Charges filed on police a rarity
Grand juries indicted only two in decade, with no convictions
During the past decade, Colorado prosecutors took at least 10 cases involving police killing people while on duty to grand juries but secured indictments in only two of them — and none of those officers was convicted of the crime.
That’s not good news for Elijah McClain’s mother and the thousands of community members who repeatedly have demanded that the Aurora police officers involved in the 23-year-old massage therapist’s death be charged and convicted of crimes.
Aurora city leaders on Monday released the damning results of an independent investigation into McClain’s 2019 death, but the city-commissioned investigators were not tasked with deciding whether police or paramedics committed crimes the night they detained, choked and sedated McClain.
That task is up to state Attorney General Phil Weiser, who has opened a grand jury investigation in the case. Gov. Jared Polis appointed Weiser special prosecutor in the case in June, and Weiser has promised a thorough investigation and said the grand jury would act as an “investigative
tool” because it can compel testimony and the production of evidence.
Prosecutors in the 17th Judicial District attorney’s office previously declined to charge the officers involved.
But Sheneen McClain, Elijah’s mother, said she’s not happy the case is going to a grand jury. Her attorney, Qusair Mohamedbhai, said there is little transparency and few rules regarding how prosecutors conduct grand juries. Prosecutors have control over the narrative of the incident and can choose to present potential defenses for the accused, he said.
“The grand jury has traditionally been used as a political cover-up,” Mohamedbhai said.
Several local district attorneys have used grand juries in recent years in police shootings and said they are an important tool for complex cases or when prosecutors need to use the grand jury’s unique powers to force testimony.
“It can serve an incredibly valuable function,” Boulder County District Attorney Michael Dougherty said.
In Colorado, grand juries generally are made up of 12 people selected from the general jury pool. Weiser’s grand jury will be a statewide group that will pull jurors from multiple jurisdictions.
At least nine of the members must find there is probable cause to indict someone — which is a lower legal standard than the standard of “beyond a reasonable doubt” needed to convict someone in a criminal trial. The prosecutor presents the case to the grand jury by calling witnesses and presenting evidence, and the suspects do not present their case. The proceedings are closed to the public.
In the past 10 years, Colorado grand juries have indicted three police officers in two cases and cleared them of criminal liability in eight cases, a review by The Denver Post found. Of the three officers who were indicted, two were acquitted, and prosecutors dropped the charges against the third. Colorado law enforcement officers fatally shot 36 people in 2019, and the vast majority of police shootings each year are ruled justified by prosecutors. But other Colorado law enforcement officers in recent years have been charged by prosecutors in connection with killing people, such as two Boulder County sheriff’s deputies facing trial for the death of a jail inmate.
The vast majority of law enforcement in Colorado, however, are not charged in on-duty killings. The last Colorado law enforcement officer convicted of an onduty killing was Rocky Ford police Officer James Ashby, who is serving a 16-year sentence for shooting and killing Jack Jacquez in 2014.
The grand jury process has garnered increased scrutiny in recent years as grand juries across the country have chosen not to indict officers in high-profile police killings, such as the officer who killed Michael Brown in Ferguson, Mo., in 2014.
A 2019 report by the National Center for State Courts found that many states have reformed their grand jury rules and practices to address public distrust of a process that often is secretive and relies heavily on how prosecutors present a case. Prosecutors “wield great power in the indictment process” because they chose evidence and present the legal arguments that will guide the grand jury’s decision, the report states.
“Grand juries are lauded as examples of direct democracy but have also been known to serve as political cover for unpopular prosecutions or equally unpopular decisions not to prosecute,” the report states.
Weld County District Attorney Michael Rourke has used grand juries in several cases of killings by police officers, including one that indicted an officer on manslaughter charges. He said he uses the grand juries when there is ambiguity as to whether the officer should be charged. This allows the community to decide whether the officer acted reasonably, he said. Rourke said he understands how the secrecy around the process can garner mistrust but said grand juries also have great powers and can request more evidence if they feel they are missing information.
“Is it ripe for prosecutorial abuse? The answer is yes,” Rourke said, but so are other charging decisions made by prosecutors.
Boulder County’s Dougherty said the subpoena powers of a grand jury also can be an advantage. The grand jury can require testimony under oath from anyone connected to an investigation, except for the person suspected of a crime who has the constitutional right to not speak. The police officers and paramedics involved in McClain’s death declined to speak with the investigators hired by Aurora.
Colorado lawmakers addressed concerns about the secret nature of grand juries as part of the 2020 bipartisan police accountability bill passed in the midst of widescale protests of police brutality. The law requires that grand juries investigating a police killing issue a public report if they choose not to indict the officers involved. Previously grand juries had to issue a report if they indicted officers but had the option not to do so if they did not indict.
“It’s a far more transparent process than it would be in other states, and it’s far more transparent than in other types of case,” Dougherty said of grand jury investigations of police killings.
But the language of the law specifically refers to “district attorneys.” A spokesman from the state attorney general’s office wouldn’t say whether the law change applied to the state attorney general.