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.

Fair enough points, but the U.S. attorney also wanted it understood that no individual indictments had been given up because of the plea bargain. "We charged the most serious crimes for which we have readily provable evidence," Norton argued. Less insistently, Fimberg also offered this theme, although he later qualified it by saying "we would have wrestled further" over individual charges if the settlement hadn't been reached. Fimberg's tone particularly bothered the investigators in Wolpe's hearing room, for they understood he'd pushed the case aggressively, and they sensed he'd been restrained by the Justice Department. Now they wanted him to tell his story.

Fimberg would not, however.

He just wasn't going to blast the Justice Department. It was tempting--here was a chance to distance himself from the Rocky Flats prosecution, to paint himself as a hero. But he didn't believe in this type of Monday-morning quarterbacking.

How many cases, after all, had these people ever prosecuted? How many times had they ever been in a courtroom? He was not going to politicize this, he was not going to serve their agenda. The truth about the Rocky Flats investigation, after all, was complex--worthy of both praise and criticism. What's more, despite all their fights, he was indebted to Mike Norton and the others for authorizing the case. They could have said no from the start. He believed he owed them something.

Seated at a table next to a Justice Department lawyer, looking up at a row of nine subcommittee members and staffers perched on a dais, Fimberg felt swallowed by the emptiness about him. They were in a modern room, adorned by a giant mural of outer space, where more than 100 people could have fit if this had been a public hearing. Instead, there were just the 11 of them. Fimberg's voice echoed off the walls.

There'd been "severe legal issues and constraints," Fimberg told the subcommittee. It was "not our prerogative" to act "based on what we wished the law to be." At no time did anyone tell him "to do anything other than (his) job." There'd been no "blanket order not to pursue something." They had expected to find rogue individuals saying, "(Let's) go bury it on the south 40," but instead they'd found an "institutional culture unchallenged by Congress or regulatory agencies." The culture wasn't the result of any one person in the Energy Department, anymore than at Rocky Flats or Rockwell. Was it fair "to prosecute someone for acting consistent" with his culture? "How do you indict a culture?"

These comments triggered an intriguing dialectic, one that framed precisely and vividly the issues at the core of the Rocky Flats controversy.

"I get real nervous about this cultural argument raised in a legal context as a matter of fairness," Rep. Wolpe told Fimberg. "This is the Nuremberg kind of defense. It edges into that. A culture is nothing but a set of individuals . . . acting on the basis of certain values. . . . We have created a situation where there is literally no accountability that can be imposed on government agencies. You are telling us that . . . the culture of the agency, even if it violates a law that has been passed by Congress, represents an appropriate kind of defense. Then how the heck do you change culture? Isn't it the purpose of law to change behavior?"

"Maybe there's some societal problems that are not best resolved by the criminal justice system," Fimberg responded. "A lot of social problems just aren't criminal justice issues. If we're going to make social policy through the criminal justice system, aren't we in pretty sad shape?"

"You know this culture thing, it is like a virus," interjected Edith Holleman, the subcommittee's general counsel. "You go to work out at Rocky Flats, you get infected, you don't really know where it came from, but it becomes a defense. 'I was sick.' Is that the response?"

"You know, you can show disdain for that, counsel," Fimberg snapped back, "but I can tell you, you have asked me to give my answer, and I have given you a serious answer. I would like it to be taken seriously."

Edith Holleman's disdain indeed was palpable. She was a lean, intense veteran of the congressional arena who had no problem with the notion of white-collar polluters going to jail. She'd studied boxes of Rocky Flats documents, and she believed the Rocky Flats case had overwhelmed the prosecutors. She thought they should never have expected or depended on secret informants and smoking guns. These days, you're not going to see sophisticated companies dumping out on the road at midnight. You need to go after less obvious violations. It's like getting Al Capone for income-tax evasion instead of murder. If they wanted a smoking gun, why not lying? Why not false statements? Why not nail DOE and Rockwell for claiming the 771 incinerator was recovering plutonium?

What most bothered Holleman, though, was not the case's outcome but how it was now being described by the prosecutors.