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April 2018


How to Become a Bounty Hunter

Lawyers Claim Feds Case Against FBI Agent in Oregon Shooting Lacks Concrete Evidence and Is Based on Flimsy Expert Witnesses

Robert “LeVoy” Tinicum

By Allan Lengel

Attorneys for FBI Agent Joseph Astarita, who is charged with repeatedly lying to state and federal investigators about firing two shots at leading Oregon standoff protester Robert “LeVoy” Tinicum’s truck in 2016, claim the government has no concrete evidence and instead is relying on questionable “so-called experts.”

The attorneys are asking the judge to block the government’s experts from testifying in the upcoming jury trial on July 24. Astarita denies that he fired shots and has pleaded not guilty.

In a 50-page motion filed earlier this month in U.S. District Court in Portland, the defense attorneys write:

“The government’s theory of the case is predicated on Special Agent Astarita having fired the bullet that caused the defect on the roof of Mr. Finicum’s truck on January 26, 2016 (“Round 5”), an assertion that Special Agent Astarita denies. 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. The  government presents a daisy-chain of purported experts, each of whom comes from a completely different background.”

“These experts depend upon one another ultimately to create two different “visual reconstructions,” allegedly showing that Special Agent Astarita was the most likely person to have fired Round 5. 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. The Court should exclude both reconstruction attempts, and all of the underlying inputs, because they are riddled with unaccounted-for errors and are thus unreliable under Federal Rule of Evidence 702, Daubert, and its progeny. They should also be excluded as unduly prejudicial under Federal Rule of Evidence 403”

The motion, filed by attorneys David H.Angeli, Robert M. Cary and Meghan A. Ferguson, questions the validity of the government’s witnesses including two reconstruction experts, Kevin Turpen, a Deschutes County patrol deputy, and Toby Terpstra, a forensic animator at a private accident reconstruction firm in Denver, Colo.

The motion states that  Turpen and Terpstra used completely different methods to produce two totally different yet allegedly “accurate” reconstructions.

“The fact that the government is presenting two different reconstructions in this case suggests that it knows that something is terribly wrong here,” the defense attorneys write.  “The Court cannot allow experts to present conclusions on such important issues in a criminal trial without ample assurances of reliability. The government and its purported experts have failed to provide such assurances here, both as to the ultimate reconstruction attempts as well as to the underlying inputs upon which Messrs. Turpen and Terpstra relied.”

The motion also attacks the reliability of other expert witnesses as well.

The defense attorneys insist that the government’s proposed expert testimony “utterly fails to withstand scrutiny… For example, a pervasive problem with virtually every step of the purported experts’ analyses is the failure to establish a reliable error rate (or to establish any error rate at all). In that regard, the relevant inquiry is whether the margin of error claimed by the proposed expert is properly supported and connected to an ‘objective source.’”

The motion concludes that the court should exclude from trial any testimony, reports, or exhibits offered by the government relating to the analyses of proposed experts Frank Piazza, Victoria Dickerson, Michael Haag, Kevin Turpen, and Toby Terpstra.

The U.S. Attorney’s Office in Portland did not immediately respond to a call Wednesday from for comment.

To read the motion click here. 


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