Gag Reflex

The Rocky Flats grand jurors are about to get their day in court.
Two days, actually: Courtroom C-159 at the federal courthouse, the building that recently hosted the trial of Tim McVeigh, has been reserved for two days this week for a "confidential, closed proceeding."

The grand jurors are about to get their day in court, but we may never know what's said at the landmark hearing. That's because this week's proceeding, like the previous actions of Special Grand Jury 89-2, falls under a stipulation that keeps all grand jury activities secret.

U.S. District Judge Richard Matsch emphasized that point again in March, when he sealed recent filings made by the grand jurors' attorney, Jonathan Turley, and issued a gag order silencing Turley and just about every other character in the decade-long story.

The most recent chapter opened on August 1 of last year, the seven-year anniversary of the day Colorado's first-ever special grand jury was impaneled by then-chief judge Sherman Finesilver. Their job, Finesilver told the two dozen Coloradans gathered that day, was to investigate alleged environmental crimes at the Rocky Flats Nuclear Weapons Plant--which stopped producing plutonium triggers soon after and now goes by the kinder, gentler name of Rocky Flats Environmental Technology Site. (When he heard that the case involved Rocky Flats, the man who would become the jurors' foreman, Wes McKinley, thought they'd be investigating "some hippie thing.")

The real crime may not be what happened out at Rocky Flats, but what happened to the grand jurors' investigation.

On August 1, 1996, Turley filed a motion asking that the grand jurors be allowed to tell their story. They wanted to testify in court about the obstacles that had been put in their way. They wanted to describe how the Department of Justice ensured that there would be no justice in this case.

For over two years, the jurors had met in Denver for one week every month to listen to testimony and sift through evidence--hundreds of boxes of evidence, much of it seized by the FBI during a June 1989 raid on Rocky Flats. And attorneys with the Justice Department worked right alongside them, explaining procedures and introducing a steady stream of witnesses. By the time the grand jurors were through, they'd decided they wanted to indict eight people for criminal conduct, including employees of both the Department of Energy and Rockwell International, which ran the plant for the feds.

But the Justice Department refused to sign the indictments. Instead, in March 1992 the government cut a deal with Rockwell, fining the company $18.5 million--less than it had collected in bonuses for running Rocky Flats--and indemnifying Rockwell against any future claims. (The feds even agreed to pay the corporation's considerable legal bill.) Finesilver told the grand jurors they could go home; their work was over.

Not quite.
Before they left Denver, the grand jurors wrote a secret report outlining the results of their deliberations; they asked Finesilver to read and release it to the public. But the judge who three years earlier had charged the jurors with finding the truth now sealed their report and signed off on the settlement deal.

In September 1992, Westword broke the storyof how justice had been denied in the Rocky Flats case. Not only had the government refused to approve their indictments, over half the jurors confirmed, but it had actually obstructed their investigative efforts into what they considered an "ongoing criminal enterprise," according to a draft of their report excerpted in Westword.

That November, jury foreman Wes McKinley walked to the steps of the courthouse and read a letter from fourteen of the grand jurors to then-president-elect Bill Clinton, describing their situation and asking him to look into the case. The jurors have yet to get a response from Clinton--although they have continued to collect threats from the government, warnings that they could be charged with contempt of court, fined and jailed if they break confidentiality.

But their public protest did get a response from someone else: Turley, a George Washington Law School professor who's taken on numerous public causes, from Area 51 to the aging prison population.

For two years Turley worked to get the grand jurors a hearing before Congress, which has the power to waive confidentiality and where a subcommittee had already done its own critical investigation of Rocky Flats. But when politics eventually blocked off that avenue, Turley changed direction. Ultimately, he returned to the same courthouse where the jurors had first met years before and filed a petition on behalf of eighteen of them. (McKinley, who was running for Congress last fall, is not part of the current court action.)

The passage of time has made the legal arguments for giving the grand jurors a hearing more compelling, Turley's motion argued. For example, much of the information they investigated has since surfaced publicly through other means--including the mouths of federal officials. "When the government and its contractors are the target of a special grand jury, public integrity concerns are at their apex," Turley said. "The public has a great need to know about the facts relating to the government's past misconduct at Rocky Flats in order to judge the actions of public officials and agencies."

The passage of time has also changed the personnel involved in the case. Federico Pena is now head of the Department of Energy; Rockwell no longer runs Rocky Flats. And with Finesilver retired, the legal action has moved to Matsch's courtroom. Even before the McVeigh trial, Matsch had a reputation for disliking any manipulation of the judicial system--by anyone, the government included. The grand jurors are counting on that. "They have evidence of obstruction of justice at Rocky Flats," Turley argued at one hearing, "but more important are efforts by the Department of Justice to obstruct their efforts in the grand jury room."

Both the government and Rockwell filed objections to the grand jurors' petition. Rockwell's attorneys argued that one of the primary reasons the jurors wanted to talk was so they could consummate book and movie deals.

If a film is ever made of this case, though, it won't be an action flick.
The paper chase continued through the fall, with numerous motions made to Matsch. And then the grand jurors got down to serious business: working with Turley to compile a "proffer" outlining what they would say if they ever got a chance to say it. Matsch received that document in late February. A month later, the judge sealed the files and issued his gag order.

But at the same time, Matsch did something else--although no one could talk about it: He opened the door a crack by agreeing to this week's closed-door hearing. After that, the case could blow wide open--or be closed for good.

"The controversy surrounding Rocky Flats stands as a textbook example of the value and vital role of the grand jury in our system of government," Turley argued in one of his motions.

It also stands as a textbook example of how an unlikely combination of people--a bus driver, a swim coach, a hair dresser, a bartender, an attorney--will stand together to fight for what they believe in.

Plutonium lasts forever. But so does the burning desire to see justice done.

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