The Other Jury

In U.S. District Judge Richard Matsch's courtroom, the Oklahoma City bombing trial moves as slowly as a kept secret. Lawyers from both sides ask potential jurors their views on religion, their feelings about the death penalty, their recent reading habits. So far, the runaway favorite is John Grisham's The Runaway Jury.

Those three words are enough to send shock waves through the federal courthouse. Colorado has already had one runaway jury, and it keeps going and going and going. Today its path leads right to Matsch's door.

While the bombing trial plods its way through very public days, locked in Matsch's chambers is a real bombshell, safe from citizen scrutiny: the "proffer" that outlines what members of Special Grand Jury 89-2, Colorado's first special grand jury, would say if they ever got their day in court.

They came close on Friday, March 21, when Matsch met with Jonathan Turley, the George Washington law professor who took up the grand jurors' cause, and U.S. Attorney Henry Solano, who represents the government that wants very much to keep the grand jurors quiet.

But that's all you are allowed to know about that. What the lawyers discussed with Matsch is the subject of a gag order, and the judge sealed recent filings in the case--the first case ever filed in this country with a grand jury as the litigant and the government as the defendant.

Although the grand jurors got away from their federal handlers, they would not call themselves a runaway jury. They would tell you that what they did was stand their ground. They would tell you that, blocked by the Department of Justice, they turned to the U.S. Constitution in their search for justice. And then they did their duty.

They would tell you this, but they are bound by the confidentiality rules under which grand juries operate--even though the government disbanded this grand jury five long years ago.

The members of Grand Jury 89-2 first came together on August 1, 1989. They were ordered by then-U.S. District Judge Sherman Finesilver to investigate alleged environmental crimes at Rocky Flats Nuclear Weapons Plant--a task that involved hearing testimony from hundreds of individuals and studying thousands of boxes of evidence, much of it seized when the FBI raided the plant that June.

After meeting for more than a year, the grand jurors were ready to indict eight individuals--from the Department of Energy and Rockwell International, which ran the plant for DOE--for criminal conduct. But the Justice Department refused to sign the indictments, and Finesilver told the grand jurors to go home.

Instead, they read the Constitution. And then, working into the night and without the aid of the Justice Department attorneys who'd supervised their earlier deliberations, the grand jurors came up with a presentment--a list of the indictments they would have made, if the Justice Department had let them. Along with the presentment, they provided a report of their investigation, detailing the evidence against Rockwell and DOE and outlining an "ongoing criminal enterprise" at the plant. The grand jurors gave both to Finesilver, along with the request that they be made public.

He refused. And in June 1992 Finesilver sealed a deal that the Justice Department had struck with Rockwell. Under that plea bargain, Rockwell agreed to pay an $18.5 million fine--less than the bonuses the corporation had received from the government for its work at Rocky Flats. In exchange, Rockwell and its employees were protected not only from individual indictments, but also from any future criminal or civil charges.

Three months later the runaway grand jury found its way into Westword, which described how justice had been denied.

In November 1992 grand jury foreman Wes McKinley stood outside the federal courthouse and read a letter to newly elected president Bill Clinton. In it, thirteen of the Rocky Flats grand jurors asked Clinton to look into the grand jury's investigation and the Justice Department's refusal to issue indictments. They never received a response--unless you count continued threats from the Justice Department that if they violated confidentiality, the grand jurors would be charged with contempt of court, fined and jailed.

That winter Finesilver released a "redacted"--censored--version of the grand jurors' report. It was the grand jurors' own fault the report wasn't usable, the judge chided, because they hadn't prepared it correctly.

If they could, the grand jurors would tell you the report's flaws stem from the Justice Department's refusal to help in its preparation. Despite such obstacles, the grand jurors did their best; they didn't run away from their responsibilities.

On August 1, 1996, Turley appeared at the federal courthouse where his clients had been empaneled seven years earlier and submitted a petition to the court asking that the grand jurors be allowed a hearing. The passage of time had made the legal arguments for doing so more compelling, he said. After all, much of the evidence presented to the grand jury had since been made public through other means--including the mouths of federal officials.

Attached to the petition were affidavits from almost two dozen grand jurors--a swim coach, a bus driver, a hairdresser, even a lawyer. Under oath, they'd each attested to the following: "I have been prevented from fulfilling the obligations of my sworn oath to the extent that it requires a full and independent investigation and reporting of both criminal conduct and, specifically, government conduct...in the final, critical stage of our deliberations, the Justice Department withdrew assistance and support from the grand jury and hampered our efforts to complete our investigatory and reporting function."

Under the plea bargain, Rockwell cannot be touched. But the Justice Department still has its sticky fingerprints all over the deal. "They have evidence of obstruction of justice at Rocky Flats," Turley said of his clients at a hearing on the grand jurors' petition, "but more important are efforts by the Department of Justice to obstruct their efforts in the grand jury room."

Not surprisingly, U.S. Attorney Solano argued against giving the grand jurors a hearing, sealed or otherwise. That's why they took the next step, of preparing a proffer outlining what they would testify to--if they could. Turley delivered that to Matsch on February 24.

That's the document now sealed by Matsch.
The most recent filing available for public viewing dates back to September, when Rockwell's attorneys offered their response to Turley's petition. The grand jurors just want to be relieved of their secrecy oath, the response claimed, because they're eager to sign book and movie deals.

But assuming Hollywood would ever buy into this story, a former prosecutor is the one pursuing the movie deal, Turley says; the jurors are keeping their mouths shut. "Unlike the prosecutors, my clients have faithfully observed the rules," he adds. "They have a right to reclaim their reputations."

In the seven years since the grand jurors were sworn in, Finesilver has retired--which is why their petition went to Matsch. U.S. Attorney Mike Norton, who'd refused to sign the grand jurors' indictments, has been succeeded by Solano. Rockwell no longer runs the plant. In fact, Rocky Flats is no longer a plant at all; it quit manufacturing nuclear-weapons parts years ago, and today it has a warm and fuzzy new name, Rocky Flats Environmental Technology Site. Former Denver mayor Federico Pena is now the Secretary of the Department of Energy, which is overseeing the warm (plenty warm, given the 14.2 tons of plutonium there) and fuzzy cleanup of Rocky Flats.

The only constant remains the runaway grand jurors, who are still standing firm. They aren't going anywhere. They'd tell you that, if they could.

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