The question faced by jurors is not who killed Finicum but rather who fired two mysterious shots that no one will admit to.
Those were the two key facts that federal jurors were given Thursday as they began to deliberate the fate of an FBI agent who is accused of lying about firing his weapon at a roadblock and then covering up the evidence.
The shot that hit the pickup, and another one that went wild, were fired on a cold late afternoon in central Oregon during a searing moment in the 2016 occupation of the Malheur National Wildlife Refuge by armed militia members. A militia leader, LaVoy Finicum, was killed when he appeared to reach for a weapon. Conspiracy theories in right wing and militia circles have continued to swirl ever since.
The question faced by jurors is not who killed Finicum — an Oregon state trooper fired those shots and was found justified in his actions — but rather who fired two mysterious shots that no one will admit to. The stakes go far beyond the defendant, Joseph Astarita, 41, to the highest reaches of federal law enforcement, and to the reputation and credibility of the FBI, its agents and its training systems.
“It is with a heavy heart that the United States government asks you to look at one of its own,” Paul T. Maloney, an assistant U.S. attorney, said Thursday in his final statement to the jury. “This case is about integrity; this case is about honesty; this case is about accountability and owning your shots.”
Astarita’s lawyers agreed that honesty and accountability should be key measures in reaching a verdict. But they said the evidence suggested a pattern of lies not within the FBI but the Oregon State Police, and what they said were the “reckless” actions of one trooper who did most of the shooting that afternoon, then changed his story about what happened.
Astarita, who has been in the FBI for 13 years and is a firearms instructor, showed restraint and training in not firing his weapon, his lawyers said, and represented the best of what the agency stands for.
“He didn’t shoot and he had no motive to lie,” a defense lawyer, David H. Angeli, said in his closing statement. “There’s only one law enforcement officer that came in and told you things that weren’t true and it wasn’t agent Astarita.”
Then there is the harder-to-measure force of Astarita himself, who is accused of three felony counts of lying to investigators and obstructing justice. Testifying in his own defense, Astarita looked squarely at the jury through two days on the witness stand. He crisply and resolutely denied the criminal charges against him, saying he never fired his Colt assault rifle, never covered up firing his rifle, and that being an FBI agent and representing the agency’s integrity to the best of abilities was the focus of his life.
“It’s my world,” he said, in his final words to the jury before stepping down. He said that his training — that an agent should never shoot without a clear target and a certainty of what lies beyond the target — kept him from firing because he saw that a state trooper was potentially in the crossfire. Despite being involved in numerous SWAT team arrests and other actions, he said he had never shot at anyone, ever.
In reaching a verdict, the jury will have to fill in the holes of what happened, or did not, on Jan. 26, 2016, in the intense and frantic minutes as Finicum, a spokesman for the militia occupiers, roared his Dodge Ram pickup toward a police roadblock. Finicum swerved into a snowbank as he approached the blocked highway, nearly striking an FBI agent. He then got out of the truck, hands in the air, but was shot and killed after the state trooper said he saw Finicum reach for a weapon.
Prosecutors, by contrast, said Astarita was new to the elite Hostage Rescue Team that had been assigned to the Malheur takeover. They said the evidence supported the notion that Astarita fired the two shots, then panicked — either because of his ego or his embarrassment — and denied using his weapon. He then had to lie further to cover his first lie, they said.
Defense lawyers, however, said that the evidence pointed to an Oregon trooper, Trooper No. 1, whose name has been withheld by the court because of threats he faced after the shooting. Angeli told the jury that Trooper No. 1 fired the two mysterious shots, and lied about it because of the pressure and the investigation.
What also hung over the proceedings is the reality that prosecutors have had very little success convicting anyone who played a role in the Malheur takeover, or more broadly in the militia groups that led it. The Bundy brothers, Ammon and Ryan, and five of their followers were acquitted in late 2016, in the same federal courthouse in downtown Portland where Astarita was on trial. In late 2017, another federal case against the Bundy group, stemming from an armed standoff with law enforcement agents in Nevada over cattle grazing, collapsed in a mistrial after the judge said prosecutors had failed to turn over evidence, as required, that could help the defense.
The task faced by the jurors as they began to deliberate Thursday centered on what was deeply uncertain. The forensic evidence at the core of the prosecution’s case said the trajectory of the bullet that struck Finicum’s truck after it spun into the snow bank came from Astarita’s approximate location. But Astarita told the jurors things were in chaotic motion, and he could not be exactly sure where he was standing.
Law enforcement video of the scene showed various figures on the ground, bending over at times and picking things up. But who were they? Witnesses in the trial talked about how officers had to contend with a growing darkness in a remote area. In contrast, infrared cameras from overhead looked black and white, sharp and clear.
Even the question of physical posture became a thread of the circumstantial case. At one point on Wednesday, for example, prosecutors handed Astarita his rifle, retrieved from an evidence box, and asked to show the jurors how he was taught to stand with it when scanning for targets or ready to fire.
“Can I ask why the safety is off?” Astarita asked as he prepared to shoulder the weapon.
In later questioning, and again in summing up the evidence to the jurors on Thursday, prosecutors said what was revealed in that moment with the gun in the courtroom was not gun safety, but how Astarita stood and where his feet were placed, as he stood ready to fire. On one of the videotaped images, he stood facing Finicum’s truck in exactly that posture.
This article originally appeared in The New York Times.