Denver7 is following the trial for two Aurora officers, Randy Roedema and Jason Rosenblatt who have pleaded not guilty to charges of manslaughter, criminally negligent homicide and second-degree assault in the arrest of Elijah McClain, a 23-year-old massage therapist, encountered police on Aug. 24, 2019 after a person called 911 to report a “sketchy” man walking in Aurora.
Scroll down to read updates from the Tuesday, September 27 proceedings.
Police responded and put McClain, who was unarmed and had not committed a crime, into a neck hold. Paramedics administered a sedative called ketamine, which officials said led to cardiac arrest on the way to the hospital. He was declared brain dead days later and died Aug. 30, 2019. A pathologist found he was given a higher dose of ketamine than recommended for somebody of his size and, as a result, he overdosed.
All five people facing jury trials pleaded not guilty to the charges against them in January 2023 in the wake of a grand jury indictment.
WEDNESDAY, SEPTEMBER 27
TRIAL RESUMED, BUT POSTPONED UNTIL NOON
Proceedings continued at 9 a.m. Wednesday but were paused after a jury in the trial was not able to show up due to a death in the family. The Judge said the juror was with family and "running on little sleep" and wouldn't be able to be present until Noon. Both the defense and prosecution agreed not to dismiss the juror and wait until the juror was available.
Before the proceedings were paused and while the Judge waited for additional information on the Juror's availability, the defense raised concerns about a supplemental witness report tied provided to them by the People just three minutes before the 9 a.m. start. The
The report was apparently tied to a witness the People intended to call to testify later this afternoon. Defense alleged a pattern in which it has received late reports from three witnesses after they had testified and had concerns about conflicting information regarding the amount and rate of Ketamine in Elijah McClain's blood.
"We are entitled to a mistrial," Harvey Steinberg, the attorney representing officer Rosenblatt said, stating the supplemental information would have been key to the defense when cross-examining Dr. David Beuther last week. "I would have handled him differently in terms of the ketamine process and in terms of his testimony that he believes that Mr. McClain was overdosed,"
Defense argued prejudice and that it had not had enough time to evaluate the new information to prepare for cross-examination of the upcoming witness and it would have needed when Dr. Beuther was on the stand.
The prosecution team admitted the supplemental information had been turned over to the defense just minutes before proceedings were set to resume this morning but that Dr. Beuther could be recalled if necessary.
The People also argued the defense could examine the supplemental information during the 3-hour delay while waiting on the juror.
Just before the proceedings were haulted until Noon, the Judge admonished prosecutors on the late disclosure of documents and told the People to ensure all documents and witness statements were turned over to the defense within 12 hours of their completion.
Trial resumes at noon.
"I KNEW WE NEEDED TO TREAT THIS LIKE A CRITICAL INCIDENT FOR MANY REASONS"
The next witness to be called to the stand by the People was former Division Chief of Operations for the Aurora Police Department, Stephen Redfearn.
Redfearn, who was since retired, was with the police department for 22 years and was asked to talk about all the types of training police officers go through starting with their time at the Aurora Police Academy.
He was asked by the People if over his 22 years at APD, he received any type of on-the-job training, which he said he did — "dozens of hours of different training," he said, with additional training in Aurora that amounted, overall, to "thousands of hours of additional training" over his two decades in law enforcement.
He said officers are generally familiarized with policies and procedures, which they have to read through and electronically sign to confirm — even if such policies and protocols are updated by the department. Redfearn told prosecutors this is something that is expected for officers to follow at all times.
At the time of McClain's arrest, Redfearn was the night shift duty captain and was not on scene when the violent arrest happened. When he arrived at the scene, Redfearn said his intent was not to figure out what happened at the time of the incident, but instead, how to move forward during the course of an eventual investigation.
"I knew we needed to treat this like a critical incident for many reasons," Redfearn told prosecutors, given that McClain was unconscious after his arrest by police and had been taken by ambulance to a hospital.
Questioned about why he changed an entry to notes about the incident following the call to dispatch that night, Redfearn said that as a supervisor, it was his job to make sure things were categorized correctly, so changing the notes in the call logs to police to include information about an "assault on an officer" in the McClain arrest was done to "reflect the information I was provided" by sergeants at the scene, he said.
Redfearn confirmed he never personally investigated his sergeant's statements regarding the alleged assault against an officer that had taken place that night.
Next, the prosecution questioned Redfearn on the APD's interrogation protocols, including what officers are supposed to do when trying to talk to someone who isn't committing a crime at the time and who may not want to talk to police.
Following a break, the People questioned Redfearn on the use of physical force and deescalation practices, including how many times the use of the carotid hold — a maneuver that came into question during McClain's arrest and a practice that was eventually banned by the department following his death — was applied by officers of the Aurora Police Department.
"In my personal experience, this wasn’t used very often. I remember this being used several times a year," Redfearn said.
In cross examination, Roedema's defense attorney, Donald Sisson, once again pinned the three-police response that night to the fact that the area is one where high-crime activity usually occurs and questioned the former chief on the policy on body worn cameras, specifically outlining a subsection of the policy tiled "special considerations," which allows officers to either mute or turn off their body worn cameras in certain situations.
Redfearn countered that policy by saying that he believed that policy has since changed.
Sisson then questioned Redfearn on why he changed one of the police logs during the incident, referring to the change that was made from police responding to a "suspicious person" to police responding to an "assault on an officer" the night of McClain's arrest.
Redfearn answered that the change was made based on information that was given to him, "specifically that McClain attempted to disarm one of the police officers. 'Assault on a police officer' was the closest thing that could be selected" in one of the automated prompts that police use to respond to calls, he said.
DEFENSE QUESTIONS APD POLICY DIRECTIVES FOR STOPPING SUSPECTS
After a short break, the defense questioned Redfearn on who is responsible to care for a patient once medics arrive to the scene of a potential crime. Redfearn said medical personnel are responsible for taking over if a suspect or an individual requires medical attention, which led to the defense asking if they also make decisions as to whether administer medication, like ketamine, for example.
"Yes, that's their determination," Redfearn replied.
Rosenblatt's attorney then questioned Redfearn on ADP's directives for use of force situations and deescalation tactics, asking him if an officer has to deescalate situations when an officer is attempting to place someone into custody.
"Policy does not dictate that they have to," Redfearn said. "It's dependent on the situation."
In the redirect, the People then asked if APD can stop someone just because they're suspicious.
"Based upon policy, just because someone is called suspicious doesn’t mean there’s reasonable suspicion to stop them," Redfearn said. "That’s something APD officers have to determine to then proceed in their contact."
In the redirect to the redirect, the defense argued whether it was an officers' job to investigate someone being suspicious but Redfearn replied that's only possible "once reasonable suspicion is established," at which point they can conduct an initial investigation.
The judge then instructed the jury on the phrase "reasonable suspicion," stating that it up to the court to determine what those terms mean.
"Just because an officer thinks they have it (reasonable suspicion to arrest someone), doesn’t mean that they can," Judge Warner told the court.
Redfearn was then excused from the bench.
As court wrapped for the day, Rosenblatt's defense attorney, Harvey Steinberg, argued he wasn't given the opportunity to weigh in on the issues brought up before jurors on matters of resisting arrest, obstruction, illegal contact and the like before the judge instructed the jury on the law about "reasonable suspicion" and called for a mistrial in the case.
The judge denied the request and jurors were dismissed for the day.
Day 6 of the trial will be back in session starting at 9 a.m. Thursday.
TUESDAY, SEPTEMBER 26
TRIAL RESUMES JUST AFTER 9 A.M. WITH CROSS EXAMINATION OF DR. BEUTHER
Defense attorneys revisited Dr. Beuther's testimony from Friday, starting with questions about his background to provide expert opinion on McClain's death.
The defense zoned in on the doctor filing a supplemental report nearly four years after McClain's death on the factors that contributed to McClain's death. In the redirect, prosecution tried to counter by asking Dr. Beuther if he had changed his opinion since his preliminary report.
Dr. Beuther said "no." The primary purpose of the preliminary report was to break down what happened from a medical perspective.
Two years later, the question was, what would happen if emergency responders hadn't administered ketamine to McClain, what the consequences would be. Dr. Beuther said he could've changed his opinion, but he said in the supplemental report, he clarified those questions, adding his findings since the preliminary report supported his initial opinions.
The defense also hit on the point that Dr. Beuther is not certified in forensic pathology. However during the prosecution's redirect, Dr. Beuther defended his opinion on McClain's cause of death because he works with pathologists all the time, he's familiar with the terminology and techniques.
"It is not my role to comment on exactly how they did an autopsy, but to interpret the findings," Dr. Beuther said.
The defense then got to a main sticking point of the case, confirming Dr. Beuther's opinion that it was the paramedics' responsibility to assess McClain's weight to give the proper dosage of ketamine and monitor his condition once it was administered, which Dr. Beuther said did not happen.
"Even with a higher dose than normal, he could've survived if the paramedics intervened?" officer Rosenblatt's defense attorney Harvey Steinberg asked.
"Correct," Dr. Beuther answered.
The prosecution put a finer point on Dr. Beuther's analysis that the ketamine was a primary cause of McClain's death, but not the only thing that contributed to his death.
The other contributing factors were McClain aspirating into his airway, acidosis and the position he was in to breathe adequately, and those factors can enhance the risk of injury or death when someone takes ketamine, according to Dr. Breuther's testimony.
The court took a brief break until 11:10 a.m.
PROSECUTION PRESENTS TWO NEW WITNESSES
The People then introduced Robert Hessler and Allison Rosengarten, who both work at NMS Labs in Pennsylvania, as experts to the court in forensic chemistry. Hessler and Rosengarten were both involved in processing a sample of McClain's blood taken at the hospital to test for the presence of "Cannabinoids," in addition to nearly 200 other substances, in the blood.
These substances include things like Ibuprofen or Tylenol, "illicit" drugs such as fentanyl or methamphetamine. However, the tests performed at NMS Labs does not cover things like blood oxygen levels or acids.
Hessler said NMS Labs, while based in Pennsylvania, routinely accepts cases from other states. The defense questioned if the lab had accreditation in the state of Colorado, which the prosecution supplied documentation that NMS Labs does.
The court went into recess just after noon to break for lunch and proceedings are expected to resume around 1 p.m.
ELIJAH'S USE OF A MASK INSIDE A CONVENIENCE STORE IS QUESTIONED
After the lunch break, the People called on several more witnesses to testify before a jury: A third employee of NMS Labs in Pennsylvania, a retired lieutenant with the Aurora Police Department, the owner of two gas stations in Aurora, one of which was visited by McClain before his fatal encounter with police, and two Aurora first responders who were in charge of the 911 and dispatch operations the night of McClain's arrest.
The third employee of NMS Labs to testify was Rachel Davidovicz, who's been at the company for a little more than a decade. During testimony, she was asked by prosecutors whether the lab she works for had received specimens of McClain's blood to be tested for ketamine, and was asked about the protocol that these samples go through to keep them organized for various purposes.
In cross examination, she was asked by the defense whether she had personally seen the blood sample, and whether she could testify to the chain of command for said sample in the lab. Both times she replied, "No" and was excused from the bench.
Next, the People called on Lt. Robert Wesner of the Aurora Police Department.
The lieutenant, who retired from the force after working in law enforcement for 33 years, was tasked with collecting a plethora of records pertaining to the McClain case in early 2020, right after the coronavirus pandemic started. His role was to serve as a liaison between the APD and the attorney general's office to make sure that "whatever was requested was provided to them."
Specifically, he was tasked with collecting records of training requirements for the officers involved in McClain's arrest — Roedema, Rosenblatt and Woodyward — in particular, records pertaining to various types of training done as per department and police academy policy, including in-service lessons, power point presentations, calendars, examinations, as well as directives and policies for the department at the time.
During cross examination, the defense asked the retired lieutenant about crime statistics, and if he ever provided documents pertaining to those stats, to which Wesner said "no." Attorneys for Rosenblatt then asked if he ever provided the attorney general's office any records indicating whether Rosenblatt failed to complete any trainings. Wesner said he didn't recall seeing documents that Rosenblatt didn't complete any trainings.
Wesner was then excused from the bench.
The next witness called to testify was Raminder Aulakh, a small business owner who owns two gas stations, one of which was located near McClain's home, right off Colfax Ave. and Billings St.
Aulakh was asked about the security system at that gas station and was later asked to review surveillance video from both the outside and inside of the premises, some of which captured McClain, with a mask on, inside the store before exiting after he had made a purchase. The 23-year-old massage therapist was often cold and wore a runner’s mask and jacket despite the warm weather, according to an indictment.
In cross examination, the defense tried to frame Aulkah's ownership of a surveillance system on the assumption that such a system is warranted because of crime, to which the woman responded that it's not really crime that concerns her at her store, but more so shoplifting.
The defense then questioned Aulakh about McClain's use of a mask at the time, and whether she would be concerned for her safety if someone had walked in with a mask into her store.
"Depends on the person's demeanor," the woman said. "If a person isn't creating a commotion or not threatening anyone, then I would not (worry about it)."
Aulakah was then excused from the bench and a recess took effect.
AUDIO OF 911 CALL REPORTING "SKETCHY" MAN WAIVING HIS ARMS IS PLAYED
The next witness to be called by the People was Deborah Furlehr, who works with the city of Aurora as a police and fire dispatcher, whose job at the time of McClain's arrest was just answering 911 calls before they were sent to dispatch.
During testimony, Furlehr touched on how 911 dispatch works, what kind of systems are in place to record calls, how those calls get sent to responding officers and what capabilities people in dispatch have to prioritize those calls.
Audio of the 911 call made to the Aurora Police Department the night of McClain's arrest was then played before jurors, in which the caller described a man walking south on Billings St. with a mask on, who was "waiving his arms."
The caller did not report that any sort of crime was going on when they made the call to police, according to Furlehr.
In cross examination, lawyers for the defense questioned Furlehr as to whether she was able to tell based on the call if that area was an area where high-crime rates occurred and whether the systems in place are automated all the time and if the department is able to respond differently based on notes within that dispatch system, with this line of questioning getting at whether she would know how many officers responded to a particular scene.
In the redirect, the People questioned Furlehr whether she had any reason to believe McClain was a danger to others or to himself, based on the priority assigned to the call, to which Furlehr said "no, but the computer chooses the priority level" based on responses from the the caller and the choices presented to the operator to choose from based on the initial call.
Furlehr was then excused from the bench and the witness was called.
Paula Hull, an emergency communications dispatcher for the city of Aurora who's been at the post for about six and a half years, told prosecutors that, at the time, she had been assigned to dispatch calls for District 2, where McClain's arrest took place.
Hull was asked technical questions about the dispatcher system before the People asked her if there were "particular indications that civilians were in danger" at the time of that call.
"Not that I could see," she responded.
Lawyers for the defense, in cross examination, again questioned her on the high-crime rate of the area, before questioning her about specifics of the call, including a note that was made in which officers noted that the "party was detained but still fighting," referring to McClain, who was in the ground at this point after he was stopped by police.
Later, the defense would note the call was updated by a captain to note that an officer had been assaulted.
After a few more lines of questioning, the defense rested for the day and the court was dismissed for the rest of the day.
FRIDAY, SEPTEMBER 22
TRIAL RESUMES AT 9 A.M. WITH MORE BODY WORN VIDEO
The prosecution picked up where it left off Thursday continuing to show jurors body camera video from Roedema and Rosenblatt. The presentation took approximately 45 minutes. The People then called Dr. Marc Moss, the first witness of Friday morning.
Dr. Moss is a pulmonary critical care physician with the University of Colorado hospital in Aurora who treated Elijah McClain a couple of days after he was admitted to the emergency department of the hospital. Ultimately, Dr. Moss was the physician who determined that McClain was brain dead on Tuesday, August 27, 2019.
Elijah McClain | 360 In-Depth Coverage
Enhanced video of Elijah McClain’s arrest shown during first witness testimony
The prosecution asked Dr. Moss to walk jurors through the apnea test, or medical process of determining brain death. During the apnea test, blood is checked to determine carbon dioxide levels and the patient is removed from breathing support to check for unsupported breathing activity over the course of several minutes, according to Dr. Moss.
Normal CO2 levels in adults run around 23 to 30 mEq/L, according to the National Institues of Health, and Dr. Moss stated McClain's CO2 levels were near 83 mEq/L during the apnea tests.
In his testimony, Dr. Moss explained two separate apnea tests were performed on McClain, one on Monday, August 26 and the second the following day.
"Mr. McClain had no breathing effort at all. His repeat level was 83," said Dr. Moss, who stated McClain's pupils did not react to light and his EEG, or electroencephalogram, which measures the electrical activity in the brain, "had a complete supression of activity."
PROSECUTION PRESENTS SECOND PULMONARY CARE EXPERT
Following the mid-morning break, the People called a second medical expert with a specialty in pulmonary and critical care. Dr. David Beuther is a physician at National Jewish Health in Denver who has expertise in asthma. When asked by the prosecutor if asthma played a role in McClain's death, Dr. Beuther said "asthma was not an active problem for him and was not related to his death."
Dr. Beuther, who was not part of the initial medical team caring for McClain in 2019, reviewed starting in 2021 McClain's medical records, body worn video and other evidence related to the death, including the mask he was wearing the night of the arrest.
Elijah McClain | Complete 360 In-Depth Coverage
Dr. Beuther stated he observed evidence on the mask that McClain had breathed something into his lungs prior to receiving Ketamine: "That's a very high-risk situation," he said. "Cannot give 100 percent proof — the rational: he had this mask on and we know he vomited with the mask on."
Dr. Beuther also confirmed autopsy reports McClain had marijuana and ketamine in his system but it was his opinion marijuana was not a relevant contributor in the death: "it doesn't affect your breathing or make it harder to breathe," he said.
The court went into recess at noon for the lunch break and the proceedings are expected to resume at 1:30 p.m.
Returning from the lunch break, the prosecution continued with Dr. Beuther’s testimony which centered on his medical observations and interpretations of the body-worn camera footage to lay out a timeline of Elijah McClain’s changing physical condition during the minutes he was in police custody and before the administration of ketamine.
Citing his opinion of reasonable degree of medical certainty, Dr. Beuther stated that McClain, while wearing a mask, vomited and “had an aspiration event and had fluid filling part of his lung” and over the course of the body cam footage, McClain while on the ground showed “some changes in how he looks and acts.”
Beuther said he also believed McClain had vomited for a second time after the mask was off.
During his testimony, Dr. Beuther several times cited episodes of alleged aspiration, or the introduction of fluid or vomit into the airways or lungs, before the dose of ketamine.
Again, citing his opinion of a reasonable degree of medical certainty, Dr. Beuther testified McClain likely "had an aspiration event and had fluid filing part of his lungs — that causes low oxygen," he said. "What is uncertain, what would be the outcome if we froze everything in time at that point — put him in a hospital and took care of him."
The prosecution also attempted to portray acidosis, specifically respiratory acidosis — or an increase in carbon dioxide — as a factor.
"If breathing is not adequate — then carbon dioxide can build up in your blood. You can't get it out," said Dr. Beuther. A side effect of increased acidity, Dr. Beuther testified, is that it "causes you to breathe more" adding that "we know acidosis has been shown to increase sensitivity to medications like propofol and ketamine."
Along with alleged aspiration and acidosis, the prosecution's witness also said McClain presented signs of hypoxia, or inadequate oxygen in the blood.
"When he (McClain) is on the ground he has some changes in how he looks and acts," said Dr. Beuther. "Medically, didn't seem to be any other reason I could find other than hypoxia," he testified.
The prosecution continued presenting clips from different officer-worn camera showing what Beuther said was “a lot of physical struggle likely putting increased demand on breathing.”
Dr. Beuther said several times he found it difficult to see on the video if officers placed McClain into a carotid hold, but understood that to be the case based on officers’ statements.
Dr. Beuther testified in viewing the body cam videos, his medical opinion is McClain's behavior showed his condition was getting worse before ketamine was administered by paramedics as the incident unfolded over several minutes.
"I see a big change. We had somebody talking to use — even trying to make — complex sentences," he said as more video was shown in court. "Here, when directly interrogated — he's not really talking and doesn't look as interactive — there's been a change in his (McClain's) status."
The prosecution witness again later stated it was his opinion that McClain's ability to breathe was "restricted."
Asked to describe McClain's condition just before ketamine was administered, Dr. Beuther replied: "minimally responsive" and that he had "serious risk of bodily injury or death."
HEATED CROSS-EXAMINATION OF DR. BEUTHER
On cross-examination, defense attorney Harvey Steinberg representing officer Rosenblatt sought to poke holes in Dr. Beuther's testimony Friday with his first assessments on McClain's cause of death dating back to 2021.
He pressed Beuther arguing that the 2021 report or grand jury testimony did not make mention of acidocis. Dr. Beuther countered that interpretations of his previous opinions and Friday's testimony could be attributed to further analysis of statement from other experts and McClain's revised death certificate.
Reading from a previous report, the defense alleged Dr. Beuther initially presented that McClain's death was "primary respiratory arrest due to pharmacology effects of ketamine."
Dr. Beuther again countered the defense's presentation of his previous assessments by stating that those assessments were an oversimplification of a complex medical condition.
As Friday's proceedings wrapped, the defense argued the prosecution should not be allowed to meet with Dr. Buether over the weekend to review the transcript of the heated exchange with defense and his previous testimony, but the judge disagreed.
The trial will take a break on Monday and is expected to resume Tuesday at 9 a.m.
