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, a 23-year-old massage therapist, encountered police on Aug. 24, 2019 after a person called 911 to report a “sketchy” man walking in Aurora.
Scroll down to read updates from the Tuesday, September 26 proceedings.
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.
TUESDAY, SEPTEMBER 26
TRIAL RESUMES JUST AFTER 9 A.M. WITH CROSS EXAMINATION OF DR. BEUTHER
Defense attorneys revisited Dr. Beuther's testimony from Friday, starting with questions about his background to provide expert opinion on McClain's death.
The defense zoned in on the doctor filing a supplemental report nearly four years after McClain's death on the factors that contributed to McClain's death. In the redirect, prosecution tried to counter by asking Dr. Beuther if he had changed his opinion since his preliminary report.
Dr. Beuther said "no." The primary purpose of the preliminary report was to break down what happened from a medical perspective.
Two years later, the question was, what would happen if emergency responders hadn't administered ketamine to McClain, what the consequences would be. Dr. Beuther said he could've changed his opinion, but he said in the supplemental report, he clarified those questions, adding his findings since the preliminary report supported his initial opinions.
The defense also hit on the point that Dr. Beuther is not certified in forensic pathology. However during the prosecution's redirect, Dr. Beuther defended his opinion on McClain's cause of death because he works with pathologists all the time, he's familiar with the terminology and techniques.
"It is not my role to comment on exactly how they did an autopsy, but to interpret the findings," Dr. Beuther said.
The defense then got to a main sticking point of the case, confirming Dr. Beuther's opinion that it was the paramedics' responsibility to assess McClain's weight to give the proper dosage of ketamine and monitor his condition once it was administered, which Dr. Beuther said did not happen.
"Even with a higher dose than normal, he could've survived if the paramedics intervened?" the defense asked.
"Correct," Dr. Beuther answered.
The prosecution put a finer point on Dr. Beuther's analysis that the ketamine was a primary cause of McClain's death, but not the only thing that contributed to his death.
The other contributing factors were McClain aspirating into his airway, acidosis and the position he was in to breathe adequately, and those factors can enhance the risk of injury or death when someone takes ketamine, according to Dr. Breuther's testimony.
The court took a brief break until 11:10 a.m.
PROSECUTION PRESENTS TWO NEW WITNESSES
The People then introduced Robert Hessler and Allison Rosengarten, who both work at NMS Labs in Pennsylvania, as experts to the court in forensic chemistry. Hessler and Rosengarten were both involved in processing a sample of McClain's blood taken at the hospital to test for the presence of "Cannabinoids," in addition to nearly 200 other substances, in the blood.
These substances include things like Ibuprofen or Tylenol, "illicit" drugs such as fentanyl or methamphetamine. However, the tests performed at NMS Labs does not cover things like blood oxygen levels or acids.
Hessler said NMS Labs, while based in Pennsylvania, routinely accepts cases from other states. The defense questioned if the lab had accreditation in the state of Colorado, which the prosecution supplied documentation that NMS Labs does.
The court went into recess just after noon to break for lunch and proceedings are expected to resume around 1 p.m.
ELIJAH'S USE OF A MASK INSIDE A CONVENIENCE STORE IS QUESTIONED
After the lunch break, the People called on several more witnesses to testify before a jury: A third employee of NMS Labs in Pennsylvania, a retired lieutenant with the Aurora Police Department, the owner of two gas stations in Aurora, one of which was visited by McClain before his fatal encounter with police, and two Aurora first responders who were in charge of the 911 and dispatch operations the night of McClain's arrest.
The third employee of NMS Labs to testify was Rachel Davidovicz, who's been at the company for a little more than a decade. During testimony, she was asked by prosecutors whether the lab she works for had received specimens of McClain's blood to be tested for ketamine, and was asked about the protocol that these samples go through to keep them organized for various purposes.
In cross examination, she was asked by the defense whether she had personally seen the blood sample, and whether she could testify to the chain of command for said sample in the lab. Both times she replied, "No" and was excused from the bench.
Next, the People called on Lt. Robert Wesner of the Aurora Police Department.
The lieutenant, who retired from the force after working in law enforcement for 33 years, was tasked with collecting a plethora of records pertaining to the McClain case in early 2020, right after the coronavirus pandemic started. His role was to serve as a liaison between the APD and the attorney general's office to make sure that "whatever was requested was provided to them."
Specifically, he was tasked with collecting records of training requirements for the officers involved in McClain's arrest — Roedema, Rosenblatt and Woodyward — in particular, records pertaining to various types of training done as per department and police academy policy, including in-service lessons, power point presentations, calendars, examinations, as well as directives and policies for the department at the time.
During cross examination, the defense asked the retired lieutenant about crime statistics, and if he ever provided documents pertaining to those stats, to which Wesner said "no." Attorneys for Rosenblatt then asked if he ever provided the attorney general's office any records indicating whether Rosenblatt failed to complete any trainings. Wesner said he didn't recall seeing documents that Rosenblatt didn't complete any trainings.
Wesner was then excused from the bench.
The next witness called to testify was Raminder Aulakh, a small business owner who owns two gas stations, one of which was located near McClain's home, right off Colfax Ave. and Billings St.
Aulakh was asked about the security system at that gas station and was later asked to review surveillance video from both the outside and inside of the premises, some of which captured McClain, with a mask on, inside the store before exiting after he had made a purchase. The 23-year-old massage therapist was often cold and wore a runner’s mask and jacket despite the warm weather, according to an indictment.
In cross examination, the defense tried to frame Aulkah's ownership of a surveillance system on the assumption that such a system is warranted because of crime, to which the woman responded that it's not really crime that concerns her at her store, but more so shoplifting.
The defense then questioned Aulakh about McClain's use of a mask at the time, and whether she would be concerned for her safety if someone had walked in with a mask into her store.
"Depends on the person's demeanor," the woman said. "If a person isn't creating a commotion or not threatening anyone, then I would not (worry about it)."
Aulakah was then excused from the bench and a recess took effect.
AUDIO OF 911 CALL REPORTING "SKETCHY" MAN WAIVING HIS ARMS IS PLAYED
The next witness to be called by the People was Deborah Furlehr, who works with the city of Aurora as a police and fire dispatcher, whose job at the time of McClain's arrest was just answering 911 calls before they were sent to dispatch.
During testimony, Furlehr touched on how 911 dispatch works, what kind of systems are in place to record calls, how those calls get sent to responding officers and what capabilities people in dispatch have to prioritize those calls.
Audio of the 911 call made to the Aurora Police Department the night of McClain's arrest was then played before jurors, in which the caller described a man walking south on Billings St. with a mask on, who was "waiving his arms."
The caller did not report that any sort of crime was going on when they made the call to police, according to Furlehr.
In cross examination, lawyers for the defense questioned Furlehr as to whether she was able to tell based on the call if that area was an area where high-crime rates occurred and whether the systems in place are automated all the time and if the department is able to respond differently based on notes within that dispatch system, with this line of questioning getting at whether she would know how many officers responded to a particular scene.
In the redirect, the People questioned Furlehr whether she had any reason to believe McClain was a danger to others or to himself, based on the priority assigned to the call, to which Furlehr said "no, but the computer chooses the priority level" based on responses from the the caller and the choices presented to the operator to choose from based on the initial call.
Furlehr was then excused from the bench and the witness was called.
Paula Hull, an emergency communications dispatcher for the city of Aurora who's been at the post for about six and a half years, told prosecutors that, at the time, she had been assigned to dispatch calls for District 2, where McClain's arrest took place.
Hull was asked technical questions about the dispatcher system before the People asked her if there were "particular indications that civilians were in danger" at the time of that call.
"Not that I could see," she responded.
Lawyers for the defense, in cross examination, again questioned her on the high-crime rate of the area, before questioning her about specifics of the call, including a note that was made in which officers noted that the "party was detained but still fighting," referring to McClain, who was in the ground at this point after he was stopped by police.
Later, the defense would note the call was updated by a captain to note that an officer had been assaulted.
After a few more lines of questioning, the defense rested for the day and the court was dismissed for the rest of the day.
FRIDAY, SEPTEMBER 22
TRIAL RESUMES AT 9 A.M. WITH MORE BODY WORN VIDEO
The prosecution picked up where it left off Thursday continuing to show jurors body camera video from Roedema and Rosenblatt. The presentation took approximately 45 minutes. The People then called Dr. Marc Moss, the first witness of Friday morning.
Dr. Moss is a pulmonary critical care physician with the University of Colorado hospital in Aurora who treated Elijah McClain a couple of days after he was admitted to the emergency department of the hospital. Ultimately, Dr. Moss was the physician who determined that McClain was brain dead on Tuesday, August 27, 2019.
Elijah McClain | 360 In-Depth Coverage
Enhanced video of Elijah McClain’s arrest shown during first witness testimony
The prosecution asked Dr. Moss to walk jurors through the apnea test, or medical process of determining brain death. During the apnea test, blood is checked to determine carbon dioxide levels and the patient is removed from breathing support to check for unsupported breathing activity over the course of several minutes, according to Dr. Moss.
Normal CO2 levels in adults run around 23 to 30 mEq/L, according to the National Institues of Health, and Dr. Moss stated McClain's CO2 levels were near 83 mEq/L during the apnea tests.
In his testimony, Dr. Moss explained two separate apnea tests were performed on McClain, one on Monday, August 26 and the second the following day.
"Mr. McClain had no breathing effort at all. His repeat level was 83," said Dr. Moss, who stated McClain's pupils did not react to light and his EEG, or electroencephalogram, which measures the electrical activity in the brain, "had a complete supression of activity."
PROSECUTION PRESENTS SECOND PULMONARY CARE EXPERT
Following the mid-morning break, the People called a second medical expert with a specialty in pulmonary and critical care. Dr. David Beuther is a physician at National Jewish Health in Denver who has expertise in asthma. When asked by the prosecutor if asthma played a role in McClain's death, Dr. Beuther said "asthma was not an active problem for him and was not related to his death."
Dr. Beuther, who was not part of the initial medical team caring for McClain in 2019, reviewed starting in 2021 McClain's medical records, body worn video and other evidence related to the death, including the mask he was wearing the night of the arrest.
Elijah McClain | Complete 360 In-Depth Coverage
Dr. Beuther stated he observed evidence on the mask that McClain had breathed something into his lungs prior to receiving Ketamine: "That's a very high-risk situation," he said. "Cannot give 100 percent proof — the rational: he had this mask on and we know he vomited with the mask on."
Dr. Beuther also confirmed autopsy reports McClain had marijuana and ketamine in his system but it was his opinion marijuana was not a relevant contributor in the death: "it doesn't affect your breathing or make it harder to breathe," he said.
The court went into recess at noon for the lunch break and the proceedings are expected to resume at 1:30 p.m.
Returning from the lunch break, the prosecution continued with Dr. Beuther’s testimony which centered on his medical observations and interpretations of the body-worn camera footage to lay out a timeline of Elijah McClain’s changing physical condition during the minutes he was in police custody and before the administration of ketamine.
Citing his opinion of reasonable degree of medical certainty, Dr. Beuther stated that McClain, while wearing a mask, vomited and “had an aspiration event and had fluid filling part of his lung” and over the course of the body cam footage, McClain while on the ground showed “some changes in how he looks and acts.”
Beuther said he also believed McClain had vomited for a second time after the mask was off.
During his testimony, Dr. Beuther several times cited episodes of alleged aspiration, or the introduction of fluid or vomit into the airways or lungs, before the dose of ketamine.
Again, citing his opinion of a reasonable degree of medical certainty, Dr. Beuther testified McClain likely "had an aspiration event and had fluid filing part of his lungs — that causes low oxygen," he said. "What is uncertain, what would be the outcome if we froze everything in time at that point — put him in a hospital and took care of him."
The prosecution also attempted to portray acidosis, specifically respiratory acidosis — or an increase in carbon dioxide — as a factor.
"If breathing is not adequate — then carbon dioxide can build up in your blood. You can't get it out," said Dr. Beuther. A side effect of increased acidity, Dr. Beuther testified, is that it "causes you to breathe more" adding that "we know acidosis has been shown to increase sensitivity to medications like propofol and ketamine."
Along with alleged aspiration and acidosis, the prosecution's witness also said McClain presented signs of hypoxia, or inadequate oxygen in the blood.
"When he (McClain) is on the ground he has some changes in how he looks and acts," said Dr. Beuther. "Medically, didn't seem to be any other reason I could find other than hypoxia," he testified.
The prosecution continued presenting clips from different officer-worn camera showing what Beuther said was “a lot of physical struggle likely putting increased demand on breathing.”
Dr. Beuther said several times he found it difficult to see on the video if officers placed McClain into a carotid hold, but understood that to be the case based on officers’ statements.
Dr. Beuther testified in viewing the body cam videos, his medical opinion is McClain's behavior showed his condition was getting worse before ketamine was administered by paramedics as the incident unfolded over several minutes.
"I see a big change. We had somebody talking to use — even trying to make — complex sentences," he said as more video was shown in court. "Here, when directly interrogated — he's not really talking and doesn't look as interactive — there's been a change in his (McClain's) status."
The prosecution witness again later stated it was his opinion that McClain's ability to breathe was "restricted."
Asked to describe McClain's condition just before ketamine was administered, Dr. Beuther replied: "minimally responsive" and that he had "serious risk of bodily injury or death."
HEATED CROSS-EXAMINATION OF DR. BEUTHER
On cross-examination, defense attorney Harvey Steinberg representing officer Rosenblatt sought to poke holes in Dr. Beuther's testimony Friday with his first assessments on McClain's cause of death dating back to 2021.
He pressed Beuther arguing that the 2021 report or grand jury testimony did not make mention of acidocis. Dr. Beuther countered that interpretations of his previous opinions and Friday's testimony could be attributed to further analysis of statement from other experts and McClain's revised death certificate.
Reading from a previous report, the defense alleged Dr. Beuther initially presented that McClain's death was "primary respiratory arrest due to pharmacology effects of ketamine."
Dr. Beuther again countered the defense's presentation of his previous assessments by stating that those assessments were an oversimplification of a complex medical condition.
As Friday's proceedings wrapped, the defense argued the prosecution should not be allowed to meet with Dr. Buether over the weekend to review the transcript of the heated exchange with defense and his previous testimony, but the judge disagreed.
The trial will take a break on Monday and is expected to resume Tuesday at 9 a.m.