Showdown at Rocky Flats : The Justice Department had negotiated a Rocky Flats settlement, but the grand jury could not keep quiet about what happened there.

SHOWDOWN AT ROCKY FLATS: Second of two parts.

August 15, 1993|BARRY SIEGEL | Barry Siegel, a Times national correspondent, is the author of "A Death in White Bear Lake" and "Shades of Gray," both published by Bantam Books. His last story for this magazine was about the University of Wisconsin's efforts to outlaw hate speech.

The fate of the former Rocky Flats grand jurors also remains uncertain. On Dec. 22, the Justice Department officially informed the grand jurors they were under investigation for secrecy breaches. The grand jurors' lawyer, George Washington University law professor Jonathan Turley, has declined to make his clients available for FBI field interviews. He is now seeking, instead, a special grant of immunity so the grand jurors can tell their story directly to Congress. Meanwhile, a House Energy and Commerce subcommittee headed by Rep. John Dingell (D-Mich.) is planning to hold further hearings into Rocky Flats this fall, as part of its more general inquiry into the Justice Department's Environmental Crimes section.

Wes McKinley is among those grand jurors who await the eventual outcome more with pride than regret or concern--"We only have two paved roads down here. . . . No way an FBI agent could be down here more than two hours before the whole county would know it," the cattle rancher points out. All the same, there's a chance the grand jurors could endure the indictments and penalties--which are at the judge's discretion--that DOE and Rockwell employees never did.

One other, more personal type of Rocky Flats inquiry lingers as well. He who found himself forced to judge the personal moral responsibility of DOE and Rockwell employees is still faced with weighing his own. This is no simple matter for Ken Fimberg. While Wes McKinley accepts awards from groups such as the Sierra Club with comments that begin, "It's a real simple thing," the ambivalent prosecutor has been left to draft and redraft increasingly strained responses to his critics.

"I've learned from this experience that one can be intensely proud and intensely disappointed at the same time," Fimberg says. "Those two feelings are not mutually exclusive. You can feel both. I'm proud, and I'm disappointed."

Such a sense of ambiguity leaves Fimberg with few allies. He is not at one with the Justice Department. But he also is not at one with the grand jury or his old FBI buddy Jon Lipsky or the Wolpe subcommittee. What else could I have done? he is driven to ask his wife late at night. There are so many levels to this. No one understands.

At the second round of questioning last November by the congressional investigators, Fimberg finally lost his lawyer's composure for a moment when Holleman posed yet another brittle question. "Look," he snapped, "we wouldn't be here in this room if I hadn't decided to do Rocky Flats. There would be no Wolpe subcommittee investigation, no celebrated runaway grand jury. There are 16 DOE plants--Hanford and Savannah River are even worse than Rocky Flats. I don't see any EPA agents or assistant U.S. attorneys there taking them on. Now we do, and we're criticized for it. The message is, it ain't worth it. Do bank robberies, drugs. Not this. Not this."

Fimberg recalls this defining moment as he sits in the cafe of a downtown Denver hotel on a brilliant spring day. Across the room, a crowd is bellowing before a big-screen TV, watching the first-ever home game for the new Colorado Rockies baseball team. Fimberg is oblivious. He has been talking about Rocky Flats for seven hours.

He leans forward now, struggling for control. He looks baffled and stunned. His face reddens. In the shadows, his eyes appear moist.

Here is the pursuer of the Energy Department culture, unexpectedly ensnared in the culture of the Justice Department. Here is the impulse of a moralist, unavoidably hamstrung by the mode of a realist. Here is a lawyer, clinging resolutely to the rules he knows best. Fimberg can't believe how the Rocky Flats story is ending.

"I'm the bad guy?" he asks. "I thought I was the good guy. I'm a registered Democrat, an old-fashioned liberal, an environmentalist. I'm the bad guy? How am I the bad guy?"