Grand Illusions
When it comes to Rocky Flats, the jury is still out.
By Patricia Calhoun

Plutonium has a half-life of 24,000 years, give or take an eon. The saga of Colorado special grand jury 89-2 could stretch almost as long.

On August 1, 1989, Judge Sherman Finesilver impaneled the state's first-ever special grand jury, charged with evaluating the evidence seized when the FBI raided the Rocky Flats Nuclear Weapons Plant three months earlier. Over two years, 760 boxes of documents and 110 witnesses later, the 23 grand jurors had identified hundreds of violations of environmental laws and were ready to indict eight people--Department of Energy officials as well as employees of Rockwell International, which ran Rocky Flats for the DOE.

U.S. Attorney Mike Norton refused to sign the jurors' indictment.

Instead, the prosecutors made a deal with Rockwell, in which the company pleaded guilty to five environmental felonies and five misdemeanors in exchange for an $18.5 million fine. No individuals were charged--in fact, the settlement guaranteed their immunity--and the fine, while unprecedented in size, was also less than the corporation had earned in performance bonuses from the DOE.

But frustrated grand juries, like plutonium, last forever.

On August 1, 1996, the grand jurors' lawyer returned to the federal courthouse where his 23 clients had been impaneled seven years earlier, asking that the grand jurors finally be permitted to tell the story of what had happened behind closed doors.

This is part of that story: Before Norton offered Rockwell a deal, and long before Finesilver sealed that deal in June 1992, the grand jurors had become so concerned with the prosecutors' apparent unwillingness to find fault that they'd consulted the Constitution--which specifically mentions grand juries, but not prosecutors--and had written their own assessment of the facts. They'd also authored a special report, which they urged Finesilver to release. He refused, and instead ordered the report sealed--three days before the story of the grand jury's frustration appeared in Westword. Six weeks later grand jury foreman Wes McKinley, at the steps of the courthouse, read a letter signed by a majority of the jurors to newly elected president Bill Clinton, asking that they be allowed to reveal how justice had been denied.

They're still waiting to hear from Clinton.

But the jurors' stance did inspire fast action from some people in Washington, D.C., including Jonathan Turley, a George Washington University law professor then fresh from a congressional investigation of the Department of Justice's environmental-crimes section. All of the grand jurors signed on with Turley (who would represent them pro bono); his first order of business, however, was not to make their story public, but to make sure the Department of Justice didn't throw them in the clink--by late 1992, the FBI was investigating the grand jurors for supposed breaches of grand-jury confidentiality rules.

After Turley intervened with the Justice Department, the FBI stayed away, the jurors stayed quiet, and their lawyer stayed behind the scenes to gain congressional immunity so that the jurors could testify before Congress. In late 1993, Turley says, he was within 24 hours of gaining that immunity when a leak to a news magazine slammed the door shut--with Colorado Representative David Skaggs providing much of the brute force.

After that, Turley looked for another opening. "We'd been closely tracking the development of the civil cases related to the controversy at Rocky Flats," he explains, "and were particularly interested in discovery produced in those cases that might contradict statements made to Congress by the Department of Justice...Recently, precisely that type of information was disclosed in a 'smoking-gun' document produced in discovery."

The smoking gun actually turned out to be non-evaporating pondcrete, which the grand jurors had cited in their report. According to documents uncovered for whistleblower Jim Stone's long-stalled suit, Rockwell had known about problems with the pondcrete well before the raid--and the Justice Department, too, may have had prior knowledge. Stone was working at the plant in 1982 when the plan to turn waste into pondcrete--pouring plutonium-contaminated residue in shallow ponds and hoping that evaporation would do the dirty work--first came up. "I told them it wouldn't work," he says. "They were so arrogant, they wouldn't listen to me."

Ultimately, the feds spent $550 million cleaning up the slushy pondcrete, dumping it into seventy tanks that are still stored on the property. But first they cleaned the pondcrete out of the grand jury's report. In January 1993 Finesilver finally released a censored version of that document, retyped by the Justice Department, with portions of the jurors' version deleted and long explanations from the prosecutors inserted. "In some cases," Turley's petition notes, "single paragraphs are followed by pages of governmental 'rebuttal.'"

But recent developments in Stone's case and in claims court, where Rockwell is seeking $6.5 million from the government (the feds' settlement also promised the company help with its legal bills), weren't the only reasons Turley took action. The passage of time had made the legal arguments more compelling. Much of the evidence presented to the grand jury, for example, has since been made public through other means--including the mouths of federal officials. "Unlike the prosecutors, my clients have faithfully observed the rules," Turley says, "even in the face of personal attacks by the prosecutors in both Congress and the media." But those attacks provide another justification for letting the grand jurors speak, he argues: They have a right to reclaim their reputations. Juror Ken Peck, a lawyer, has been particularly "impugned" by prosecutors' suggestions that the grand jury's report was "legally deficient," according to the petition. And even grand jurors whose careers aren't on the line--the bus driver, the hairdresser--feel the sting. "I have been unable to respond to the representations of government officials that the grand jurors are uneducated and politically biased," writes swimming coach Jim Bain in an affidavit.

The jurors have been held together by their desire to see justice done. All but four signed onto Turley's petition: One couldn't be found, one is unwell, and two have potential conflicts--including McKinley, who just made the ballot running as an independent in the Fourth Congressional District. "This is not a runaway grand jury in any sense," Turley says. "This is a grand jury faced by runaway prosecutors. They're ordinary people selected at random, typical Coloradans...unassuming, very straightforward."

Which means they are not to be confused with typical Colorado politicians.

The grand jurors' petition asks for a sealed hearing so that they can tell their story in a closed courtroom before a judge decides if they should tell it to the world. On Friday that judge became Richard Matsch, who oversees Stone's suit when he's not presiding over the Oklahoma City bombing case. Judge Matsch is no stranger to Rocky Flats--and no stranger to approving deals. In 1985 he signed off on the settlement of another Rocky Flats case, one in which nearby landowners had sued the plant because their property values allegedly had been damaged by numerous fires, spills and leaks. After years of wrangling, however, both sides agreed to a deal that determined the property was just fine. One of the plaintiffs in that case is now working to develop land around Rocky Flats.

As for the other dealmakers, Norton, who calls Turley's petition "absurd," is now in private practice. Finesilver gave up the bench and went into the mediation business. And Rocky Flats, of course, is in the remediation business, working round the clock to clean up its image--if not the land itself.

When pondcrete dries...