Flats, Busted

Lawsuits against Rocky Flats, like plutonium, last forever.

Outraged, the grand jurors wrote a report that described an "ongoing criminal enterprise" at Rocky Flats and asked that it be made public; U.S. Judge Sherman Finesilver ordered it sealed. Although a redacted version was eventually released, the grand jurors have never been allowed to talk about how the Department of Justice prevented them from doing their duty in this case, how justice was denied. They are still under a gag order imposed by the judge.

Last year, McKinley asked legislators to approve a bill that would require signs outside Rocky Flats -- the site of a $7 billion, six-year cleanup to allow its conversion to a nature and wildlife refuge -- letting people know what might be underfoot on their nature hikes. The measure failed, but McKinley reintroduced it this year, and he has much higher hopes for its success in the wake of the jury's verdict in the class-action suit. "It took them four months to come to the same conclusion that I had known and could have told them in four minutes. Thank you to the jury," he says. "It also proves that there has been contamination, and will be, for 24,000 years at Rocky Flats. It would be nice to keep people out, but we fought for our rights to make our own decisions. So the people going out there have a right to decide for themselves that they want to go -- but it is our moral duty to let the facts be known so that they can make educated decisions."

Jonathan Turley, a law professor at George Washington University, has represented Wes McKinley's fellow grand jurors for more than a decade. Initially, he hoped that they would be released from grand-jury confidentiality in order to testify before Congress. When that effort failed, he filed a petition on behalf of the grand jurors that they be allowed to tell their story in court. And in 1997, in a special hearing room with all its windows blocked, those grand jurors did testify before U.S. Judge Richard Matsch -- not about what had happened in the jury room, but about how government employees and Justice lawyers had conducted themselves improperly. Perhaps illegally.

The transcripts of that hearing were never released. Even the hearing itself remained a secret until January 11, when Turley appeared before three U.S. Court of Appeals judges. A block away, the jurors in Judge Kane's courtroom were going on three months and were up to exhibit 2251 in the class-action case; Turley himself was going on a dozen years. "Since this case," he says, "I have gotten married, gotten tenure and a chair, had four kids and gained fifty pounds." But he has not yet secured the grand jurors their right to speak; Turley is still waiting to hear if the trial court will be reversed and the case remanded.

"The amazing thing about places like Rocky Flats is that not only do the injuries continue, but you have litigation for decades," Turley says. "You have a group of managers who engaged in gross misconduct. Most of those managers faced no repercussions at all, yet we are going to have decades of litigation and millions of dollars of costs for the mess they created, and there is no meaningful punishment of any government official connected with Rocky Flats. The government is covering its own.

"The thing that disturbs me most is that even after all these years and all this money, the people still do not know what motivated the grand jurors to take their historic stand. When people learn that, they are going to finally understand what has motivated these grand jurors to keep this fight going."

Jim Stone knows just how long the fight can take. He's the former Rocky Flats engineer who blew the whistle on the plant's poor practices, who provided leads for the FBI -- even suggested those overflights to check out the incinerator -- and filed suit against Rockwell under the federal False Claims Act in July 1989. Ten years passed before a jury finally ruled in Stone's favor.

Rockwell appealed, of course. "I understand why they delayed," he says. "They were caught with their hands in the till and don't want to pay it back." What he couldn't understand was why the appeals ruling had also been delayed. "The claimed Œcleanup' at Rocky Flats has not taken as long as my case," he continues. "The moral of the story, and my advice for the plaintiffs in the current Rocky Flats trial, is that they still have a long way to go, and the only thing they can count on is delay upon delay."

Stone wasn't well enough to testify in that trial. By the time the appeals court finally ruled in his favor two months ago, he'd moved into assisted living. Rockwell will have to file a petition by early April if it wants the Supreme Court to consider taking on the case. And in the meantime, says Hartley Alley, Stone's longtime attorney, "Rockwell has applied in the claims court for $20 million in attorneys' fees to defend the Stone case that they lost."

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