Denver7 is following the trial for two Aurora officers, Randy Roedema and Jason Rosenblatt, who have pleaded not guilty to charges of manslaughter, criminally negligent homicide and second-degree assault in the arrest of Elijah McClain. The 23-year-old massage therapist encountered police on Aug. 24, 2019 after a person called 911 to report a “sketchy” man walking in Aurora.
Police responded and put McClain, who was unarmed and had not committed a crime, into a neck hold. Paramedics administered a sedative called ketamine, which officials said led to cardiac arrest on the way to the hospital. He was declared brain dead days later and died Aug. 30, 2019. A pathologist found he was given a higher dose of ketamine than recommended for somebody of his size and, as a result, he overdosed.
All five people facing jury trials pleaded not guilty to the charges against them in January 2023 in the wake of a grand jury indictment.
Scroll down to read updates from the Thursday, Sept. 28 proceedings.
THURSDAY, SEPTEMBER 28
COURT RESUMES AFTER DENYING MOTIONS FOR MISTRIAL
Court resumed Friday morning about 30 minutes later than usual after hearing arguments from the defense who called for a mistrial on Wednesday afternoon following the judge's instruction to jurors on the meaning of "reasonable suspicion" as it is understood by the law.
The prosecution started the day by calling their first witness to the stand: Andrea Libhart, a registered nurse at the Emergency Department for UCHealth.
Libhart was working at UCHealth the night of McClain’s arrest and attended to him when he was admitted to the hospital. She explained the procedures that go into submitting and inputting blood orders for analysis.
The witness was excused after the defense waived their right to cross examination.
The prosecution then called their second witness, Michael Lamb, a forensic toxicologist who has been working at NMS Labs in Pennsylvania for the past 11 years.
He explained toxicology results can't be explained in a vaccum and that it's not up to a toxicologist to determine someone's cause of death as that's not something they're trained in when questioned by the People as to whether a toxicologist could say what caused a person's death.
Lamb told the People that this job in the days after McClain's arrest was to make sure that all the testing performed by lab technicians was accurate and that it made sense and that proper procedures were followed. Once he verified everything was in order, Lamb then completed a report with the findings of those lab tests and sent them back to the Adams County Coroner.
He was then questioned about the many types of tests that were performed on Elijah McClain's blood, such as an atomoxetine test that would reveal ketamine in the blood, confirmatory tests for cannabinoids that could test for things like marijuana, as well as broad spectrum tests for psychoactive drugs that might have been present in McClain's body the night of his arrest.
The atomoxetine test, Lamb said, revealed there were 13 ng/mL (nanongrams per mililiter) of ketamine in McClain's blood the night of his arrest. Other panel testing that was performed to test for synthetic cannabinoids, bath salts, LSD, psilocybin, amphetamines, benzodiazepines or cocaine, as well as fentanyl did not detect any levels of these drugs within his system the night of his encounter with police, he said.
In cross examination, defense attorney Stephen Burstein questioned Lamb as to the amount of ketamine required to put someone under anesthesia, which is between 4 to 6 mg/kg. The amount given to McClain that night, Lamb said, was about 7 mg/kg.
Burstein then posed a series of questions about the effects of that amount of ketamine on someone's body, including whether such amounts could cause someone to vomit, whether that amount of ketamine can cause acidosis (too much acid in bodily fluids), whether it can cause excessive salivation or excessive mucosa.
That line of questioning would help the defense argue it wasn't the officers' actions that led to McClain's death, but rather, the administration of ketamine.
The defense then asked about marijuana and its effects on the body, and whether a certain amount of it can cause people to have a rapid heart rate or have other side effects, like paranoia or hallucinations.
Lamb replied that while all these effects are possible, detection of higher THC would not necessarily mean that someone will suffer from bad side effects as some people may be extremely tolerant to the effects of the drug.
"It’s important to note that since it's (marijuana) detected, it doesn’t mean that it was used that day," Lamb said.
Both ketamine and marijuana were found in McClain's system the day of his arrest, but on Sept. 22, a medical expert with a specialty in pulmonary and critical care said it was his opinion marijuana was not a relevant contributor in McClain's death.
Following his testimony, the court took a short morning recess.
RECORDS OF APD'S TRAINING PROTOCOLS ON THE TOPIC OF BREATHING ARE PRESENTED
After the morning recess, the next witness to be called to the stand by the prosecution was Aurora police sergeant Kevin Smyth, who has supervised the training of officers at the Aurora Police Department academy since 2013. The sergeant has been with APD since 2008.
His main task as supervisor is developing a curriculum for basic and in-service training programs for the department, and also functions as a training records manager — meaning he helps with obtaining training documents and helps produce those for discovery in trials involving training within the APD.
During his testimony, Smyth was asked about several slides in a training power point presentation that dealt with breathing. Among the topics in those slides were symptoms of respiratory failure, signs of respiratory arrest, as well as when respiratory distress or arrest becomes a medical emergency.
In that slide, Smyth said, "we wanted to communicate that if a person in our custody is experiencing distress or arrest, that it becomes medical emergency and they should call paramedics and provide first aid if necessary."
Questioned as to what officers are supposed to tell paramedics responding to a person in police custody experiencing respiratory distress or arrest, Smyth replied that there's no specific language that should follow in most cases, since those calls vary on a case-to-case basis.
Asked by the People if he had any sense as to how frequent the topic of breathing came up in training at the police academy between 2017 and 2019, Smyth said that he wasn't able to accurately answer that as he is in charge of instructing every class, but that the topic would have been presented "anywhere where it would be appropriate."
The court then took their lunch break and were expected to be back in session by 1:15 p.m.
After lunch break, the People questioned Smyth on training related to carotid holds - the maneuver used by officers in McClain's arrest on Aug. 24, 2019. As supervisor for the training of officers, Smyth testified that the APD designed that training and that he himself wrote the curriculum for that type of training and oversaw the overall training of carotid holds.
Smyth said both officers Rosenblatt and Roedema completed that training, though not at the same time. The training, Smyth said, lasted for about six hours and officers taking that training had to pass tests — both written and practical — with a 100% score. Additionally, training on the carotid hold was something that officers were trained on beyond the police academy, at a minimum of once pear year, Smyth said.
The sergeant told prosecutors training on the carotid hold was mandatory and officers who hadn't taken it had to make up for it, as not doing so would put the APD out of compliance with the Colorado Peace Officer Standards and Training statues (or POST), which are required by law for officers to be certified to work in Colorado.
The next lines of questioning by the People dealt with the processes by which the police department performs the carotid hold and what do in case someone loses consciousness during the maneuver as well as what officers should know in regards to the risks associated with the carotid hold.
Questions from prosecutors also touched on APD's training for "exited delireum," a controversial condition involving erratic behavior that is associated with chronic drug abuse, mental illness or both.
“People who continue to struggle when the handcuffs are on could be an indicator that something else is wrong,” Smyth said in testimony Thursday, as he explained what officers are supposed to do when encountering a suspect who may need to be restrained but who may be struggling with police, even after he's been detained.
Paramedics Jeremy Cooper and Peter Cichuniec concluded about two minutes after arriving on the scene that McClain was suffering from excited delirium, according to the indictment in the case. They did not talk to McClain or check his vital signs, it read.
Per the Associated Press, Colorado’s health department in 2021 said emergency workers should not use excited delirium as a reason to administer ketamine. A medical panel for the department found that excited delirium is open to interpretation and “associated with racial bias against African American men.”
"WE DON'T TRAIN OFFICERS TO MAKE MEDICAL DIAGNOSES"
In cross examination, one of Roedema's attorneys, Don Sisson, questioned Smyth on the APD's training protocols for suspects who may have problems breathing during an arrest.
Smyth said that an officers' job while detaining someone is to always monitor someone if there's a risk of them having respiratory distress or arrest. Per Smyth, officers are expected to do basic first aid if there's a problem.
He said that in cases of people telling police that they can't breathe, what officers are trained to do is to observe any signs of distress and "when in doubt, call them out" — meaning that if officers aren't sure whether a suspect is having problems breathing, the best course of action is to call paramedics to assist them in handling the situation.
"We don't want officers to get the idea that, 'He's faking it, that's not true.' Paramedics are more than happy to help us," Smyth said. "We don't train officers to make medical diagnoses, we train them to recognize cues so they can get more resources" to a particular scene so aid can be rendered to someone in need of medical help, Smyth said.
Continuing with cross examination, Burstein stepped to the lectern to ask Smyth about the carotid maneuvers, focusing on specifics on what the training allowed and what officers can do in certain situations when dealing with a suspect who may not be cooperative, as well as what is allowed under training directives for people on the ground who are put in a recovery position — meaning, on their side, neither face down or up.
In the redirect, the People further asked Smyth to expand on the training protocols and whether officers are supposed to follow steps for a carotid hold in order, which Smyth said officers are expected to follow the steps as laid out in training, but there are times when, due to circumstance, a step will be taken at the same time as another.
"Blue mat training is not real-world, and there are circumstances" where officers would not be communicating with paramedics, for example, a suspect who has no pulse but who is undergoing CPR by another officer.
Smyth was excused from the bench following his testimony.
Court went into recess for the day and jurors were told to be back by 8:45 a.m. Friday so the trial could begin at 9 a.m.
Updates from Days 3-5 of the trial can be found here.
