UPDATE (Aug. 10, 7:15 p.m. PT) — After less than a day of deliberation, a jury of nine men and three women found FBI special agent Joseph Astarita not guilty of lying about a high-profile police shooting during the 2016 Malheur National Wildlife Refuge occupation.
Astarita faced two counts of making false statements and one count of obstruction of justice.
The charges stemmed from a critical moment during the occupation when spokesman Robert ‘LaVoy’ Finicum was shot and killed by Oregon State Police after he fled a traffic stop along a remote stretch of highway in eastern Oregon.
Investigators said law enforcement fired a total of eight shots at the roadblock. While all were deemed justified, Astarita’s three-week trial revolved around two of them.
Even with Astarita's acquittal, it's still uncertain who actually took those two shots. The verdict leaves several open questions about a pivotal moment in the 2016 occupation.
"I'm disappointed that we're not going to come to a resolution as to where those shots came from," said former FBI Special Agent in Charge Greg Bretzing, who oversaw the agency's response to the occupation and approved the Jan. 26, 2016 operation to arrest the leaders. "I believe that the jury made an informed decision based on all the evidence that was presented to it."
Eight Shots At The Roadblock
Astarita is a member of the FBI’s elite Hostage Rescue Team, a counterterrorism unit that conducts operations around the world. On Jan. 26, 2016, he was stationed with other HRT operators and OSP SWAT troopers at a roadblock that Finicum accelerated towards in his pickup as he attempted to evade arrest. He was traveling at more than 70 miles per hour.
As Finicum raced toward the roadblock, an OSP SWAT trooper identified in court as “Officer 1” fired, hitting the truck.
With the roadblock just feet away, Finicum swerved his truck off the road and into the deep snow, burying another FBI HRT operator, special agent John Neiter, in snow.
“I saw John disappear,” Astarita testified at trial. “At that point, I thought John was dead.”
Moments later Neiter emerged, unharmed. Astarita said he was relieved to see Neiter was alive.
At almost the same time, prosecutors said Astarita fired his weapon twice at Finicum as he exited his truck.
“Go ahead and shoot me,” Finicum said, his arms raised. “Go ahead and shoot me.”
OSP troopers eventually shot and killed Finicum after he appeared to reach for his jacket pocket. Inside the jacket was a loaded handgun.
Prosecutors said that after the shooting, Astarita lied to his supervisors when asked whether he shot.
During the trial, Astarita testified that he never fired his weapon. In fact, despite eight rounds fired at the roadblock, Astarita said he never heard any gunfire. He said he was wearing ear protection.
Two Versions Of The Story
Six of the shots fired that night were claimed by OSP troopers — three at Finicum’s truck as it approached a roadblock and three more that later struck and killed the Arizona rancher.
But who fired the two shots at Finicum as he exited the truck remained a mystery to investigators.
“You can be certain the defendant is the source of those shots, as hard as it may be despite his admirable service,” Assistant U.S. Attorney Paul Maloney said during the government’s closing arguments Thursday. “The defendant is guilty.”
Maloney stressed that the case was about law enforcement accountability.
While the government said Astarita fired twice and hit Finicum’s truck, Astarita’s attorneys argued “Officer 1” was the more likely the source of the shots in question.
“There’s only one law enforcement officer who came in here and told you things that were not true,” defense attorney David Angeli said during his closing arguments. “And that is not Joe Astarita. That’s Officer 1.”
Angeli pointed out that none of the more than 40 witnesses called during the trial saw Astarita fire.
“Not one,” he said. “That’s because agent Astarita did not fire.”
The verdict is another tally in the loss column for federal prosecutors related to this case. They failed to convict brothers and Oregon standoff leaders Ammon and Ryan Bundy in 2016. A judge declared a mistrial in the case against Ammon, Ryan and their father, Cliven Bundy, stemming from the 2014 standoff in Bunkerville, Nevada.
The U.S. attorney's office released a statement following the Astarita verdict, defending the decision to bring the case to trial.
"We strongly believe this case needed to be brought before the court and decided by a jury," U.S. Attorney for Oregon Billy J. Williams said in the statement. "Our system of justice relies on the absolute integrity of law enforcement officials at all levels of government."
Astarita was not available for interviews following the verdict. His defense team said that was “because of his job.” Astarita also didn’t leave the courtroom through the public entrance.
The FBI declined any comment on the verdict. The agency also did not reply to questions regarding Astarita's future role at the FBI and the Hostage Rescue Team.
Bretzing said there would likely be an internal administrative inquiry into action by Astarita and other FBI agents on scene, "which may bring more closure to the situation."
Angeli and Rob Cary, another of Astarita’s attorneys, issued a joint statement.
“Joe Astarita is a hero who puts his life on the line for his country every day,” they said. “We are grateful to the men and women of the jury who saw through a case that never should’ve been brought. Joe Astarita is innocent and it was our privilege and honor to represent him.”