The facts surrounding the death of Elijah McClain at the hands of Aurora police and paramedics in 2019 have never changed.
Despite that, a state court of appeals decision last week upended two of the fact-based, hard-fought court battles to hold some of the cops and paramedics accountable for McClain’s death.
McClain, a 23-year-old Black man, was doing nothing wrong when he was accosted by police. He was unarmed and walking home in northwest Aurora on a summer night with only a bag of soft drinks.
The professional massage therapist was treated like a criminal, petrified because Aurora police were escalating and acting toward him in a terrifying, aggressive way that Black men in the country deeply fear.
He was wrongly attacked by police and strangled, nearly to death. A rogue cop with a police dog threatened to have the dog maul him as he was being molested by police.
When paramedics arrived, they took not just cues but orders from police, injecting McClain with a lethal overdose of ketamine. They did it because police and medics then believed in a now-debunked episode of “excited delirium,” where people crazed with drugs, fear or the will of God assume superhuman strengths and do crazy crap.
Paramedics Jeremy Cooper and Peter Cichuniec never treated McClain with the same level of care we’ve all seen on a hundred medical shows or experienced in emergencies ourselves. That included monitoring his pulse and other vitals before injecting him with the Ketamine, making an accurate body mass assessment of the slight 140-pound McClain, or pausing to consider that he could be at risk by injecting him with a sedative depressant just after being choked into unconsciousness.
All of these and hundreds of other sordid, horrifying details of what police and paramedics did to McClain that night aren’t subjective recollections or hearsay. We all saw the video tapes from officer body cameras and other recordings as McClain was first harassed, then tortured and then ruthlessly killed.
This was not an instance of policing nor emergency medicine. It was cruel, reckless and negligent homicide, just like the jury decided in 2023.
On Thursday, an appeals-court panel ordered Cooper and Chichuniec to stand trial again for the charges against them, saying that the jury was improperly instructed on what to consider during their deliberations as to what the “standard of care” should have been used by Aurora paramedics during their encounter with McClain and police.
While this may sound confusing, it’s not. The paramedics were charged not just with some kind of medical malpractice violation, but with being so “negligent” in their duties as paramedics that the death they caused was criminal in nature. This is the kind of conviction someone gets when they blow through a red light at 80 mph and takes out a pedestrian just trying to get across the street.
For weeks, state prosecutors made it clear to jurors that the two paramedics never made their own assessment of McClain when they arrived; they took the corrupt word of police, who’d attacked McClain, and compliantly dosed him with a deadly quantity of a powerful sedative.
The “standard of care” question arose from the jury as to how to gauge how paramedics should have behaved, which they’d just listened about for weeks during testimony.
The legal code around criminal negligence charges says that the threshold is what a “reasonable person” would do.
Yes, it’s pretty subjective. But a reasonable person wouldn’t blow through a red light at 80 mph, and it’s pretty easy for a jury to understand that and decide for a conviction.
Likewise, a “reasonable person” wouldn’t arrive on the scene of police chaos and let them tell you how to treat a patient, as a paramedic.
While the high-court panel may have a valid technical point as to whether the trial judge in the case belabored the definition enough to suit the jury, a “reasonable person” and adjudicator in the matter would be able to see that the jury was afforded every scrap of evidence and testimony both for and against convictions against Cooper and Chichuniec.
The jury unanimously found for the prosecution.
Tragically, for McClain’s mother and family, and for the endless Black people in Aurora and far beyond, this is just another instance of justice denied.
“How many more times can we systemically fumble the life of another human being and not really look at the inequities inside of those systems?” said Candice Bailey, an Aurora activist who stood with Elijah’s mother, Sheneen McClain, through endless court hearings and protests, trying to leverage the truth into accountability.
“This decision forces the family and community to once again revisit one of the most painful chapters in Aurora’s history,” members of the regional and Aurora NAACP said in a statement. “To subject the family to this agony on the idea that a jury barraged with medical evidence didn’t understand the issue seems inconsistent with the jury’s findings and the appellate rules, while also being cruel to the family.”
Seems inconsistent?
The consistency here is a system of justice that provably continues to have different outcomes for white people than it produces for people of color.
Follow @EditorDavePerry on BlueSky, Threads, Mastodon, Twitter and Facebook or reach him at 303-750-7555 or dperry@SentinelColorado.com
Mr. Perry – You have made many assumptions in your portayal of attitudes and events that evening which, in all fairness, I cannot contradict, because I was not on the jury and did not hear all the evidence. But then, neither were you. I guess we all have a tendency to see things with the lenses we look through.
“walking home in northwest Aurora”? northwest Dave? you might check your map on that? Let’s start there. Any 911 call to APD to The Billings and Colfax area requires a three-officer mandatory response. The 911 system shows specifically identified as 1728 Billings, one of about 70 addresses identified as active problem spots across Aurora. So, officers are prepared to enter a high risk and known danger zone by these addresses. Dave, it’s hard to know why, but you curiously omitted the part in the body-cam video that has an officer yelling… he just tried to grab your gun.
“acting toward him in a terrifying, aggressive way that Black men in the country deeply fear.” Okay, for some odd reason that I can only guess, Dave you missed viewing the typical violent arrest video of our own Council Rob Andrews. It was pretty scary to watch the abuse as they took him down for resisting a simple DUI stop.
The democrat district attorney at the time was elected Dave Young, (D). The D.A. was unwilling to prosecute because the first death certificate cause of death was “undetermined’. But, said he was more than willing to go forward with a conclusive and convincing death certificate. He said it was not fundamentally proper the way the death was certified to file a case.
A year and a half later George Floyds death in Minn. Destructive riots all over and Minneapolis burns. Governor Pollis signs a Executive Order for Phil Weiser to look into this and given power to prosecute upon findings. Executive Order D 2020 115 -Designating State’s Prosecutor. A few attorneys that worked in Weiser’s office resigned rather than follow lock step to office politics to do the case. Then the death certificate gets amended.
Colorado Attorney General Phil Weiser now was in a pickle and hired two high-profile, out-of-state lawyers, Robert Blake from Los Angeles and Andrew Boutros from Chicago.
The court of appeals another mini- trial- as it were, to look closer into faulty and inconsistent jury instructions. The states right hand woman, Erin K. Grundy, admits to the panel of judges the instructions were not as clear as they should have been thus creating legal inconsistencies the jury was faced to deal with. And all this Adams County trial period is facing a long pre- planned Christmas break for the court personnel, did all the jurors want this on their minds? No, they didn’t want to take home this added pressure.
This will be interesting if AG Phil Weiser and his boss Gov. Polis is willing to tackle this prosecution or if Weiser’s office will sub-contract this project out again. You know, the local activist are very busy gnashing their teeth while laying out their demands on Gov. Polis.
Mr. Perry wants us to disregard the law because it suits his purposes. Mr. Perry in North Korea their tribunals also listen to “facts” and they work effortlessly to convict people. It’s that what you would like? A state where the law doesn’t matter at all? You are now complaining that a court of appeals upheld the law, but I don’t see you complaining courts go out of their way to block Trump’s initiatives right? Then and there the courts are actin justly regardless of their interpretation of the law. When it suits your ultraliberal views the courts are doing great, when they go against your beliefs then they are the worst of the worst. This is the problem with subjective liberalism, it detaches people from reality. (I do agree that McClain’s death was a grave injustice, but we should not pervert the justice system simply because of political gain.) Editorials like this is what got Trump elected. Liberals going crazy and fighting reality.