Prosecutors on Thursday asked a veteran FBI agent who had been at the scene of the 2016 shooting of Robert "LaVoy" Finicum to identify where he and other agents were standing during the encounter using a color-coded guide produced by a government expert.
Defense lawyers repeatedly rose to their feet to object. They argued that the judge had ruled before trial that the color-coded figures could be used only to refresh the memory of witnesses.
One of the lawyers called the images "precision given to blobs, which was ruled inadmissible.''
After much back-and-forth between the prosecutors and defense lawyers and multiple ambiguous rulings from the bench outside the jury's presence, U.S. District Judge Robert E. Jones by day's end set the final ground rules in favor of the defense.
Prosecutors must ask agents or officers who testify to locate their positions on the fuzzy, unaltered video images of the scene taken from overhead FBI planes. They can use the color-coded guide only to refresh their memories if they can't identify where they were.
The positions of officers at the Jan. 26, 2016, roadblock where Finicum died are a key point in the case against FBI agent W. Joseph Astrarita, a member of the agency's Hostage Rescue Team.
Astarita is accused of lying to conceal that he allegedly fired two shots at Finicum's truck after it swerved into a snowbank at the roadblock. FBI agents and Oregon State Police were arresting leaders of the armed takeover of the Malheur National Wildlife Refuge on U.S. 395.
One shot struck the roof of the truck's cab as Finicum got out, his hands in the air. It blew out a rear passenger window. The other missed. Moments later, two state police officers fatally shot Finicum after he reached into his jacket where investigators said he had a loaded handgun.
Prosecutors contend Astarita was the only one who could have taken the two disputed shots, but defense lawyers suggest two others could have taken them as well.
FBI agent Michael Ferrari, a veteran member of the Hostage Rescue Team, was on the stand most of the second day of Astarita's trial. He was able to identify only the general vicinity where he was standing when the two disputed shots occurred and the location of another hostage team agent, John Neidert, who Finicum almost hit as he crashed into the snowbank.
Ferrari, who spent nearly 18 years on the hostage team and now is at the FBI's Pittsburgh field office, helped develop the plan to stop the occupation leaders at a natural chokepoint on the highway as they headed to meeting in John Day.
Ferrari worked with a state police SWAT officer identified in court only as "Officer 1,'' he said. They hoped a Jeep, driven by a federal informant and carrying occupation leader Ammon Bundy and Bundy's bodyguard Brian Cavalier, would be first in the two-car caravan, but that didn't materialize.
Marked state police vehicles, backed up by FBI agents, planned to "stop and call out'' the occupation leaders traveling in the Jeep and Finicum's truck, Ferrari said.
About a mile north of the stop site, two Ford trucks rented by the FBI were set up in a "V'' formation at the roadblock, with spike strips laid in front. Ferrari was one of four hostage team agents and two state police SWAT officers at the roadblock.
"We had hoped the vehicles would see the marked units and stop and do the right thing,'' Ferrari testified. "The north roadblock was merely a contingency.''
At no time did the original plan consider a "vehicle assault option,'' he said.
When Finicum sped away from the initial stop, "we kind of made that plan on the fly,'' Ferrari testified. He watched Finicum's truck heading toward the roadblock on a live video feed from an FBI plane using a handheld computer monitor.
As Finicum's truck approached, "We heard the gas pedal being pressed,'' Ferrari said. He told the agents and the state police to rush to the east side of the road to avoid the truck. All did except Neitard, who ran to the west side.
Ferrari said he had heard gunshots as Finicum's truck was barreling toward the roadblock but didn't know who fired. Once the pickup slammed into the snowbank, Ferrari said he was focused on the truck and Neitard.
Ferrari had tripped on the other side of the road and didn't see Finicum emerge from the driver's seat, he said, but presumed he had because he heard repeated commands shouted at Finicum.
"At that point in time, you did not precisely know where the other operators were, did you?" defense attorney Robert Cary asked on cross-examination.
"No sir,'' Ferrari responded.
Ferrari said he moved to the back of Officer 1's truck, which was facing south between the Ford trucks set up in a V. He then moved up to the left front side of Officer 1's truck with Neitard, he testified.
Ferrari said he saw Finicum reach once toward his coat pocket, suspecting he was going for a gun. But Ferrari testified he didn't shoot because he was worried he'd hit a state trooper, Joey Pollard, who was in the tree line behind Finicum.
After Officer 1 and another state police officer fatally shot Finicum, other state police fired gas cartridges and rubber-tipped bullets at Finicum's truck to try to break out the windows, Ferrari said. They did that because the agents couldn't see who was inside but suspected they were armed, he said.
He didn't know any women were inside until they stepped out, Ferrari said.
He acknowledged, under the prosecution's questioning, that sometimes hostage team members do miss their targets. The defense, in the trial's opening statements the day before, had said that if Astarita had fired his rifle, he wouldn't have missed.
Ferrari said agents and officers were "amped up'' at the scene after the shooting and he did tell several, specifically Astarita, to calm down. He testified that he didn't see any shell casings on the ground after Finicum was shot, but that trucks were moved to allow additional officers to drive north on the highway to keep people from entering the shooting scene.
It's standard, he said, for Hostage Rescue Team agents to do a security check of an area after a shooting, looking for pins or other remnants from flash-bang grenades, live ammunition or other equipment that might have been dropped.
He didn't recall seeing any officers looking on the ground for items after dark. Sometime later, Astarita told him that he had picked up a magazine that belonged to Ferrari.
Asked if he ever got it back, Ferrari said, "Not to my knowledge, I don't recall.''
In a subsequent conversation, Astarita told him "some rounds had popped out of it and he placed them back in,'' Ferrari said.
"Sir, you did not partake in any sort of cover-up at that shooting scene at all?'' Cary asked Ferrari.
"No,'' he responded.
