More than a year and a half after the death of Elijah McClain at the hands of Aurora law enforcement, Colorado Attorney General Phil Weiser has decided to conduct a grand jury investigation into the incident, according to a news release today. “[The investigation] will be thorough, guided by the facts and law, and worthy of the public’s trust,” said Weiser.
McClain’s family and the family’s lawyer, Mari Newman, are skeptical of the grand jury process and whether it will bring justice, though. “Prosectors are not required to use a grand jury and don’t in most cases,” said Newman in a statement, “so we are forced to question whether is this yet another example of law enforcement being held to a different standard than every other person being investigated for murder.”
While the public won’t have access to what goes on throughout the investigation, the process allows for evidence, information, and witnesses to be brought forward and questioned. A similar grand jury process was used in the investigation of De’Von Bailey’s death in 2019, in which the jury found that the Colorado Springs police were justified in the shooting of Bailey.
In her statement, Newman said she worries that the prosecutors in this case will use the jury to avoid responsibility for the outcome of the investigation. “If the jury in Elijah McClain’s case does not indict the officers and medics responsible for killing him, it will be because the attorney general’s office did not want charges to be brought. That would be a grave injustice,” Newman said.
Denise Maes, the Public Policy Director for the ACLU Colorado, is also worried that a grand jury will put the burden of McClain’s case on someone else to escape a difficult decision Weiser’s office was given. In a statement to 5280, she wrote: “This office was not required to impanel a grand jury and in so doing, I hope this office nonetheless remains committed to an impartial review of the facts and will act accordingly.”
In August 2019, McClain, a 23-year-old Black man, died after being restrained with a chokehold by the Aurora Police Department. He was on his way home from a convenience store when he was stopped by police after a 911 call reported him “looking sketchy” and waving his arms in the air. The incident received increased public scrutiny following this summer’s Black Lives Matter protests and consequently prompted Governor Jared Polis to sign an executive order in June designating Weiser to serve as a special prosecutor to reexamine the case.
“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,” Polis said at the time. “We need to do a better job, and at a bare minimum they deserve a thorough review of the case.”
In August, McClain’s family also filed a lawsuit in the U.S. District Court against the city of Aurora, the 12 police officers, two paramedics, and the fire department’s medical director, seeking damages for McClain’s death. That same day, Weiser announced an investigation into Aurora Police Department’s records of stops, arrests, and use of force and whether officers have repeatedly violated constitutional rights of individuals like McClain. That investigation is still ongoing.