A grand jury investigation into the death of Elijah McClain has been opened by Colorado Attorney General Phil Weiser.
Weiser’s office announced the investigation on Friday, about six months after he was appointed by Gov. Jared Polis as a special prosecutor to review McClain’s death.
“The grand jury is an investigative tool that has the power to compel testimony from witnesses and require production of documents and other relevant information that would otherwise be unavailable,” Weiser, a Democrat, said in a written statement. “Our investigation will be thorough, guided by the facts and law, and worthy of the public’s trust. In order to maintain the impartiality and integrity of the process, we have no further comment at this time.”
McClain, 23, died after he was stopped by Aurora 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 then 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.
Mari Newman, an attorney representing McClain’s family, questioned why a grand jury investigation is necessary. She said there’s already enough publicly available evidence to file charges.
“There is no doubt that the video itself provides probable cause to believe that Aurora police and medics committed multiple crimes when they killed Elijah McClain,” Newman said in a written statement. “Prosecutors are not required to use a grand jury and don’t in most cases, so we are forced to question whether this is yet another example of law enforcement being held to a different standard than every other person being investigated for murder.”
Newman also points out that prosecutors often have a lot of influence over a grand jury’s decision making.
“If the grand jury in Elijah McClain’s case doesn’t indict the officers and medics responsible for killing him, it will be because the attorney general’s office did not want charges to be brought,” she said in her statement. “That would be a grave injustice.”
Weiser’s appointment as a special prosecutor to review the case was unprecedented. Colorado legal experts said they could not recall a similar circumstance in which a governor has asked the attorney general to review a decision to made by a local district attorney.
17th Judicial District Attorney Dave Young, a Democrat who is the top prosecutor in Adams and Broomfield counties, had already reviewed McClain’s death and determined no charges could be filed against the Aurora police officers or paramedics involved in the encounter before McClain died.
Polis decided to direct Weiser to review the case following the killing of George Floyd in Minnesota, which put a national spotlight on McClain’s death.
The Attorney General’s office typically uses the statewide grand jury, based in Denver, as its investigative tool.
The statewide grand jury is a super-secretive panel convened annually with new members. It meets once a week to investigate and review cases.
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.
The grand jury must decide whether there is probable cause to file charges against anyone involved in McClain’s death. Because of recently passed state legislation, the grand jury may be required to issue a report if they decide not to pursue charges.