Reports on OSP trooper’s past shootings don’t have to be shared with indicted FBI agent

Prosecutors don’t have to share investigative records on three earlier shootings by a veteran Oregon State Police officer in the case of an indicted FBI agent, a federal judge ruled.

U.S. District Judge Robert E. Jones made that ruling Monday afternoon after a meeting in his chambers with prosecutors and defense lawyers who are preparing for FBI Agent W. Joseph Astarita’s July 24 trial.

Astarita is accused of denying that he fired two shots as Oregon occupation spokesman Robert “Lavoy” Finicum emerged from his pickup truck at a police roadblock on Jan. 26, 2016, in Harney County. That was the day the FBI and state police arrested 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.

Astarita’s lawyers have signaled in court papers that they’ll argue that a state police SWAT officer may have fired the two shots in question, not Astarita.

They contend that the trooper was standing near Astarita, had fired 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.

Prosecutors contend that the trooper, identified only as “Officer 1” in court papers, admitted immediately to firing the five shots attributed to him and that an inspection of his rifle magazine was consistent with his statement.

The trooper told investigators he always loads his rifle with 29 rounds and he believed he had fired five shots that day. Investigators found 23 rounds in the magazine and one round in the chamber, according to the government.

The trooper has worked for Oregon State Police for 18 years, including 13 years as one of the longest-serving members of the Special Weapons and Tactics team. He’s been the subject of three prior officer-involved shooting investigations, all deemed justified uses of force, according to prosecutors.

Prosecutors have shared with the defense the trooper’s training records, but the facts and circumstances of his earlier shootings aren’t relevant to the Astarita case, Assistant U.S. Attorneys Gary Sussman and Paul Maloney successfully argued in court documents.

“Nothing about these prior, unrelated shooting incidents has any bearing on this case,” they wrote.

The prosecutors also discount Astarita’s suggestion that the trooper had a motive to conceal two shots that missed Finicum because they would have undercut his argument that he fired the deadly shots in self-defense.

“It defies logic that in an effort to ‘minimize involvement’ Officer 1 would deny firing two shots that missed and admit to firing two lethal shots,” the prosecutors wrote.

In other developments, Astarita’s lawyers don’t want the government to present testimony during the trial that emails and text messages are missing from members of the FBI’s Hostage Rescue Team members who were at the shooting scene.

Russ Cunningham, the senior special agent for the U.S. Department of Justice’s Office of Inspector General, had sought the team’s emails and texts and initially was concerned that they had vanished.

But he said he subsequently learned the disappearance was the result of a “systemic data retention issue at the FBI” and didn’t signal misconduct by Astarita or his fellow team members, according to the defense.

Astarita’s lawyers also are urging the court to prevent testimony regarding an anonymous fax sent to the Office of Inspector General on May 31, 2016, which contained an allegation that at least one member of the FBI’s Hostage Rescue Team wasn’t being truthful. The fax further said that the “investigation cannot be complete without the information” known by four additional witnesses named in the unsigned fax.

Prosecutors have suggested the fax is relevant to explain the course of their investigation into the shooting, but Astarita’s lawyers argue for its exclusion, saying the material is “hearsay” and Astarita wouldn’t be able to confront whoever wrote the fax.