DENVER – The final trial over the 2019 death of Elijah McClain after he was stopped by police in suburban Denver is expected to delve into largely uncharted legal territory, with paramedics, not officers, being prosecuted this time.
Starting Monday, jurors will be chosen to decide if the paramedics committed a crime when they gave the 23-year-old Black man an overdose of the powerful sedative ketamine after he was forcibly restrained by police.
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McClain went into cardiac arrest on his way to the hospital and was pronounced dead three days later. Three officers already have gone to trial and two were acquitted.
The case will be the first of several recent criminal charges against medical first responders to reach trial and could “set the bar” for prosecutors in future cases, said Douglas Wolfberg, a former emergency medicine instructor and founding partner of a Pennsylvania law firm representing emergency medical services workers.
Aurora Fire Department paramedics Jeremy Cooper and Lt. Peter Cichuniec have pleaded not guilty.
Initially no one was charged because the coroner’s office could not determine exactly how McClain died. But in 2021, social justice protests over the 2020 murder of George Floyd drew renewed attention to McClain's case, prompting an indictment against the paramedics and three officers.
“What we saw three years ago, that put a huge spotlight on the police profession,” University of Miami criminologist Alex Piquero said, adding that the McClain case “has the potential to do that for paramedics and first responders."
Wolfberg said the thinking about such cases has changed, especially since George Floyd.
“Obviously there are political considerations. That’s not to deny Mr. McClain’s family the justice they are seeking," he said.
Defense attorneys at a November court hearing indicated they plan to blame police for McClain’s death during a trial expected to last most of December. The defense attorneys did not return telephone calls or emails seeking comment on the charges the men face.
Cases pending elsewhere include paramedics in Illinois facing first-degree murder charges after a patient they strapped facedown to a stretcher suffocated, and an involuntary manslaughter charge against a nurse in California who continued to draw blood from an unresponsive patient while officers pinned him down.
“It’s exceedingly rare for EMS providers to be charged criminally related to providing inpatient care,” Wolfberg said. “That is normally a medical malpractice issue, a negligent case which is civil, and it’s rarely criminal. This breaks new ground.”
One of the police officers indicted in McClain's death was convicted last month of the lesser charges he faced — homicide and third-degree assault — after defense attorneys sought to blame the paramedics. Two other officers were acquitted by jurors following trials that lasted for weeks.
Cooper and Cichuniec are charged with manslaughter, negligent homicide and several counts each of assault, all felonies. Their role in McClain's death loomed large in the first officers' trials.
Attorneys for one of the acquitted officers brought in a paid expert witness who were hired to work on the paramedics' case by state prosecutors.
Dr. Nadia Iovettz-Tereshchenko, an emergency room doctor who has worked as a paramedic, said Cooper and Cichuniec's actions fell significantly below the level of care expected. She testified that the paramedics stood back watching McClain from a distance as he was restrained by police, did not examine him before the ketamine injection and did not monitor him afterward.
Prosecution experts also testified during the earlier trials that the ketamine ultimately caused McClain's death, with some saying the officer’s violent stop set contributing events into motion.
The amended coroner's report, issued in 2021, found McClain died because he was given too much ketamine. However, forensic pathologist Stephen Cina noted the amount found in McClain's blood was within the range normally considered safe.
McClain was stopped the night of Aug. 24, 2019, while walking home from a convenience store, listening to music and wearing a mask covering most of his face. The police stop quickly became physical after McClain, seemingly caught off guard, tried to keep walking. He was unarmed and had not been accused of committing any crime.
He was rendered briefly unconscious by an officer using a neck hold, prompting police to call for paramedics while officers restrained him on the ground.
Cooper and Cichuniec denied being told the neck hold had been applied, according to their indictment. Prior to the ketamine injection, they stood near McClain and didn’t speak to him or ask him anything before diagnosing him within about two minutes with “excited delirium.” They had been trained to treat the condition, which allegedly makes people hyper-aggressive, the document said.
Critics say the condition has been used to justify excessive force and some doctor’s groups reject excited delirium as a diagnosis.
In McClain’s case, prosecutors said the diagnosis was inaccurate because the paramedics didn’t adequately assess his symptoms. A 2021 report by experts hired by Aurora to review McClain's death found he had not moved or made any sounds for more than a minute before being injected.
Cichuniec, supervisor of the Aurora Fire Department’s paramedics crew, asked medics working for a private ambulance on the scene to prepare the ketamine injection for McClain, the indictment said. Cooper injected him with 500 milligrams of ketamine, a dose appropriate for someone who weighed more than 200 pounds (90 kilograms), according to the indictment. McClain weighed only 143 pounds (65 kilograms).
Before the ketamine injection, body camera footage shows Cooper asking police if McClain spoke English and Officer Randy Roedema, the officer convicted in the case, responding: “He speaks English, but he's, he's definitely on something.”
Prosecutors in Roedema's trial said using language like that, which suggested McClain had excited delerium, made the police officers complicit in the paramedics' decision to give McClain ketamine.
Two days after McClain's death, the Aurora officials put out a statement saying “a standard medication routinely utilized to reduce agitation was administered (to McClain) and reduced the exhibited anxiety.”
The killings of McClain, Floyd and others triggered a wave of legislation that put limits on the use of neck holds in more than two dozen states, including Colorado, which now also instructs paramedics not to give ketamine to people suspected of having excited delirium. The condition had been described in a since-withdrawn emergency physicians’ report as manifesting with symptoms including increased strength. Critics have called the diagnosis unscientific and rooted in racism.
The city of Aurora agreed in 2021 to pay $15 million to settle a lawsuit brought by McClain’s parents.
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Brown reported from Billings, Montana.