Analysis: Can McClain Medics Be Convicted?

The Denver Post

The criminal case against three Aurora police officers and two paramedics who have been indicted in connection with Elijah McClain's death two years ago likely will come down to intent, legal experts said Wednesday.

"The fact that Elijah McClain died is not in dispute and how he died isn't in dispute," said Stan Garnett, Boulder County's former district attorney. "The issue is: What's (the officers' and paramedics') mental state? What did they intend to do and what risks did they disregard as they acted in this situation? That's the focus of the case."

A state grand jury indicted Aurora police officers Nathan Woodyard and Randy Roedema, former officer Jason Rosenblatt and paramedics Jeremy Cooper and Lt. Peter Cichuniec on 32 counts, including manslaughter, for their involvement in McClain's 2019 death, according to court records made public Wednesday.

The indictment is the first legal domino to fall in the McClain case and comes a year after Colorado Gov. Jared Polis, responding to tremendous pressure in the wake of George Floyd's murder by a Minneapolis police officer, appointed Attorney General Phil Weiser as a special prosecutor to look into the 23-year-old's death.

After McClain died in August 2019, former Adams County District Attorney Dave Young declined to bring charges against the officers and paramedics involved in his arrest, and then-Aurora police Chief Nick Metz said the officers acted in accordance with departmental policies.

The criminal case against the five men involved in McClain's death will be unique, legal experts said, noting that it may be the first case of its kind in Colorado involving these charges against paramedics.

Weiser, during a morning news conference to announce the indictment, admitted that "this case will be difficult to prosecute."

Civil rights attorneys and other legal experts agreed, pointing to the uphill battle prosecutors face when dealing with law enforcement.

"A fact any prosecutor will run into is a somewhat antiquated idea that all officers are acting in good faith," said Birk Baumgartner, an Englewood civil rights attorney. "That's always the difficulty. You have to get over that threshold to have an objective jury that can make a decision on the facts of the case, rather than the idea people have growing up that all police officers are being the good guys."

One surprise while reading the indictment, Baumgartner said, was the fact that state prosecutors went for manslaughter, a rung up on the culpability ladder from criminally negligent homicide, which the grand jury also charged.

"I would presume that a prosecutor would opt for the lowest or least-culpable state of negligence," he said.

The manslaughter and criminally negligent homicide charges are where the intent of the paramedics and officers comes into play, legal experts said.

"The problem with some of these lower levels of homicide is drawing the line between an accidental death and a criminally liable death can be complicated," Garnett said. As opposed to civil cases where you're looking at standards of care, "criminal law is all dependent on the mental state of the people involved."

When it comes to proving criminally negligent homicide, prosecutors will have to convince the jury that the responders did not do what a reasonable person in their situation would do, said Adam Frank, a civil rights attorney.

"A reasonably careful officer wouldn't have done what they did," he said. "A reasonably careful paramedic in their situation wouldn't have given Elijah McClain an overdose of ketamine. I don't know how they would argue that's not negligent."

Attorneys and former prosecutors predicted that the officers charged in this case will blame the paramedics for McClain's death — and that the paramedics will point their fingers right back at the officers. Others posited that defense attorneys will attempt to portray McClain as irrational and a danger to officers and paramedics.

McClain was on his way to a convenience store on Aug. 24, 2019, when someone called 9-1-1 to report a suspicious person. When the 23-year-old refused to stop walking after being contacted by three Aurora police officers, they tackled him to the ground, threw on handcuffs and used a now-banned chokehold.

Paramedics then injected him with far more ketamine than is required for a person of McClain's size. The Aurora man suffered cardiac arrest on the way to the hospital, where he was later declared brain dead. He died Aug. 30, 2019, after being removed from life support.

Attorneys said they had never seen a case in Colorado that involved charges of this kind against paramedics.

David Lane, a Denver civil rights lawyer, called the charges against the paramedics "totally appropriate," but added that it's a "slippery slope."

"This is a sliding scale," he said. "What right do paramedics have to stick needles in a person who's conscious and able to make medical decisions on their own?... Does the government have the right to stick needles of ketamine in people if they're perceived to be in such distress that your very survival may depend on it?"

"There are some super interesting legal issues that arise with this case," Lane said.