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DENVER (KDVR) — A grand jury investigating the 2019 death of Elijah McClain has yet to determine whether to there is enough evidence to bring charges in the case.

“We, of course, want to take every step we can to foster public trust and confidence,” Gov. Jared Polis told the Problem Solvers during an unrelated press conference this week.

“That includes making sure that any independent investigations and work occur on their own timetable and not with artificial deadlines of having to meet the timetable we might want them to reach,” he said.

Polis issued an executive order in June 2020, assigning Attorney General Phil Weiser as a special prosecutor to investigate McClain’s death.

He made the order months after Dave Young, the former District Attorney for the 17th Judicial District, declined to file any criminal charges and after local and national protests over McClain’s death were spurred by a Minnesota police officer’s murder of George Floyd.

Colorado’s Attorney General announced he had handed the McClain case over to a grand jury in January 2021.

The investigations “need to be thorough. They need to inspire public confidence,” Polis said. “I’m confident that the process is in place to do so with a special prosecutor. These are decisions that need to be well done rather than done too quickly.”

How the grand jury works

According to Ian Farrell, an associate professor who teaches criminal law at the University of Denver Sturm College of Law, complex cases may take longer for a grand jury to review.

“This period of time, January to now, is at the longer end of the spectrum. But is not striking or unusual,” he said.

However, some grand juries are able to decide cases in periods as short as a few weeks or a few months.

Farrell told the Problem Solvers a Colorado state grand jury either may be made up of 12 or 23 jurors depending on the circumstances of the cases they must hear.

It is also possible they are hearing multiple cases during the course of their service.

Under the law, nine members of a 12-person jury must agree there is enough evidence for an indictment. In a 23-person jury, 12 members must agree.

According to court records obtained by the Problem Solvers, the state’s grand jury was selected in October 2020, but in September 2020, the Attorney General’s office filed a motion to close the public selection process for the 2020-2021 Statewide Grand Jury.

A judge agreed with the motion and ordered the selection process to be closed to the public.

The court found “the potential nature of one or more of the investigations that the Statewide Grand Jury may undertake necessitates protecting the security of the Statewide Grand Jurors and the Grand Jury process.”

Chief Judge Michael Martinez ordered, “that all information held by this Court and the clerks of this Court that might identify Statewide Grand Jurors shall be deemed confidential, not to be released to anyone other than the prosecutors and/or investigators with the Attorney General’s Office without written authorization from the Court.”

The jurors, who are deliberating the McClain case in secrecy, have the power to subpoena documents and to compel witness testimony.

“That’s a very powerful tool in situations in which some of the relevant people, or people who have the relevant information, may not want to talk,” said Farrell.

While the grand jury determines the outcome of the investigation, the special prosecutor – in this case, the Attorney General – “runs the show,” according to Farrell.

“The prosecutor determines what evidence to put before the grand jury,” he said. “The prosecutor really does have a great deal of power to influence the result of the grand jury.”

However, it is the grand jury that makes the decision about whether there is enough evidence for an indictment.

“This is a way for the Attorney General to say, ‘It wasn’t my decision. An objective group of community members made this decision by applying the law and neutrally deciding whether it was the appropriate thing to do,'” said Farrell.

Farrell said a grand jury can also consider non-homicide charges in McClain’s case, like assault or kidnapping, for example.

Reviewing the use of ketamine

The state health department has also been reviewing Colorado’s system that previously allowed paramedics to administer ketamine to agitated people outside of a hospital setting.

Currently that system is on pause as the Colorado Department of Public Health and Environment develops new policies and protocols to come in compliance with a new state law that went into effect in July.

Despite announcing that the CDPHE review would begin “immediately” in August 2020, it did not get under way until 2021.

On July 7, 2021, Jill Hunsaker Ryan, CDPHE’s executive director, told the Problem Solvers, “the review includes several experts. It has taken many months, but we believe it will be finished in July. It’s very thorough.”

In early July, Governor Polis said, “it’s important to take the time to get it right but not take so much time that it causes additional difficulties and suffering, and I’m confident the report will be released in the next few weeks.”

Meanwhile, the state health department said it wrapped up its investigation into the death of Hunter Barr, whose autopsy indicated he died as a result of the toxic effects of ketamine in the setting of cough suppressants and LSD.

“The Hunter Barr investigation was recently closed with no action, i.e. the department did not find violations of the applicable regulations based on this complaint,” said Peter Myers, a spokesperson for CDPHE.

The health department continues to investigate the circumstances surrounding the case of Jerica Lacour, whose death was linked to acute alcohol and ketamine intoxication.

What happened to the officers involved?

Two of the three Aurora officers involved the McClain altercation in 2019 still work for the department.

Nathan Woodyard is currently assigned to the Electronic Support Section of the Aurora Police Department. 

According to city records, that department manages and maintains Aurora’s body-worn cameras.

Randy Roedema is assigned to a Forensic Services Detail.

Jason Rosenblatt was fired last year for his connection to a photograph/texting scandal in which other officers mocked McClain’s death by posing – in their uniforms – at the scene where McClain first lost consciousness before he died.  They texted the photograph – in which two officers appeared to re-enact the carotid hold – to Rosenblatt, and he responded, “Haha.”