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Elijah McClain case: Testimony focuses on Aurora Fire Rescue policies when responding with ambulance services

In day two, prosecutors dug into how AFR policies and procedures are developed outlining the division of duties when Aurora medics and partner ambulance agencies respond to an emergency call.
Posted: 2:40 PM, Nov 30, 2023
Updated: 2023-12-01 20:01:34-05
Elijah McClain

Two paramedics are at the center of the third and final trial in the case of Elijah McClain's 2019 death, and both defendants face charges of reckless manslaughter, criminally negligent homicide and assault, plus sentence enhancers.

McClain, 23, was stopped by officers with the Aurora Police Department (APD) on Aug. 24, 2019 and following a violent encounter, died a few days later.

Aurora Fire Rescue paramedics Peter Cichuniec and Jeremy Cooper are accused of injecting a significant amount of ketamine into McClain. Medical experts have previously testified that he was given a higher dose of ketamine than recommended for somebody of his size. In previous trials, prosecutors said 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. McClain was declared brain dead and died Aug. 30, 2019.

Trial for Elijah McClain could affect all health care workers

Previously, 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.

The trial for Cichuniec and Cooper is expected to last about a month.

Scroll down to read updates from the Nov. 30 proceedings.

Thursday, Nov. 30

In day two of the trial against Aurora Fire Rescue (AFR) paramedics Peter Cichuniec and Jeremy Cooper, the prosecution with the Colorado Attorney General's Office spent the morning digging into how AFR policies and procedures are developed outlining the division of duties when Aurora medics and partner ambulance agencies respond to an emergency call.

Aurora Fire Rescue typically does not provide transport services and utilizes partnerships like with Falck Rocky Mountain, which responded on the night of Elijah McClain's encounter with Aurora police.

Aurora Fire Rescue Deputy Chief Allen Robnett, a 34-year-veteran with the department, was called to give the jury a cursory understanding of AFR's procedures, training requirements for medics and the manual of procedures, a 510-page department document.

The document Robnett spoke to outlines on scene coordination between AFR and ambulance services depending on which organization first arrives at a call.

The manual dictates how the first responding agency, either AFR or the ambulance crew, should approach the scene and patient and which medical equipment, like advanced life support kits, should be utilized.

When asked if the first unit on scene is tasked with bringing the tools that might be needed, Robnett responded "yes" and if AFR is first on the scene should they be taking medical kits with them to the patient, Robnett answered, "in most cases, yes."

On the night of August 24, 2019, AFR paramedics Cichuniec and Cooper arrived in their truck before the ambulance.

AFR protocol also outlines how paramedics make contact and assessments of patients. "Patient interview would be to talk to the patient if possible, all patients are not communicating," testified Robnett. "You'll certainly begin a patient assessment on scene to evaluate their current state."

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Robnett was asked by the prosecution to describe what medical equipment is typically on board an Aurora fire engine. "Definitely have an ALS kit, oxygen kit, other tools you mentioned. Suctions are available, the monitor, a narcotics kit or narcotics box," said Robnett. "There's a plethora of equipment available for a medic to determine what they need on scene."

Aurora fire trucks do not have gurneys though, Robnett testified.

Attorney Shana Beggan, counsel for paramedic Cooper, focused on the scope of what the term "scene" means

"A scene could be pretty large. If your engine is parked on the scene and not at the patient's side, it's still at the scene," asked Beggan to which Robnett replied "correct."

In day 1 testimony, it was revealed the paramedics had to park their AFR truck around a block away from where Elijah McClain was apprehended by officers due to the heavy police presence and paramedic Cichuniec later said he directed the arriving ambulance to take a different route to avoid some of the congestion.

The prosecution in its opening statements on Wednesday attempted to highlight an alleged lack of medical action on the part of the paramedics while McClain was apprehended and held on the ground by Aurora police in the minutes before the ambulance arrived.

"The defendants acted with no regard to the risks to Elijah McClain. They didn't speak one word to him or touch him with one finger," said prosecutor Shannon Stevenson on day 1. "They don't ask the police a single question about Elijah McClain's condition, don't take a single piece of medical equipment out of the bag, don't lean down to look at Elijah McClain."

But attorney Michael Lowe, paramedic Cichuniec's counsel, on Thursday questioned witness Robnett if there was any prior policies concerning the coordination between Aurora Fire Rescue and the Aurora Police Department when responding to the same scene.

"We do train together on certain scenes like mass casualties and active shooter incidents," testified Robnett, who then said the two agencies did not at that time train together on daily interactions.

Portions of the training records of both paramedics were briefly shown to the jury and Robnett testified that, to his knowledge, neither paramedic Cooper or Cichuniec were ever out of compliance with AFR training requirements.

In a tense moment between Cooper's defense and Judge Mark Warner, attorney Beggan asked Robnett if he recognized either of the paramedics to which he said yes.

He stated he had known Cichuniec for more than a decade.

She asked witness Robnett if he had ever seen Cichuniec act with any bias or prejudice to which Robnett shot back "absolutely not."

The People objected to this line of questioning

Beggan asked if the paramedic had a reputation for someone who would provide comfort and care to patients and again the prosecution again objected.

Witness Robnett was excused before the mid-morning break.


The trial resumed with the People calling the second witness of the day, Dr. Marc Moss, who is a pulmonary critical care physician at University of Colorado hospital in Aurora and who treated Elijah McClain two days after he was admitted to the emergency room and later the intensive care unit.

He previously testified in the cases against Aurora officers Randy Roedema and Jason Rosenblatt.

Dr. Moss was the physician who made the determination that McClain was brain dead. Describing the methods he used to determine McClain's status, Dr. Moss walked jurors through the first brain death examination he performed on McClain on the morning of August 27, 2019.

He described the process of taking McClain off the breathing machine and then monitoring the carbon dioxide levels in his blood. "We waited four and a half minutes. The carbon dioxide level went from 50 up to 80. Mr. McClain had no effort to breathe at that time," testified Dr. Moss.

A normal CO2 reading would range somewhere between 23 and 29 milliequivalents per liter.

Dr. Moss then performed a second apnea test to determine brain death. "I wanted to give Elijah every chance to get better and made the decision to repeat the apnea test later, around four hours later," said Dr. Moss.

He testified McClain's CO2 levels went up to 86 mEq/L and after nearly 7 minutes made no effort to breath.

During the treatment, Dr. Moss said doctors cooled down McClain's body temperature for around 36 hours in an effort to increase the possibility that his brain would recover.

Along with the apnea test, Dr. Moss said he performed other tests to determine McClain's brain health, but ultimately he was declared dead at 3:31 p.m. on Tuesday, August 27, 2019.

The prosecution wrapped questioning of Dr. Moss and court took a lunch break, and court resumed with cross-examination from the defense.

Attorneys for the defense questioned Dr. Moss on ARDS — acute respiratory disease syndrome — and asked him a few questions the damage to McClain's lungs and brain due to anoxic encephalotaphy, or injury to the brain due to lack of oxygen. The doctor was then questioned on the x-rays performed on McClain and what they showed and how that informed the opinion of Dr. Moss in determining his diagnosis while under the doctor's care.

In the redirect, the People asked the doctor to explain the difference between a heart attack and cardiac arrest, and in explaining the difference between the two, the doctor said that no single thing can determine whether someone goes into a cardiac arrest — which is when the heart stops completely working altogether — and explained that a lot of different factors can be attributed when someone goes into cardiac arrest.

The People then questioned the witness about whether McClain's body and other organs had started to recover before doctors made a death determination.

"Yes, and that was the most unfortunate thing out of the whole situation," Dr. Moss said.

In the redirect, the Defense tried to poke holes in his testimony by asking him whether he believed ARDS was likely caused by McClain aspiring into his lung, but not being a factor in causing him to go into cardiac arrest.

"You're trying to connect point A to point B, but it's multiple points that lead to multiple outcomes," Dr. Moss replied. "There's no definitive test to determine that."

Dr. Moss was then excused from the bench and the next witness to be called to testify was Ron Ryan, a criminal investigator with the Colorado Attorney General's Office.

Ryan, who was been working on the Elijah McClain case since the AG's Office was asked to step in and investigate, was asked about obtaining McClain's clothing to process as evidence during the investigation and was asked about what the process was to track where that evidence was collected and stored.

He explained that the attorney's office collects the evidence, then packages it and then puts it into an "evidence vault," where it then gets documented into a log.

Ryan said Sheneen McClain, Elijah's mother, gave the attorney's office his son's clothing, which was inside an evidence bag from the Aurora Police Department.

In cross examination, the Defense questioned Ryan about the other items they possessed as evidence, which included more clothing and personal items belonging to Elijah, including his jacket, a shirt, sweatpants, shoes, a wallet and a comb. He said those items were kept by the APD about nine months following McClain's violent arrest before they released to Sheneen in 2020. Then, Sheneen gave those items to the attorney's office in 2023.

In the redirect, the People questioned Ryan about two other items obtained as evidence that went through "an additional step" before they were in the hands of the attorney's office. Those items — a ski mask used by McClain the night of his violent arrest and a set of earbuds he was wearing — were obtained by the AG's office sooner than the other clothing items. Ryan said the attorney for the McClain family provided those items to them instead of them coming from Sheneen directly or from the APD. Those items, he said, have been in the evidence vault since 2021.

The witness was excused and third witness of the day was called to the stand: Dr. David Beuther, a pulmonary critical care physician at National Jewish Health.


Beuther, whose job is to study the lungs and lung disease while also providing critical care for people who may need it, explained his role in pulmonology and what types of procedures he performs as part of critical care.

After briefing the court room on things like conscious sedation vs. deep sedation and how important assessment is to determine the level of care a patient may need, as well as how consent plays a role into their care, the People asked him whether he was contacted by the AG's office to assist in the case.

Beuther said he was indeed contacted by the AG's office and was asked about his cause of death and how McClain died.

He told prosecutors he was provided with records to review in the investigation which would help him form an expert opinion in the case. Such records included medical records from the University of Colorado — including x-rays — as well as body-worn camera video "to understand what was going on" medically before and after his arrest.

Beuther said he started reviewing all the material by going through the medical records first, as they're the most objective records when determining how a person might have died. He added that he also reviewed toxicology reports that found marijuana and ketamine in his system. Additionally, he said, being provided evidence like McClain's ski mask helped inform his opinion about the case.

"It was important beaus it showed that there was some vomiting that happened while he was wearing the mask," Beuther said. "It was clear to me that his stomach wasn't empty and that there were some food particles."

The People then pressed him about an initial report he authored based on his findings and why he wrote a supplement later on.

"The supplement had to be written because there was a revision to the coroner’s report," Beuther said. "There were a lot more additional experts giving testimony that I didn’t have access to initially."

Beuther said those findings helped him form the opinion that McClain's primary cause of death was "the effects of this drug ketamine that contributed to his stopped breathing," which ultimately led to a severe brain injury from which McClain was never able to recover. Further, he said "death was caused by respiratory arrest caused by ketamine" and that inadequate patient monitoring was a "significant contributor to his death."

Beuther also testified that there was "no medical indication to give him ketamine that night."

Trying to pain patient care as contributor to McClain's death that night, the People then questioned Beuther about the function of the lungs and how their function is affected when someone is either placed face down or on their back. They further asked him to testify on how aspiration works.

"Can you do an effective cough if you're in the prone position (face down)? If you’re exhausted? If you’re sedated?" the People asked. "No," Beuther answered.

Court was then adjourned for the day. Testimony from Dr. Beuther is expected to continue on Friday.


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