Austin district attorney called out for soft on crime policies amid his criticism of Abbott's pardon
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Attorneys for U.S. Army Sgt. Daniel Perry, who was convicted of murder last week for shooting and killing a Black Lives Matter protester in July 2020, filed a motion for a new trial Tuesday, alleging that key evidence was excluded from trial and that one of the jurors researched the case on the internet during the trial.
Perry, who was stationed at Fort Hood, Texas, at the time, was driving for Uber when he shot and killed Garret Foster, an Air Force veteran who was carrying an AK-47, during a protest in downtown Austin on July 25, 2020.
Prosecutors allege that Perry provoked the shooting by driving into the crowd of protesters, citing several social media posts and messages he sent in the months leading up to the shooting threatening violence against protesters.
Defense attorneys, meanwhile, argued that Foster aggressively approached Perry's vehicle with the rifle, leaving Perry no choice but to open fire with a handgun in self-defense.
A formal photo of U.S. Army Sgt. Daniel Perry, a man seeking a pardon after being convicted of murdering a protestor in July 2020. (Sgt. Daniel Perry)
Attorneys for Perry argued in the motion for a new trial that excluded evidence shows Foster was "the first aggressor" and had a history of scaring "other drivers who he believed might interfere with his objective to 'take the streets,'" according to the court filing obtained by FOX 7 Austin.
Three incidents were cited as evidence that Foster had been aggressive at past protests. During one incident on July 4, 2020, Foster allegedly blocked a driver's car with his girlfriend's wheelchair as other protesters swarmed the vehicle.
The driver was "prepared to testify that Mr. Foster attempted to intimidate him and that he was terrified by Mr. Foster’s actions as well as the actions of Mr. Foster’s fellow protestors," according to the filing.
"These incidents show that Mr. Foster and his fellow protestors were not the intimidatees when dealing with cars on the public streets, but, rather, they were the intimidators," Perry's attorneys wrote.
Garrett Foster, left, was shot and killed while attending a Black Lives Matter protest with an AK-47 in downtown Austin. (KTBC)
The jury, which found Perry guilty of murder Friday after 15 hours of deliberations, was also subject to "outside influences" that are grounds for a new trial, according to the filing. One of the jurors researched the Texas Penal Code during the trial, which could have left the jury "with a completely wrong view of the law of self-defense as it relates to the burden of proof."
FAMILY OF TEXAS BLM PROTESTER KILLED BY ARMY SERGEANT SUES SHOOTER, UBER
Perry's attorneys also took issue with an alternate juror who "was adamant that Daniel Perry was guilty" and allegedly interfered with deliberations.
"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," another juror wrote in the court filing. "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."
This undated photo provided by the Austin Police Department shows U.S. Army Sgt. Daniel Perry, who was convicted of murder last week for shooting and killing a protester nearly three years ago. (Austin Police Department via AP, File)
Texas Gov. Greg Abbott, condemned the jury's decision Saturday, saying that he asked the pardons board to expedite their review of the case.
"Texas has one of the strongest ‘Stand Your Ground’ laws of self-defense that cannot be nullified by a jury or a progressive District Attorney," Abbott said in a statement. "I look forward to approving the Board's pardon recommendation as soon as it hits my desk."
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Travis County District Attorney José Garza requested a meeting with the Texas Board of Pardons and Paroles on Tuesday ahead of the panel's decision on potentially granting clemency to Perry.
"Before making any decision, I implore you to review the trial transcript, evidence from trial officials that may have an impact on public safety, and request input from the victim’s family as to how a pardon may impact them," Garza wrote in the letter.
A date for a sentencing hearing has not yet been set.
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