Soldier convicted of murder files claim of juror misconduct, requests new trial
Stars and Stripes April 11, 2023
AUSTIN, Texas — The legal team for an Army sergeant convicted of murdering an armed Air Force veteran at a Black Lives Matter protest has requested a new trial because of alleged juror misconduct during deliberations, according to the motion filed in court Tuesday.
Sgt. Daniel Perry, 35, was found guilty in a Travis County, Texas, courtroom for shooting Garrett Foster, 28, while the Air Force veteran was marching in a BLM protest in downtown Austin on July 25, 2020.
An affidavit filed in Travis County court said that one juror alleged in a sworn statement that another juror brought in research from the Texas Penal Code that he conducted online during an overnight break from the two-week trial.
Jurors were not permitted to consider evidence or information not submitted during the trial.
All jurors’ names were redacted from the public court records.
The Travis County District Attorney’s Office said in a statement it has confidence in the jury’s verdict.
“These motions are standard motions filed by the defense following a guilty verdict. We applaud the defense team for making use of the procedural safeguards that are available to defendants in our criminal justice system. However, we continue to stand by the jury’s unanimous decision to convict Daniel Perry for the murder of Garrett Foster,” according to the statement.
The motion was filed with Judge Cliff Brown, who presided over the trial.
The trial veered into politics over the weekend as Texas Gov. Greg Abbott, a Republican, called for the state Board of Pardons and Paroles to expedite its review of the trial so he could pardon Perry.
"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.
The board, which is appointed by the governor, announced Monday it had begun the review.
Travis County District Attorney José Garza, who was elected as a Democrat, said Tuesday he has asked to schedule a meeting with the board to present evidence considered by jurors. He also asked board members to speak with Foster’s family before making a final recommendation to the governor.
Perry has not yet been sentenced and faces up to life in prison.
Perry, who was previously assigned to Fort Hood in Texas, turned his car into a group of protesters while working a second job for a rideshare company. The group surrounded his vehicle, including Foster, who was legally carrying an assault rifle in a sling across the front of his body.
Perry said he saw Foster raise the rifle at his car and responded by shooting his own revolver five times and killing him.
The soldier, who is being held at the Travis County Jail, has since been reassigned to Fort Wainwright in Alaska.
The affidavit stated that a juror told others that he had conducted his own research online and presented a printed document that he said was taken from the Texas Penal Code.
He then told his fellow jurors that the document described that Perry’s defense had to prove he acted in self-defense.
“To me this indicated he felt, based on his own research, that the defense had the burden of proof regarding self-defense, and this is what he conveyed to me and other jurors,” according to the affidavit.
By one juror bringing this information into the jury room, the deliberations were subject to “outside influence,” Perry’s attorneys Clint Broden and Doug O’Connell wrote in the court filing.
The juror’s affidavit also stated that an alternate juror, who was not allowed to participate in deliberations, did so by using body language and audible noises each time other jurors discussed points that Perry should not be found guilty.
“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,” according to the affidavit. “I did not realize that [the alternate’s] non-verbal expressions of displeasure regarding comments related to a ‘not guilty’ finding could constitute ‘participation.’ ”
The defense attorney’s also wrote in the motion that evidence that was not allowed in court that would have proved Foster was the “first aggressor,” and would have bolstered their argument of self-defense. The evidence included video, photos and testimony from witnesses about previous protests in which Foster used his wife’s wheelchair to block cars, which allowed other protesters to then surround the vehicle.
Another video excluded from trial showed Foster stating that he carried the assault rifle to intimidate people who disagreed with the social justice protests.