Elijah McClain Attorney Fears Grand Jury Move a Prelude to a Wrist Slap

A portrait of the late Elijah McClain.
A portrait of the late Elijah McClain.
McClain family photo
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In June, Governor Jared Polis announced that he'd tasked the office of Colorado Attorney General Phil Weiser with looking into the facts surrounding the August 24, 2019, attack on 23-year-old Elijah McClain, when Aurora police officers accosted the unarmed black man not because he'd committed a crime (he hadn't), but because someone who saw him dancing while wearing a ski mask had called 911. McClain died from his injuries on August 30.

More than six months later, on January 8, Weiser revealed that he had opened a grand jury investigation into the case. "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 noted in a statement. "Our investigation will be thorough, guided by the facts and law, and worthy of the public’s trust."

But Weiser's move troubles attorney Mari Newman of Denver-based Killmer, Lane & Newman, LLP, who represents McClain's family. "Prosecutors have historically used the grand jury process as a way to avoid responsibility in hot-button cases," she says. "I'm very concerned that the reason why the attorney general's office has empaneled this grand jury is that they want to steer it to a non-charging decision while at the same time avoiding responsibility if there are no charges brought."

It doesn't take a long memory to recall an example of this: In September 2020, a grand jury looking into the case of Breonna Taylor, who was fatally shot by Louisville, Kentucky, police who burst into her apartment last March 13, didn't indict any officers in her killing. Instead, one cop was charged with endangering the life of Taylor's neighbors with his wild gunplay.

"The Aurora police and medics who murdered Elijah McClain cannot be allowed to get away with this," Newman says. "So I'm hopeful that the attorney general's office truly does intend to do the thorough and independent investigation that it's committed to."

The Enhance Law Enforcement Integrity bill signed into law by Polis last year requires a grand jury investigating law enforcement officers to issue a report when its members don't approve of charges being filed. But Newman stresses, "The grand jury process is cloaked in secrecy...and it's difficult to have complete trust in a process that is so secretive."

Moreover, Newman continues, "Prosecutors aren't required to use a grand jury to make charges when there's already probable cause to believe a crime has occurred, as there is here. The attorney general's office certainly could have brought charges directly without empaneling a grand jury. The fact that they have decided not to do that raises a red flag for me that these officers and medics may be held to a different standard than any civilian member of the public would be for committing the same horrible offenses. And it's rare to use a grand jury for prosecutorial decisions."

Newman concedes that Weiser's office has assured her "that they're taking this very seriously. But actions speak louder than words — and I hope their actions reflect the gravity of the issues at stake here. Charges absolutely must be brought against the officers and medics who killed this innocent young man, who was just walking home, minding his own business. His grieving family and the grieving community deserved for that to happen in a timely manner." While that clearly hasn't happened, she adds, "What is most important is that these officers and medics aren't allowed to get away with murder."

If the grand jury returns with "either no charges or very low charges," Newman suggests, "the community will be justifiably incensed. For far too long, law enforcement has been held to a different standard than the rest of the community, particularly in cases involving the killing of young black men. It's long past due for police to be held accountable when they kill innocent civilians."

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