Colorado AG announces grand jury investigation into Elijah McClain’s death

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DENVER – Colorado Attorney General Phil Weiser announced Friday he was launching a grand jury investigation into the August 2019 death of Elijah McClain in Aurora.

Weiser’s office said in a news release that grand juries are “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’s office said the grand jury investigation would be “thorough, guided by the facts and law and worthy of the public’s trust” but said it could not discuss the investigation further at this time to maintain its integrity. No timeline for the investigation was announced.

Gov. Jared Polis appointed Weiser to be the special prosecutor in a state investigation into McClain’s death, which happened after a violent encounter with police on Aug. 24, 2019 as he walked home from a convenience store. McClain was put in a carotid hold and paramedics injected him with a heavy dose of ketamine. He went into cardiac arrest and was declared brain dead days later before he died on Aug. 30, 2019.

So far, no charges have been announced stemming from that investigation.

The grand jury probe is now just one of several investigations into McClain’s death and the actions that surrounded it at the local, state and federal levels – which became an international story during last summer’s Black Lives Matter protests. Those include a top-down review of the Aurora Police Department by the state attorney general, an independent investigation by Chicago-based 21CP Solutions to conduct a comprehensive review of the police department, and a review in the Colorado U.S. Attorney’s Office alongside the Department of Justice’s Civil Rights Division.

The results from Aurora’s independent investigation are expected to be presented to the city council in February.

The latest order from Polis designating Weiser as the state prosecutor in the state investigation, Polis says Weiser has been directed to “take all necessary actions to investigate, on behalf of the State of Colorado, offenses, including criminal offenses, arising from the August 24, 2019 encounter with Elijah McClain and/or his subsequent deaths, and, if deemed necessary, prosecute any persons, including law enforcement or any other individual, for such offenses.”

McClain’s family has also filed a federal wrongful death lawsuit against the city of Aurora and the officers and paramedics involved in his August 2019 death.

Aya Gruber, a law professor at University of Colorado Law School Weiser could have chosen to open a grand jury investigation to subpoena evidence or compel witness testimony but also,

“Or they think it’s a really hot button issue and they don’t want to the ones responsible for making the ultimate charging decision,”

She added that if any charges are filed, it will be based off of the evidence that is presented.

“A lot of what it comes down to in many of these cases: were police following protocol, did they see a threat, and was their assessment of the threat and the level of force they used – reasonable?”