Toxic Shocker!

The government ambushed the Rocky Flats grand jury. Now its foreman is gunning for justice.

"Democracy is not a spectator sport," says Wes McKinley.

The rancher/math teacher/trail-ride wrangler/cowboy poet has been an active participant in democracy for close to six decades, since he first learned all about his civic duty in a one-room schoolhouse in that dusty corner of southeastern Colorado where he still lives. But for the past fifteen years, he's been playing a deadly serious game in Denver's back yard, where the government has home-court advantage.

Fifteen years ago, on June 6, 1989, the FBI launched a spectacular dawn raid -- "Operation Desert Glow" -- on Rocky Flats, the nuclear-weapons plant just sixteen miles upwind of Denver. Evidence seized in that raid was presented to Colorado's first-ever special grand jury, empaneled in August 1989 and charged with determining what crimes, if any, had occurred at the plant. McKinley wound up the foreman of that jury.

On March 24, 1992, the grand jury presented its final report and recommended that eight individuals -- some with the Department of Energy, some with Rockwell International, which ran the plant under a DOE contract -- be indicted for environmental crimes at Rocky Flats. Rather than accept the indictments, Department of Justice officials disbanded the grand jury, announcing two days later that they had reached a deal with Rockwell, charging the company -- not any individuals -- with environmental crimes that would be settled with an $18.5 million fine. A fine that was less than the bonuses Rockwell had been paid for operating the plant.

The grand jurors asked Judge Sherman Finesilver, the man who'd called them together more than thirty months before, to release their report. Finesilver ordered it sealed instead. "It is with great regret that the court notes that the Grand Jury, having the opportunity to inform the public of the facts of Rocky Flats, failed in its duty," he said.

In September 1992, Westword published "The Secret Story of the Rocky Flats Grand Jury," detailing how justice had been denied. The piece included a draft of that still-sealed report by the grand jury. "Pack your toothbrush," our attorney warned.

A few weeks later, Judge Finesilver warned the grand jurors that if they violated secrecy rules, they could be charged with contempt and punished with a fine or jail. Or both. The toothbrushes are still packed.

For almost a dozen years now, the grand jurors have been trying to tell the country the rest of the story. In November 1992, McKinley stood on the steps of the federal courthouse and read a letter to president-elect Bill Clinton from fourteen of the grand jurors, asking him to look into the case. They never got a response from Clinton -- but they did hear from Jonathan Turley, a law professor at George Washington University. Turley spent two years trying to get the grand jurors a hearing before Congress; when that effort failed, he returned to the federal courthouse where the grand jurors had first met seven years before and filed suit, asking that they be allowed to testify in court. That case is still pending; all the filings are sealed.

McKinley was not part of that action. By August 1996 he was running for Congress, hoping to spill the Justice Department's secrets from inside the House of Representatives. He lost the 4th District seat -- but his mule, Marvin, did win an endorsement from the Greeley Tribune. Two years ago, McKinley tried for a seat in the Colorado House. "We never actually lost the election," he explains. "They just quit counting when we got behind." McKinley's planning another run this fall: Democracy is not a spectator sport.

And McKinley's just rewritten the playbook with The Ambushed Grand Jury: How the Justice Department Covered Up Government Nuclear Crimes and How We Caught Them Red Handed -- a book with a title almost as long as McKinley's quest for justice. (The jury was going to be "bushwhacked" -- and how -- until Molly Ivins laid first claim to that word with her book.) McKinley's not in this alone: Co-author Caron Balkany, an attorney, did a lot of the work creating this call for a Citizens' Grand Jury, followed by hundreds of pages of evidence those citizens can use to issue their own indictment of the Justice Department.

McKinley met Balkany in 1996, when he dropped down to New Mexico to speak about Los Alamos at a meeting of Concerned Citizens for Nuclear Safety. "I didn't have much good news for them," he remembers.

In the early '90s, when the grand jury was hotter than plutonium, McKinley had been approached by assorted moviemakers and writers interested in deals, but they'd all fallen apart. No Ted Turner, no Ted Danson. Now he asked Balkany, a public-interest lawyer, for legal advice on how the grand jurors could finally get their day in court. "It turned out it wasn't a legal problem," she remembers. "The only way we could solve the problem was to do what we did -- the Citizens' Investigation. He's so compelling in his commitment, it's hard to walk away from something like that. I could tell that his commitment was that of an outraged person who felt that he had to do something, because he was in a unique position to do it and it had to be done. It was not about himself, and obviously not about money. It was about doing the right thing."

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