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For more than a decade, a Colorado grand jury has been pressing the courts to allow it to reveal evidence of alleged abuses by federal officials in its prosecution of a nuclear bomb-making facility at Rocky Flats in 1989. In March, the Rocky Flats grand jurors lost their case before Senior District Judge Richard P. Matsch in In re Special Grand Jury 89-2, No. 96-Y-203 (D. Colo.). But Matsch’s opinion questions the federal rules that place strict limitations on when grand jury information can be released, and leaves an opening for grand jurors to file their imminent appeal to the 10 th U.S. Circuit Court of Appeals, according to the grand jury’s attorney, Jonathan Turley, a George Washington University Law School professor. “The public should know what was done in that grand jury room so that it is not repeated again,” said Turley. “Rocky Flats is only one grand jury, but if the [U.S. Department of Justice] wins, it will occur again.” Because the Rocky Flats grand jury is bound by Rule 6e of the Federal Rules of Criminal Procedure, the court proceedings are sealed and no one outside the lawsuit knows the specific allegations. But the events that led to Rocky Flats are well documented. On June 6, 1989, the FBI raided the Rocky Flats bomb-making facility located 16 miles from Denver. The 10-square-mile area was then owned by Rockwell International Corp. (now a unit of Boeing Co.) and produced plutonium bombs as a contractor for the U.S. government. FBI agents stormed the plant looking for evidence of plutonium burning and improper disposal of nuclear waste. From 1989 to 1992, the grand jury heard evidence of misdeeds that included dumping chemicals into the public water supply and burning toxic waste. The 23 members of the grand jury examined thousands of documents and heard from nearly 100 witnesses. No indictments were ever issued. The grand jury submitted proposed indictments to the court, but Colorado’s then-U.S. Attorney Mike Norton refused to sign them. Instead, he negotiated a plea with Rockwell that included an $18.5 million fine-then the largest ever against a company in a hazardous waste case. Most of the prosecutors who brought the case have retired or moved on, and the site of the Rocky Flats bomb factory is about to be converted into a natural wildlife and recreation area. Continuing the fight But the Rocky Flats grand jurors fight on, asserting that the 6e secrecy rule is being used to shield prosecutors who allegedly abused the law, according to Turley. And Matsch was listening. “The concerns that these petitioners have expressed are serious and substantial,” Matsch wrote. “They relate to the power of the government to compel citizens of this country to devote their time and energy to participate in an investigation conducted by attorneys for the Department of Justice and then to compel those citizens to be silent. Such concerns raise questions as to whether Rule 6(e) is an appropriate public policy and whether the government employees involved in this matter, have conducted themselves in an appropriate manner.” A number of documents were declassified by the Department of Energy in 1993, and earlier this month, the office of Representative Mark Udall, D-Colo., released 65 boxes of documents to aid the environmental cleanup of the site. With all that information, there is skepticism about what the grand jury can possibly add. “If there’s a smoking gun, we’re still waiting to see it,” asserted Len Ackland, a professor at the University of Colorado at Boulder who has written a book and law review articles on Rocky Flats. But Turley maintains that what the grand jurors have to add is new and direct evidence that implicates the DOJ. “The DOJ is there to assist the grand jury,” he said. “The prosecution is not allowed to scuttle the grand jury because they do not approve of its direction or fear where it might ultimately lead.” An official at the DOJ, who spoke on condition of anonymity, vigorously defended the actions of the prosecution in the case against Rockwell. “I don’t know why this matter has legs,” he asserted. “[N]o one wanted to derail this grand jury. I’m aware of the rub that no individuals were indicted, instead a corporation was indicted.” The Rocky Flats grand jurors are asking the court to release only those parts of the transcript necessary to prove prosecutorial error, Turley said. “All the allegations raised against the DOJ have little to do with the merits of the case,” said Turley. “It’s easy to separate the subject of investigation from the allegations of misconduct.”

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