Colorado Attorney General Opens Grand Jury Investigation into McClain’s Death

On Friday, Colorado Attorney General Phil Weiser announced he’d be opening a grand jury investigation into the death of Elijah McClain. McClain was pronounced dead after he was violently detained by Aurora Police in 2019. Attorney General Weiser promises a “thorough” investigation “guided by the facts and law, and worthy of the public’s trust.”

In a news release, Weiser’s office states, “A grand jury is an investigative tool that has the power to compel testimony from witnesses and require the production of documents and other relevant information that would otherwise be unavailable.” The office also stated that it would not comment further, in order to maintain “impartiality and integrity.”

A grand jury, not unlike a regular one, is tasked with hearing out prosecutors and witnesses. The main difference is that a grand jury does not vote on the guilt or innocence of a party, but rather whether there is sufficient evidence to press charges against a potential defendant.

The process of a grand jury investigation is secretive in nature, since no charges have been formally made. However, the jury will have the discretion to publish a report on its findings granted that the investigation doesn’t result in charges.

In June, amid national Black Lives Matter protests, Weiser was appointed by Gov. Jared Polis as special prosecutor for McClain’s case, for which no officials have been charged. Prosecutors in the 17th Judicial District said there was insufficient evidence to charge anyone in the death of McClain.

The McClain family’s attorney, Mari Newman, says in a statement, “We are hopeful that the AG is truly committed to a thorough and impartial investigation, but there is no doubt that video itself provides probable cause to believe that Aurora police and medics committed multiple crimes when they killed Elijah McClain. Prosecutors are not required to use a grand jury and don’t in most cases, so we are forced to question whether this is yet another example of law enforcement being held to a different standard than every other person being investigated for murder.”

Though grand juries are rarely called upon, some, including Stan Garnett the former district attorney in Boulder, speculate that the move could be to use a grand jury’s power of subpoena to acquire documents or compile witness testimony, which would be crucial in making a case.

“There are other reasons that I think are less good. One of them is because the prosecutor himself or herself doesn’t want to actually make the decision, and they want to be able to say, ‘Well, I didn’t do this. The grand jury did this.,” Garnett claims in a statement.

Reacting to the grand jury move, Candice Bailey, who serves on a citizen police oversight committee in Aurora and who is close with McClain’s mother, Sheneen, says, “Part of me wants to jump for joy that Phil Weiser is finally taking this seriously. … Part of me is worried that this is another performative action. Will we, too, be denied justice?”

Sheneen McClain has said she believes the officers in the case should spend life in prison.