Grand jury transcripts made public Thursday provide new details about the 2016 arrest of the leaders of the Malheur National Wildlife Refuge occupation and the shooting death of their spokesman, Robert "LaVoy" Finicum.
The new documents are only a portion of what the grand jury heard. But the transcripts give insight into the testimony and evidence the jury assessed before they indicted FBI special agent W. Joseph Astarita. Prosecutors have charged Astarita with several counts of making false statements to investigators and obstructing justice after the shooting.
Astarita has pleaded not guilty in the case.
His defense attorneys argue the methods law enforcement and other experts the government relies on for its case can't recreate and analyze the scene in a way that's admissible in court. They've asked the federal judge overseeing the case to prohibit some government experts and their analysis from going before a jury.
Astarita is still employed by the FBI, according to an agency spokeswoman.
Astarita was a member of the agency's elite hostage rescue team (HRT), which arrested Ammon and Ryan Bundy, as well as other leaders of the occupation on Jan. 26, 2016. The arrests took place along a remote stretch of Highway 395 between Burns and John Day.
During the arrests, Finicum fled the traffic stop in his Dodge pickup. Prosecutors, and now grand jury testimony from experts, allege Astarita fired his weapon twice at Finicum's truck after it crashed into a snowbank near the roadblock.
"This is significant," FBI Special Agent Russ Cunningham told a grand jury in early 2017 as he walked them through an aerial video of the incident. "You can actually watch the window explode when the shots were taken. And that is Joe Astarita, standing in a shooting position, aiming at the truck."
Though Astarita's alleged shots didn’t hit Finicum, the Arizona rancher was killed shortly after he exited his truck by three shots from members of Oregon State Police's SWAT.
The entire shooting was ruled justified. Investigators found there were a total of eight shots taken at Finicum and his truck by both SWAT and HRT operators.
But as investigators reviewed the shooting, they couldn't account for two shots that took place during the incident. In February 2016, the U.S. Department of Justice Office of the Inspector General opened an investigation. And on June 20, 2017, a federal grand jury returned an indictment against Astarita.
Prosecutors allege that one of Astarita's shots hit the roof on Finicum's truck. Cunningham told the grand jurors that when investigators processed the crime scene they didn't know about the bullet hole in the roof of Finicum's truck. He testified that crime scene investigators used a ballistic rod to determine where the shot came from.
"They run a rod down the hole that struck the truck, and it gives a very accurate measurement of the trajectory of the bullet," Cunningham said. "When they found the trajectory of the bullet, nobody knew how that could happen."
Cunningham said it wasn't until weeks later that investigators were able to sync up video footage taken by Malheur occupier Shawna Cox, who was inside Finicum's truck, with FBI aerial footage. That gave them a clear insight into where the shots came from, Cunningham said.
Deschutes County Sheriff patrol deputy Kevin Turpen testified to the grand jury June 20, 2017, the same day the grand jury indicted Astarita. Turpen testified he used trajectory rods to see the angles of where the rounds were fired from.
"Knowing those angles, I was able to place that on top of my diagram and start looking at where these shots — and particularity the two shots after the vehicle came to a stop," he testified. "We don't know where the first round went; I wasn't able to place that one. But the second round, we have a bullet hole in the roof of the truck. And based on state police's trajectory rods, we were able to determine where the round came from."
Astarita's defense attorneys want Turpen, and other government experts, excluded from the trial.
"Because the government has no photographic, video, ballistic, or eyewitness proof that Special Agent Astarita fired his weapon, this assumption rests entirely on the proposed testimony of so-called experts," said David Angeli, one of Astarita's attorneys, in a motion filed earlier this month.
Angeli notes that the experts rely on one another to create two different reconstructions that show Astarita as the most likely person to have fired the round that went into the roof of Finicum's truck.
"These two 'reconstruction' attempts are built upon a series of heretofore unheard-of steps, none of which withstands scientific scrutiny on its own, much less in combination," Angeli wrote.
Investigators have said they never recovered all of the shell casings from the crime scene.
Cunningham walked members of the grand jury through a section of the video that depicts what happened after the shooting. He said the video shows several members of the FBI HRT team, including Astarita, picking up items off the ground in the dark. The agents use their flashlights, according to the transcript.
"They're huddling," Cunningham testified. "You're going to see them break away, and you'll see an individual walk right up and pick up what looks like two things back at the back corner of this truck."
Cunningham narrates as one of the FBI HRT operators bends down and picks something up. All of the agents in the transcript, except Astarita, are identified by their initials.
"None of these guys came forward and said they picked anything up," Cunningham said. "So it's through us interviewing him, like we learned today from J.N., all of them got lawyers so we weren't able to free talk with them. So, like, today, we learned for the first time that he said he picked up the flash bang spoon, the handle off the spoon."
The "spoon" is part of the flash bangs that the FBI HRT operators threw at Finicum's truck as they were attempting to arrest the others inside the vehicle.
Members of the grand jury were clearly aware of the significance of the charges they were considering and the evidence they were hearing.
"Maybe this doesn't matter, but I'm struggling with, what if (Astarita) would have just at the scene said, 'Hey, I shot my gun,'" one juror asked during the testimony. "Would that have been so bad — would that have killed his career? I'm struggling with why ... "
The juror was interrupted by Assistant U.S. Attorney Pamala Holsinger, who had questioned Cunningham before the grand jurors.
"That's probably not a relevant question for probable cause," she said. "Perhaps when we're done we can have that conversation, separately. I don't think it's appropriate to speculate what would have happened, because that's not the facts we have."
"I just look at that and this investigation is — this is a big deal," a juror said. "And it's, like, would it have been such a big deal had he just said, 'Yeah, in the heat of the moment, I shot my gun?'"
"We wouldn't have grand jury if they admitted to it," another juror responded before Holsinger stepped in.
"The dangerous part is if we speculate on that piece. But yes," Holsinger said.
Other documents released tell new details about how officers processed the shooting scene. They say Finicum laid in the snow, handcuffed for about 12 hours after he died.
"The decedent was in a supine position with his hand handcuffed behind his back," said a report dated March 28, 2016, from OSP's Forensic Laboratory.
Deschutes County Sheriff's detective Ron Brown investigated the scene and also noted Finicum in his narrative report.
"His head was pointed toward the street and his feet were pointed toward the woods," Brown wrote in a Feb. 2, 2016, report. "I saw he was handcuffed behind his back and had two visible injuries in his upper body (chest area) ... I was able to see patches on his skin which I recognized as the type used by medical personnel to check heart activity. There was a pair of eyeglasses lying near the male's head as well as a cowboy type hat."
Brown wrote that investigators found a 9mm Ruger handgun "with a full magazine and one bullet in the chamber. This gun was found in the left interior denim coat pocket on the deceased male."
Astarita is currently scheduled to go to trial in July.
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