An Oregon state police trooper at the scene of the Jan. 26, 2016 shooting of refuge occupation spokesman Robert “LaVoy” Finicum told investigators that he believed another state police officer fired the shot that struck the roof of Finicum’ struck, and not an FBI agent, according to court records filed Thursday.
Yet prosecutors are asking a judge to prevent the trooper from sharing his opinion at the trial of indicted FBI Agent W. Joseph Astarita, arguing that it’s not supported by facts and based largely on speculation.
Astarita is accused of denying that he fired two shots as Finicum emerged from his pickup truck at the police roadblock on the day the FBI and state police moved in to arrest leaders of the armed occupation of the Malheur National Wildlife Refuge. One shot hit the roof of Finicum’s truck and a second missed entirely, investigators said.
Astarita, a member of the FBI’s elite Hostage Rescue Team, has pleaded not guilty to three counts of making a false statement and two counts of obstruction of justice.
The statements by the state police officer identified only as “Trooper 3,” as revealed in court documents, come less than three weeks before Astarita’s trial is set to start on July 24. They would bolster Astarita’s defense as his lawyers have signaled that they’ll argue that a state police SWAT officer may have fired the two shots in question, not Astarita.
Trooper 3 was one of two state police SWAT operators at a police roadblock on U.S. 395 when Finicum drove his truck into a snowbank to avoid the officers. Trooper 3 was standing in the tree line to the west of where Finicum’s truck came to rest.
During a recent interview with investigators preparing for trial, Trooper 3 said he believed that another state police SWAT officer, identified as “Trooper 1,” and not Astarita, fired what he believed was a single shot that struck the roof of Finicum’s truck.
Trooper 3 shared his opinion with state police forensic scientists and detectives, and with several FBI Hostage Rescue Team agents in the days following the shooting, according to prosecutors.
According to prosecutors, Trooper 3 partly based his opinion on a belief that the FBI agents at the scene were using 55 grain fully jacketed .223-caliber ammunition, having seen such bullets at the operations center in Burns. Trooper 3 did not believe that such rounds had the capacity to pierce the roof of Finicum’s truck and remain intact to shatter the left rear window of Finicum’s truck. He believes that the 64 grain Federal bonded rounds that state police use were more likely to stay intact after going through a vehicle’s sheet metal.
Though the government plans to call Trooper 3 as one of its witnesses, asking him what he saw and heard, prosecutors want a judge to prevent Astarita’s lawyers from eliciting testimony from the trooper about his opinion on who fired the disputed shots.
Prosecutors Gary Sussman and Paul Maloney argue that Trooper 3’s testimony should be limited, as he’s not an expert in ballistics and did not see the shots in question as his view was obscured by Finicum’s truck.
Astarita’s defense lawyer David Angeli declined to comment Thursday. But the defense is likely to challenge the prosecution’s attempt to limit their questioning of Trooper 3. The defense had unsuccessfully attempted to limit testimony of several government expert witnesses, including a Deschutes County sheriff’s deputy.
Prosecutors contend that Trooper 1 who was standing near Astarita admitted immediately to firing five shots -three earlier shots as Finicum’s truck was heading toward the roadblock and later fired two shots that struck and killed Finicum. Finicum had stepped away from his truck and was seen reaching into his jacket where he had a loaded handgun, investigators said. An inspection of Trooper 1’s rifle magazine was consistent with his statement, prosecutors have said.
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