The trial of FBI special agent Joseph Astarita got underway in Portland on Wednesday, with prosecutors and the defense offering two very different versions of events that played out during a high-profile traffic stop more than two years ago along a remote stretch of highway in eastern Oregon.
Astarita — a member of the agency’s elite Hostage Rescue Team — is on trial for his role in a shooting related to the 2016 occupation of the Malheur National Wildlife Refuge in eastern Oregon.
Prosecutors say on Jan. 26, 2016, Astarita fired two shots at occupation spokesman Robert “LaVoy” Finicum and later concealed it, denying the shots happened. The shots missed Finicum. During that same traffic stop, the occupation’s leaders were arrested and Finicum was killed by Oregon State Police.
Prosecutors have charged Astarita with lying to investigators and obstruction of justice. The trial comes at a challenging time for the FBI, whose actions are being called into question by President Trump and members of Congress. That makes this trial particularly challenging for the U.S. Department of Justice.
During opening statements, federal prosecutors told jurors that Astarita is the only person who could have fired the two shots in question.
“One guy, only one guy stood in just the right spot with his rifle shouldered,” said Assistant U.S. Attorney Gary Sussman in a packed 10th-floor courtroom. “That guy is an FBI agent.”
With that Sussman turned and pointed across the courtroom, “And that guy is defendant Joseph Astarita.”
But the defense countered with an alternative theory about the two shots in question.
Robert Carey, a member of Astarita’s five-person defense team, told jurors that as an FBI HRT operator, Astarita is one of the agency’s best shots.
“If he had shot, he would not have missed,” Carey said.
Rather than one person, the shots could have come from as many as three people, including Astarita, Carey said. But the most likely person, he argued, was one of the OSP troopers who shot Finicum, known as “Officer 1.”
“The most likely shooter, the evidence will show, is Officer 1,” Carey said.
Government’s Case Against Astarita
During his opening statement, Sussman recounted parts of the 2016 refuge occupation, the moments leading up to the traffic stop and how Finicum fled, ultimately crashing into a snowbank.
Sussman told the jurors how an OSP SWAT trooper fired three shots at Finicum’s truck as it accelerated towards a roadblock manned with FBI HRT operators. One of them was Astarita.
Almost as quickly as Finicum crashed into the snowbank, he swung open his driver’s side door and jumped out of the truck. Then the two quick shots were fired.
“Only one guy was in position to take those two shots,” Sussman said. “Only one guy had his rifle shouldered at that moment: defendant Joseph Astarita.”
Sussman told jurors how other FBI HRT operators feared their colleague had been hit and killed when Finicum’s truck swerved off the road and into the snow.
He said in the moments after the shooting Astarita’s “face was contorted” and he was “yelling commands.” Sussman said Astarita was the only person on the scene who appeared “amped up.”
Occupation leader Ryan Bundy along with another occupier, Shawna Cox, were both in Finicum’s truck at the time he was killed.
Bundy was hit by one of the two shots in question.
After Bundy was in handcuffs, Sussman said Astarita walked up to Bundy and “for no apparent reason knocked the cowboy hat off his head.”
Sussman said Astarita then looked down on Bundy, who was on his knees, to see his wound. Astarita “was trying to figure out whether one of his shots hit Ryan Bundy,” Sussman said.
“This is a case about integrity,” Sussman said as he closed his opening statement. “Without it, a law enforcement officer is nothing and has nothing.”
Sussman said the trial is about an agent firing his rifle twice and lying about it repeatedly to investigators.
“That guy is Joseph Astarita,” Sussman said. “And that guy is guilty of the charges against him.”
Defense Says Oregon State Police Fired Shots In Question
Carey, one of Astarita’s defense attorneys, told jurors that Astarita joined HRT in 2015. He got in on his second try, he said.
Before that Astarita spent 17 years as an FBI agent, some as part of SWAT teams. “He’s never fired his weapon in the line of duty,” Carey said.
He outlined for jurors the attempted arrest of Finicum.
“The plan did not go quite as well as hoped,” Carey said.
During the initial traffic stop, Carey said an OSP trooper, identified as Officer 2, radioed to Officer 1, who was with Astarita at the road block.
Carey said Officer 2 radioed to Officer 1 that “we’re going to have to shoot LaVoy Finicum.”
Officer 1 fired three shots at Finicum’s truck as it approached the FBI roadblock, Carey said. He said Officer 1’s safety was off and his gun was pointed at the truck.
Video shows Officer 1 “aggressively following [Finicum] into the snow and shooting him dead.”
Carey said Astarita made eye contact with another FBI HRT operator at the time the two shots took place.
During his opening statements, Carey also questioned the government’s use of science and investigative techniques. He noted that the there are not eyewitnesses or ballistics evidence. Carey also said it’s impossible to identify specific individuals in aerial footage taken by two FBI surveillance airplanes.
On Wednesday afternoon, the jury heard testimony from an FBI HRT supervisor who was on the scene that night as well as Oregon State Police Superintendent Travis Hampton.
The government’s case is expected to last three weeks.