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Elijah McClain case: Closing arguments Wednesday

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By: Stephanie Butzer , Robert Garrison

Both Aurora Fire paramedics on trial for the death of Elijah McClain took the stand in their defense during Monday’s hearing.

Defense attorneys for Aurora Fire Rescue paramedics Peter Cichuniec and Jeremy Cooper rested their cases Tuesday in the third and final trial in the case of Elijah McClain's 2019 death. Closing arguments took place Wednesday.

Both defendants face charges of reckless manslaughter, criminally negligent homicide and assault, plus sentence enhancers. A motion by the defense to dismiss all charges was denied by the court Tuesday.

McClain, 23, was stopped by officers with the Aurora Police Department (APD) on Aug. 24, 2019 and following a violent encounter, died a few days later.

Aurora Fire Rescue paramedics Peter Cichuniec and Jeremy Cooper are accused of injecting a significant amount of ketamine into McClain. Medical experts have previously testified that he was given a higher dose of ketamine than recommended for somebody of his size. In previous trials, prosecutors said the carotid hold, which was applied by police before paramedics arrived, played a key role in his death, while defense attorneys argued that the cause of death was only the ketamine, and McClain would have survived the police encounter without the injection. The ketamine led to cardiac arrest. McClain was declared brain dead and died Aug. 30, 2019.

Advocates call for change after officer acquitted in McClain's death returns to work

Previously, a jury found APD Officer Randy Roedema guilty of criminally negligent homicide and third-degree assault, and former APD Officer Jason Rosenblatt, who was fired by the department less than a year after McClain's death, was acquitted of all charges. In the second trial, defendant APD Officer Nathan Woodyard was also found not guilty.

The trial for Cichuniec and Cooper is expected to last about a month.

Scroll down to read updates from the Dec. 19 proceedings.

Tuesday, Dec. 19

The defense for the paramedics called a new witness to the stand first thing on Tuesday morning: Robyn McKinley. She is employed by the Memphis Fire Department, currently as an EMS lieutenant, and received her paramedic license in January 1999.

For this case, McKinley reviewed body-worn camera footage, patient care reports, Aurora Fire Rescue (AFR) protocols and training, and transcripts of interviews with people at the scene, including Aurora police officers and paramedics.

During direct examination by the defense, she explained that she reviewed AFR's 2019 protocols on excited delirium. She explained it is a condition where a person becomes overly agitated, overly aggressively, disoriented and does not follow commands or feel pain. She confirmed she has dealt with patients in her own career who have suffered from this. Based on AFR's protocols, they were instructed to provide ketamine.

Paramedics Cichuniec and Cooper testify in their own trial involving the death of Elijah McClain

McKinley testified that based on what she saw in the body-worn cameras, she believed McClain was very strong, steadily aggressive and continued moving despite officers' commands. This led her to believe he was suffering from excited delirium.

She said in the body-worn camera footage, she could hear Paramedic Cooper outlining the next steps after the ketamine injection, which included getting McClain on a stretcher, securing him with soft restraints, loading him into an ambulance and doing an assessment of his condition — this follows AFR protocol. She testified that as McClain was wheeled toward the ambulance, she believed she could see him breathing on the body-worn camera footage.

McKinley did not see when McClain stopped breathing, she said, and did not recall reading any reports that indicated he had stopped breathing before he reached the ambulance.

At the conclusion of the direct questioning, she confirmed she did not see anything outside the standard of care pre- or post-ketamine sedation.

The prosecution then cross-examined McKinley.

Prosecutors began by questioning McKinley's report she had prepared for the parties, particularly about the quotes used and left out. Prosecutor Jason Slothouber asked why McClain's quote "I intend to take my power back" — which was made before paramedics arrived — was included in her report. He accused her of wanting to emphasize how "scary" McClain was, which she denied.

Slothouber confirmed that other statements McClain made, such as "Please help me," "I can't fix myself" and "I'm trying" were not listed. McKinley said she did not hear some of the statements and did not believe it was necessary to include others.

The prosecutor then moved onto the paramedics' estimated weight for McClain. AFR paramedics are trained to use 300mg, 400mg, and 500mg of ketamine for small, medium or large people, respectively, if they are unable to determine a person's weight in the field. Slothouber stressed that the protocol reads those estimates were a starting point, and asked if paramedics ever tried to ask McClain's weight, and McKinley said she did not believe so.

McKinley explained that ketamine often works quickly — within a few minutes — and should be used when the patient and/or providers are in danger.

They reviewed post-ketamine protocols, which called for paramedics to provide breathing help after administering the sedative. McKinley said too much ketamine can lead to a risk of respiratory depression, depending on the patient.

Slothouber asked if it was harmful to move McClain to the ambulance before performing a post-ketamine assessment, knowing that sometime between the injection and when paramedics applied monitoring equipment in the ambulance, he went into respiratory arrest. McKinley answered that she had read that information in the patient care report.

When prosecutors followed up, asking about McClain's breathing rate per minute dropping from 40 to 12, McKinley explained that 12 is sufficient. Prosecutors asked if that was concerning, and she said no, especially if he had just been sedated.

Amid many questions, she said the AFR protocol says to avoid putting a patient in the prone position after ketamine administration, as it can increase the risk of aspiration. Slothouber brought up a few body-worn camera clips that he said showed McClain close to prone position, but McKinley said she couldn't tell if he was fully prone or not. She added that she could not confirm that as somebody moves toward the prone position, if there is more pressure on the person's chest.

The protocol also calls for paramedics to explain what is going on with the patient, to try to calm them down and to reassure them. McKinley said McClain was still surrounded by police when paramedics arrived, so she did not see them try to do that.

When the prosecution said that no matter what a patient is doing, paramedics should be able to talk to the person, McKinley responded that it depends on the medic.

McKinley added that protocols are guidelines for paramedics, and each situation is different. Slothouber brought up a section of the protocol about "continuous attention" that must be given after ketamine is administered, saying those items — which include clearing a person's airway and checking vital signs — are listed as mandatory.

During a redirect with the defense, attorneys circled back to several questions brought up by the defense:

McKinley said a person's breathing rate of 12 breaths per minute is considered normal, and what some people breathe regularly.
She said she would expect breathing rate to drop after the ketamine. Sedatives are intended to slow down a patient, and that includes their breathing
She said she included the line "I intend to take my power back" as a reference point in her report for when "things seemed to get out of control" with police
She said paramedics did not ask McClain his weight prior to the ketamine because "of his state" at the time

The redirect concluded with McKinley confirming the paramedics acted in a speedy fashion, and that she never saw McClain in a position that could hurt his breathing, and never heard him struggling to breathe.
Ahead of lunch, court was on pause for some time while the judge spoke with parties about a matter.

After the break, Dr. Eric Hill, medical director for Aurora Fire Rescue, testified about the protocols developed to administer ketamine, which was approved in 2018 for use in Aurora to treat excited delirium.

Dr. Hill said the drug was brought on as a replacement for midazolam, which has the potential for more severe side effects compared to ketamine.

When asked by defense attorneys if 500 mg of ketamine — the dose given to McClain — is referred to as a "large dose" in training materials, Hill said that it wasn't considered a large dose, but rather the maximum dose recommended by the protocol.

The defense rested their case after Hill's testimony.

Closing arguments are scheduled for Wednesday.

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