The Other Jury
Seven years later, the runaway Rocky Flats grand jurors aren't going anywhere.
By Patricia Calhoun
In U.S. District Judge Richard Matsch's courtroom, the Oklahoma City
bombing trial moves as slowly as a kept secret. Lawyers from both sides ask
potential jurors their views on religion, their feelings about the death
penalty, their recent reading habits. So far, the runaway favorite is John
Grisham's The Runaway Jury.
Those three words are enough to send shock waves through the federal
courthouse. Colorado has already had one runaway jury, and it keeps going
and going and going. Today its path leads right to Matsch's door.
While the bombing trial plods its way through very public days, locked
in Matsch's chambers is a real bombshell, safe from citizen scrutiny: the
"proffer" that outlines what members of Special Grand Jury 89-2, Colorado's
first special grand jury, would say if they ever got their day in court.
They came close on Friday, March 21, when Matsch met with Jonathan
Turley, the George Washington law professor who took up the grand jurors'
cause, and U.S. Attorney Henry Solano, who represents the government that
wants very much to keep the grand jurors quiet.
But that's all you are allowed to know about that. What the lawyers
discussed with Matsch is the subject of a gag order, and the judge sealed
recent filings in the case--the first case ever filed in this country with
a grand jury as the litigant and the government as the defendant.
Although the grand jurors got away from their federal handlers, they
would not call themselves a runaway jury. They would tell you that what
they did was stand their ground. They would tell you that, blocked by the
Department of Justice, they turned to the U.S. Constitution in their search
for justice. And then they did their duty.
They would tell you this, but they are bound by the confidentiality
rules under which grand juries operate--even though the government
disbanded this grand jury five long years ago.
The members of Grand Jury 89-2 first came together on August 1, 1989.
They were ordered by then-U.S. District Judge Sherman Finesilver to
investigate alleged environmental crimes at Rocky Flats Nuclear Weapons
Plant--a task that involved hearing testimony from hundreds of individuals
and studying thousands of boxes of evidence, much of it seized when the FBI
raided the plant that June.
After meeting for more than a year, the grand jurors were ready to
indict eight individuals--from the Department of Energy and Rockwell
International, which ran the plant for DOE--for criminal conduct. But the
Justice Department refused to sign the indictments, and Finesilver told the
grand jurors to go home.
Instead, they read the Constitution. And then, working into the night
and without the aid of the Justice Department attorneys who'd supervised
their earlier deliberations, the grand jurors came up with a presentment--a
list of the indictments they would have made, if the Justice Department had
let them. Along with the presentment, they provided a report of their
investigation, detailing the evidence against Rockwell and DOE and
outlining an "ongoing criminal enterprise" at the plant. The grand jurors
gave both to Finesilver, along with the request that they be made public.
He refused. And in June 1992 Finesilver sealed a deal that the Justice
Department had struck with Rockwell. Under that plea bargain, Rockwell
agreed to pay an $18.5 million fine--less than the bonuses the corporation
had received from the government for its work at Rocky Flats. In exchange,
Rockwell and its employees were protected not only from individual
indictments, but also from any future criminal or civil charges.
Three months later the runaway grand jury found its way into
Westword, which described how justice had been denied.
In November 1992 grand jury foreman Wes McKinley stood outside the
federal courthouse and read a letter to newly elected president Bill
Clinton. In it, thirteen of the Rocky Flats grand jurors asked Clinton to
look into the grand jury's investigation and the Justice Department's
refusal to issue indictments. They never received a response--unless you
count continued threats from the Justice Department that if they violated
confidentiality, the grand jurors would be charged with contempt of court,
fined and jailed.
That winter Finesilver released a "redacted"--censored--version of the
grand jurors' report. It was the grand jurors' own fault the report wasn't
usable, the judge chided, because they hadn't prepared it correctly.
If they could, the grand jurors would tell you the report's flaws stem
from the Justice Department's refusal to help in its preparation. Despite
such obstacles, the grand jurors did their best; they didn't run away from
On August 1, 1996, Turley appeared at the federal courthouse where his
clients had been empaneled seven years earlier and submitted a petition to
the court asking that the grand jurors be allowed a hearing. The passage of
time had made the legal arguments for doing so more compelling, he said.
After all, much of the evidence presented to the grand jury had since been
made public through other means--including the mouths of federal officials.
Attached to the petition were affidavits from almost two dozen grand
jurors--a swim coach, a bus driver, a hairdresser, even a lawyer. Under
oath, they'd each attested to the following: "I have been prevented from
fulfilling the obligations of my sworn oath to the extent that it requires
a full and independent investigation and reporting of both criminal conduct
and, specifically, government conduct...in the final, critical stage of our
deliberations, the Justice Department withdrew assistance and support from
the grand jury and hampered our efforts to complete our investigatory and
Under the plea bargain, Rockwell cannot be touched. But the Justice
Department still has its sticky fingerprints all over the deal. "They have
evidence of obstruction of justice at Rocky Flats," Turley said of his
clients at a hearing on the grand jurors' petition, "but more important are
efforts by the Department of Justice to obstruct their efforts in the grand
Not surprisingly, U.S. Attorney Solano argued against giving the grand
jurors a hearing, sealed or otherwise. That's why they took the next step,
of preparing a proffer outlining what they would testify to--if they could.
Turley delivered that to Matsch on February 24.
That's the document now sealed by Matsch.
The most recent filing available for public viewing dates back to
September, when Rockwell's attorneys offered their response to Turley's
petition. The grand jurors just want to be relieved of their secrecy oath,
the response claimed, because they're eager to sign book and movie deals.
But assuming Hollywood would ever buy into this story, a former
prosecutor is the one pursuing the movie deal, Turley says; the jurors are
keeping their mouths shut. "Unlike the prosecutors, my clients have
faithfully observed the rules," he adds. "They have a right to reclaim
In the seven years since the grand jurors were sworn in, Finesilver has
retired--which is why their petition went to Matsch. U.S. Attorney Mike
Norton, who'd refused to sign the grand jurors' indictments, has been
succeeded by Solano. Rockwell no longer runs the plant. In fact, Rocky
Flats is no longer a plant at all; it quit manufacturing nuclear-weapons
parts years ago, and today it has a warm and fuzzy new name, Rocky Flats
Environmental Technology Site. Former Denver mayor Federico Pe� is now the
Secretary of the Department of Energy, which is overseeing the warm (plenty
warm, given the 14.2 tons of plutonium there) and fuzzy cleanup of Rocky
The only constant remains the runaway grand jurors, who are still
standing firm. They aren't going anywhere. They'd tell you that, if they