Defense lawyers argued Friday that the government’s reconstruction of an FBI agent’s alleged shots at Oregon occupation spokesman Robert “LaVoy” Finicum isn’t based on sound forensic methods.
“They come in and present this evidence as if it’s precise. It’s just not so,” said Robert Cary, a well-known Washington, D.C.-based defense lawyer for indicted agent W. Joseph Astarita. “It’s presented as science and it’s way dangerous.”
Prosecutors countered that they relied on multiple experts who used independent state-of-the-art forensic methods and all placed Astarita as the only one who could have fired the shot that struck the roof of Finicum’s truck on Jan. 26, 2016.
The closing arguments came after four days of testimony in a pretrial hearing to determine which experts’ work can be presented at Astarita’s July 24 trial. U.S. District Judge Robert E. Jones said he’d issue a written ruling in two weeks.
Astarita, a member of the FBI’s elite Hostage Rescue Team, is accused of concealing that he took two shots at Finicum and has pleaded not guilty to three counts of making a false statement and two counts of obstruction of justice. He attended each day of the hearing, sitting among his four lawyers.
The government alleges that Astarita fired at Finicum, one of the leaders of the occupation of the Malheur National Wildlife Refuge, as he emerged from his pickup at a roadblock when police arrested the leaders of the armed takeover.
One bullet went through the truck’s roof and the other went astray, investigators said. Moments later, two state troopers fatally shot Finicum as he was reaching inside his jacket. Investigators said he had a loaded handgun in an inner pocket.
The prosecutor played a 30-second loop of 34 frames from two synchronized videos of the scene – one from an aerial FBI plane about two miles away and one taken by a backseat passenger ins Finicum’s truck.
“Notice where defendant is standing,” Assistant U.S. Attorney Paul Maloney said, pointing to a figure standing beside an open passenger door of a Dodge truck to the east of Finicum’s pickup. “Just over 1 second later, Mr. Astarita’s stance has changed minimally. He’s still in a shooting stance with his weapon drawn.”
Maloney argued that measurements from the shooting scene, bullet trajectory analyses, the synchronization of videos and audio from the scene and an expert’s 3D model stands up to defense scrutiny and meets the legal standard for being admitted at trial.
Their work is “relevant and reliable,” he said.
“Absolute certainty is not required,” Maloney said. “Forensic science deals with non-ideal data. It’s not a lab. It’s a crime scene. It is what it is, and it’s incumbent upon the government to relentlessly pursue the truth of the matter.”
“It is important,” Maloney added. “The community needs an answer.”
Prosecutors had expert Toby Terpstra, senior forensic animator at the Colorado-based company Kineticorp, play his 3D reconstruction of the moment he suspected Astarita took the shot that hit the roof of Finicum’struck.
But on the witness stand, Terpstra admitted his animation is off by nine video frames and depicts 0.3 seconds before the shot in question was fired.
Cary, the defense attorney, said: “He used the wrong image.”
Another government expert, Michael Haag, a forensic scientist with the Albuquerque, New Mexico police department, demonstrated his unique “Rocker Point” evaluation method using a cardboard box, a trajectory rod and a sheet of metal shot with .223-caliber bullets affixed to the top of the box.
Haag determined the bullet traveled from the rear of Finicum’s truck toward the front, from right side to left, at a horizontal angle of 122 degrees and a vertical angle of minus-9 degrees.
Using those measurements with a margin of error of plus or minus 5 degrees, Haag figured out the area where someone fired the bullet, depicted by a trajectory cone. His analysis differed by about 3 degrees from a different method used by Oregon State Police forensic scientist Victoria Dickerson.
Defense lawyers and their experts said Haag’s method isn’t generally accepted or peer reviewed, and poked holes in other government analyses.
They questioned how prosecutors could rely on the blurry aerial video from an FBI plane flying nearly two miles from the shooting scene, how they didn’t correct for lens distortion in creating the 3D shooting model and how they failed to consider the likely settling of Finicum’s truck in the snowbank and the angle it sat at the time of the gunshot to the truck’s roof before trying to determine its trajectory.
The defense also brought in Reed College assistant professor Andrew Bray, who found statistical errors in a 2008 study that Haag uses to validate his 5-degree margin of error used for the bullet trajectory cone.
“That five-degree cone is everything because there are other people not very far out of that five-degree cone,” Cary said. Other FBI agents and Oregon state troopers stood near Astarita.
Defense expert Eugenio Liscio, who teaches 3D forensics at University of Toronto, called Terpstra’s 3D animation using the manual matching of camera images the “least scientific, most subjective” method to recreate a scene, replete with “wiggle room.”
Cary accused the prosecution and its experts of going “beyond what science can deliver.”
“They pushed the envelope too far,” he said. “Mistakes do matter.”