Grand Jury Secrecy and the Rocky Flats Scandal

Given the recent crack down on reporters in Arizona, the prior column from the Washington Post below on the grand jury secrecy may be of interest.

August 11, 1993
HEADLINE: Free the Rocky Flats 23

BYLINE: Jonathan Turley

This month the Justice Department’s environmental crimes section is being investigated, both by the department itself and by a House oversight subcommittee, to determine whether the Bush administration allowed corporations and corporate officials to escape punishment for serious environmental crimes. No one is more anxious for the results of the probe than the grand jurors in the case of the Rocky Flats (Colo.) nuclear weapons facility, and with good reason. They’re currently under investigation themselves, by the FBI, for disclosing evidence of an alleged coverup.

It was over a year ago that the Justice Department announced its plea bargain with Rockwell Corp. for crimes committed at Rocky Flats. Rockwell pleaded guilty to criminal violations of the federal hazardous waste law and the Clean Water Act. The criminal conduct included possible exposure of workers and local citizens to radioactive and hazardous waste that was sprayed into open pools and even stored in ventilation vents.

The agreement with Rockwell brought a new meaning to the term “plea bargain.” Rockwell was required to pay $ 18.5 million from a venture that netted the corporation $ 22.4 million in profits. The agreement also permitted Rockwell to file for reimbursement of $ 7.9 million from the public for fees and costs associated with the case. Finally, it protected Rockwell and its employees from any future criminal or civil charges for the company’s activities at Rocky Flats, and it allowed Rockwell to receive future contracts with the government.

The most remarkable aspect of the plea bargain, however, was the one element missing: individual indictments. Although more than 400 violations were found, occurring over a long period of time, not a single Rockwell employee was indicted.

The absence of individual indictments came as little surprise, however, to people familiar with the environmental crimes section. While the Justice Department has long opposed plea bargains with street offenders, it appears to be a firm believer in light rehabilitative sentencing when the defendant’s name ends in an Inc. or a Corp.

In dozens of environmental cases identified by Congress, the Justice Department has allowed corporate officials to escape individual indictments in exchange for plea bargains and criminal fines. There was a critical difference, however, at Rocky Flats. In most of those previous cases, the Justice Department terminated the cases or cut plea bargains before a grand jury was allowed to see evidence of the crime. In the case of Rocky Flats, 23 grand jury members learned a lot about what happened at the weapons plant. Grand jury members learned not only about the crimes commited at the weapons plant but the possible identity of the individuals who commited them.

On Nov. 20, 1992, the Rocky Flats case took a remarkable turn. The grand jurors went public with a charge that the Justice Department had prevented them from fulfilling their oaths to pursue all wrongdoing regardless of the consequences. After almost three years of detailed testimony on criminal conduct at Rocky Flats, the grand jury wanted to indict individual Rockwell officials and also to consider indictments against the Energy Department.

The ”Rocky Flats 23” became the first grand jury in history to risk personal incarceration for revealing information critical of the Justice Department. Two days before Christmas, the Justice Department responded by making them the first grand jury to become targets of the FBI facing possible criminal charges for revealing information on the case.

House investigators, while facing what one of them called ”extreme” resistance from the department, uncovered evidence of high-level intervention by Justice Department officials to reduce both charges and fines against Rockwell. Oversight subcommittee chairman Howard Wolpe joined other lawmakers in asking President Clinton to pardon the grand jurors, noting that ”if Caspar Weinberger can be pardoned for crimes resulting from withholding vital information from the Congress and the public, I don’t see why these citizens should be prosecuted for providing vital information to the Congress and the public.”

The problem with the Rocky Flats grand jurors is not that they misunderstood their oath but that they took it at face value. While grand juries are expected to be little more than rubber stamps for prosecutors, no one bothered to tell this grand jury. It wasn’t until they uncovered evidence against particular wrongdoers that they learned the unwritten limitations on their oaths. It was then that they discovered that prosecutors would assist them in their indictments only if they happened to agree with the findings.

So when they were told to go home, the grand jurors were left with their evidence, copies of their original oath and no prosecutors to guide them. They debated what to do and decided to be a real grand jury. They voted to indict and refused to sign anything less than the truth. So far, the Justice Department seems intent on making sure that no future grand jury will be tempted to follow their example.

The writer is an environmental law professor and director of the Environmental Crimes Project at George Washington University. He represents the Rocky Flats grand jurors on a pro bono basis.