Calhoun: Wake-Up Call

Flats, Busted

After months of testimony and weeks of deliberation, the ten jurors considering the case of Merilyn Cook, et al., vs. Rockwell International Corporation and the Dow Chemical Company had finally reached a verdict. But before it was revealed, U.S. District Judge John Kane had a few words to say.

"Through this trial, I had a clipping from one of the newspapers that said -- the headline was 'Rocky Flats Gets Its Day in Court.' It's a typical newspaper understatement," he told the jurors. "What you had is 69 days of this trial spread out from October 3 to the present time, and you deliberated all or part of seventeen days....

"So today is the last day of this, and I want -- I don't know how to say this as evocatively, as forcefully as I really want to, but we are all committed to the jury system in this country, and to allow citizens to be in this particular venue of the courtroom with a jury, to be government by the people, of the people, and you have served in that capacity far more than most other jurors do because of the length and time and the complexity of the case. You have set an example and a standard that all of us respect, and I want you to carry with you the notion that you are doing something to preserve, protect and defend the integrity of our government system by the work that you've put in, the concentration, the effort and the time."

And then on February 14, more than four months after they'd first stepped foot in the federal courthouse, the jurors delivered a verdict in favor of the plaintiffs -- a class of 12,000 property owners who'd owned land around Rocky Flats in 1990 -- awarding them $554 million, a record judgment in this state, for the damage done to their property. For the damage done to their lives.

For the damage done by the lies.

"The jury has spoken, and they saw through the guff," says Jon Lipsky, who knows guff when he sees it. As the environmental-crimes expert for the FBI in Denver, Lipsky led the probe into alleged violations at Rocky Flats Nuclear Weapons Plant, the federal facility built sixteen miles upwind of Denver to manufacture plutonium triggers for nuclear bombs. After two years of investigation and armed with a 116-page search warrant, he led dozens of FBI and EPA agents on a spectacular dawn raid of the plant on June 6, 1989. The evidence seized in that raid went to Colorado Special Grand Jury 89-2, impaneled on August 1 of that year and charged with investigating possible federal crimes at Rocky Flats.

Lipsky testified before that grand jury, just as he would later testify before the jury considering the class-action case against Dow, which ran Rocky Flats for the federal government from 1953 until 1975, and Rockwell, which had the contract from 1975 up until the raid. After that, the plant was never again operational.

Lipsky's raid not only shut down Rocky Flats, but woke up its neighbors, who'd been assured by the government that the facility posed no threat. All that summer, they held community meetings, panicked by the stories leaking out, fearful of the plant's impact on their health, on their property. On January 30, 1990, they filed suit against the two companies that had operated Rocky Flats in almost complete secrecy for close to forty years.

More than fifteen years later, in Judge Kane's courtroom, Lipsky finally got to talk about what he'd found at Rocky Flats. Until January 2005, when he retired from the FBI, he hadn't been allowed to talk about the case in public at all. In fact, the day after a congressional subcommittee issued a report on the grand-jury investigation, Lipsky, the FBI's environmental expert, was transferred by then-U.S. Attorney Mike Norton to Los Angeles, where he was assigned to a gang unit.

But he never forgot what he'd seen at Rocky Flats. And over days of testimony in the civil case last fall, as the lead witness for the plaintiffs, he told the jurors about his work leading up to the raid, about the nighttime flights that indicated an incinerator that was supposed to be shut down was illegally burning hazardous waste, about the workers who'd come to him with stories about being told to violate plant policies.

While he wasn't in the courtroom to hear the verdict, Lipsky was there in spirit. "I'm ecstatic," he says. "It's very important that what the government used, its cloak of secrecy, is now uncovered. The jury got it, there's no doubt."

Jon Lipsky made his first public statements about Rocky Flats in January 2005, in support of a bill introduced by Representative Wes McKinley -- the math-teaching, poetry-writing rancher who was elected to the Colorado House in 2004 and who had served as foreman of the grand jury investigating Rocky Flats. Those jurors spent two years listening to testimony and sorting through the evidence, ultimately determining that eight individuals -- some from Rockwell, some from the Department of Energy -- should be charged with environmental crimes. Instead, the grand jurors were dismissed and U.S. Attorney Norton offered Rockwell a deal in March 1992, fining the company $18.5 million in exchange for a guilty plea to ten counts -- five felonies, five misdemeanors -- that named no individuals.

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Patricia Calhoun co-founded Westword in 1977; she’s been the editor ever since. She’s a regular on the weekly CPT12 roundtable Colorado Inside Out, played a real journalist in John Sayles’s Silver City, once interviewed President Bill Clinton while wearing flip-flops, and has been honored with numerous national awards for her columns and feature-writing.
Contact: Patricia Calhoun