On April 7, 2023, Daniel Perry was convicted in the shooting death of Garrett Foster during a July 2020 BLM street protest in Austin, TX.Garrett was carrying a an AK-47. Perry drove towards the crowd of protesters, and shot Foster out of “panic” (his own words to police) fearing that Foster would point his weapon at Perry. Per Perry’s statement to police, the weapon never actually was pointed at him, but he didn’t want to wait for that. Perry’s car had protesters around it, but it was not completely surrounded.Based on social media reports, I had assumed the car was surrounded and Perry was trapped with people trying to break in, but that’s not what the videos show. What we can’t see in the videos is what happened on the driver side.The verdict was controversial. Andrew Branca’s detailed analysis has caused a stir, but as always, he (and we) stick to the evidence and the law whether we like the result or not. We did that in the Trayvon Martin, Michael Brown, Kyle Rittenhouse, and other cases we have covered in detail. You can read Andrew’s post, Daniel Perry’s Murder Conviction Was Legally Sound.I don’t like this result, even if it holds up to legal scrutiny, but there may be no legal out, as Andrew demonstrated. The only out appears to be political.Gov. Greg Abbott said he wants to pardon Perry. Under Texas law, he can do that only if the pardon board recommends a pardon, so Abbott has requested expedited review. That process is starting:
… the Texas Board of Pardons and Paroles is looking into possibly recommending a pardon for Daniel Perry per a request made by Governor Greg Abbott.The Texas Board of Pardons and Paroles sent FOX 7 Austin this statement:”Chairman Gutierrez, the Presiding Officer of the Texas Board of Pardons and Paroles has received a request from Governor Abbott asking for an expedited investigation, along with a recommendation as to a pardon for U.S. Army Sergeant Daniel Perry. The board will be commencing that investigation immediately. Upon completion, the board will report to the governor on the investigation and make recommendations to the governor. The Board has no further comment.””There is no question that Governor Abbott’s actions have weakened the rule of law here in the state of Texas, and they have weakened our public safety here in Travis County,” said Travis County District Attorney Jose Garza in an interview with FOX 7 Austin Monday.On April 11, DA Garza requested to meet with the board personally, so he could present evidence considered by the jury in this case. In a letter sent to the board, he asked them to review the trial transcript, evidence from trial officials, and request input from Garrett Foster’s family before making a final recommendation to the governor.”My thoughts are with the Foster family. I know that they are heartbroken right now. I know that justice feels incredibly elusive for them,” said DA Garza.
At the same time, Perry has filed a Motion for a New Trial.
The Austin American-Statesman summarizes the motion:
The lawyers for Daniel Perry, who was found guilty of the murder of armed Austin protester Garrett Foster, have filed a motion for a new trial saying evidence was excluded from the trial that could have proved he did not instigate the shooting.
Foster and other protesters routinely harassed vehicles that attempted to interfere with their efforts to “take the streets,” according to the motion filed Tuesday. It also says the jury was subject to illegal outside influences, including an alternate juror who did not speak during deliberations but snorted, huffed and gasped “expressing her displeasure with juror comments that were inconsistent with finding Mr. Perry guilty.” ….
The evidence that was excluded from the trial included a video recording of Foster “in which he admitted that he carried his assault rifle as a means to intimidate (those) who did not share his beliefs,” the motion says.It said the evidence that was not allowed to be admitted would have shown that Foster scared other drivers during previous protest marches. On July 4, 2020, Foster blocked a driver named Joe Sanchez by standing in front of Sanchez’s car and then protesters swarmed the car, Perry’s lawyer said.
On June 27, 2020, a Door Dash driver was driving past Austin police headquarters downtown when Foster tried to block the street by using his partner’s wheelchair and protesters surrounded the driver’s car, the motion says. It says the driver pulled a handgun and protesters backed away from his car.
Perry also was not allowed to introduce a video that showed another protester attacking the grill of a truck with a flagpole after the truck tried to turn onto a street near police headquarters on June 27, 2020. The same protester kicked Perry’s car after Perry turned into the crowd of marchers on the night of the fatal shooting, Perry’s lawyers said.
Defense lawyers also said in the motion that they were not allowed to show a video recording of Foster conducted by Hiram Garcia, a prosecution witness, on the same day that Foster was killed. Garcia, who described himself in the trial as an independent videographer documenting the protests, asked Foster in the video why he was carrying an AK-47 that night. “They don’t let us march in the streets anymore, so I gotta practice … some of our rights,” Foster said in the video.
There are more alleged trial errors detailed in the motion,which also alleges jury misconduct. From the motion:
III. The Jury Was Subject to “Outside Influence”
B. DiscussionAttached hereto as Attachment D is an affidavit from Juror [Name Redacted] (“Juror Aff.”).10 In that affidavit, [Name Redacted] recounts as follows:
During the trial, another Juror, [Name Redacted] , arrived in the jury room and stated words to the effect of “You know guys, I like to research things.” [Name Redacted]further informedme and other jurors that he printed out a document from the internet that he claimed was taken from the “Texas Penal Code.” [Name Redacted] then went on to tell me and other jurors that, based on this document he printed from the internet, the “defendant has to prove or show” he acted in self-defense.
Juror Aff. at ¶ 4.
Clearly, a juror doing outside research on the Texas Penal Code and sharing that research with one or more jurors constitutes an “outside influence” as that term has been interpreted by the Court of Criminal Appeals in McQuarrie….
The motion also challenges the presence of an alternate juror during deliberations, what the motion says is an unclear area of law. The motion does not say that the alternatve juror deliberated, but did make strange noises:
In her affidavit, [Name Redacted] also recounts:
Alternate Juror [Name Redacted] participated in deliberations to the extent that I knew she was adamant that Daniel Perry was guilty. She was very vocal about her feelings. While she did not actually talk during deliberations, she did snort, huff, gasp and make other noises expressing her displeasure with juror comments that were inconsistent with finding Mr. Perry guilty. For example, when I suggested that Mr. Perry’s social media postings were taken out of context, she gasped to indicate to me and other jurors that she did not possibly understand how I or anybody else could possibly believe that….
I think the end result here is that Perry walks free, having been pardoned by the Governor.
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