ARAPAHOE COUNTY, Colo. — Prosecutors called their first two witnesses to the stand Thursday as they sought to present digitally enhanced bodycam video of the violent arrest of an unarmed Black man whose death in 2019 spurred a nationwide reckoning on excessive use of force by police against people of color and led to sweeping police reform in the state less than a year later.
A day after the court heard opening statements from both sides in the trial against two Aurora police officers charged in the death of Elijah McClain, jurors heard from two witnesses who provided insight on how police body worn cameras collect evidence and what goes into analyzing and coalescing that evidence for forensic work.
Lt. Delbert Tisdale, who oversees the Aurora Police Department’s body worn camera program, was the first to testify as prosecutors began making their case against two of the three officers charged in McClain’s death: Randy Roedema and Jason Rosenblatt, who allegedly helped restrain McClain more than four years ago.
A third officer charged in McClain’s fatal arrest, Nathan Woodyard, and two Aurora paramedics who administered a heavy dose of ketamine, will be tried in the coming months.
All five have pleaded not guilty to the charges against them, with Roedema and Rosenblatt pleading not guilty to charges of manslaughter, criminally negligent homicide and second-degree assault.
During his testimony Thursday, Tisdale was asked how the department collects and stores information retrieved from body worn camera video, who has access to such information and whether anyone is capable of altering body worn camera video within the police department as prosecutors presented portions of McClain’s arrest for jurors to see.
Some of the portions of the body worn camera video presented in court Thursday included one in which an officer is heard telling McClain to “stop tensing up” and another in which Woodyard is heard telling McClain to “relax or we’ll have to change the situation.”
McClain can be heard in a separate clip telling officers to “let go of me.”
The 23-year-old McClain, a massage therapist, died a few days later after he was stopped by officers and placed in a carotid hold the night of Aug. 24, 2019, as they responded to a 911 call of a “sketchy” man walking in the neighborhood.
During cross examination, Harvey Steinberg, an attorney for the defense, questioned Tisdale as to whether he could remember what time certain officers got to the scene from the over three dozen files that were submitted as evidence, to which Tisdale said he could not.
Steinberg then requested to approach the bench to show Tisdale the beginning of one of the videos in order to refresh his memory, which Judge Mark D. Warner allowed, noting that “this witness wasn’t present and can’t testify at what time the officer got there.”
Steinberg ended his cross examination by asking about the physical integrity of the body worn cameras that night, the department policies about when body worn cameras are turned on or off, as well as whether all body worn cameras would have the same time stamp on them.
Tisdale replied that, to his knowledge, none of the cameras worn by officers that night were damaged. The lieutenant, who’s been with the force for 12 years under different posts, also told Steinberg he wasn’t comfortable giving an answer as the policies in 2019 regarding when body worn cameras were turned on or off as “they’ve been changed since then,” adding that to the best of his knowledge, all cameras would have the same time stamp on them.
The second witness to testify Thursday was David Notowitz, an audio and video forensic expert with over 10 years of experience in the field.
Notowitz said his work deals mostly with brightening dark images and enlarging pieces of video, as well as removing distracting sounds like wind or sirens from audio in body worn camera videos to help jurors see and hear evidence more clearly in criminal trials.
In all, Notowitz testified he obtained about 44 videos from the Colorado Attorney General’s Office but only enhanced a few of them to present to jurors during the trial. He said he was asked to focus on about 19 minutes and 30 seconds of body worn camera video from the initial interaction with McClain up until the time he is in a gurney and is wheeled away.
While enhancements to bodycam video can be made to paint a clearer picture of a certain interaction for the jurors, Notowitz said the work does not come without limitations.
“Body worn cameras do not represent an exact duplicate – it’s a representation of the incident and only the way that the camera sees it, which is not the same,” he said, as he explained that body worn camera video captures things officers might not see with their own two eyes as they respond to calls.
Notowitz added that the work of enhancing video and audio is very detailed and requires that either he or an assistant compare the enhanced video to the original version to make sure no details are erased or things are distorted in a way that would compromise the footage.
In cross examination, one of Rosenblatt’s attorneys questioned Notowitz about the number of enhancements that were done on the videos, and at one point requested to obtain the project file which would potentially show just how much enhancements were made to the videos in question.
Prosecutors objected to that request, however, arguing that not only had jurors already been given evidence in the case but that the defense has been in possession of the original, raw bodycam video for over two years.
“As the defense has said, they could have hired an expert. They could have called Notowitz. The working file is not his opinion. It was not in possession of the attorney general’s office,” said senior prosecutor for the Colorado Attorney General Jason Slothouber. “They know these videos are useful because that’s all they played during opening statements. They played Notowitz’s videos during grand jury testimony.”
Judge Warner agreed with the prosecution, saying the defense has had “ample opportunity to review the evidence and request specific information to what was done to the files.”
Further, the judge said he would allow jurors to see the enhanced body worn camera video but issued an instruction ordering the jury to only use the enhance video as an aide and disregard anything seen or heard in the enhanced video if they could not see or hear it in the original footage.
Elijah McClain | Complete 360 In-Depth Coverage
Attorneys for the defense then questioned Notowitz about the transcription done on the video and whether he hired a court-certified transcriber to help in the transcription process, to which Notowitz replied that he did not, as the transcription was provided by the Colorado Attorney General’s Office.
“The attorney general gave you a transcript of what they wanted you to say in this video, correct?” asked one of the defense attorneys, as he presented evidence of an email sent from the attorney’s office to Notowitz on July 24, 2203.
“In that email, it says they’ll provide a transcript of what was in the video. It does not say I would do that,” Notowitz replied. “In the end, it’s my opinion, it’s what I felt very confident in what I heard.”
Attorneys for the defense also questioned the expert’s independence by asking him about his hourly earnings, which are paid for by the prosecution and include flights, hotel stays, as well as meals. They do not, however, include payment for assistance of any kind to enhance the videos, Notowitz said, as he pushed back against the defense's assertion that the videos were altered.
“I disagree with that. Nothing was altered. There is no change to a single pixel,” Notowitz said. “It was my creation, my ideas, my development of a system that would be best to show in context to allow the jury to form their opinions.”
Jurors will again be called to hear more testimony Friday at 9 a.m. before going on a three-day break, Judge Warner said.
Aurora Officer Nathan Woodyard’s trial begins Oct. 13 for the charges against him of reckless manslaughter, criminally negligent homicide and assault. He is accused of putting McClain in the chokehold.
The trials for the two Aurora Fire Rescue paramedics — Peter Cichuniec and Jeremy Cooper — will begin Nov. 17 and 27, respectively, for charges of reckless manslaughter, criminally negligent homicide and assault, plus sentence enhancers. The paramedics are accused of injecting a significant amount of ketamine into McClain, which officials said led to him suffering from cardiac arrest on the way to the hospital.
He was taken off life support three days later.
