This past Friday, April 7, 2023, Daniel Perry was found guilty in the 2020 murder of Garret Foster during a Black Lives Matter protest in Austin.
The confrontation between the two men occurred as Perry was driving his Uber vehicle amongst a crowd of protestors in the street, and while Foster was among the protestors carrying an AK-47 on a sling. The rifle-armed Foster approached the driver’s side door of Perry’s car, Perry rolled down his window, and shot at Foster five times with a pistol, striking him with three rounds, effectively killing Foster instantly.
Perry would flee the scene a short distance, during which another protestor would fire three shots, striking Perry’s vehicle. Perry then called 911, and was shortly thereafter approached by and spoke with a responding police officer. (Both of these conversations were, of course, recorded and admitted as evidence at trial.)
From the start Perry would be arguing that he shot Foster in self-defense, and only after Foster had pointed his rifle at Perry.
And right there we have the key issue in this murder trial. Certainly, if the jury believed that Perry fired only after Foster pointed his rifle at him, there could hardly be a clearer case of self-defense. Indeed, as someone who personally carries a firearm for self-defense on a regular basis, anyone who unlawfully points a rifle at me ought to have a high expectation of getting shot in self-defense.
Immediately following the announcement of the guilty verdict, social media rather exploded with outrage at a guilty verdict so insanely inconsistent with Perry’s narrative of shooting in self-defense only after facing the muzzle of Foster’s rifle.
The problem with this outrage, however, is that it presumes as an indisputable fact that Foster initiated the deadly force confrontation by pointing his rifle at Perry.
That “fact,” however, is not indisputable. Indeed, that fact was aggressively disputed by the prosecution, which argued to the jury that Foster never pointed his rifle at Perry, and so Perry’s claimed legal grounds for shooting Foster in self-defense simply doesn’t exist.
In support of this narrative of guilt the prosecution presented the testimony of multiple witnesses who told the jury that Foster never pointed his rifle at Perry. The confrontation itself was captured on poor quality video, from which screen captures were secured, and neither video nor stills ever show Foster pointing his gun at Perry.
Indeed, the only evidence to support Perry’s claim of Foster pointing his rifle at him are Perry’s own self-serving statements following the shooting.
If the jury concluded that Foster had not, in fact, pointed his rifle at Perry, then it must also conclude that it was Perry who was the initial deadly force aggressor in this confrontation when he shot Foster—and, as the initial deadly force aggressor Perry cannot justify his use of force as self-defense.
In effect, then we have these two competing narratives, both hinging on this question of Forster’s pointing of the rifle.
First, we have Perry’s narrative of innocence, the narrative of Foster initiating the deadly force confrontation by pointing his rifle at Perry, evidenced solely by his own self-serving statements, and utterly lacking in any corrobation.
Second, we have the State’s narrative of guilt, the narrative of Foster never pointing his rifle at Perry and of Perry initiating the deadly force confrontation by firing five pistol rounds at Foster, evidence by the testimony of multiple witnesses and uncontradicted by any other evidence presented at trial (other than Perry’s own statements).
This is, obviously, purely a question of fact, and as such it falls exclusively within the purview of the finders of fact, the jury. They are free to believe either narrative and return a verdict consistent with the narrative they find most compelling.
This being a criminal trial the jury must, of course find for the defendant unless they believe the State’s narrative has been proven beyond a reasonable doubt—in this case, that Perry’s claim of self-defense has been disproven beyond a reasonable doubt.
The question then becomes could a rational jury faced with these two competing narratives, each based on their own foundations of evidence, reasonably conclude that the State’s narrative of guilt disproved Perry’s narrative of innocence beyond a reasonable doubt, and return a verdict of guilty.
When presented with competing narratives, as here, the jury is routinely instructed on how to go about evaluating the credibility of each. They are told to consider a wide variety of factors that can play a role in determining the weight to the witness testimony and other evidence that supports one narrative or the other.
In the context of witness testimony the jury is told to consider the witness’s opportunity to have seen what they are testifying about, the apparent quality of the witness’s memory, their manner while testifying, their interest in the outcome of the case, their bias or prejudice, whether other evidence contradicted or corroborated their testimony, the reasonableness of the witness’ testimony in light of all the evidence, as well as any other factors the jury thought useful.
I would suggest that a genuinely unbiased, impartial jury could easily come to that conclusion and that verdict on the evidence presented in this trial. As a result, this verdict of guilty is legally sound and meritorious—even if any one of us doesn’t particularly like the outcome for political, social, or personal reasons.
Unfortunately for Perry, when considering his own testimony with respect to the alleged pointing of the rifle, a claim for which he is the only source, in light of the factors just described that a jury is told to apply in evaluating credibility, Perry’s own conduct substantially undermined his narrative of innocence.
The prosecution presented the jury with social media messages of Perry’s from which they might reasonably infer that Perry was looking for an opportunity to use deadly force against protestors. One Facebook message stated “I might have to kill a few people on my way to work.” In a Facebook comment about a video showing protestors being shot in San Antonio earlier that year, Perry wrote that he was “glad someone finally did something.”
Is it possible that these and other similar social media comments were simply expressions of bravado? Certainly no one who believed that they might really have a substantive need to kill people on their way to work that day would simply proceed to work in the normal manner. So perhaps this was merely bravado. The jury, however, is free to instead agree with the State’s preferred inference that they illustrate the state of mind of a man looking for a deadly force confrontation.
And when you go to the fight, folks, rather than the fight coming to you, it rarely looks like self-defense to anybody.
The defense sought to counter this inference by arguing that Perry find himself enmeshed in that night’s fatal Black Lives Matter protest entirely innocently, having no idea that the protest was even taking place. According to the defense, Perry simply made a right-hand turn, and boom, found himself surrounded by angry protestors slapping and kicking his vehicle.
The prosecution, however, was able to show that Perry’s interest in these protests was substantial, suggesting that the notion that Perry would not be aware the protest was taking place was simply not credible. Further, there was evidence at trial that as an Army sergeant stationed 70 miles away at Fort Hood, he was explicitly prohibited by his command from going to Austin, presumably because of the risk of confrontation with protestors.
Another example of Perry undermining his own narrative of innocent self-defense occurred when he reportedly told 911 that he “panicked” when he fired five rounds at Foster. Deadly force self-defense is often accompanied by a variety of emotions, including fear and even anger. Within that context, however, the use of defensive force must still be objectively reasonable—a merely irrational belief in the need to kill in self-defense, however genuine and in good faith that belief might be, is not sufficient to support a claim of self-defense. And panicked conduct is, by definition, irrational, not reasoned, conduct, and therefore inconsistent with a legal justification of self-defense.
Further undermining Perry’s narrative of self-defense was the testimony of one witness who was able to observe Perry’s demeanor as he shot Foster. When asked if that demeanor reflected fear or anger, the witness answered “His expression … anger. It wasn’t fear.” This testimony was consistent with the State’s narrative that Perry was angrily seeking out an opportunity for a deadly force confrontation, and that his anger overwhelmed him when he heard and felt his car being slapped and kicked, culminating when he found Foster to be a target for his desire to kill.
And what was there to counter the State’s narrative of guilt and support Perry’s claim that Foster had initiated the deadly force confrontation by pointing his rifle at Perry? Nothing.
It is worth noting here that Perry elected to not take the stand and testify in his own defense. A criminal jury is told, of course, that the defendant has no obligation to take the stand, and the jury is not to make any inference of guilt if the defendant chooses to not testify.
But in a case where the only evidence consistent with the defense narrative of innocence could have come only from the defendant, one can only hope that the defense had an exceptionally excellent reason for not putting Perry on the stand. Putting one’s client on the stand is, of course, perilous under the best of circumstances—but in a case of self-defense, where the only exculpatory evidence can come from the defendant, I would suggest that the jury really needs to hear from the defendant himself why the killing of that other human being was genuinely necessary.
Given what was admitted into evidence from Perry’s social media, one must also wonder whether there was even more inflammatory social media content that had been excluded from evidence by the judge on the grounds of being excessively prejudicial, but which would have been admissible as character evidence had Perry taken the stand. If so, that would explain why the defense declined to have him testify.
I have seen posted on Twitter a photo that purports to actually show Foster pointing his rifle at Perry—indeed, it was posted at least once by my good friend, Jack Posobiec (I’ve a lot of respect for Jack, and urge you to follow him on Twitter at @JackPosobiec). Here’s the tweet that Jack posted purporting to show Foster pointing his rifle at Perry (note that the diagonal red line is a feature I added to this image):
With all due respect to Jack, and to others promoting this image as evidence of Foster pointing his rifle at Perry, I simply don’t see it. If anything, it appears to me that Foster has his rifle held in a quite vertical fashion, rather than in the much more horizontal manner that would be required to orient the muzzle of his rifle at Perry. For clarity, I added to this image the red diagonal line in order to indicate what I perceive to be the approximate orientation of Foster’s rifle.
It’s important to remember that in almost any criminal trial the jury never really knows what happened in any absolute sense. They can only very rarely be 100% confident that the verdict they arrive at is correct or true. As noted, we bias criminal trials in favor of the defendant by requiring that the State prove the crime—and, in this context, disprove self-defense—beyond any reasonable doubt.
But the State is NOT required to disprove self-defense beyond ALL doubt.
Could a rational jury have decided to give greater weight and credibility to Perry’s narrative of self-defense, conclude that self-defense had NOT been disproved beyond a reasonable doubt, and reasonably returned a verdict of not guilty?
Sure.
But any fair, impartial, unbiased view of the evidence presented in this trial must also conclude that a rational jury could also have decided to give greater weight and credibility to the State’s narrative of guilt, conclude that the state had disproven self-defense beyond a reasonable doubt, and reasonably return a verdict of guilty.
As this jury did.
Does that mean this jury returned the “correct” verdict in the sense of absolute truth? Of course not. But that’s not what the legal system requires. Because nobody ever knows what the absolute truth is.
Before I let you all go this Easter Sunday, I do want to take a moment to address some of the more emotional and political talking points circling around this guilty verdict. I want to make clear that I don’t mean to suggest any malicious state of mind with respect to anybody espousing these talking points. Indeed, in the context of social and political discussion and debate they have merit.
In the context of legal analysis, however, these talking points are leading well-intentioned people to bad legal conclusions. This doesn’t make these people bad, it makes them normal—but bad legal reasoning rarely arrives at the right legal answer.
Garza Is Just a Soros-Funded Politically-Motivated Prosecutor
One of these talking points is that the local prosecutor, District Attorney Jose Garza, is another Soros-funded politically-motivated prosecutors intent on wreaking havoc in their communities, much along the lines of New York District Attorney who is bringing a feckless prosecution against President Trump, St. Louis Circuit Attorney who sought to prosecute the McCloskeys until her entire office was removed from the case for misconduct, and Los Angeles District Attorney George Gascon whose Progressive mishandling of criminal cases led even the liberal populace of Los Angeles to seek his recall, Baltimore State’s Attorney Marilyn Mosby’s vicious and unjust prosecution of six police officers over the death of Freddie Gray, amongst many other Soros-funded prosecutorial monsters.
And I have every reason to believe that this representation of Garza is correct, and that Garza was motivated to bring Perry to trial largely for political purposes—particularly after local law enforcement investigated and concluded that Perry’s shooting of Foster was lawful.
The political motivations of Garza, however, do nothing to change the law and evidence of the trial—and those, as discussed, are more than sufficient to allow a reasonable jury to arrive at a verdict of guilty in this case.
Zimmerman and Rittenhouse were acquitted despite being politically prosecuted because the evidence was on their side. Perry may have been convicted in this likely politically motivated prosecution because in his case the evidence was contrary to self-defense.
Did Garza Commit Misconduct in Hiding Exculpatory Evidence from Grand Jury?
Another of these talking points also involves Garza, and alleges that he engaged in criminal witness tampering when he ordered a police investigator to strip out exculpatory evidence from the officer’s testimony to the grand jury. It has been reported that of about 150 Powerpoint slides the officer intended to present to the grand jury, 100 slides covering exculpatory evidence were ordered removed. (The investigator in question filed a sworn affidavit in this manner, and I’ve imbedded below for those who are interested.)
Such conduct certainly would strike most reasonable people as unfair—after all, shouldn’t the grand jury be entitled to hear both sides of the story, both the narrative of guilt and the narrative of evidence, both the incriminating evidence and the exculpatory evidence.
Perhaps surprisingly, the answer to that question is: No.
The role of a grand jury is explicitly not to hear both sides of the argument—hearing both sides of the argument is the role of the trial jury, not the grand jury. For all practical purposes, the role of the grand jury is to hear ONLY the evidence consistent with guilt, only the evidence the prosecution has to present, and then decide if even that one-sided presentation of evidence is insufficient to prove guilt at trial. If they so conclude, they return a no true bill, meaning no indictment, and therefore no trial.
As you might expect, anybody who hears only one side of an argument tends to find the only side they hear to be pretty compelling. The result is that grand juries generally return to the prosecutor what the prosecutor wants—and, of course, prosecutors generally want an indictment, so that’s what they get.
There was no obligation on the part of DA Garza to present ANY exculpatory evidence to the grand jury, and so it is not misconduct for him to decline to do so. (I note that there appears to be a bill working through the Texas legislature that would impose such an obligation, which I certainly support, but it’s not currently law.)
Now, it is true that in rare cases prosecutors are ambiguous about whether they really want an indictment, or they are using a grand jury as political cover to not bring a suspect to trial. In such a case the prosecutor, at their discretion, might present the grand jury with both sides of the story, with exculpatory as well as incriminating evidence. When a prosecutor does that, it’s a pretty strong indication that they prefer that an indictment not be returned.
This happened in the 2014 case of the Michael Brown shooting. Then St. Louis County Prosecutor Robert McCulloch presented the grand jury with both the incriminating and exculpatory evidence in the shooting death of Brown by police officer Darren Wilson—and the grand jury declined to indict the officer.
It’s worth noting, however, that this decision by McCulloch to present the Michael Brown grand jury with a balanced rendition of the facts of the shooting cost him his career. Indeed, McCulloch had been the St. Louis County Prosecutor for no less than 19 years, having come to office in 1991 and winning re-election 6 times—often unopposed, but winning by large margins when he did have an opponent.
In the next election after the grand jury’s refusal to indict in the Brown case, however, McCulloch found himself challenged by a young, relatively inexperienced attorney who would normally have had little chance to win—but in the politics of the time, and with the substantial financial backing of none other than George Soros, defeated McCulloch handily by more than 13 percentage points.
If you’re wondering if that sends a warning message to other prosecutors about presenting a grand jury with both sides of the story in politically charged cases, you’d be right.
But the Police Initially Believed Perry’s Acted in Self-Defense!
Much has also been made of the testimony of an officer early on the scene who told the jury that he did not initially arrest Perry because he perceived that Perry’s shooting of Foster might well have been in lawful self-defense.
And this is sound decision-making by the officer. If there is evidence consistent with self-defense, the officer ought to consider that evidence before making a mindless decision to subject a lawful defender to arrest and everything that comes with that arrest.
In this particular case, however, the officer’s perception of evidence consistent with self-defense was largely a misperception.
In particular, the officer based his initial conclusion of self-defense on a bullet hole in Perry’s car. The officer inferred that this bullet hole had been caused by the initial use of unlawful force against Perry, against which he defended himself in lawful self-defense.
In fact, that’s not the case, and the defense never made that argument. That’s because it was uncontroverted that Foster never fired his AK-47, so Foster could not have initially caused that bullet hole in Perry’s car, providing the justification for Perry to shoot back.
In fact, the bullet hole in Perry’s car was caused by a bystander who shot three times at the car as Perry fled the scene of the shooting. That being the case, the bullet hole in the car could have provided no justification for Perry’s shooting of Foster.
It is true that something like 24 different sets of prints were secured from the outside of Perry’s vehicle, as well as some apparent shoe prints, but slapping and kicking of a car by itself could not justify Perry’s decision to shoot dead Garrett Foster. Indeed, a claim by Perry that this slapping and kicking of his car was reasonably perceived by him as a deadly force attack, which would require breaching of vehicle, is inconsistent with Perry’s decision to lower his window when approached by Foster. It’s also noteworthy that if you look at the paired videos embedded above, while there are some people around Perry’s vehicle, he’s hardly awash in a sea of protestors–another example of how our genuinely held understanding about an event can be biased by bad information acquired through second-hand sources.
Before I wrap up, it’s worth suggesting a small thought experiment. If you can, strip away your own political biases and preferences—which we all have, but which can interfere with sound legal analysis—and try this:
Consider the facts of the Kyle Rittenhouse case—and I expect most of us were in favor of Kyle’s acquittal—and the facts of the Daniel Perry case—I expect much more emotionally troublesome for most of us—and see if you can identify any interesting parallels.
If Kyle had lost his fight with Joseph Rosenbaum for control of his rifle, and Rosenbaum and killed Kyle with his own weapon, would we have said that was a justified killing—that it was the rifle-armed Kyle who was the initial aggressor in that confrontation, and that Rosenbaum simply killed Kyle in self-defense?
Of course, in the Rittenhouse case we had the benefit of the video of Rosenbaum’s attack, clearly showing Rosenbaum to be the aggressor—but what if we hadn’t had such clear video evidence, as we don’t have here in the Perry case?
A sound argument could be made that Garrett Foster was the rifle-armed Kyle Rittenhouse on that fatal night in Austin, going about armed not to commit unlawful acts but for purposes of defense of himself and other protestors, and that Daniel Perry was the Joseph Rosenbaum of that night, seeking out a deadly force confrontation.
In this case, of course, Foster lost his gunfight with Perry—but had Foster reacted quickly to Perry’s presentation of his pistol and shot Perry first, killing him, would Foster be in much a different legal position than that of Kyle Rittenhouse with respect to Rosenbaum?
Also, a couple of caveats.
First, on an emotional level this was not a particularly easy analysis for me to write. I’ve shot guns since childhood, I’ve carried a gun for personal protection essentially every day of my adult life, I’m an NRA Life-Benefactor member, I’m a decades-long NRA Certified Instructor in pistol, rifle, and personal protection, I’m on the political Right, and I believe George Soros and the prosecutors he funds to be political enemies of my nation.
Indeed, I can already see on social media that the large majority—perhaps the entirety—of the folks I would typically expect to be on my side of the political divide have taken it as a matter of nearly religious faith that Daniel Perry has simply been railroaded by a Soros-funded prosecutor, that we’re dealing here with what could have happened had George Zimmerman or Kyle Rittenhouse been wrongfully convicted.
But a proper legal analysis must be done rationally, independent of emotion and political or other biases. The evidence and the law must guide us in our analysis. Sometimes the destination we arrive at will be unpleasant. That does not make it legally unsound, however, and forcing a legal conclusion to satisfy emotional and political desires is simply not sound legal analysis.
Second, even this analysis of this trial is being made under unusually unpleasant constraints. If you’re wondering why I didn’t cover the Perry trial live, as I do so many other high-profile trials, it’s because the trial was not televised.
As a result, I was not able to watch the trial in real time, hear and see the evidence and legal arguments presented first-hand. Instead, I’m obliged to rely on the reporting of the evidence and legal arguments as made through various media reports—and journalists are not a class of people I generally find to be well-informed or insightful.
Unfortunately, because the trial was not televised, the media reports are all any of us can use as source content for analysis, assuming we were not personally present in the court room (and none of us were). Indeed, everybody commenting on the Perry trial and verdict who did not watch the actual proceedings can have only the most limited understanding of what actually occurred in that court room—including myself.
The bottom line, however, is this:
Given the evidence and legal arguments that the media covering this trial has chosen to make us aware, a rational and impartial jury was presented here with sufficient evidence to conclude that the State had disproven Daniel Perry’s claim of self-defense in the shooting death of Garrett Forster beyond a reasonable death and return a legally sound verdict of guilty.
It’s been reported that Perry’s sentencing may occur as early as this Tuesday, April 11, which is pretty quick as these things go. Whenever that sentencing occurs, however, I would expect Perry to be sentenced to the maximum of life in prison, consistent with the jury’s verdict in this case.
I’m sure many people are wondering about the prospects for a successful appeal of this conviction.
As I like to say, folks, appeals are for losers.
First, you only appeal if you lost at trial–if you won an acquittal at trial, you’re free to go.
Second, appeals are not like a second bite at the legal apple. At trial all the legal presumptions are in your favor–you are presumed innocent unless proven guilty beyond a reasonable doubt. Once you have been proven guilty beyond a reasonable doubt, however, now you are presumed guilty, and all the legal presumptions are against you.
My good friend and fellow Attorney Steve Gosney has researched how often appeals result in meaningful relief, and he’s found this occurs in less than 1% of appeals. And meaningful relief generally means either a reduction in sentence, or an entire second trial–it almost never means the appellate court simply sets you free.
In any case, for an appeal to be viable there would have to be some claimed legal error, usually that was preserved by appeal, and that the appellate court agrees was not harmless error (had the legal error not been made the verdict would have been not guilty). Claimed errors in facts, especially in the fact finding of the jury, is not a province in which the appellate courts are inclined to intervene. Nor are they inclined to reverse evidentiary and other decisions of the trial judgment, absent outright abuse of discretion.
Not having been able to observe the actual trial proceedings, I can’t have a good sense of what types of claimed errors might be subject to appeal, and I certainly can’t rely on journalist recaps of the proceedings for that purpose. But even if such can be found, again: appeals are for losers.
There have been media reports that Texas Governor Greg Abbott has announced his intention to take an expedited look at a pardon for Perry.
The bad news for Perry is that any such pardon really can’t be based on legal merit, for all the reasons discussed above.
The more bad news for Perry is that a Texas governor doesn’t have the independent authority to issue a pardon–more technically, the pardon power is not plenary to the governor of Texas. There is a board that must first review the case and recommend pardon–only then can Governor Abbott pardon Perry. If the review board decides against a pardon, Abbott lacks the power to issue one himself. And, once again, any such pardon recommendation for the review board really can’t be based on legal merit, for all the reasons discussed above.
That said, there is also good news for Perry on the pardon front–there’s no particular reason that a pardon need be based on legal merit. Indeed, more often than not the legal merits are largely ignored in considering a pardon.
The reason for this is that ultimately pardons are political decisions, not legal decisions. They typically purport to take into considerations greater notions of justice and fairness than the criminal justice system is built to deal with. (Or, sometimes, as we’ve seen in the case of some past presidents, pardons are simply revenue-generating opportunities, though that would not seem to be the case in this instance.)
So, sure, Daniel Perry has a shot at a pardon, if both the relevant review board and Governor Abbott decide its in their political interests to recommend and sign a pardon for him.
If either does not, of course, then Perry’s simply out of luck on the pardon front.
And that’s all I have for all of you today, folks.
I you like this kind of self-defense law insight, you can click this link to obtain your own FREE copy of my best-selling book, “The Law of Self Defense: Principles.”
–Andrew
Attorney Andrew F. Branca
CLICK HERE FOR FULL VERSION OF THIS STORY
