer-involved shooting in Colorado, thereby taking the decision-making out of local prosecutors’ hands.
“I’m open to the suggestion, but I have not made a determination about what I think about the answer yet,” said state Rep. Leslie Herod, a Denver Democrat who is a leader in the push for criminal justice reform at the Colorado Capitol. “That is something that I keep exploring.”
One of the issues she sees with putting officer-involved death investigations in the hands of the attorney general is the political nature of the position. She said the outcome of cases could be decided by who holds the position and not on the merits of the case.
“I think for the Elijah McClain case, right now, this is a good (situation),” said Herod, who has helped organize protests in the wake of George Floyd’s death at the hands of police officers in Minnesota. “Will it always be and is it the right way for Colorado to act always? I don’t know yet.”
What McClain’s family is hoping for
Like the public, McClain’s family isn’t exactly sure what to expect from the attorney general’s review of the case.
“What we would like to see is a thorough investigation,” said Mari Newman, an attorney who represents McClain’s family. “We’re, of course, very willing and able to provide any information we can to assist.”
They’d like to see charges filed against all of the officers involved — both the ones who physically restrained McClain and ones at the scene who didn’t intervene when the encounter became physical.
“We’re hopeful that it will result in charges being brought against not just the three hands-on officers, but all of the involved officers,” she said.
Newman isn’t holding her breath for a prosecution, however. “I’ve been doing this work too long to have confidence” in one branch of the government investigating another, she said.
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