Lawyers for an indicted FBI agent suggest in court papers that one of the state troopers who shot and killed Oregon refuge occupation spokesman Robert “LaVoy” Finicum may have fired the two earlier shots at Finicum as he emerged from his truck at a police roadblock.
The trooper, a member of the state police SWAT team identified in court papers only as “Officer 1,” was involved in at least two unrelated fatal shootings of civilians before the Finicum encounter, according to lawyers for FBI agent W. Joseph Astarita.
The government has refused to provide documents to the defense about those past shootings despite repeated requests, the agent’s lawyers said. Astarita’s lawyers are now asking a judge to compel the prosecution team to release the material.
“Such evidence could potentially reveal a pattern of behavior that might shed light on what Officer 1 did on January 26, 2016, and why he may not have been truthful about that conduct in the days and weeks that followed,” defense lawyer Tyler Francis wrote in a motion filed this week in U.S. District Court in Portland.
The motion reveals a theory of Astarita’s defense lawyers intended to cast doubt on the prosecution’s contention that the FBI agent fired at Finicum and then lied about it. One of the bullets hit the roof of Finicum’s truck and the other went astray.
Astaritia’s lawyers contend the government “overlooked or misinterpreted” several key pieces of evidence, “strongly suggesting that Officer 1 may have lied about his role in the incident, and that Officer 1 had a clear motive to do so.”
Astarita, a member of the FBI’s elite Hostage Rescue Team, has pleaded not guilty to a five-count indictment that charges him with three counts of making a false statement and two counts of obstruction of justice. His indictment followed grand jury testimony and analysis by experts of the bullet trajectory from the shot that hit the roof of Finicum’s truck.
Astarita’s lawyers said “Officer 1” was standing near Astarita when someone fired twice – called “Shots 4 and 5” in court documents — at Finicum as he emerged from his truck when police arrested the leaders of the armed takeover of the Malheur National Wildlife Refuge.
The trooper had fired three shots as Finicum was driving toward the police roadblock, striking Finicum’s truck in the front hood, center grill and driver’s side mirror. The trooper denied firing the next two shots, “Shots 4 and 5,” as Finicum emerged from his truck, but he may have had a motive for the denial because moments later he fired other shots that struck and killed Finicum, Astarita’s lawyers contend.
“If Officer 1 had initiated the use of deadly force by firing Shots 4 & 5 at Finicum just seconds earlier, his self-defense claim would obviously have been more difficult to establish,” Tyler wrote in the motion. “Officer 1’s denial would be even less credible – substantially so – if he had a history of using deadly force in similarly questionable circumstances.”
“Officer 1” was one of two state troopers who fatally shot Finicum as he was reaching inside his jacket, police said. Investigators said Finicum had a loaded handgun in an inner pocket.
Astarita’s lawyers first asked for files from the different police agencies that make up the Tri-County Major Incident Team, in a letter to prosecutors in July 2017. The defense sent another letter in September, specifically asking that the government produce “all documents regarding the involvement of (Officer 1) in any prior officer-involved shooting.”
By December, the government told Astarita’s lawyers that it had reviewed documents on the trooper’s prior officer-involved shootings but didn’t believe they had to be shared under the Brady rule.
The landmark 1963 U.S. Supreme Court ruling in Brady v. Maryland says prosecutors have a duty to turn over information that might be favorable to defense attorneys in a case.
Prosecutors don’t believe the trooper’s prior shootings are relevant in the Astarita case, but Astarita’s lawyers disagree.
Prosecutors have argued that no one other than Astarita could have fired the shots as Finicum emerged from his pickup, and that he was the only person standing in a stationary, “combat-ready stance” with a weapon trained on Finicum’s truck when the two critical shots in question were fired. They’ve said the state trooper was in motion, moving around at the time.
Yet Astarita’s lawyers argue they should be entitled to review records on the trooper’s previous shootings.
“Evidence demonstrating that an individual other than the accused had a motive to lie to the police in statements impacting an investigation is plainly exculpatory, particularly where that witness also had the opportunity and means to commit the underlying act in question,” Taylor wrote in court papers. “Records relating to Officer 1’s prior shootings fall squarely into this category.”
The Deschutes County Sheriff’s Office, which led the shooting investigation, and state police have declined to identify the troopers who fatally shot Finicum. The agencies have turned down repeated public records requests seeking the names, citing threats against the troopers.
Lawyers in the Astarita case have the troopers’ names but they’re under a court protective order.
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