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Showdown at Rocky Flats : The Justice Department had negotiated a Rocky Flats settlement, but the grand jury could not keep quiet about what happened there.

<i> Barry Siegel, a Times national correspondent, is the author of "A Death in White Bear Lake" and "Shades of Gray," both published by Bantam Books. His last story for this magazine was about the University of Wisconsin's efforts to outlaw hate speech. </i>

FOR THE 23 COLORADO CITIZENS SUMMONED TO SERVE AS GRAND jurors in the investigation of the Rocky Flats Nuclear Weapons Plant, the two years of weeklong sessions each month between mid-1989 and mid-1991 did not provide an entirely tranquil or enjoyable experience.

There were sacrifices, traveling so regularly to Denver from distant reaches of the state. Shirley Kyle’s extended absences from the tiny east Colorado town of Farley forced her to close her hairdressing salon. There was boredom--more than once, Ken Peck turned around in his seat to find all the other grand jurors dozing while lead prosecutor Ken Fimberg droned on with a witness. There was inanity--two or three jurors with vision and hearing problems never seemed to understand where they were and why they were there. There was mystery--one juror with a perpetual snarl and an uncertain occupation showed up regularly in strange hats and Salvation Army trench coats, snorting “What’s it to you?” when asked how things were going.

Most of all, though, there was animosity. Much of it was directed at Ken Peck, the lawyer and one-time Rocky Flats gadfly. Thin, almost six feet tall, with owlish glasses and lots of neck, Peck was not the most soothing of characters. In fact, his high-strung, aggressive manner made the other grand jurors’ skin crawl. If his confreres couldn’t stand how he talked to them, they liked even less how he often talked to witnesses. One witness, fed up with Peck’s high-pressure grilling, had actually stood up and left, saying he wasn’t going to answer such questions.

In January, 1991, the cowboy Wes McKinley, by then the grand jury’s foreman, forced a showdown. He asked Peck to resign from the grand jury. If anything, Peck enjoyed the confrontation. They just don’t like suits and lawyers, he reasoned. “Thank you for your opinion,” he smiled when McKinley had finished. The foreman wanted to push the matter further, but Shirley Kyle, always the peacemaker, stepped in. “Wes, you’ve said your piece,” she pointed out. “Ken heard it, we all heard it, so let’s go on.”

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Unlike Peck, the other grand jurors had started their Rocky Flats investigation with no thoughts at all about the weapons plant. Most learned as they went along.

Shirley Kyle had been on the jury for a year and a half before she finally grasped why she should be interested in Rocky Flats. The insight came one evening in early 1991, when she went to dinner with her sister and two nieces at a restaurant in Brighton, in a region full of cow farms. The water brought to the table by the waitress that night “tasted like cow waste” to Kyle. Oh my God, it suddenly occurred to her. This is what Rocky Flats is about. Ground-water contamination, down to the water table. “A light bulb came on,” is how she recalls it. “I knew why I was on the grand jury. I never will forget that moment.”

U.S. Atty. Mike Norton now suggests that Ken Peck may have unduly influenced the grand jury, that Ken Peck may have shaped the jurors’ thinking by bringing in outside evidence from newspaper reports and speculation. The grand jurors, though, bristle at such a notion, suggesting that it insults their integrity and intelligence. We would have done the same without Ken or Wes, they say. They’re just like us. Why would we put them above us?

The grand jurors offer a different candidate when asked who shaped them. “I think the jury was led by Ken Fimberg,” Kyle says. “It was the prosecutor who convinced us what we should do.”

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For more than two years, they watched and listened as Assistant U.S. Atty. Fimberg paraded before them 110 witnesses and more than 2,000 exhibits that described violations of environmental laws involving the storage, treatment and disposal of hazardous waste.

They listened to a Rocky Flats chemical operator testify how he’d vainly warned his foreman regularly about leaking blocks of hazardous waste called pondcrete, and how the foreman had told him to “cap” the soft blocks with concrete to fool inspectors.

They listened to Department of Energy inspector John Krupar tell how Rocky Flats manager Dominic Sanchini had built a fence to keep him away from the pondcrete after he’d reported leaks and soft blocks. They listened to chemical operator Jackie Brever tell how she’d been threatened by Rocky Flats managers after she started talking to the FBI about the possibly illegal burning of wastes in the Building 771 incinerator.

They listened with particular dismay as various Rocky Flats officials described a February, 1989, chromic acid spill that ended up running off into surrounding creeks after being spray-irrigated through sprinklers over frozen, ice-covered fields. One worker suggested they let this happen because they thought the green stuff was guacamole from the Rocky Flats cafeteria; several jurors thought Rocky Flats’ managers’ fear of adverse publicity was a more reasonable explanation.

The more they listened, the more incensed the grand jurors grew. What looked to the Justice Department’s Barry Hartman to be a case about “toilet flushing” appeared to many of the grand jurors to be an outrage. Even if there wasn’t a direct, provable public health impact, they felt there certainly was a long-term potential for peril--the DOE itself, in a study released in December, 1988, had called Rocky Flats’ ground water the single greatest environmental hazard at its nuclear facilities. Besides, federal employees and the Rocky Flats contractors--Rockwell International through 1989, when its contract was terminated, then EG&G; Inc., which also runs the Kennedy Space Center, among other government installations--are subject to the criminal laws of this nation just like everyone else. They must be held accountable.

At its core, the grand jurors’ passion was not precisely that of the environmentalist. Ranchers such as Wes McKinley, after all, find wetlands laws mighty stifling when they prohibit running cattle on any land capable of holding water seven days. The grand jurors’ passion arose instead from an abhorrence of hypocrisy and double standards.

“Little guys and little companies sure get prosecuted for environmental crimes,” McKinley says. “Our judge’s instructions said no one is above the law. If that’s not true, let’s go tell America, let’s tell ‘em what the deal is. Or let’s change it. Let’s not throw small old guys in jail and not prosecute big companies.”

By August, 1991, the grand jurors had decided they wanted to indict five Rockwell and three DOE managers, along with Rockwell and EG&G.; The grand jurors also wanted to write a report denouncing the Environmental Protection Agency, the Colorado Department of Health and every regulator who’d failed to control Rocky Flats. And they wanted to call for the permanent shutdown of Rocky Flats.

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Only later would the grand jurors learn that it didn’t matter what they wanted to do. Only later would they learn that the prosecutors had been negotiating a plea bargain for nine months and were now haggling with Rockwell over the details of the settlement. Only later would they learn that forces within Rockwell and the Justice Department were now stirring to block the writing or release of any grand jury report at all. Only later would they learn that the judicial system, in the summer of 1991, was basically finished with them.

ROCKWELL LAWYERS FIRST PROPOSED THAT THERE BE NO GRAND jury report in a letter to U.S. Atty. Norton on June 27, 1991. Ken Fimberg, scrambling to nip the notion in the bud, advised Norton that the grand jury “would lynch us if we agreed to this.”

In mid-July, Rockwell lawyers repeated their demand. The law doesn’t allow a grand jury report in the Rocky Flats case, they argued, because the special grand jury section of the U.S Criminal Code requires that it be about “organized criminal activity.” What had the Justice Department decided? they inquired again in early October.

That, as it happens, was a good question. By then, Fimberg had come to realize his most ominous foe in the fight over a grand jury report was going to be the Justice Department, not Rockwell. For once, he wasn’t isolated. The entire prosecution team wanted a grand jury report. But Barry Hartman, then head of the Environment and Natural Resources Division in Washington, did not. Nor did the Criminal Division, whose managers were now wondering why they’d ever authorized a special grand jury in the first place.

On Oct. 3, Fimberg sounded the first of what would be many warnings: The grand jury had already “expressed its deep commitment to make a report,” he advised in a memo. The jury might do so “whether the department wants to or not. The Department may wish to be involved in (and exercise some control over) this process, rather than leave the grand jury to its own devices.”

Hartman was not persuaded. This grand jury’s role, he insisted, was simply to “hand up” or not “hand up” indictments. This grand jury wasn’t supposed to write reports. There was no statutory authority for the type of report they had in mind. The statute only authorized reports on “organized criminal activity.” Rocky Flats was not an “organized criminal activity.”

Hartman insists he reached these conclusions by a neutral reading of the law. “It’s not what Hartman wants, it’s what the law allows. . . . We can’t ignore the law to do what’s expedient,” he says. Those aware of his abiding sensitivity to political ramifications, however, find it hard to believe that Hartman didn’t also think a bit about the negative impact a grand jury report might have on the Energy Department, if not the White House. The grand jurors, after all, were planning to denounce the DOE and all of government, not just for past failures but also for what they saw as continuing conditions at Rocky Flats. Hartman dismisses this suggestion with a snort, but if he did not then care about DOE’s image, he certainly did six months later. In a report to Atty. Gen. William P. Barr in March, 1992, Hartman wrote: “We have tried to convince the United States Attorney to accurately reflect the fact that DOE failures were the result of attitudes prior to Adm. James D. Watkins becoming the Secretary (of Energy).”

A showdown meeting was scheduled for Nov. 5, 1991, in the offices of Robert E. Mueller III, then head of the Justice Department’s Criminal Division. In a frantic memo written on Nov. 1 to prepare Norton for this meeting, Fimberg wrote: “Mueller and Hartman must know in absolutely unequivocal terms that not doing a report is (inviting revolt). The question is not whether the grand jury will do a report--they will. The question is whether the department wants to participate in and guide the process or be a target of the process.”

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Looking around Assistant Atty. Gen. Mueller’s palatial office on Nov. 5, Fimberg felt almost intimidated. The 20-foot-high ceilings, the wainscoting, the oil paintings, the dark walnut walls--it all had such a somber weight. Mueller’s manner did nothing to lighten Fimberg’s mood. Formal, official and full of import, Mueller looked as if he did not enjoy taking off his suit jacket. He also looked as if he did not like to leave his desk.

That, at least, is where he remained that morning. Fimberg and Peter Murtha, a Justice Department lawyer who worked with the Colorado team on the Rocky Flats prosecution, sat on a couch to one side of Mueller. Barry Hartman and Paul Coffey, head of the Justice Department’s Organized Crime and Racketeering Division, sat together on a second couch. Mike Norton and Neil Cartusciello, head of the Environmental Crimes section, pulled up a pair of chairs.

The grand jury has a legal right to do a report “with or without us,” Norton began, reading from notes prepared by Fimberg. Such a report could be used to “reassure the public.” Such a report could “provide a forum” to explain why certain violations couldn’t be prosecuted.

When Norton finished, Barry Hartman spoke, repeating views he’d often expressed privately and publicly. He had trouble embracing the notion of environmental polluters being regarded as criminals. These were decent people, with families and homes. You indict them, they could lose everything. “No way can there be a report,” he said. “This is not organized crime, this is not Mafia.”

Leaning far back in his overstuffed chair, expressionless, Mueller appeared to Fimberg to be favoring Hartman’s view. “Wait a second,” Fimberg finally said. “You guys don’t get it. No one here seems to get it. Those jurors are going to do a report whether you want one or not.”

As Fimberg’s message sank in, Mueller shifted forward, placing his arms on his desk. “What you’re telling us,” he said, “is that we have a runaway grand jury?”

“Yes,” Fimberg replied. “That’s exactly what I’m saying.”

Soon after, Mueller excused everyone but Hartman. “I want to talk to Barry alone,” he explained.

When Hartman finally emerged from Mueller’s office and joined the others in the vast anteroom, the half-dozen lawyers stood about for a moment chatting. Hartman remembers the mood as being “professional.” Norton calls it “collegial.” Fimberg, though, describes it as “sober, somber and tense.” He knew they had lost.

“We were pissed off,” he says now. “We’d been double-dealed. The rug had been totally pulled out from under us. The Justice Department totally committed to this report when it OK’d the grand jury. They told us, and the judge told the grand jury. Now they were doing an absolute 180. This was not a new issue--a report had been contemplated since Day 1. It was the right thing to do, and the grand jury wanted to do it.”

The prosecution team kept fighting for one more week, showering Justice Department supervisors with phone calls, memos and visits. “The investigation has revealed a number of matters . . . which should be disclosed to the people of Colorado and the United States,” Fimberg wrote in a Nov. 7 letter to Hartman and Mueller that Norton signed. “I believe that the investigation and the Justice Department itself will be severely criticized and accused of not fully resolving the issues if we fail to do so. . . .”

The efforts were to no avail. On Nov. 11, the Justice Department instructed Norton to inform the grand jury and the judge that there would be no report. Fimberg groaned when he heard the news. If his warnings and predictions were right, he told himself, the coming weeks weren’t going to be much fun. The coming weeks, in fact, were going to be a nightmare.

WALKING INTO THE grand jury room on Nov. 12 felt to Fimberg exactly like walking into the lion’s den. There in the back sat Wes McKinley, loose and cocky. There in the front sat Ken Peck, uptight and aggressive. Wes’ bald crown and Ken’s owlish glasses bobbed before Fimberg like a taunt. The prosecutor had spent more than two years with these 23 jurors. He knew what he was about to tell them would have a devastating impact.

Norton spoke first, then Fimberg. The Justice Department has determined that the special grand jury statute doesn’t allow a report in the circumstances of this case, they explained. They had been plea-bargaining with Rockwell for months. There was now a settlement on the table. It did not involve charges against individuals.

Listening, some of the jurors felt the prosecutors were making it clear that the decision not to indict individuals had been a political one, made in Washington. Several felt compelled to raise questions and objections. Norton finally lost his patience. “I’m not signing any indictments,” he snapped, stomping away.

The grand jurors’ dislike for Norton was palpable--they thought he was arrogantly treating them like stupid children. The grand jurors’ feelings toward Fimberg were more complicated. He’d been going full steam, building a case before them for so long. Now, all of sudden, standing by Norton’s side, he was telling them to go home. The turnabout startled the grand jurors. For Fimberg to just quit all of a sudden seemed weird.

“Fimberg was very confusing, first saying there would be a report and indictments, then saying no,” one grand juror recalls. “I admired the man, I thought he did his job very well. But he sure was conflicted. There must be a void in his spirit, an emptiness, over this.”

Either then in November or later in December--memories vary--the prosecutors brought to the grand jurors a 10-count indictment, which they projected count by count on an overhead screen. Here was the plea bargain; most of the charges involved pondcrete and spray-irrigation violations, and none targeted individuals. The prosecutors wanted the grand jury to indict Rockwell on these counts, so the corporation could then plead guilty to them.

Left to deliberate, the grand jurors debated angrily. “You gonna listen to a chickens--t government lawyer?” McKinley asked his colleagues at one point. Later, he waved a copy of a Readers Digest article about an unfortunate Missouri farmer who’d lost his 255-acre farm after federal bureaucrats decided repairs he made to a levee had violated protected wetlands. In time, the grand jurors decided they wouldn’t sign Norton’s deal with Rockwell. Instead, they would write their own report and their own indictments.

Overnight, Ken Peck banged out a rough partial draft of a report. When they convened that second morning, McKinley asked Norton to come visit once more. A U.S. attorney can refuse to sign indictments, but as McKinley read the law, Norton still was required to prepare indictments if the grand jury asked him to do so.

Norton, subdued, sat taking notes as McKinley, leaning against a wall, read the grand jury’s rough version of indictments. Norton interrupted at one point, asking McKinley to sit down. The jury foreman declined. Norton asked again. Finally McKinley sat down in the witness stand--which, unlike the jurors’ chairs, was on the same level as Norton’s. He resumed reading. When he finished, he asked Norton to prepare indictments. “Thanks, I’ll think about it,” Norton said as he rose and left the room.

It is unclear just how the grand jury won an extension of its term. The prosecutors say they asked U.S. District Judge Sherman Finesilver for it, while five of the jurors believe it had more to do with the day they crowded into the office of the judge’s clerk, demanding time to complete their work. At any rate, the grand jury continued to meet on its own in January and February of 1992, pounding out a report on Ken Peck’s computer without help from the prosecutors or the judge.

One day in January, Judge Finesilver appeared in the grand jury room. Silver-haired and imposing, he had been a judge for many years, first in the state courts, then on the federal bench after his appointment by President Richard M. Nixon. He was a Republican from an old, established Denver family.

You can’t force a U.S. attorney to sign an indictment, one grand juror recalls Finesilver telling them. That’s up to the prosecutor.

The grand jurors grilled Finesilver. They also quoted to him the instructions he’d delivered to them on Aug. 1, 1989, the day they’d been impaneled. By now, the grand jurors knew them by heart. You told us if we disagreed with the prosecutors we were supposed to ignore them and go our own way, they reminded the judge. You told us we could submit a report. “Your instructions meant everything to me,” one grand juror said. “I did not take them lightly.”

Try to work with Norton, Finesilver said as he rose to leave. Try to work with the prosecutors.

In February, McKinley demanded and obtained a transcript of the indictments the prosecutors had projected on a screen two months before. Cutting and pasting, the jurors fashioned from this a substantive chunk of their report. On Feb. 19, they finished. All those present, 19 of the 23 grand jurors, signed this detailed summary of their findings and conclusions.

The presentation to the judge was scheduled for March 24, but it was Norton and Fimberg, not Finesilver, who first appeared before the grand jurors that day. Norton somehow had a copy of their report, even though it hadn’t been presented to the court yet.

Who gave it to you? an outraged McKinley demanded. How did you get it?

“I’ll talk to you later, Mr. McKinley,” Norton responded.

“We’ve heard enough from you,” McKinley returned.

Norton wasn’t finished, though. He wanted the grand jurors to understand just how poor a report they’d written. Some of your statements are based on no evidence at all, he--and Fimberg-- told the grand jurors. Others aren’t based on a preponderance of evidence, as the law requires. Conclusions are grossly oversimplified. You’ve glossed over difficult legal issues.

The prosecutors were right--the grand jurors undeniably had fashioned a simplistic report informed much more by moral outrage than legal rigor. This was no surprise, however; the report’s faults flowed mainly from the government’s refusal to provide the grand jurors any professional guidance. Listening to the grand jury get lectured, Fimberg thought: If only I’d been allowed to help them.

Instead, Fimberg had written a prosecutor’s sentencing memorandum, which Norton now began handing out to the grand jurors. Here was a detailed statement of the government’s case and the settlement. Norton in effect wanted the grand jurors to endorse it.

Fimberg studied the grand jurors’ faces as they began leafing through this 128-page document. Even it had involved a fierce struggle between Fimberg and the Justice Department--or at least with Justice’s man in Denver, Peter Murtha.

Murtha had written the initial draft and had flashed an alarm to Washington when Fimberg started revising it. Fimberg was working particularly on the sections “apportioning blame to DOE and integrating appropriate themes from the grand jury report,” Murtha warned his boss. “I am very concerned that Ken’s significant additions and rewriting may prompt significant responses from Barry (Hartman), who seemed relatively positive toward my draft, but had me ‘tone it down’ in several places. . . . One positive note: Rockwell has reviewed my draft and found only two major concerns. . . .”

A week later, Murtha wrote his supervisors again. Now he feared Fimberg’s revisions might fuel public pressure that could persuade Judge Finesilver to reject the plea deal. So he wanted Barry Hartman to get directly involved.

“My greatest concern with Ken’s draft,” Murtha explained in the letter, “is that I believe the tone is too harsh, and thus raises questions about (1) why no individuals were prosecuted; (2) how we can say that there appear to be no off-site environmental impacts, and (3) whether $18M is sufficient in view of the extreme ‘seriousness’ of the violations. . . .”

The result of all this, for once, had been at least a partial victory for Fimberg. There’d been compromises, but at least some of his language had survived.

“A prevailing DOE ‘culture’ allowed Rocky Flats’ crimes to occur. . . .” the memo observed. “This prevailing ‘culture’ was pervasive and reached into virtually all parts and practices of the organization. . . . DOE showed general disdain for and hostility to outside regulation.” The DOE Rocky Flats office “identified with rather than regulated Rockwell.”

DOE and Rockwell had opposed regulation of the Building 771 incinerator because the incinerator didn’t “meet the (legal) requirements” and “could only be upgraded . . . at great expense, if at all.” Claiming that the 771 incinerator involved “plutonium recovery” was a spurious way to allow “longterm storage of wastes.” Hazardous wastes “were indeed treated in the Building 771 incinerator.” But “no charges are being brought concerning this practice, since it was endorsed and directed by DOE at a broad institutional level.” It should “nonetheless be noted” that the Building 771 incinerator hasn’t recovered plutonium since at least 1980, “even though such ‘recovery’ was the alleged basis for the incinerator’s exemption.”

Fimberg had carefully qualified the prosecutors’ statements about the public health impact beyond the Rocky Flats boundaries. Based on the “evidence gathered in this investigation,” there was no impact stemming specifically from “the conduct to which Rockwell has pled guilty.” But it is “important to note that the criminal investigation . . . was not . . . a broad-based public health or environmental survey of Rocky Flats.”

Fimberg’s language could not, however, obscure the plea bargain’s shortcomings. Instead of charging individuals with false statements, the government was letting Rockwell as a corporation plead guilty to five felony and five misdemeanor violations of the Resource Conservation and Recovery Act and the Clean Water Act: illegal storage of pondcrete, treatment and storage of hazardous wastes in a closed holding pond, the illegal storage of vacuum-filter sludge, illegal discharges from the sewage plant and ponds, the chromic acid spill and the spray irrigation that led to runoff and ground-water contamination.

From the back of the room came laughter as one grand juror finally got to the $18.5 million fine. Fimberg winced. It hadn’t been easy even to win that much, once Norton put a $15 million offer on the table. This was the only time he’d ever had to negotiate a number up rather than down.

As the prosecutors left the room, clerks brought the grand jurors box lunches. They had one hour to decide whether to go along with this sentencing memo.

The grand jurors agonized, wavered, debated. Some wanted to join the prosecutors. Some were tired, some thought the deal and the sentencing memo weren’t so bad. Wes McKinley resisted. “If you sign this, you’ll have wasted almost three years,” he told the others. In the end, the vote was 8 to 7 against joining the prosecutor’s memo. Twelve grand jurors are needed to indict.

“Forget it,” McKinley told Fimberg when the prosecutor returned. “We won’t go along.”

Next Judge Finesilver came in. McKinley handed him the grand jury’s own report. “Thank you,” the judge said. “Anything else?”

Yes, McKinley said. He handed the judge the prosecution’s sentencing memo. Across the top, he’d written “Not a true bill.” The U.S. attorney would have to file his own charges against Rockwell.

The judge asked if the grand jurors wanted to disband. The vote was 11 to 5 in favor of that idea. Legally, they needed 12 votes, but Finesilver just now was not inclined to worry about the fine points of law. After 2 1/2 years, Special Grand Jury 89-2 was out of business.

JUST AS KEN FIMBERG’S PREDICTIONS about a runaway grand jury proved correct, so too did his warnings about the public response to the settlement. In the wake of Rockwell’s arraignment on March 26 and sentencing hearing on June 1, critics from all quarters raised their voices. Among others, Rep. David E. Skaggs, the Democratic congressman whose district includes Rocky Flats, started speculating openly that the investigation had been constrained by an agreement “fairly high up” to put the DOE off limits. Within days, the uproar in Colorado had reached the halls of Congress.

At first, staffers on the oversight subcommittee of the Committee on Science, Space and Technology simply tried to make phone calls of inquiry. But when the Justice Department wouldn’t talk, the subcommittee issued subpoenas to, among others, Ken Fimberg, Mike Norton, Peter Murtha and FBI Agent Jon Lipsky. Chaired by now-retired Rep. Howard Wolpe (D-Michigan), the subcommittee’s investigation of the Rocky Flats prosecution was under way.

The eight days of hearings in September, 1992, were held in private executive session, insulated from public scrutiny. Every government witness showed up with Justice Department lawyers at their sides and limits on what they’d talk about. Lipsky, even while clinging to a taciturn FBI agent’s manner, did make it clear he thought the plea bargain had quashed charges for which he’d developed solid evidence. But for the most part, witnesses lined up with the Justice Department. Interference from Washington “simply didn’t happen in this case,” Norton insisted. No one volunteered anything about the grand jury report.

The prosecutors wanted the focus kept on their positive results. They’d triggered sweeping reforms at the DOE and Rocky Flats, they pointed out. They’d shown the regulated community there was no doubt about the enforceability of criminal environmental laws. They’d initiated the first criminal prosecution of environmental crimes at a DOE plant. They’d saved the taxpayer, for the first time, from paying a DOE contractor’s fine. They’d obtained by far the highest hazardous-waste fine ever, four times larger than the previous record.

Fair enough points, but the U.S. attorney also wanted it understood that no individual indictments had been given up because of the plea bargain. “We charged the most serious crimes for which we have readily provable evidence,” Norton argued. Less insistently, Fimberg also offered this theme, although he later qualified it by saying “we would have wrestled further” over individual charges if the settlement hadn’t been reached. Fimberg’s tone particularly bothered the investigators in Wolpe’s hearing room, for they understood he’d pushed the case aggressively, and they sensed he’d been restrained by the Justice Department. Now they wanted him to tell his story.

Fimberg would not, however.

He just wasn’t going to blast the Justice Department. It was tempting--here was a chance to distance himself from the Rocky Flats prosecution, to paint himself as a hero. But he didn’t believe in this type of Monday-morning quarterbacking.

How many cases, after all, had these people ever prosecuted? How many times had they ever been in a courtroom? He was not going to politicize this, he was not going to serve their agenda. The truth about the Rocky Flats investigation, after all, was complex--worthy of both praise and criticism. What’s more, despite all their fights, he was indebted to Mike Norton and the others for authorizing the case. They could have said no from the start. He believed he owed them something.

Seated at a table next to a Justice Department lawyer, looking up at a row of nine subcommittee members and staffers perched on a dais, Fimberg felt swallowed by the emptiness about him. They were in a modern room, adorned by a giant mural of outer space, where more than 100 people could have fit if this had been a public hearing. Instead, there were just the 11 of them. Fimberg’s voice echoed off the walls.

There’d been “severe legal issues and constraints,” Fimberg told the subcommittee. It was “not our prerogative” to act “based on what we wished the law to be.” At no time did anyone tell him “to do anything other than (his) job.” There’d been no “blanket order not to pursue something.” They had expected to find rogue individuals saying, "(Let’s) go bury it on the south 40,” but instead they’d found an “institutional culture unchallenged by Congress or regulatory agencies.” The culture wasn’t the result of any one person in the Energy Department, anymore than at Rocky Flats or Rockwell. Was it fair “to prosecute someone for acting consistent” with his culture? “How do you indict a culture?”

These comments triggered an intriguing dialectic, one that framed precisely and vividly the issues at the core of the Rocky Flats controversy.

“I get real nervous about this cultural argument raised in a legal context as a matter of fairness,” Rep. Wolpe told Fimberg. “This is the Nuremberg kind of defense. It edges into that. A culture is nothing but a set of individuals . . . acting on the basis of certain values. . . . We have created a situation where there is literally no accountability that can be imposed on government agencies. You are telling us that . . . the culture of the agency, even if it violates a law that has been passed by Congress, represents an appropriate kind of defense. Then how the heck do you change culture? Isn’t it the purpose of law to change behavior?”

“Maybe there’s some societal problems that are not best resolved by the criminal justice system,” Fimberg responded. “A lot of social problems just aren’t criminal justice issues. If we’re going to make social policy through the criminal justice system, aren’t we in pretty sad shape?”

“You know this culture thing, it is like a virus,” interjected Edith Holleman, the subcommittee’s general counsel. “You go to work out at Rocky Flats, you get infected, you don’t really know where it came from, but it becomes a defense. ‘I was sick.’ Is that the response?”

“You know, you can show disdain for that, counsel,” Fimberg snapped back, “but I can tell you, you have asked me to give my answer, and I have given you a serious answer. I would like it to be taken seriously.”

Edith Holleman’s disdain indeed was palpable. She was a lean, intense veteran of the congressional arena who had no problem with the notion of white-collar polluters going to jail. She’d studied boxes of Rocky Flats documents, and she believed the Rocky Flats case had overwhelmed the prosecutors. She thought they should never have expected or depended on secret informants and smoking guns. These days, you’re not going to see sophisticated companies dumping out on the road at midnight. You need to go after less obvious violations. It’s like getting Al Capone for income-tax evasion instead of murder. If they wanted a smoking gun, why not lying? Why not false statements? Why not nail DOE and Rockwell for claiming the 771 incinerator was recovering plutonium?

What most bothered Holleman, though, was not the case’s outcome but how it was now being described by the prosecutors.

Usually in a settlement, you say you’re dropping 70 to 80 counts as part of a deal. In this one, prosecutors were saying here are 10 counts, and the others didn’t happen. It was, Holleman felt, fundamentally dishonest. This was a public policy case, and the prosecutors weren’t admitting they plea-bargained away individual indictments. Holleman didn’t question this plea--she knew it was a plea-bargain case--but she objected to them saying they didn’t have additional evidence. That’s what was so egregious.

“They just couldn’t admit what they did,” Holleman says now. “Fimberg knew how this would play politically. He’s protecting himself. Fimberg should have fought for the truth.”

In the end, no matter where you land in the debate about Rocky Flats, it is hard to deny Fimberg’s reluctance before the Wolpe subcommittee. He knew they might have pursued individual indictments but for the plea bargain, he thought there might have been some basis for false-statement charges, and it bothered him. But even at a second, more frank round of private interviews in November, following a contempt of Congress threat by Rep. Wolpe, he said, “In the last analysis, you know, I had no quarrel with the decisions that were made. . . . I guess I just have a hard time getting away from that.”

Stepping outside an institutional culture in the end apparently was no easier for a prosecutor in the Justice Department than for a manager in the Energy Department. Whether out of loyalty or self-protection or an insistence on complexity, Fimberg’s account before the Wolpe subcommittee did not fully reflect either the admirable battles he’d fought or the inevitable compromises he’d made.

If Ken Fimberg just then wasn’t inclined to go public with an unvarnished story of the Rocky Flats prosecution, however, others back in Colorado were. Although now disbanded, Special Grand Jury 89-2 had seen and heard too much. Special Grand Jury 89-2 belonged to no institutional culture. Special Grand Jury 89-2 still had a story it mightily wanted to tell.

IT WAS ON SEPT. 25, 1992, just as the Wolpe subcommittee hearings were concluding, that the grand jurors first realized Judge Finesilver wasn’t planning ever to release their report. In response to a motion filed by the Rocky Mountain News, Judge Finesilver that day publicly acknowledged the existence of a grand jury report. At the same time, he sealed it.

The reasons he offered sounded brazen, considering the government’s refusal to help the grand jurors write their report. The report, Judge Finesilver explained then and in later orders, couldn’t be released because it didn’t meet “statutory standards” and was not supported by a “preponderance of the evidence.” The grand jury had fallen “short of the objectives of its impanelment.” The grand jury could have drafted “an acceptable report.”

Those grand jurors listening were appalled.

“To me it was a whitewash, to me it was Watergate,” grand juror Jerry Sandoval, a Denver bus driver, would say later. “We’re not legal experts. Why didn’t they help us? How can they say it’s not legally adequate, when they wouldn’t help? It’s their fault.”

The Rocky Flats grand jurors now found themselves facing a tough moral quandary. The legally mandated secrecy surrounding grand jury proceedings is vital to how they work. Grand jurors are guided only by a prosecutor; there is no defense attorney to raise objections or cross-examine, no judge to supervise and rule. By their nature unfair, grand jury proceedings are allowed only because they are secret. If they violated this secrecy, the grand jurors would be in contempt of court.

But what if they had evidence of crimes committed? What if they thought a prosecutor and judge were involved in a cover-up? What if they thought there’d been obstruction of justice in a courtroom?

That, apparently, is what some grand jurors believed, and that apparently is why one or more of them started talking to reporters. The Sept. 30, 1992, edition of Westword, a free Denver-area alternative weekly, featured an extensive cover story by Bryan Abas headlined “The Secret Story of the Rocky Flats Grand Jury.” Westword also published excerpts from the sealed grand jury report. “The Department of Energy, its contractors . . . and many of their respective employees have engaged in an ongoing criminal enterprise at the Rocky Flats Plant,” the report began. “This criminal enterprise continues to operate today . . . and it promises to continue operating into the future unless our government, its contractors and their respective employees are made subject to the law.”

The response was immediate and intense. The next day, from the floor of Congress and in a letter to Judge Finesilver, Rep. Pat Schroeder (D-Colo.) called for a special prosecutor and release of the grand jury report. Not all the responses were favorable to the grand jurors, however. Even some admirers thought it unfortunate that jurors who believed no one was above the law had ended up putting themselves above the law. On Oct. 16, an obviously angry Judge Finesilver summoned Norton, Fimberg and reporters to his courtroom and read aloud a letter calling for an “appropriate and immediate” investigation of the breach of grand jury secrecy. Appoint a special prosecutor, Finesilver urged the Justice Department, or else I might.

The specter of the federal government treating them as criminals puzzled and troubled the grand jurors. “It seems kind of funny going after the average Joe, while letting the real criminals go,” Jerry Sandoval says now. “It’s totally wrong, totally wrong.” On Nov. 14, one month after Judge Finesilver’s public condemnation of them, 15 former Rocky Flats grand jurors gathered in Ken Peck’s downtown Denver law office to plot strategy. The mood was not harmonious. Some fumed over the leaks, while others said they couldn’t have leaked it themselves but admired whomever did. Ken Peck, hyper as usual, rattled everyone’s nerves. Several grand jurors berated McKinley. You got us into this, they said. We should lay low. We should be quiet.

At least in appearance, McKinley remained calmly sure of himself, gloriously free from the sort of conflict that so haunted Ken Fimberg. In fact, he seemed to relish the situation. He’d rather face the judge than face himself and know he didn’t do his duty, he’d later explain. Besides, those Justice Department types are just like us. They get heartburn. They’re potbellied and bald.

“We’re going to be investigated,” McKinley told the others in Peck’s office. “The judge has essentially said, ‘hang ‘em.’ We’ve got to do something.”

It is here that Peck and McKinley undeniably did begin to lead the others. Let’s take the offensive, they suggested. They call for an investigation of us, we’ll call for an investigation of them. We’ll write a letter to President-elect Bill Clinton calling for a special prosecutor. We’ll call a press conference.

At McKinley’s suggestion, Peck had already written a draft of a letter to Clinton. He now handed it out. Half the grand jurors had left for work or other appointments, but the eight remaining in the room all agreed to sign this document. Over the next two days, McKinley and Peck--antagonists and opposites now drawn together--scrambled for more signatures. By Monday morning, they had 12. A nice number, they figured. You needed 12 grand jurors to indict.

Peck and McKinley, clearly enjoying the spotlight, didn’t object when the others asked them to handle the press conference. Peck decided McKinley should be their spokesman at the microphone. A cowboy would do much better than a suit before the cameras.

McKinley was quite a sight on the steps of the federal courthouse in downtown Denver on the following Wednesday morning, what with his boots and jeans and kerchief and big white cowboy hat. They’d expected half a dozen reporters, but 30 showed up, along with about 200 spectators. McKinley put on his spectacles and began reading their letter to Clinton: “We request your assistance upon your inauguration. . . . Please direct the attorney general to appoint a special federal prosecutor . . . to investigate whether any federal criminal laws or rules may have been violated during the course of the Special Grand Jury’s investigation . . . by any Justice Department employee.”

For the national news media, the story line now was irresistible: A runaway grand jury led by a cowboy foreman, fighting to uncover a sinister cover-up. Most of the big national newspapers and newsweeklies ran stories and editorials. Six days after the press conference, the syndicated TV tabloid show “Inside Edition” beat out a gaggle of other television programs by chartering a plane and flying through a blizzard to drop a crew near McKinley’s ranch.

Fully aware that he and the journalists were using each other, Wes McKinley happily obliged and encouraged all comers. Even after he fell off a borrowed horse when an insistent producer persuaded him to jump an irrigation ditch in an unfamiliar field, he remained game. Come on down, he told any big-city journalist who called. When one accepted, McKinley met him at the Conoco station in the tiny hamlet of Walsh, pulling a rickety trailer full of cattle, and within an hour had the visitor riding out on horseback to help round up a herd of bulls.

Watching the jury foreman on television guiding his mare across the barren plains of southeastern Colorado, Ken Fimberg felt more than a little dismay. As admirable as the grand jurors were, he thought answers to questions like “Is this justice?” required more than an eight-second sound bite. Fimberg had known this was going to happen, but it was still hard to take. It occurred to him that the public gets a very simplified view of things. He wished the public was willing to grapple with complex issues.

Fimberg liked Wes McKinley. The grand jurors were good, honest people. But the grand jurors had a fundamentally different perspective from the prosecutors, he felt. The grand jurors were ignoring the fact that the key environmental laws didn’t even exist until a dozen years ago and did not even now clearly apply to all bomb-plant wastes. They were calling things crimes that weren’t crimes. They were failing to distinguish between what’s bad and what’s a crime. Fimberg understood the grand jurors’ outrage, but everyone gets outraged. It seemed to Fimberg that the grand jurors’ response was indulgent.

That is not, however, how it seemed to the Wolpe subcommittee. In an unequivocal report released on Jan. 5, Rep. Wolpe wrote: “The most important thing that federal prosecutors bargained away in negotiations with Rockwell was the truth. By entering into this plea agreement, the prosecutors bargained away the right to fully and accurately inform the American people and the Congress about the conditions, activities and crimes at the Rocky Flats facility. . . . I would like to indicate my sympathy for the courageous individuals who served on the Rocky Flats grand jury. . . . It would be both ironic and outrageous if the Department of Justice prosecutes the grand jurors themselves with more vigor than they demonstrated in prosecuting Rockwell for serious environmental crimes.”

One other message emerged from the Wolpe report, albeit hidden between the lines. Documents that the Wolpe committee had forced from the Justice Department with contempt of Congress threats had vividly revealed Fimberg’s vigorous battle with his superiors over the fine, the plea bargain and the grand jury report. Here, referred to mainly in the footnotes of the Wolpe report, was Fimberg’s story--the story Fimberg himself would not tell.

Flipping through the report’s pages, Fimberg as usual had mixed feelings. They were saying he’d wasted three years; they were saying he’d done a bad job. But they were also showing how hard he’d fought. He had to admit--he was thankful for that.

IN THE END, THE ROCKY Flats story returned to where it began--a search for smoking guns. Intrigued by a sealed grand jury report, spurred on by suggestions that the prosecutors had bargained away the truth, many ended up believing that the mutinying grand jurors were sitting on a bombshell.

In truth, though, the grand jury’s “ongoing criminal conspiracy” was something quite different. When Judge Finesilver and the prosecutors, blinking in the face of the mounting clamor, finally released an edited and annotated version of the grand jury report on Jan. 26, it became clear there were no obvious bombshells. What so aroused the grand jurors was something not nearly as dramatic as a clandestine midnight incinerator burn--but also not nearly as limiting. What so aroused them was exactly what had so aroused Fimberg: a long-term, continuing, government-wide history of disregard for the law.

“There are no smoking guns out there,” one grand juror now says. “This was not a particularly strong criminal case. But this was a strong portrait of a public policy tragedy. The big story is that they all knowingly violated environmental laws. Congress passes laws it doesn’t intend to see enforced. The government has a lack of will to enforce the law. The government is lying to us. It’s a breach of public trust. That is the biggest crime of all. That’s at the heart of all this.”

The grand jurors were particularly outraged that the current contractor at Rocky Flats, EG&G;, is still storing--and sometimes leaking and spilling--certain mixed hazardous wastes without a permit, a situation that led the Colorado Department of Health to cite the company for 56 hazardous waste violations in June, 1992. That assorted state and federal regulatory agencies are allowing this unpermitted storage under various extensions and agreements only inflamed them further.

In truth, however, neither the contractor nor the regulatory agencies have any other choice. Legal means still do not exist to treat, dispose or store the type of mixed hazardous waste generated at Rocky Flats and other weapons plants. They never have. From the moment environmental laws such as RCRA were passed--or at least from the moment it was decided they applied to DOE facilities--plants such as Rocky Flats had to break the law if they were to continue operating. Rockwell knew this, the DOE knew this, the regulatory agencies knew this. So did Congress. Norton and Fimberg are on pretty firm ground when they say in a court document. “If there is an ‘on-going criminal enterprise’ at Rocky Flats . . . it is one that Congress has, in essence, approved.” Even the Wolpe report echoes that point: “Congress has exempted programs and projects from the very laws it has established to protect taxpayers, public health and safety and the environment. . . . Therefore, Congress must share the blame for the deplorable conditions which now exist.”

How the Rocky Flats prosecution could have properly addressed this situation remains a tough question. The Wolpe subcommittee argues that “by papering over the situation at Rocky Flats,” the prosecutors “forfeited the opportunity to focus national attention on a widespread situation” throughout the DOE complex and thus “create the political momentum for meaningful reform.” Fimberg, on the other hand, suggests that “it is not the function of a criminal trial to ‘air out’ information or serve as a media event. A trial is not a public information meeting, much less an entertainment event. It is, instead, an effort to determine criminal responsibility.”

Surely there was criminal responsibility at Rocky Flats. But unless indictments had touched the top ranks of the Energy Department and beyond--an improbable event--it is hard to see how they would have revealed a widespread public policy tragedy. By themselves, they would just as likely have served to confine and localize the malfeasance to a handful of people; they would have allowed skeptics to dismiss a vast scandal as the aberrant acts of a few wrongdoers.

The most suitable forum in which to “focus national attention” and “create momentum” would, of course, have been in the special grand jury report. Not the report crafted in Ken Peck’s office without the prosecutors’ help--even the Wolpe subcommittee’s general counsel Edith Holleman allows that this report “was not publishable. Things do have to be supported by the evidence.” The proper forum, rather, would have been the report that Ken Fimberg wanted to help the grand jurors write.

In the end, the Justice Department covered up not midnight incinerator burns, but a scathing critique of the DOE and of all public policy. Or rather, the Justice Department attempted to cover this up. It is no small irony that the publicity over the runaway grand jury focused national attention like no report--or handful of indictments for pondcrete leaks--could have done. Thanks in large part to the Justice Department’s heavy-handedness, Wes McKinley’s gang managed to succeed where the prosecutors had failed.

MIKE NORTON HAS cleaned out his desk at the U.S. attorney’s office in Colorado; his resignation was accepted in April by the Clinton Administration. Barry Hartman has left the Justice Department for a private law firm in Washington. Rocky Flats no longer makes nuclear weapons--Adm. Watkins shut down the plant for good on Jan. 29, 1992.

There are still a few loose strands, however, in the story of Rocky Flats--a few loose strands that promise to persist for a good long time.

In May, the Energy Department unveiled plans for a major shift from production to cleanup and environmental control at all its weapons plants. How long that cleanup will take, what lasting public health impact it will leave behind, and whether it can be accomplished at all remain unanswered questions. The mission is so perilously complicated that it will take the Occupational Safety and Health Administration three to five years just to gear up for its role of safeguarding 150,000 contract employees involved in what DOE authorities estimate could be a $300-billion project. The Rocky Flats cleanup alone will take an estimated $1 billion and 30 years.

The fate of the former Rocky Flats grand jurors also remains uncertain. On Dec. 22, the Justice Department officially informed the grand jurors they were under investigation for secrecy breaches. The grand jurors’ lawyer, George Washington University law professor Jonathan Turley, has declined to make his clients available for FBI field interviews. He is now seeking, instead, a special grant of immunity so the grand jurors can tell their story directly to Congress. Meanwhile, a House Energy and Commerce subcommittee headed by Rep. John Dingell (D-Mich.) is planning to hold further hearings into Rocky Flats this fall, as part of its more general inquiry into the Justice Department’s Environmental Crimes section.

Wes McKinley is among those grand jurors who await the eventual outcome more with pride than regret or concern--"We only have two paved roads down here. . . . No way an FBI agent could be down here more than two hours before the whole county would know it,” the cattle rancher points out. All the same, there’s a chance the grand jurors could endure the indictments and penalties--which are at the judge’s discretion--that DOE and Rockwell employees never did.

One other, more personal type of Rocky Flats inquiry lingers as well. He who found himself forced to judge the personal moral responsibility of DOE and Rockwell employees is still faced with weighing his own. This is no simple matter for Ken Fimberg. While Wes McKinley accepts awards from groups such as the Sierra Club with comments that begin, “It’s a real simple thing,” the ambivalent prosecutor has been left to draft and redraft increasingly strained responses to his critics.

“I’ve learned from this experience that one can be intensely proud and intensely disappointed at the same time,” Fimberg says. “Those two feelings are not mutually exclusive. You can feel both. I’m proud, and I’m disappointed.”

Such a sense of ambiguity leaves Fimberg with few allies. He is not at one with the Justice Department. But he also is not at one with the grand jury or his old FBI buddy Jon Lipsky or the Wolpe subcommittee. What else could I have done? he is driven to ask his wife late at night. There are so many levels to this. No one understands.

At the second round of questioning last November by the congressional investigators, Fimberg finally lost his lawyer’s composure for a moment when Holleman posed yet another brittle question. “Look,” he snapped, “we wouldn’t be here in this room if I hadn’t decided to do Rocky Flats. There would be no Wolpe subcommittee investigation, no celebrated runaway grand jury. There are 16 DOE plants--Hanford and Savannah River are even worse than Rocky Flats. I don’t see any EPA agents or assistant U.S. attorneys there taking them on. Now we do, and we’re criticized for it. The message is, it ain’t worth it. Do bank robberies, drugs. Not this. Not this.”

Fimberg recalls this defining moment as he sits in the cafe of a downtown Denver hotel on a brilliant spring day. Across the room, a crowd is bellowing before a big-screen TV, watching the first-ever home game for the new Colorado Rockies baseball team. Fimberg is oblivious. He has been talking about Rocky Flats for seven hours.

He leans forward now, struggling for control. He looks baffled and stunned. His face reddens. In the shadows, his eyes appear moist.

Here is the pursuer of the Energy Department culture, unexpectedly ensnared in the culture of the Justice Department. Here is the impulse of a moralist, unavoidably hamstrung by the mode of a realist. Here is a lawyer, clinging resolutely to the rules he knows best. Fimberg can’t believe how the Rocky Flats story is ending.

“I’m the bad guy?” he asks. “I thought I was the good guy. I’m a registered Democrat, an old-fashioned liberal, an environmentalist. I’m the bad guy? How am I the bad guy?”


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