Attorneys for the FBI special agent charged after allegedly firing his weapon at a pivotal moment of the Malheur National Wildlife Refuge occupation want the case dismissed.
Federal prosecutors say W. Joseph Astarita, a member of the FBI's elite Hostage Rescue Team, fired his weapon twice at occupation spokesman Robert 'LaVoy' Finicum. Though the shots didn't hit Finicum, the Arizona rancher was killed shortly after by three shots from Oregon State Police.
The entire shooting was ruled justified, but investigators could not account for two shots that took place during the incident. In video footage, the shots appear to take place moments before Finicum exited his vehicle.
The shooting was a key turning point in the 41-day occupation, and led to the arrest of occupation leaders.
Federal prosecutors allege Astarita lied to investigators about taking the two unaccounted for shots.
In a court filing Friday, Astarita's attorneys say the government has "no such proof" that he even fired the shots, saying the government's case rests on "junk science."
"Amazingly, there are no witnesses claiming to have seen Special Agent Astarita discharge his firearm," defense attorney David Angeli wrote in the motion.
The government has no video recording and no ballistics evidence that shows Astarita discharged his firearm, Angeli wrote.
"Rather, the government’s case rests entirely on a computer animation manufactured by a daisy chain of so-called experts nearly two years after the underlying shooting incident," Angeli wrote.
The defense's motion states the government's case relies on an animation that appears to show Astarita is the most likely person to have fired "one or two shots that missed" Finicum. Angeli wrote that the government's animation "depends on a number of false premises and is utterly unreliable, having never been subjected to any sort of scientific testing."
Astartia faces three counts of making false statements to federal and state investigators, and two counts of obstruction of justice, according to court documents. He has pleaded not guilty to all charges.
In the motion, Angeli wrote federal prosecutors have overcharged their case. He asked the judge to dismiss four of the five counts.
"The court should not permit the government to inflate the number of charges and prejudice the jury against Special Agent Astarita with an indictment for five separate crimes all based on the same purported lie," Angeli's motion states.
Federal prosecutors are set to respond to the motion to dismiss in early February.
