Sometimes It Takes a Cowboy

By MICHAEL D. LEMONICK

IT SOUNDS LIKE THE PERFECT PLOT for a western. A bunch of ordinary citizens, led by a reluctant but idealistic cowboy, tries to see that justice is done -- but ends up in a showdown with some barons of Big Business. This story, though, takes place in the new West, and while the cowboy is real enough, the business in question is nothing so benign as a railroad monopoly or a cattle cartel. It is the Rockwell International Corp., former manager of the U.S. Department of Energy's infamous Rocky Flats nuclear weapons plant, 15 miles northwest of Denver.

For nearly three years, rancher Wes McKinley chaired a special federal grand jury investigating charges that Rockwell had committed horrific crimes against the environment, letting toxic chemicals poison the soil and groundwater around the plant and allowing the grounds of the facility to become contaminated with radioactive plutonium wastes. But though the panel voted to indict Rockwell, five of its employees and three people working for the DOE, federal prosecutors cut a deal last March. No one was indicted, Rockwell got off with an $18.5 million fine, and the grand jury members were told to go home.

They refused. Unwilling to let the case die and the alleged culprits get off so lightly, the panel kept meeting, petitioned Congress for an investigation and finally wrote President-elect Clinton to ask for a special prosecutor. Someone -- possibly a member of the grand jury -- leaked the group's report, which had been sealed by the court, to the press. In response, the FBI is investigating whether the jurors have revealed too much about their deliberations, which by federal law must remain secret.

The jurors haven't lowered their profiles, though. Seven of them appeared last week on the newsmagazine show Dateline NBC. While careful not to discuss the specifics of the case, they made it clear they were dissatisfied with the outcome. Said McKinley in an interview with TIME: "The judge told us to do as we saw right, and we believed that. The grand jury did its job. Now it's in the hands of the American people." Jonathan Turley, a George Washington University environmental-law expert who is representing the jurors without charge, said that "the deal Rockwell cut in Rocky Flats would make John Gotti blush. The jurors were left with a series of unanswered questions, and they didn't go public until after they learned their report would never be aired."

Two weeks ago, the investigations subcommittee of the House Committee on Science, Space and Technology entered the fray with a report charging that the Justice Department had given Rockwell too sweet a deal. At best, the report said, the prosecution was hampered by the Justice Department's tendency to treat environmental crimes as unimportant; at worst, Justice may have gone out of its way to downplay the DOE's failure to ride herd on Rockwell. Said the subcommittee chairman, Democrat Harold Wolpe of Michigan: "The most important thing that federal prosecutors bargained away in negotiations with Rockwell was the truth."

All the fuss has stunned Kenneth Fimberg, the government's lead prosecutor in the Rocky Flats affair, who defended the deal with Rockwell. "It was a world-record result," he said. "It was a watershed development in the enforcement of environmental law at DOE facilities." Indeed, the fine against Rockwell was roughly five times as high as the previous record for a hazardous-waste case, and in Fimberg's opinion, taking it to trial would have been risky. "It would have been an extremely difficult case, factually, ; legally and scientifically," he said. And federal appeals courts have ruled that a prosecutor has final say over whether an indictment will go forward.

Particularly disturbing to Fimberg was the subcommittee report, which implied a possible cover-up to protect the Energy Department. Said Fimberg: "The protect-DOE stuff did not happen. I told that to the committee. Those people are looking for the conclusion they want, and there's no evidence to support it." Then why not make the grand jury's report public? Because, as presiding Judge Sherman Finesilver observed, federal law says a public report by a grand jury is permissible only in certain organized-crime cases.

Besides, Fimberg contended, a 128-page sentencing memorandum, made public at the time of the plea agreement, served the same purpose as the grand jurors' report. Said the prosecutor: "I don't think any intellectually honest person can read it and say it isn't a scathing criticism of the DOE."

So, is this a case of honest citizens fighting a cynical judicial system that's in cahoots with the military-industrial complex, or is it a situation in which naive amateurs and radical environmentalists are refusing to listen to reason? Should the case against Rockwell and DOE employees be reopened? Or should those ornery grand jurors be prosecuted for violating their oath of secrecy? If this were just a Clint Eastwood epic, the answers would be simple. But in this real-life showdown, it may take a special prosecutor to see through the smoke. Like many bits of unfinished business, the saga of Rocky Flats now awaits a decision from the new Administration in Washington.

With reporting by Joni H. Blackman/Denver and Elaine Shannon/Washington