Elijah Mcclain died two years ago, still no word from the Attorney General

The time is up for Attorney General Phil Weiser to reveal what will become of the prosecution of those involved in the death of innocent Elijah Mcclain almost two years ago.

In the more than 426 days since his Gov. Jared Polis politicized Mcclain’s death by appointing Weiser to review the case, the attorney general has yet to generate a single charge, report, explanation, or even decision timeline as to whether there will be any criminal prosecution related to Elijah’s death.

Weiser did not make the hard political decision to review the evidence himself — with the advice from those on his staff who have been in front of a jury before — to determine whether any prosecution could be brought in good faith with a reasonable likelihood of success at trial. Instead, and curiously, Weiser chose to use a statewide grand jury to make the decision for him.

There are several good reasons to use a grand jury, but asking it to consider evidence that is publicly known and highly scrutinized involving potential defendants who are all publicly known and asking the jurors “so, what do you think?” is not one of them.

Real prosecutors make hard decisions on cases like this every day. District Attorney Dave Young did when he considered Mcclain’s death. Prosecutors make those decisions themselves, because they believe in being accountable to the public, whether it agrees with them or not. Coloradans have seen prosecutors try to hide behind the grand jury as a way of avoiding the tough call. I hope that is not the case here.

We have also seen grand juries fulfill their oaths by rejecting the trajectory the prosecutor has set before them. Remember, Jon Bénet? If a real prosecutor believes someone committed a crime — like homicide, they put their name behind the charge — whether the case is difficult or not. District Attorney Linda Stanley is doing exactly that in the Barry Morphew case.

Had Weiser made the tough call here — whether to prosecute or not — Elijah Mcclain’s family and the community would be that much closer to finality and justice.

While it is possible that the grand jury’s significant investigative powers could generate new, game-changing evidence, the question will be “was it necessary to use the grand jury to get that evidence?”

A new medical opinion on the cause of Mcclain’s death? A grand jury is not needed for that. A grand jury cannot compel witnesses to testify against themselves unless they are granted immunity for those statements. So, why the grand jury?

Neither COVID-19 nor the grand jury process can be blamed for this long delay, however. Over the last 14 months, grand juries in the metro area have generated multiple indictments on far more complicated cases in far less time. Courtrooms have conducted jury trials on large, high-profile cases, like the STEM School mass shooting, which I oversaw.

Here we are, far removed from the time and place of Elijah Mcclain’s death still wondering what resolution our justice system can render. Here are some possible outcomes.

First, the grand jury sees what Young saw — that the government’s medical examiner could not determine a cause of death. In the justice system, that is called “a truckload of reasonable doubt.” They return no true bill — no charges. If this happens, expect the Mcclain family and the community to become apoplectic.

Second, the grand jury returns indictments for some level of homicide against the officers or paramedics. Absent new, gamechanging evidence, this will be tough for Weiser. The grand jury need only find probable cause to accuse; Weiser will have to prove their accusations beyond a reasonable doubt. I think the medical examiner’s opinion makes that very difficult. Expect Weiser to slow-roll any jury trial until after his re-election next November.

Third, the grand jury indicts on the lower level, non-homicide charges. This would be a political disaster for Weiser. Mcclain’s family and the community would be outraged that Elijah’s death was diminished by such charges.

There may be another wild card for Weiser to play. Distracting from the decision of the grand jury, there may be an announcement of some heavyhanded consent decree between the AG, the U.S. Department of Justice and the Aurora Police Department. That, of course, was not the purpose of Polis’ order in the Mcclain case, but it provides a far better narrative than the potentially uncomfortable conversation about what the grand jury did or did not do. If that occurs, Coloradans deserve to know if the grand jury’s decision was slowed to coincide with the finalization of any such consent decree.

Any press conference on this matter should not be on a Friday.

On the civil side, Aurora — a city experiencing surging crime, reduced public safety staffing, and the site of repeated protests/riots since George Floyd’s death — will likely settle with the Mcclain family for millions of dollars. Ultimately, such a large settlement may be the most “justice” that can be achieved here.

What has been needed throughout this tortured process has been leadership and guts and justice, not political posturing. What will we get from Weiser for a young man whose cause of death is in doubt, but who would not have died but for the actions of law enforcement on that lonely Aurora sidewalk more than two years ago?