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Polis’ tweak to Elijah McClain investigation raises concerns, prompts plans for Saturday protest

Gov. Jared Polis’ tweak to an executive order that gives the Colorado attorney general the authority to investigate the death of Elijah McClain has raised concerns among some observers that the police officers involved in McClain’s death might not face serious criminal charges.

Although the full impact of the adjusted language is still unclear, protesters are nevertheless planning to gather Saturday at the state capitol building over the change, which the governor’s office announced last week.

McClain, 23, died in August 2019 after he was placed in a chokehold during a violent arrest by Aurora police officers and then sedated by responding paramedics. Seventeenth Judicial District Attorney Dave Young last year declined to press criminal charges against those involved in McClain’s death, but in June, amid mounting political pressure and growing national attention on the case, Polis appointed Attorney General Phil Weiser as a special prosecutor.

At the time, Polis’ executive order gave Weiser the authority to investigate and prosecute “any potential criminal activity… that caused the death of Elijah McClain.” Last week, Polis amended the order, giving Weiser the authority to investigate and prosecute “offenses arising from the Aug. 24, 2019, encounter with Elijah McClain and/or his subsequent death.”

The amended executive order is more broad than its predecessor, said Mari Newman, an attorney for McClain’s family.

“Optimistically, I would like to believe that Weiser’s office is looking to bring even broader charges to encompass criminal conduct in addition to, and that should be underlined — in addition to — murdering an innocent young man, and that could include things like tampering with the evidence, lying under oath, things of that nature,” Newman said. “My concern is that the office is looking to bring lesser charges on related conduct, but sidestep the actual murder.”

In a statement calling on people to attend Saturday’s protest, Denver’s Party for Socialism and Liberation said the amended order opens up the possibility that the attorney general’s office brings “watered down charges.”

A spokesman for the attorney general’s office declined to comment Thursday and a spokesman for the governor’s office did not return a request for comment.

The new language in the amended executive order doesn’t preclude the filing of serious criminal charges, said Stan Garnett, former district attorney in Boulder who is not involved in the case — but it does suggest the attorney general’s office is taking a wider approach.

“I suspect that whoever the attorney general had investigate this is probably coming to very much the same conclusion that Dave Young’s office did, which is that there are no criminal charges,” he said. “It was a horrible thing that happened to Elijah McClain, and we need to look at a lot of different things to make sure it doesn’t happen again, but that doesn’t mean criminal charges should be brought… so let’s get a broader executive order issued to the attorney general that permits him to bring other offenses.”

Those other offenses could include administrative or civil violations, Garnett speculated, although he emphasized that he doesn’t believe the governor should have appointed Weiser to the case at all.

“This undercuts public confidence in prosecutorial decisions by suggesting that if you just pass it around to the right person, you’ll get the charges the public wants to have brought at a particular time,” he said. “That’s pretty dangerous.”

Newman said it’s impossible to know at this point whether protesters’ concerns about the tweak to the executive order will be proven correct, but that she’s nevertheless encouraged to see the event planned for Saturday.

“I do think the protest demonstrates that the community is watching what happens in this case, and both the district attorney’s office and the city of Aurora can’t hope people will forget about the murder of Elijah McClain or move on,” she said. “Even the most ridiculous election the country has ever known and the COVID epidemic have been unable to distract people from the murder of Elijah McClain.”

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