In re Grand Jury Proceedings

• Decision Date: 29 January 1993
• Docket Number: Civ. A. No. 92-Y-180.
• Citation: 813 F. Supp. 1451
• Parties: In re GRAND JURY PROCEEDINGS, SPECIAL GRAND JURY 89-2 (Rocky Flats Grand Jury).
• Court: U.S. District Court — District of Colorado

813 F. Supp. 1451

In re GRAND JURY PROCEEDINGS, SPECIAL GRAND JURY 89-2 (Rocky Flats Grand Jury).

Civ. A. No. 92-Y-180.

United States District Court, D. Colorado.

December 3, 1992.

As Clarified January 29, 1993.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Nancy Spencer, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for U.S.

Thomas R. Thibodeau, Duluth, MN, for defendants and third-party plaintiffs.

Robert E. Cattanach, St. Paul, MN, for third-party defendants.

Joel Mosher, Shughart, Thomson & Kilroy, Kansas City, MO, Garrett E. Mulrooney, Maun & Simon, St. Paul, MN, for Mobil Corp.

ORDER REGARDING MOTION FOR RELEASE OF GRAND JURY DOCUMENTS

SHERMAN G. FINESILVER, Chief Judge.

This matter comes before the Court on petitioners' Motion for Release of Grand Jury Documents relating to a special grand jury inquiry at Rocky Flats Nuclear Weapons Plant. The original petitioner is the Denver Publishing Company, doing business as The Rocky Mountain News ("The News"). The News was joined in its motion by Combined Communications Corporation, doing business as KUSA-TV, Inc. ("KUSA"). Rockwell International Corporation ("Rockwell"), the United States of America, and John Does 1 and 2 all filed responses in opposition to the motion. Jurisdiction is based upon 28 U.S.C.A. § 1331. The questions presented include (1) whether a court may release to the public a special grand jury report that, among other things, identifies individuals and makes allegations lacking in a preponderance of the evidence; (2) whether a court has authority to publicly release special grand jury documents such as indictments not signed by a U.S. Attorney or instruments designated as presentments; and (3) whether the Court may publicly release ministerial and nonministerial special grand jury materials to entities having no connection to the work of the special grand jury.

Summary

Grand jury proceedings are confidential and matters occurring before the grand jury are presumed to be secret. Federal law provides that a knowing violation of this rule of secrecy may be punished as a contempt of court. The only exceptions to the strict rule of secrecy are provided for by statute and applicable judicial standards. For example, in order for a report of a special grand jury's proceedings to be submitted to a court and released to the public in compliance with federal statutes, it must concern organized criminal activity, find support in a preponderance of the evidence, and cannot accuse by name an identified individual. In order for a report to be released to the public under applicable common law standards, it must not accuse individuals identifiable by name or position; deal in rumor and conjecture; engage in social or legal argument; deal with political and social issues outside the special grand jury's duty of unearthing crime; or follow a serious breach of grand juror secrecy. In this Order, the Court holds that a special grand jury report failing these criteria may not be released to the public. The Court also holds that unsigned indictments have no legal force or validity as indictments, that presentments are obsolete in the federal system, and that for many of the same reasons that a report may not be issued, the documents purported to be indictments or presentments also may not be released to the public. Finally, the Court notes that it is unable to release a document that was never presented to it by the special grand jury, namely, the unofficial document disseminated in October 1992.

The Court further stresses that grand jury secrecy is crucial to the continued vitality of our criminal justice system, and the grand juror's oath is integral to the continued integrity of the grand jury system. The grand jury is an institution greater than any individual matter before it. A breach of a grand juror's oath threatens to undermine the effectiveness and purpose of the grand jury and can be neither countenanced nor rewarded. In fact, courts have imposed sanctions for contempt for violations of grand jury secrecy. Therefore, the surreptitious and unlawful dissemination of matters occurring before the grand jury will militate further against the release of an otherwise inappropriate grand jury report.

The Court emphasizes that a breach of secrecy allowed to stand without refutation or judicial comment sets a troublesome precedent that affects other grand and general, or petit, juries. Such a precedent would give license to future grand juries to deviate from or disregard established laws and procedures, to willfully breach the confidentiality of the grand jury, and to make public comment on matters occurring before it which were received as an incident of jury service. No matter how noble the purpose, extralegal disclosures of information and breaches of grand jury secrecy cannot be allowed to stand uncontested by a court of law.

The Court's inability to release the Report is unfortunate. The Grand Jury held in its hands a unique opportunity to enlighten a community entitled to know of the successes and failures of its government, in this case, the operation of Rocky Flats. Accordingly, we must be clear on this point: it was possible for the special grand jury to draft an acceptable report, a report which the Court could, in good conscience, release to public view. It is with great regret that the Court has watched the Special Grand Jury fall short of the objectives of its empaneling.

While the Court will not release the special grand jury report in its entirety, nor allow release of the names or other identifying characteristics of individuals, the Court recognizes that there may be some portions of the report that may heighten awareness of the activities at Rocky Flats and address certain of the community's safety, health, and environmental concerns. The Court therefore directs the Government to submit for in camera inspection a proposed redacted or excised version of the report that, if possible, could lawfully be released to the public. The Court, merely by issuing such an order, does not commit itself to a release of any proposed redacted or excised version of the report; any and all documents subject to release must still comply with the statutory and common law guidelines discussed in detail below. The Court also holds that certain of the special grand jury's ministerial documents, or the contents thereof, may be released.

The Court is convinced that the activities and operations at Rocky Flats require further exploration. The Court will continue to pursue appropriate avenues to illuminate for the public the activities at Rocky Flats and their impact on the health, safety, and environment of the community; those avenues include investigation and oversight by the state and federal governments, both of which have a critical responsibility and concurrent jurisdiction in this matter of great public concern. In the interim, the Court notes that the focus on both the document released in October 1992 and the matters surrounding the report has overshadowed other, more authentic and authoritative documents that reveal much about the activities at Rocky Flats and that are currently open to public view.

I. Background

Special grand jury 89-2 (also "the Special Grand Jury" or "the Grand Jury") was empaneled on August 1, 1989, to investigate possible federal environmental crimes that may have occurred at the Rocky Flats Nuclear Weapons Plant in Jefferson County, Colorado ("Rocky Flats"). After a three-year investigation, the United States Attorney for the District of Colorado concluded that there was sufficient evidence to warrant bringing criminal charges against Rockwell, the corporate operator of Rocky Flats. However, the U.S. Attorney also concluded that indictments against certain individuals who had been employed at Rocky Flats by Rockwell and the Department of Energy ("DOE") would not be legally supportable. On March 24, 1992, the Special Grand Jury, upon being discharged, submitted to the Court proposed indictments, which purported to charge both Rockwell and former or current Rockwell and DOE employees with crimes, and documents designated as presentments. The U.S. Attorney declined to sign the proposed indictments. The Special Grand Jury also submitted a report of its findings ("the Report"). On March 26, 1992, Rockwell and the U.S. Department of Justice entered into a plea agreement whereby Rockwell pled guilty to ten criminal charges involving violations of federal environmental laws related to operations at Rocky Flats.

From March 1992, the time of Rockwell's guilty plea and the Court's receipt of the Report, until September 1992, the Court reviewed many documents, minutes, records, and confidential materials related to the Special Grand Jury and spent considerable time analyzing in detail the recitals in the report of the Special Grand Jury. On September 25, 1992, following a determination that the Report did not satisfy the statutory requirements for public issuance of a grand jury report, this Court entered an Order prohibiting the Report from being filed as a public record. It appears likely that over the course of the following several weeks unidentified members of the Special Grand Jury engaged in contact with non-jury members regarding their work on the Grand Jury and matters occurring before it. We assume the foregoing without deciding that it was the case. In late September or October, non-jury members apparently came into possession of a document purported to be a grand jury report on Rocky Flats dated January 24, 1992 ("the January document"). Reply of Denver Publ. Co., Exhibit B. The document included excerpts of matters relating to Rocky Flats as well as observations and recommendations attributed to the members of the Special Grand Jury. The document is described in further detail in Part III, infra.

On October 1, 1992, The News, joined by KUSA, moved for public disclosure of...