Grand Jury Could Change Much-- Many Observers Uneasy
By Howard Pankratz, Legal Affairs Writer
July 2, 1997
July 2 - The grand jury that intensely probed wrongdoing at Rocky Flats and now wants to take its findings public is pushing into "uncharted" legal waters that could dramatically change the federal grand jury system, experts said Tuesday.
The jurors, who have for months asked for a closed hearing with a federal judge, apparently will outline their investigation Wednesday and Thursday behind closed doors.
That "confidential, closed proceeding" - either with U.S. District Judge Richard Matsch or U.S. Magistrate Patricia Coan - is unprecedented.
The jury investigated alleged environmental crimes at Rocky Flats for 2 1/2 years and wanted to return indictments against several officials of the Department of Energy and Rockwell International Corp., which managed the plant.
But the U.S. Justice Department accepted a plea bargain from Rockwell, which paid an $18.5 million fine.
The grand jurors have pushed ever since for a full airing of their deliberations.
If Matsch or Coan goes a step further and grants jurors' requests that transcripts of the two-day hearing be released and they be permitted to address Congress and the public, the federal grand jury system may undergo profound change, said the experts.
The historically airtight secrecy of grand juries could be a thing of the past. Conceivably, grand jurors could end up writing books, just like jurors in sensational civil and criminal trials, one expert said.
"I think it would change the nature of the grand jury," said William Pizzi, a former federal prosecutor in New Jersey and now a University of Colorado law professor. "We might see books like 'Why We Didn't Indict the President' ," he said.
"I have enough trouble with trial jurors writing books - I think some things should be protected. I don't know how Matsch could limit the impact to this case," Pizzi said.
Lawyer Jonathan Turley, who represents the grand jurors, has argued in court documents that the public has a "great need to know" about the jury's findings of misconduct at Rocky Flats.
Most of the lawyers interviewed by The Denver Post believe in the secrecy of the grand jury system - a veil that dates from the start of grand juries in 11th century England.
The lawyers believe that the secrecy protects those under investigation, the investigation itself and the witnesses who testify.
Grand juries often investigate rumors and other thin allegations which may turn out to be untrue, they explained.
At other times, as in the case of former Vice President Spiro Agnew, the rumors may be true and lead to high places.
Grand juries usually only hear the prosecution's side of a case.
Several local lawyers said they don't expect Matsch, who has a reputation for rigidly enforcing grand jury secrecy, to allow the Rocky Flats jurors to go public.
One lawyer, who asked that his name not be used, said the jurors may actually have made a secret appeal to the U.S. 10th Circuit Court of Appeals after U.S. District Judge Sherman Finesilver refused earlier requests to release their proposed indictments and report.
The lawyer said the timing is right for such an appeal to have been taken to the 10th Circuit. The resulting opinion could have directed Matsch or some judge in the federal district court in Denver to hold the closed hearing the jurors sought, the lawyer speculated.
Bob Miller, a former U.S. attorney for Colorado, said he has never seen anything like the Rocky Flats grand jury.
"The whole situation is unusual,"
said Miller. "I've never quite heard of anything like this before."
Miller is a strong believer in grand jury secrecy, saying "too many
lives can be harmed" if the grand
jury's operation becomes public.
"Innocent people are investigated and exonerated," said Miller. "If the grand jury stuff got out, it would damage reputations."
Bruce Black, a former assistant U.S. attorney in Denver, said he had never heard of a grand jury "gaining this kind of notoriety and trying to do something so out of the scope of the normal process." Only in the "rarest of exceptions" is anything ever released from the actual workings of the grand jury, Black noted. And there is absolutely nothing in the rules surrounding grand juries that gives the public a right to know what went on if certain criteria are met, he said.
Under legal rules, the Rocky Flats grand jury was a "special" grand jury, Black said. And under highly limited circumstances, such "special" panels can make reports to judges.
Those circumstances include cases of:
Noncriminal misconduct, malfeasance or misfeasance in office involving organized criminal activity by an appointed public officer or employee.
But Finesilver rejected the grand jury's report, saying it made assertions of organized crime "that are unsupportable as a matter of law and stray far afield from the special grand jury's charged and sworn task."
Black said that "it would be remarkable for that report to be made public. What you have here is a situation where the jurors disagree with the prosecution."
"We are in an area that is totally uncharted," he said.
Jurors Get Day in Court
By Howard Pankratz, Legal Affairs Writer
July 3, 1997
At least six Rocky Flats grand jurors testified before a federal magistrate Wednesday about the 2 1/2 years they spent investigating allegations of environmental crimes at the former weapons plant.
The closed proceeding, which experts say is unique in the annals of the U.S. judicial system, is permitting the jurors to detail what they believe are serious environmental crimes - and their claims that the U.S. Justice Department tried to block them from indicting officials of the Department of Energy and Rockwell International Corp.
Both the federal government and Rockwell, which managed the plant between 1975 and 1989, opposed the hearing but asked to attend if it was held.
There was no evidence that either the government or the corporation were represented during the hearings which ran from 8:30 a.m. to 5:05 p.m., with a 75-minute lunch break.
Throughout the day, the court reporter taking the testimony emerged periodically with thick handfuls of paper on which she had transcribed the testimony.
U.S. District Judge Richard Matsch has jurisdiction in the case, but U.S. Magistrate Patricia Coan presided Thursday. It is not unusual for a magistrate to listen to testimony in such cases and for the judge to review transcripts later.
The jurors were accompanied into federal courtroom C-159 by their attorneys, Jonathan Turley and Joan Manley of George Washington University's Shapiro Environmental Law Clinic and Bette Bushell of Denver.
Manley is a former environmental crimes prosecutor, and Turley is a nationally recognized expert in environmental law.
The jurors present Thursday represent a part of the 23-member special federal grand jury empaneled in August 1989 to investigate allegations that Rockwell and Depatment of Energy officials conspired to cover up the illegal handling and disposal of dangerous wastes at Rocky Flats.
The jury wanted to indict a number of Energy Department and Rockwell officials. But prosecutors refused to sign the indictments. Instead, the government allowed Rockwell to enter a plea bargain and pay an $18.5 million fine.
The jurors want the transcripts of their testimony to be made public, to speak publicly about what occurred during the probe and to address Congress about their findings. Matsch has issued a gag order prohibiting the jurors or lawyers from commenting on the case.
On Tuesday, one Denver lawyer speculated that the 10th Circuit Court of Appeals might have ordered Matsch to hold the hearings. But sources said that the hearings are being held at Matsch's direction.
The hearings are scheduled to continue today.
The jury wanted to indict a number of Energy Department and Rockwell officials. But prosecutors refused to sign the indictments.
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