Gov. Polis adjusts language in order appointing AG Weiser as prosecutor in McClain investigation

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DENVER (KDVR) — Gov. Jared Polis announced Tuesday afternoon that he is amending the executive order appointing Colorado Attorney General Phil Weiser as a special prosecutor in the investigation into the death of Elijah McClain.

In the original order — signed in June — the governor authorized Weiser to investigate and prosecute any potential “criminal activity” in the case.

In the new order, Polis authorizes Weiser to investigate “offenses.” He removed the term “criminal activity.”

The governor also took out the words that suggest someone “caused the death of Elijah McClain” and instead wrote the order so anyone who committed offenses related to McClain’s death could also be prosecuted for for whatever those offenses may be.

Polis’ office would not provide further clarity on why the change was made.

Lawrence Pacheco, a spokesperson for Weiser’s office, issued the following statement via email:

“The Governor’s amended executive order appointing the attorney general as a special prosecutor in the Elijah McClain case provides clarification of the Department of Law’s authority to investigate and prosecute any crimes related to this case. The investigation continues and it will be thorough, guided by the facts, and work to build public trust in the criminal justice system. The Attorney General’s Office has no further comment at this time.”

McClain was 23 years old when he died following an altercation with Aurora police in August 2019.

In November 2019, District Attorney Dave Young chose not to file charges against the three officers who were involved the altercation. At least two officers told investigators they used or attempted to use a carotid hold on McClain after they said he tried to grab an officer’s gun.

A coroner could not rule out multiple possibilities – including the officers’ actions – as contributors to McClain’s death. Paramedics also injected McClain with the sedative ketamine when they arrived on the scene.

The three white officers initially approached McClain, who is Black, as he was walking home from a convenience store because he was wearing a mask, and a 911 caller reported that McClain looked suspicious. 

McClain was not committing a crime and did not have a weapon when officers approached him.

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