FBI Agent's Trial In Portland Leaves Key Question Unanswered

A federal jury in Portland acquitted FBI special agent W. Joseph Astarita last week in a trial that, at its core, was about law enforcement accountability.

Prosecutors argued unsuccessfully that Astarita — a member of the FBI's elite hostage rescue team — fired his weapon twice during a key turning point in the 2016 occupation of the Malheur National Wildlife Refuge. And the acquittal has left an open question as to who took those shots.

The shooting took place at a roadblock along a remote stretch of highway in eastern Oregon on Jan. 26, 2016. Prosecutors alleged that after Astarita fired, he lied to his supervisors about using his weapon. The two shots missed occupation spokesperson Robert "LaVoy" Finicum — although he was killed by Oregon State Police shortly after. 

As the verdict was read at the federal courthouse in Portland, Astarita held hands with two of his attorneys on a 10th floor courtroom in downtown Portland. His eyes were fixed on the jurors.

The courtroom deputy read the jury’s verdict:

Count 1 – making a false statement: Not guilty.

Count 2 – making a false statement: Not guilty.

Count 3 – obstruction of justice: Not guilty.

“I don’t know why they went forward with a prosecution with little evidence," said Paul Jaskot, the deputy commander of the Hostage Rescue Team during January 2016. He deployed to Oregon the day after the shooting.

“It was disappointing that Joe Astarita was prosecuted without any eyewitness testimony, without any physical evidence, without much of a case," he said.

Jaskot has since retired from the FBI, after 20 years as a member of HRT. He said Astarita’s trial has overshadowed the success of the FBI’s response to the Malheur occupation.

For Jaskot, the fact that FBI HRT operators and other agents were able to clear the refuge “… without a shot being fired, was tremendous. A tremendous success that really has been lost and that doesn’t get any publicity. It’s all been focused around these two shots.”

The source of those two shots remain a mystery, despite a three-week trial that could’ve answered that question.

For those in the self-described patriot community, the verdict was a disappointment.

“Obviously, they’re not happy about it," said Mark Pitcavage, an extremist groups researcher with the Anti-Defamation League. “A lot of people in the patriot movement believe there was a deliberate attempt to target LaVoy Finicum … and that these extra shots, so to speak, are just evidence of it.”

During Astarita’s trial, his defense team argued that there was discussion about killing Finicum – but not by the FBI HRT operators. Instead, the attorneys claimed those talks were held by Oregon State Police SWAT troopers.

Pitcavage said the patriot movement saw the trial as a chance for justice.

“This was the last chance for anybody to have any sort of consequences related to that and that person got off," he said.

One of the occupation's leader, Ryan Bundy, was in Finicum’s truck during the traffic stop and was hit during the shooting.

“The acquittal’s not the problem," he said. “The problem is these men set up to murder and to kill us.”

Bundy told OPB that the officers at the roadblock should’ve been tried for murder and attempted murder.

“Are we really concerned about two shots here? I don’t know how many shots were fired," Bundy said. "I know they tried to say the official count is like nine.”

According to law enforcement officials that investigated the shooting, there were eight shots fired. Bundy insisted there were many more shot at the truck that day.

As far as Astarita’s trial is concerned, Bundy said he’s not surprised with the verdict.

“I felt that the entire trial and process was just a mockery of justice," he said. "I never believed they would convict him.”

Others view the verdict as an example of a functional justice system.

Greg Bretzing, the former special agent in charge of the FBI’s Portland Division, oversaw the response to the occupation. He points out that the same justice system that acquitted Astarita also acquitted Bundy and other leaders of the takeover.

“It would be hard for me to believe that any rational individual would say that there’s a conspiracy here to cover up what agent Astarita did, and that conspiracy is being carried out through the courts," Bretzing said in an interview after the verdict.

The former FBI agent said he is disappointed that the trial did not resolve who fired the two shots at Finicum. But, he said, the FBI will conduct an internal review to determine lessons learned, whether any agency policies were violated and if any agents should be disciplined.

“I am confident – and I mean that – I am confident that the bureau will take now the information that it has in its hands after the verdict of the jury and will conduct an administrative inquiry as to what happened," he said.

The FBI declined any comment on verdict or next steps for Astarita. As for the agency’s inquiry, it could be the last chance to answer the question of who shot at Finicum that day. [Copyright 2018 Oregon Public Broadcasting]