By Colleen Slevin and Matthew Brown
Associated Press
DENVER 鈥� The third and final trial over the 2019 death of Elijah McClain after he was stopped by police in suburban Denver involves homicide and manslaughter charges against two paramedics. It鈥檚 a prosecution experts say enters largely uncharted legal territory by levying criminal charges against medical first responders.
[PREVIOUSLY: Defense attorneys continue to shift blame on medics in Elijah McClain鈥檚 death]
McClain had been stopped and put into a neck hold by police that left him weakened when the paramedics arrived and injected him with the powerful sedative ketamine. The 23-year-old Black man went into cardiac arrest on his way to the hospital and was pronounced dead three days later.
Initially no one was charged because the coroner鈥檚 office could not determine exactly how McClain died. But in 2021, social justice protests over drew renewed attention to McClain鈥檚 case, prompting an indictment against the paramedics and three officers.
Jury selection in the paramedics鈥� trial is set to begin Monday.
鈥淲hat we saw three years ago, that put a huge spotlight on the police profession,鈥� University of Miami criminologist Alex Piquero said, adding that the McClain case 鈥渉as the potential to do that for paramedics and first responders.鈥�
Aurora Fire Department paramedics Jeremy Cooper and Lt. Peter Cichuniec have pleaded not guilty.
Defense attorneys at a November court hearing indicated they plan to blame police for McClain鈥檚 death during a trial expected to last most of December. The defense attorneys did not return telephone calls or emails seeking comment on the charges the men face.
The case will be the first of several recent criminal charges against medical first responders to reach trial and could 鈥渟et the bar鈥� for prosecutors in future cases, said Douglas Wolfberg, a former emergency medicine instructor and founding partner of a Pennsylvania law firm representing emergency medical services workers.
鈥淪ociety鈥檚 thinking about these things has changed and evolved, especially since George Floyd,鈥� Wolfberg said. 鈥淥bviously there are political considerations. That鈥檚 not to deny Mr. McClain鈥檚 family the justice they are seeking.鈥�
Cases pending elsewhere include first-degree murder charges after a patient they strapped facedown to a stretcher suffocated, and an involuntary manslaughter charge against a who continued to draw blood from an unresponsive patient while officers pinned him down.
鈥淚t鈥檚 exceedingly rare for EMS providers to be charged criminally related to providing inpatient care,鈥� Wolfberg said. 鈥淭hat is normally a medical malpractice issue, a negligent case which is civil, and it鈥檚 rarely criminal. This breaks new ground.鈥�
One of the police officers indicted in McClain鈥檚 death of the lesser charges he faced 鈥� homicide and third-degree assault 鈥� after defense attorneys sought to blame the paramedics. Two other officers by jurors following trials that lasted for weeks.
Cooper and Cichuniec are charged with manslaughter, negligent homicide and several counts each of assault, all felonies. Their role in McClain鈥檚 death loomed large in the first officers鈥� trials.
Attorneys for one of the acquitted officers brought in a paid expert witness who were hired to work on the paramedics鈥� case by state prosecutors.
Dr. Nadia Iovettz-Tereshchenko, an emergency room doctor who has worked as a paramedic, said Cooper and Cichuniec鈥檚 actions fell significantly below the level of care expected. She testified that the paramedics stood back watching McClain from a distance as he was restrained by police, did not examine him before the ketamine injection and did not monitor him afterward.
Prosecution experts also testified during the earlier trials that the ketamine ultimately caused McClain鈥檚 death, with some saying the officer鈥檚 violent stop set contributing events into motion.
The amended coroner鈥檚 report, issued in 2021, found McClain died because he was given too much ketamine. However, forensic pathologist Stephen Cina noted the amount found in McClain鈥檚 blood was within the range normally considered safe.
McClain was stopped the night of Aug. 24, 2019, while walking home from a convenience store, listening to music and wearing a mask covering most of his face. The police stop quickly became physical after McClain, seemingly caught off guard, tried to keep walking. He was unarmed and had not been accused of committing any crime.
He was rendered briefly unconscious by an officer using a neck hold, prompting police to call for paramedics while officers .
Cooper and Cichuniec denied being told the neck hold had been applied, according to their indictment. Prior to the ketamine injection, they stood near McClain and didn鈥檛 speak to him or ask him anything before diagnosing him within about two minutes with 鈥渆xcited delirium.鈥� They had been trained to treat the condition, which allegedly makes people hyper-aggressive, the document said.
Critics say the condition has been used to justify excessive force and some doctor鈥檚 groups .
In McClain鈥檚 case, prosecutors said the diagnosis was inaccurate because the paramedics didn鈥檛 adequately assess his symptoms. A 2021 report by experts hired by Aurora to review McClain鈥檚 death found he had not moved or made any sounds for more than a minute before being injected.
Cichuniec, supervisor of the Aurora Fire Department鈥檚 paramedics crew, asked medics working for a private ambulance on the scene to prepare the ketamine injection for McClain, the indictment said. Cooper injected him with 500 milligrams of ketamine, a dose appropriate for someone who weighed more than 200 pounds (90 kilograms), according to the indictment. McClain weighed only 143 pounds (65 kilograms).
Before the ketamine injection, body camera footage shows Cooper asking police if McClain spoke English and Officer Randy Roedema, the officer convicted in the case, responding: 鈥淗e speaks English, but he鈥檚, he鈥檚 definitely on something.鈥�
Prosecutors in Roedema鈥檚 trial said using language like that, which suggested McClain had excited delerium, made the police officers complicit in the paramedics鈥� decision to give McClain ketamine.
Two days after McClain鈥檚 death, the Aurora officials put out a statement saying 鈥渁 standard medication routinely utilized to reduce agitation was administered (to McClain) and reduced the exhibited anxiety.鈥�
The killings of McClain, Floyd and others triggered a wave of legislation that put limits on the use of neck holds in , including Colorado, which now also instructs paramedics not to give ketamine to people suspected of having . The condition had been described in a since-withdrawn emergency physicians鈥� report as manifesting with symptoms including increased strength. Critics have called the diagnosis unscientific and rooted in racism.
The city of Aurora agreed in 2021 to pay to settle a lawsuit brought by McClain鈥檚 parents.
RELATED: American College of Emergency Physicians withdraws position on excited delirium