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Gov. Polis assigns special prosecutor to investigate Elijah McClain case

Elijah McClain, 23, died after Aurora police officers used a carotid hold to restrain him.

DENVER — The Colorado Attorney General will now investigate the Elijah McClain in-custody death case after Gov. Jared Polis signed an executive order Thursday.

McClain, 23, was pronounced dead on Aug. 27, 2019 – a few days after he went into cardiac arrest following a struggle with Aurora Police (APD) officers, who contacted him after receiving a call of a suspicious person in the area. 

McClain’s family said he was walking to get an iced tea for his brother and would usually wear a face mask when it got cold outside.

Officers used a carotid hold when restraining McClain, a practice that has since been banned in the City of Aurora. McClain was also given a sedative by Aurora Fire Rescue to calm him down

If Colorado AG Phil Weiser's investigation finds the facts support prosecution, Polis said he will criminally prosecute any individuals whose actions caused McClain's death.

Polis' announcement comes less than one day after he said he instructed his legal team to weigh state action in the investigation.

Polis spoke the report Chris Vanderveen about the case over Zoom on Friday:

RELATED: Polis said he’s instructed his legal team to weigh state action in Elijah McClain investigation

"I was moved by speaking with [McClain's] mother and her description of her son as a responsible and curious child who became a vegetarian to be healthier, and who could inspire the darkest soul," Polis said in a Thursday statement. "His friends describe him as a gentle peacemaker who worked as a massage therapist and enjoyed playing the violin.

"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 statewide concern. Now, more than ever, we must do everything within our power to foster public trust and confidence in law enforcement and the criminal justice system."

Mari Newman, the McClain family lawyer, issued the following statement on behalf of the McClain's family:

"Elijah’s family and the Aurora community demanded last fall that an independent investigation be conducted into the murder of Elijah McClain. Only recently, in response to the outcry of millions of people across the globe and international media scrutiny, did Aurora finally claim to have hired a so-called “independent investigator,” who media quickly revealed was actually a former police officer turned lawyer, whose legal practice is dedicated to defending police who use excessive force. Clearly, Aurora has no intention of taking responsibility for murdering an innocent young man. Its entire effort is to defend its brutality at all costs, and to lie to the public it is supposed to serve. It is time for a responsible adult to step in, and I am glad that the governor is showing leadership. Elijah’s family is so thankful for the millions of people who have stood up to denounce the murder of their beloved son by Aurora Police and medics. It should not take a massive petition and international media attention to hold law enforcement accountable for killing an innocent black man."

District Attorney Dave Young, the Adams County prosecutor in McClain's case, did not file criminal charges against the officers involved in McClain's death, stating in his decision letter "there was no reasonable likelihood of success in proving any state crimes beyond a reasonable doubt at trial."

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On Thursday, Young's office released a statement saying in part, "Ultimately, while I may share the vast public opinion that Elijah McClain’s death could have been avoided, it is not my role to file criminal charges based on opinion."

> Young's full statement can be found at the bottom of this article.

Young's office also created a webpage to provide information about the case and to provide a place for public comment.

> Click/tap here to find more information from the DA's office.

More than 3 million people have signed a Change.org petition asking for an independent investigation into how McClain died and for the APD officers involved in his death to be removed from the streets.

RELATED: Petition for justice for Elijah McClain reaches 2.2 million signatures

RELATED: Tens of thousands of calls to re-examine Elijah McClain death inundate Aurora agencies

Polis' announcement also comes a day after Aurora Mayor Mike Coffman announced that Aurora City Council will meet on July 6 to vote on a new independent investigator to look into the case.

Coffman on Thursday tweeted: "Aurora is a home rule city, and I will continue to hold the July 6th city council meeting that I scheduled to vote on whether to move forward with an independent investigation and to vote on who will conduct it."

Aurora was several months into a different independent investigation when it was revealed that the attorney doing the investigation, Eric Daigle, was a former police officer in Connecticut who city council members say advertised his experience on his website as “defending municipalities, police chiefs and individual officers from law enforcement liability claims.”

Wednesday, Daigle told 9NEWS, “I was disappointed that the City did not even ask any questions or evaluate my abilities and objectiveness. Our investigation had made significant progress since being retained.” 

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Daigle was paid $225 an hour for his services, but the city of Aurora said it does not yet know how many hours Daigle worked.

Members of the Aurora City Council sent a letter to the Aurora City Manager Wednesday asking the city to speed up the investigation. 

"I don’t know if I would say that I feel pressure to do it quickly, but I would say that I feel pressure to do it correctly," said Aurora City Council Member Curtis Gardner. "The community has really made clear to us that we need to work to rebuild trust. We feel like completing this investigation would be a good first step in mending that trust with the community."

RELATED: Polis said he’s instructed his legal team to weigh state action in Elijah McClain investigation

Below is the full statement released by Young's office Thursday:

"The tragic death of Elijah McClain has focused attention on the role of the district attorney, particularly in the 17th Judicial District. Media outlets have published widespread communication that I have “cleared the officers involved in Elijah McClain’s death of any wrongdoing.” 

This statement is not only incorrect, it does not adequately convey the role of the district attorney or the decision I was called upon to make. 

Consequently, given the degree of public interest with this investigation, it is important for me to explain the process, along with my authority and decisions with respect to the case involving the death of Mr. McClain.

I begin with my role as District Attorney of the 17th Judicial District. I am one of 22 district attorneys in the State of Colorado. The 17th Judicial District is comprised of Adams and Broomfield Counties.

Generally speaking, the role of the district attorney is to review investigations of criminal activity brought by law enforcement agencies within the jurisdiction. That review is limited to a determination of whether the evidence supports the filing of a criminal charge under Colorado law. The standard of proof for filing a criminal case is whether there is sufficient evidence to prove any violation of law beyond a reasonable doubt. This review process is the same for any individual suspected of crime, whether a civilian or a law enforcement officer.

The incident with Mr. McClain occurred during the evening hours of August 24, 2019. The Aurora Police Department immediately commenced a criminal investigation that was presented to my office on October 21, 2019. The Coroner’s Office made the forensic investigation available to my office on November 8, 2019.

On November 22, 2019, I issued a letter to Aurora Police Chief Metz detailing the evidence and my conclusions with respect to Colorado law. The Aurora Police Department released that letter to the public and it is posted on our office website.

Click/tap here to read the decision letter in its entirety. 

Elijah McClain’s death was both tragic and unnecessary. Nevertheless, as set forth in the letter, my role in reviewing the evidence is limited to an assessment of whether criminal charges should be filed against any person involved in the death of Elijah McClain.

The forensic evidence revealed that the cause of death was undetermined. Specifically, the pathologist who conducted the autopsy stated that he was unable to conclude that the actions of any law enforcement officer caused Mr. McClain’s death.

In order to prove any form of homicide in the State of Colorado it is mandatory that the prosecution prove that the accused caused the death of the victim. For those reasons, it is my opinion that the evidence does not support the filing of homicide. 

Furthermore, although I may not agree with the officers’ actions in this incident, in order to prove a crime, the evidence must demonstrate beyond a reasonable doubt that the force used was not justified. 

In this context, the legal question of “justification” is based on whether the involved officers held a reasonable belief that the use of force was necessary. Based on the evidence and the law applicable at the time of Mr. McClain’s death, the prosecution cannot disprove the officers’ reasonable belief in the necessity to use force. 

Based on the facts and evidence of this investigation I cannot prove beyond a reasonable doubt that the officers involved in this incident were not justified in their actions based on what they knew at the time of this incident. 

Ultimately, while I may share the vast public opinion that Elijah McClain’s death could have been avoided, it is not my role to file criminal charges based on opinion, but rather, on the evidence revealed from the investigation and applicable Colorado law."

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