Long After Case Closes, Grand Jury Seeks Justice

For nearly two centuries, the role of a grand jury has been to secretly determine whether enough evidence exists for a person to be brought to trial.

But a landmark case pending here, in which a grand jury for the first time in history is suing the Justice Department, may alter that time-tested tradition.

At the heart of the issue is the degree of independence and authority that should be imparted to a grand jury - a panel of citizens called to hear evidence gathered by the US attorney in federal court cases. Should a grand jury be allowed to make public its findings? Should it have any recourse if it disagrees with the outcome of the case?

"This [lawsuit] is the first comprehensive test of the modern grand jury," says Jonathan Turley, attorney for the jurors, and director of the Environmental Law Advocacy Center in Washington. "The federal courts will be given a unique opportunity to examine the role of the grand jury, and define its contemporary authority."

On Aug. 1, the grand jury impaneled to review alleged environmental crimes at Rocky Flats Nuclear Weapons Plant brought suit against the Justice Department, asking that the jury be allowed to break the rule of secrecy it's sworn to and make public evidence uncovered during its three-year investigation.

The Rocky Flats case was settled in 1992 when the Justice Department bypassed the grand jury and struck its own controversial plea bargain with former Rocky Flats contractors. The 23-member grand jury then publicly denounced the government's decision to fine plant contractors $18.5 million rather than indict anyone. And jury members have refused to let the matter drop.

IN their petition - which includes a supporting affidavit from Rep. Pat Schroeder (D) of Colorado - the jurors request a closed-courtroom hearing before a federal judge who could lift the rule of secrecy imposed on the jury. The petition is not an attempt to indict individuals: The statute of limitations on any alleged wrongdoing is long past.

The jurors instead want immunity to testify before Congress. They also say information now under seal is relevant to three civil claims pending against Rocky Flats in federal courts.

But some say no judge would rule in favor of allowing a grand jury to step so far out of its place in the legal system. "I consider [the case] to be a waste of time and energy, frivolous and groundless, and without any legal justification," says Michael Norton, the US attorney in 1992 who rejected the jurors request to indict Rocky Flats officials.

Mr. Norton, now in private practice in Denver, says the suit suggests a failure to grasp the intended role of a grand jury. "A grand jury can't require a prosecutor to file charges. A grand jury may recommend charges or not. But no matter what a grand jury thinks or says or judges, prosecutors are not obligated to act on the request of a grand jury."

Mr. Turley, the lawyer for the 16 members of the grand jury involved in the suit, says his clients are simply seeking justice. "The jurors were told they had an obligation to pursue all wrongdoing," he says. "They believed it. They were told to act independently. They believed that, too. They want to fulfill their obligations as jurors, and they feel the Justice Department has prevented them from doing so."

The jurors were impaneled following a 1989 FBI raid of Rocky Flats, a nuclear weapons plant northwest of Denver. During their investigation, the jurors say they identified hundreds of violations of environmental law, and sought indictments of key officials in both the Department of Energy and Rockwell International - plant contractor at that time.

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