An Occupation In Eastern Oregon

Whose Shots? Attorneys Deliver Closing Remarks In Finicum Shooting Case

By Conrad Wilson (OPB)
Portland, Ore. Aug. 9, 2018 8:07 p.m.

UPDATE (Aug. 9, 3:46 p.m. PT) — Jurors began deliberating in the trial of an FBI agent accused of lying and obstructing justice, after attorneys delivered closing arguments at the federal courthouse Thursday in Portland.

The charges stem from a critical moment during the 2016 occupation of the Malheur National Wildlife Refuge when occupation 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.


Prosecutors say FBI special agent Joseph Astarita fired his weapon twice, lied about it and later tried to cover it up. He's been charged with two counts of making a false statement and one count of obstruction of justice. On the stand Wednesday, Astarita said he never fired his weapon and in fact didn't hear any gunshots.

Investigators said law enforcement fired a total of eight shots at the roadblock. While all were deemed justified, this three-week trial has been about who fired two of them.

Jurors will have to grapple with widely different interpretations of events laid out by prosecutors and the defense. While the government says Astarita fired twice and hit Finicum's truck, Astarita's attorneys argue an Oregon State Police SWAT trooper identified as “Officer 1” is more likely the source of the two shots in question.

FBI footage showing the joint FBI and Oregon State Police traffic stop and OSP officer-involved shooting of Robert “LaVoy” Finicum.

FBI footage showing the joint FBI and Oregon State Police traffic stop and OSP officer-involved shooting of Robert “LaVoy” Finicum.


Prosecutors returned to some of their key themes during closing arguments, like law enforcement accountability and integrity.

“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 presentation. “The defendant is guilty.”

Maloney emphasized to jurors the case is about integrity.

“The case is about owning your shots,” he said.

Maloney also argued that Officer 1 — who fired three times at Finicum’s truck as it approached the roadblock and also hit Finicum twice after he exited his pickup truck — has owned the five shots he took from the start and has nothing to gain from lying.

Instead, Maloney suggested, Astarita lied because of the intense pressure that comes along with being a member of the FBI’s elite Hostage Rescue Team, a counter-terrorism unit that conducts operations around the world.

“Putting rounds down range and missing is a big deal,” Maloney said. “Imagine the ego that comes with that and having to tell fellow operators that you might have shot.”

The Central Oregon Major Incident Team released photos of evidence from the Jan. 26 shooting of militant leader Robert "LaVoy" Finicum.

The Central Oregon Major Incident Team released photos of evidence from the Jan. 26 shooting of militant leader Robert "LaVoy" Finicum.

Courtesy Central Oregon Major Incident Team

The defense has argued throughout the trial that if Astarita had shot at Finicum, he wouldn’t have missed.

During closing arguments, defense attorney David Angeli pushed back against the government’s suggestion of Astarita’s motive.

Angeli said Astarita had no incentive to lie and that he was told by his supervisors the rounds were justified by the district attorney and there would be no disciplinary action taken.

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 … Agent Astarita is not guilty.”

Angeli was also highly critical of the government’s expert witnesses and renderings that show Astarita in a cone of probability as the only person who could’ve fired the two shots in question. Angeli said the models were inaccurate and didn't account for Finicum's truck settling after it slammed to a stop in the snow. The government countered that it was the defense's experts — not theirs — who were incorrect.

Angeli reminded jurors that in late January and early February of 2016, Oregon State Police were worried about litigation following the Finicum shooting and also concerned about the public's response to the fact it would be ruled justified. Angeli suggested that could be a motive for "Officer 1" not being truthful about taking the shots his client has been charged with lying about.

"There's only one law enforcement officer who came in here and told you things that were not true," Angeli said. "And that is not Joe Astarita. That's Officer 1."

Angeli told jurors he was delivering Astarita "from my hands to yours" and asked them to find him not guilty on all three counts.

During the government's rebuttal, Maloney tried to refocus the case on the charges, as well as the government's evidence and testimony from experts.

Maloney attacked Astarita's testimony from earlier this week, arguing that the agent was not truthful or believable when he testified that he didn't know exactly where he was standing during the Finicum shooting.

"Mind you, this is super agent," Maloney said, referencing Astarita's training as an HRT operator. "And he doesn't know where he was? It's plainly not credible."

Maloney then thanked jurors and asked them to do what he called "the hard work."

"It's with no pleasure or glee, it's with a heavy heart that the U.S. government has to ask you to convict one of it's brightest stars, because he's guilty," Maloney said.

Regardless of the trial's outcome, it comes at a time when the FBI's integrity as an agency is being called into question by members of Congress and President Trump.