Polis orders special prosecutor to reinvestigate death of Elijah McClain

A mural of Elijah McClain was painted by Thomas “Detour” Evans on June 8, 2020 in the River North Art District in north Denver. Evans tweeted that he hopes to paint one in Aurora soon. Photo by PHILIP B. POSTON/Sentinel Colorado

AURORA | Gov. Jared Polis on Thursday formally tabbed state Attorney General Phil Weiser to lead a new probe into the death of Elijah McClain, the 23-year-old unarmed black man who died days after he was detained by Aurora police in August 2019, following a cacophony of calls from across the globe to re-examine the polemic case.

Shortly after 2:30 p.m. June 25, Polis issued an executive order invoking Weiser as the state prosecutor “to investigate and, if the facts support prosecution, criminally prosecute any individuals whose actions caused the death of Elijah McClain,” the governor’s office wrote in a statement.

The announcement comes on the heels of an exponential rise in calls from filmmakers, athletes, talk show hosts and others to further explore McClain’s death. Tens of thousands of calls have flooded local agencies in recent weeks asking for a new look at the 10-month-old case.

Colorado Attorney General Phil Weiser
Photo by Philip B. Poston/The Sentinel

Polis has slowly upped his response to various calls to action this week, starting with a statement issued Tuesday, a promise to further explore legal opportunities Wednesday, and an executive order Thursday.

“I was moved by speaking with Elijah’s mother and her description of her son as a responsible and curious child who became a vegetarian to be healthier, and who could inspire the darkest soul,” Polis said in a statement. “His friends describe him as a gentle peacemaker who worked as a massage therapist and enjoyed playing the violin. Elijah McClain should be alive today, and we owe it to his family to take this step and elevate the pursuit of justice in his name to a statewide concern.”

McClain’s mother, Sheneen McClain, has called for such an investigation for months. She initially lambasted protestors who heightened calls for a new look into her son’s death following the recent nationwide protests spawned by the killings of George Floyd and Breonna Taylor. She lamented that relatively few such protests occurred after Elijah died on Aug. 30.

“Elijah’s family and the Aurora community demanded last fall that an independent investigation be conducted into the murder of Elijah McClain,” the McClain family’s attorney, Mari Newman, wrote in a statement. ” … Clearly it is time for a responsible adult to step in, and I am glad that the governor is showing leadership. Elijah’s family is so thankful for the millions of people who have stood up to denounce the murder of their beloved son by Aurora Police and medics. It should not take a massive petition and international media attention to hold law enforcement accountable.”

The Democratic governor declined to summon Weiser as a special prosecutor in the case of De’Von Bailey, the Colorado Springs man shot in the back just weeks before McClain’s death last summer, saying that the process was properly carried out by a grand jury. McClain’s case was never presented to a grand jury, and instead reached its legal terminus in November when Adams County District Attorney Dave Young announced he could not meet the statutory burden of proof to charge any of the officers involved.

Polis said the McClain case now presents exigent circumstances that require state intervention.

“I respect the solemn duty of the state’s district attorneys to investigate and, at their judgment and discretion, bring charges for the commission of crimes. The state rarely steps in to investigate, and potentially prosecute, an incident over the individual decisions of district attorneys,” according to Polis’ executive order. “This, however, is the truly exceptional case where widely reported facts are not addressed in any current investigation.”

Earlier on Thursday, Young issued a statement standing by his original decision rendered last year, reiterating that he did not the evidence to prove that the force used by the three officers who pinned McClain to the ground in the 1900 block of Billings Street on the night of Aug. 24, 2019 was not justified beyond a reasonable doubt.

“Ultimately, while I may share the vast public opinion that Elijah McClain’s death could have been avoided, it is not my role to file criminal charges based on opinion, but rather, on the evidence revealed from the investigation and applicable Colorado law,” Young wrote in a statement.

All three officers involved in detaining McClain are still employed with the Aurora Police Department but are currently assigned to “non-enforcement” rules, a department spokesperson confirmed Thursday.

Local Aurora lawmakers plan to move forward with their own investigation of McClain’s death, the shape of which is tentatively slated to be discussed at a special city council meeting next month. Members of the city’s public safety policy committee have called for an independent investigation for several weeks, though the timeline was thrown into limbo earlier this month after city management axed a contract with a Connecticut based attorney and former state trooper who had been retained to look into the evidence. Council members and activists protested the investigator’s longtime ties to law enforcement.

“Only recently, in response to the outcry of millions of people across the globe and international media scrutiny, did Aurora finally claim to have hired a so-called ‘independent investigator,’ who media quickly revealed was actually a former police officer turned lawyer, whose legal practice is dedicated to defending police who use excessive force,” Newman wrote. “Clearly, Aurora has no intention of taking responsibility for murdering an innocent young man. Its entire effort is to defend its brutality at all costs, and to lie to the public it is supposed to serve.”

City Councilperson Allison Hiltz, who chairs the public safety committee, lauded Polis’ appointment Thursday.

“I appreciate Attorney General Weiser respecting the process that we have set into motion,” Hiltz said. “It’s imperative that we move forward as quickly as possible, while also ensuring the investigation is conducted by truly independent and neutral third parties.”

She said Aurora’s new investigation remains a priority, and she supports what will seemingly be simultaneous inquiries.

“This development will certainly shape our conversations about next steps, particularly around how and whether to navigate two concurrent investigations,” Hiltz said.

Mayor Coffman, who ordered an expedited council meeting to discuss further independent investigation hours after council members called for a nearly identical discussion June 24, confirmed he still plans to move forward with the special meeting July 6.

“Aurora is a home rule city and I will continue to hold the July 6th city council meeting that I scheduled to vote on moving forward with an independent investigation and to vote on who will conduct it,” Coffman said in a statement.

In a statement, Weiser said he plans to collaborate with the city during its concurrent investigation.

“We support their efforts and encourage them to take the necessary time so that their effort is truly independent and effective,” he said. “We look forward to working with them to the extent possible to ensure accountability and so that important lessons are learned from this tragedy.”

It’s unclear how long either investigation will take to complete. Weiser said his office plans to spend multiple months working with the state Legislature to possibly allocate resources to complete the probe.

Lindsay Minter, an Aurora resident and organizer with Black Lives Matter 5280, said the independent investigation is “amazing.” Minter was recently appointed to the City of Aurora’s Community Police Task Force.

Minter said McClain’s family wants to see the three Aurora police officers who encountered McClain that night in August convicted and given life sentences. She urged transparency in the new investigation.

“We can’t have another investigation where they investigate and they have their findings where they sweep it under the rug.”

She also imagined McClain in heaven giving one of his signature “gratitude bows,” a common quirk for the 23-year-old, and saying, “Thank you for fighting for me — maybe I will get justice.”

Polis’ executive order will remain in place until Weiser’s investigation is finished and any related prosecution is completed.