Calhoun: Wake-Up Call

Judge Finesilver almost gave the Rocky Flats grand jury a big twentieth birthday present

The Denver Public Library has about 4,000 collections donated by corporations, organizations and individuals, but even so, archivist/librarian Roger Dudley recognized that there was something unique about the collection he was sorting through: sealed court records, many of them involving Colorado special grand jury 89-2, which U.S. District Court Judge Sherman Finesilver had impaneled back in August 1989.

Before he passed away in 2006, Finesilver and his wife had donated more than 180 boxes to the DPL, with the stipulation that they be kept closed until 2009. That's when Dudley started cataloguing the incredible material the federal judge had left the library, material that ranged from documents on German restitution to swine flu to the Rocky Flats grand jury.

"When I began going through the grand jury materials, I ran across various forms of the grand jury report that were clearly marked as 'not for public release,' and wanted to find out if there was a time limit on such materials in order to restrict them," Dudley recalls. "I wanted to protect the library from liability."

After calling around, he finally reached Gregory Langham, clerk of the U.S. District Court, who came down with an attorney to look through two boxes. Later, Langham returned to the library with a judge and examined still more documents, then wrote a letter requesting that certain items be returned to the court — including everything involving Rocky Flats. "Which we did," Dudley says.

It would have been so much more convenient had they just dropped them off at our office.

Twenty years ago this summer, rancher Wes McKinley found a jury summons in his mail. "It was one of those punch cards," he recalls. "It looked like one of those things you get in the mail for a free trip." A trip was involved, all right: a 300-mile drive from southeastern Colorado to Denver, where he joined dozens of other people summoned to serve on Colorado's first special grand jury. "I vividly remember driving down there," McKinley says. "Traffic was hideous. It took me three hours to find the courthouse."

McKinley knows his courthouses; back when farmers were protesting against the government in the late '70s, he stood guard outside the county courthouse in Springfield. And although he was tempted to escape jury duty — "It's easy to get off when you live 300 miles from town, have a ranch and no sons," he points out — the more he heard about the focus of the investigation, the more he knew it was his patriotic duty to stay.

Two months earlier, on June 6, 1989, the FBI had staged an unprecedented raid on the Rocky Flats Nuclear Weapons Plant, sixteen miles upwind from Denver. It was the first time a federal agency had raided a federal facility, one created for the sole purpose of manufacturing plutonium triggers for nuclear bombs. The grand jurors would be sifting through evidence seized during that raid, listening to the agents who'd conducted it, hearing testimony from the whistleblowers who'd leaked information to the feds that indicated environmental crimes might have occurred at the plant — and might still be occurring. A ton of missing plutonium. "Pondcrete" spilling poisons into the ground. Secret incinerations at night.

By that fall, McKinley had become the foreman of the 23-member grand jury. He continued in the role for the next two years, through months of discussion and deliberation as the grand jurors began to focus on eight individuals with the Department of Energy and Rockwell International, which managed the plant for DOE, individuals they thought should be charged with crimes.

Instead, in April 1992, U.S. Attorney Mike Norton came up with a deal for Rockwell: The company would plead guilty to five felony and five misdemeanor violations of environmental laws and pay an $18.5 million fine — less than the bonuses the DOE had paid Rockwell for running the plant.

Outraged by the deal, the grand jurors wrote a report outlining how justice had been denied and asked Finesilver to release it. Instead, he signed off on the settlement and ordered the report sealed. It was — but excerpts appeared in the September 29, 1992 issue of Westword, the secrets spilling out like the toxic sludge at the plant itself. And in January 1993, Finesilver finally released a redacted version of the report.

The grand jurors never gave up on their goal of telling the whole truth, though. McKinley ran for Congress in hopes of being able to do so with immunity. In 1996, many other grand jurors filed a motion with U.S. District Judge Richard Matsch asking that they be released from their oath of secrecy and allowed to speak. Their request is still pending.

And that's not the only Rocky Flats case on hold.

Seven months after the raid, Denver lawyer Bruce DeBoskey filed suit on behalf of homeowners who claimed that both their health and property values had suffered because of their lands' proximity to Rocky Flats. Justice in this case, too, moved slowly, as the government fought against releasing documents. The "discovery history of this case is not pretty," said Judge John Kane back in 1993. It finally went to trial in U.S. District Court in the fall of 2005, by which point ten lawyers were working for the plaintiffs — all on contingency — and the class had grown to more than 13,000 homeowners.

After a four-month trial that involved dozens of witnesses, the jury decided that both defendants — Dow Chemical Co., which had run the plant from its inception until 1975, and Rockwell, which had run Rocky Flats from 1975 until the feds shut down operations in 1989 — were liable. The plaintiffs were awarded $354 million in compensatory and $200 million in punitive damages — a record verdict in Colorado, and the first time punitive damages had ever been awarded against a nuclear weapons contractor. By the time Judge Kane upheld the verdict last year, the judgment, plus interest, had reached a whopping $926 million.

Even though the government will pick up the final tab — the Price-Anderson Act indemnifies contractors like Dow and Rockwell against damage awards as well as legal fees (close to $100 million has been billed by the defendants' attorneys alone) — the companies are appealing.

But at least one win is definitive: Last month, the ten attorneys who fought for the homeowners were named the 2009 Trial Lawyer of the Year by the Public Justice Foundation, sharing the award with the New York lawyers who'd fought for the victims of the 1988 Pan Am bombing.

"I was a young man," DeBoskey says of the case's early days. "It was such a labor of love, such a lifetime of work for all the lawyers. Citizens against giant corporations and the government. Citizens had the truth, and a team of lawyers from three cities were willing to fight for that truth. A great judge and a great jury were willing to believe that truth."

Will we ever know the truths contained in Finesilver's files? According to court clerk Langham, not while those papers concern "pending issues." Finesilver himself might have thought all Rocky Flats matters would be settled by 2009 — but he, more than anyone, should have known that the truth doesn't come easy at Rocky Flats.

After a ten-year, $7 billion cleanup, more than 6,000 acres of former plant property were turned over to the U.S. Department of Interior's Fish & Wildlife Service, which plans to open much of the area to the public as a wildlife refuge as early as next year. The Rocky Flats Stewardship Council, a consortium of local governments and groups, is working with the DOE Office of Legacy Management and Fish & Wildlife on a number of issues involved with the project, including environmental monitoring and interpretive signage for site.

"Those who forget the past are condemned to repeat it," quotes David Abelson, the council's executive director. "How do we as a community not forget the past, and also remember the obligations? You can't tell the story of Rocky Flats in a quick little sign."

McKinley has a chapter of that story in the journal he kept during his days on the grand jury, more of it in the book he co-wrote, The Ambushed Grand Jury, and he still hopes to tell the rest one day — if not in Congress, then at the State Capitol, where he's now a representative. He's served there twice as long as he served on Finesilver's grand jury.

"And we were the first grand jury to be around long enough to have a Christmas party," he says.

The judge's files would have made a fine twentieth anniversary present.

For Calhoun's selected archive of Rocky Flats coverage, go to the Latest Word Blog. Contact the author at [email protected]

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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