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Elijah McClain case: Prosecutors, Aurora paramedics' defense teams finish closing arguments

The Aurora Fire Rescue paramedics were charged with reckless manslaughter, criminally negligent homicide and assault, plus sentence enhancers.
Posted: 6:54 PM, Dec 20, 2023
Updated: 2023-12-21 11:32:46-05
Elijah McClain

ADAMS COUNTY, Colo. — Closing arguments concluded on Wednesday late afternoon in the trial of two paramedics who face multiple charges in connection with the death of 23-year-old Elijah McClain of Aurora.

Aurora Fire Rescue paramedics Peter Cichuniec and Jeremy Cooper were charged with reckless manslaughter, criminally negligent homicide and assault, plus sentence enhancers.

Closing arguments wrap in trial of paramedics accused in Elijah McClain's death

McClain was stopped by officers with the Aurora Police Department (APD) on Aug. 24, 2019 after a person called 911 to report a suspicious person. Aurora police responded and following a violent encounter with the officers and a ketamine injection by paramedics, McClain died a few days later.

Cichuniec and Cooper are accused of injecting a significant amount of ketamine into McClain that evening. He was given 500 milligrams of ketamine, which is appropriate for a person who weighed about 200 pounds. McClain weighed 143 pounds.

In the previous trials for the involved Aurora police officers, a jury found APD Officer Randy Roedema guilty of criminally negligent homicide and third-degree assault, and former APD Officer Jason Rosenblatt, who was fired by the department less than a year after McClain's death, was acquitted of all charges. In the second trial, defendant APD Officer Nathan Woodyard was also found not guilty.

In those trials, prosecutors argued the carotid hold, which was applied by police before paramedics arrived, played a key role in his death, while defense attorneys argued that the cause of death was only the ketamine, and McClain would have survived the police encounter without the injection. The ketamine led to cardiac arrest.

In the paramedics' trial, the prosecution rested on Dec. 13. The defense rested on Dec. 19.

Closing arguments began after jury instructions on Wednesday afternoon.

Just after 5 p.m., the jury was released to the jury room. The judge said he would likely release them from there after they got settled and deliberations would begin on Thursday morning.

Jury deliberations begin today in third and final trial in Elijah McClain case

Closing arguments from the prosecution

Ann Joyce, assistant attorney general with the Colorado Attorney General's Office, was the first person to provide a closing argument.

She started by outlining how the "defendants made a plan."

"Here was the plan," she said, speaking from the paramedics' perspective. "We’re going to leave that person on the ground. We’re not going to speak to him. Not a single word. We’re not going to touch him. Not with a single finger. We’re not going to get a single piece of equipment out of our bag to assess him. We’re not going to put our faces near his face. We’re not going to ask questions about what happened to him. We’re not going to listen to what he is trying to say to us. We’re just going to wait for the ambulance. And while we wait, we’re not going to do a single one of those things."

Joyce said they would give the maximum amount of ketamine once an ambulance arrived, whether McClain needed it or not, and would leave him on the ground until the effects settled in. Then, "once he's completely lifeless," they'd move McClain to a gurney, where they'd continue to ignore his airway, circulation and breathing, try to treat him in the ambulance and would leave him at the hospital, "where he won't be our problem anymore," Joyce said.

And the paramedics will still have no idea why they were called to the scene, she said.

Joyce said the defendants made decision after decision to ignore the "terrific risks" that they piled on McClain. That started with no assessment of him once they arrived. Joyce said almost every expert that testified through the trial said doing an assessment is foundational for any good medical decision-making and it was the protocol the paramedics were expected to follow.

They did not tell McClain who they were, did not ask him or police officers any questions, didn't lean over to look at him and did not check his vital signs. Every witness confirmed these steps never happened, she said.

She told the jury she wanted to talk about the defendants' excuses.

Joyce said they believed that a visual assessment was sufficient, but McClain was on the ground, where he was gasping, gurgling and asking for help.

“A visual assessment was not enough," Joyce said.

In Real Life: Injected

She said the defendants claimed they wanted to do a better assessment but either McClain or the police were too aggressive. Joyce implored the jury to "use your common sense" and rewatch the body-worn camera footage, which shows McClain barely moving on the ground.

While on the stand on Dec. 18, Cicuhunic said he could not assess McClain because the man wasn't their patient until he was out of police handcuffs. Joyce challenged this, saying they injected him with ketamine while he was still handcuffed.

The risks of not assessing McClain before the injection is similar to hitting the gas pedal when you can't see through a windshield, Joyce said, quoting previous testimony by Dr. David Beuther, a pulmonary critical care physician at National Jewish Health.

Joyce said the defense will also claim McClain was suffering from excited delirium, as protocol said ketamine could be administered in this case. But McClain was not out of control — he was crying out in pain and apologizing, she said, adding that he did not exhibit a single sign of excited delirium.

The risks of administering ketamine without this assessment were substantial, she said. McClain was hypoxic, aspirating and had acidosis, which are all treatable with oxygen and fluids. But paramedics did not provide these "basic life-saving measures," Joyce said.

When they did administer the sedative, they gave McClain 500 milligrams, which was too much for his 143-pound body. Joyce argued that the paramedics didn't try to estimate McClain's weight and didn't try to ask him or the officers who were hands-on with him.

“They both decided to give the ketamine. They both decided to give 500 milligrams … They are both responsible," she said.

She added that experts said there was no medical purpose to give ketamine at this point, and that giving it to a highly compromised patient could increase the risk of respiratory depression.

“McClain is deteriorating in front of their eyes at this point, but they are not changing their plan," she said.

She said the defendants claimed they could not deviate from protocol, but she argued that is not true, and that if the condition of a patient changes, medical professionals can change their plan in response.

After the injection, Joyce said McClain was left prone on the ground and unable to clear his own airway — which is a direct contradiction of their training, she said.

Six minutes after the injection, for the first time, she claimed, somebody looked for McClain's pulse and found it was absent.

She said experts confirmed ketamine was the cause of McClain's death, and his heart condition and narrowed coronary artery did not play a part in his death.

In her conclusion, she said that the defendants had the chance to tell their story twice — once in a police interview a few weeks after McClain's death and again this week on the stand in the courtroom. And not once did they take accountability for their actions, admit they did anything wrong or show remorse, she said.

Closing arguments from Cooper's defense attorney

Defense attorney Michael Pellow, who is representing paramedic Cooper, said the prosecution wanted to make this feel like it is a simple case, but it is not — it's a complex one.

He said that the evidence shows three things without a doubt:

  1. McClain should still be here today and his death was a tragedy.
  2. In 2019, there were plenty of systemic problems with law enforcement and practice of medicine, especially paramedic medicine, that needed to be fixed.
  3. Things are not always as they appear.

Regarding excited delirium, he said paramedics were taught that it can become fatal, and is a major medical problem for people. That training included a solution — ketamine administration. If a patient is agitated, they should be treated, since there is a chance of death, he said.
Pellow noted that in 2019, there was an uptick of excited delirium in Aurora, as Dr. Eric Hill, medical director for Aurora Fire Rescue, testified.

When the paramedics pulled up to the scene and walked to where McClain was being held down by police, they believed there had been, and possibly still was, a violent interaction between McClain and police. A police sergeant was at the scene and the paramedics believed he would correct any of the officer's inappropriate behavior.

He said there was no protocol in effect at that time instructing paramedics on what to do if police were "all over" a potential patient.

Once they decided to administer ketamine, Cooper said he tried to compare McClain to his body weight and subtracted 50 to 60 pounds, but it was hard to tell McClain's size, since he was wearing a jacket, had officers on top of him and it was dark out, Pellow said.

“It makes us sick to watch the video, knowing how it’s going to turn out," he said. "The sad, terrible ending to it. We all have hindsight at this point. But they didn't. When you watch it and know somebody is going to die, it makes you feel like, ‘Why don't you do something? Anything? Don't just stand there.’ It causes sadness and frustration and anger."

But he said the paramedics were assessing McClain's condition once they arrived, and could see he was moving, so he had a circulation and heart rate, and was breathing.

With "inaccurate and incorrect information," the paramedics had to make a decision. Pellow stressed they did this in the moment, without watching any body-worn camera footage or listening to experts.

When Cooper ordered the ketamine, he received "confirmatory information" from the police, who said McClain had "super strength," which furthered Cooper's belief that McClain was suffering from excited delirium.

Experts testified he was still breathing on the stretcher as he was loaded into the ambulance. His breathing stopped some time after that, Pellow said.

Pellow also addressed McClain's autopsy report, as well as the amended report. He drew comparisons between forensic pathologist Dr. Steven Cina's amended autopsy, which came out 2021 (his original one was issued after McClain's death in 2019), and how similar it was to forensic pathologist Dr. Roger A. Mitchell's analysis of the autopsy report. He said there is no evidence of anybody dying from 500 milligrams of ketamine.

Of the nine current or former paramedics who testified in this trial, none said the defendants were working outside the standard of care, Pellow concluded.

"We implore you to not make this tragedy worse by wrongly convicting him," he said of Cooper.

Closing arguments from Cichuniec's defense attorney

Defense attorney David Goddard, who represents Cichuniec, started by explaining that the relevant question in this case isn't if McClain was suffering from excited delirium, but if the paramedics' actions were consistent with their training and protocol.

At the scene that evening, the paramedics knew that there had been a prolonged struggle and that police believed McClain may have been under the influence. The paramedics saw McClain was breathing quickly and sweating, which led them to believe he could have excited delirium. Per their protocol, rapid sedation is required to treat this. Their training taught them that ketamine is safe and not lethal.

They heard police saying phrases like "Stop fighting" and "Stop resisting us," and because officers appeared to be actively struggling with the patient, they could not access him, Goddard said, but could visually assess him.

"So they wait," he said. "They are powerless to do anything about it."

Goddard challenged the prosecution's criticism of visual assessment, saying many of the people's own experts testified about McClain's rate of breathing and heart rate from body-worn camera video. He told the jury that the prosecution wants them to think that the paramedics' visual assessment was "somehow lazy work."

Once an ambulance, which carried the ketamine, arrived, Cooper administered the sedative and the group waited for it to take effect. They then removed the handcuffs and moved McClain to the gurney — at that point, paramedics had full control of the patient and Goddard told the jury to watch what happens next: Cooper called for patient monitoring and vital signs, and then the ambulance was off to the hospital.

Goddard said between 10:43 p.m. and 11:02 p.m., McClain was in police custody and care, not paramedics'.

His breathing stopped after about a minute in the ambulance, he said, then life-saving measures began.

“Does that sound like paramedics who didn’t care?” Goddard said, adding that to characterize the paramedics as "callous and not caring" is not only wrong, but disingenuous.

Goddard reminded the jury of the testimony from EMS lieutenant Robyn McKinley on Tuesday, who said that she did not see a single action from the paramedics that deviated from standard of care.

Like Pellow, Goddard also brought up concerns with McClain's autopsy and the amended report from 2021.

“Where is the evidence that this safe drug given in a therapeutic dose — that nobody has ever documented has been fatal at those levels — where is the evidence that killed Mr. McClain?” he asked.

At no time did police tell paramedics that McClain had complained about being unable to breathe, had vomited in his mask, and had appeared to lose consciousness.

"He is not guilty," he concluded. "They are both not guilty."

Prosecutor's rebuttal in closing arguments

“These defendants treated Elijah McClain like he was a problem, not like he was their patient," Jason Slothouber, senior prosecutor for the Colorado Attorney General, stated at the start of his rebuttal.

Slothouber explained that police categorized McClain as "non-compliant," so when paramedics arrived, this was already in their mind. As they walked to the young man, McClain was heard saying "Ow, OK, OK!" because he was sensitive to pain and experiencing reality — which are not symptoms of excited delirium.

The prosecutor said as Cooper stands nearby, "supposedly doing a visual assessment," McClain utters his last words on Earth: "Please help me."

After 90 seconds of standing over McClain, Cooper made the decision to use ketamine on him. While they used what the defense has called a "therapeutic dose," that only means it's an amount that a patient is supposed to get in a hospital with a doctor present. It is not pre-hospital safe, he said.

Slothouber said this was not a situation where there was a good effort and a mistake was made. The defendants did not even try, he said. If they had, they would have learned McClain was hypoxic, aspirating and had acidosis.

“There was no need for a single milligram of ketamine," he said.

During the rebuttal, Slothouber urged the jury to take into account witness credibility. He dug into the defense's expert witnesses, saying some of them were biased and provided incorrect information.

Cooper's testimony was also unreliable, he said.

In his police interview a couple weeks after McClain's death, Cooper told police that after administering ketamine, McClain was moving around and trying to crawl up a grassy embankment. He said he asked somebody to move McClain to his side to monitor his breathing, and that he tried to take this pulse. Slothouber said this is never seen or heard in the body-worn camera footage.

"Why is the defendant grossly misrepresenting these facts?" he asked. “Why is he making this up?”

Slothouber said McClain received "the worst possible" care that evening and that the paramedics did not try to save McClain's life as he was held on the ground, saying, "Please, help me."



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