Exclusive: Texas board is reviewing clemency for Daniel Perry for killing BLM protester

The Texas Board of Pardons and Paroles has begun its governor-directed review into whether it will recommend clemency for Daniel Perry for killing a Black Lives Matter protester in a case that sparked advocacy for Perry from ultra-conservatives.

Emails obtained by the American-Statesman and KVUE-TV through the Texas Public Information Act show board general counsel Bettie Wells and Travis County District Attorney José Garza are in discussions about prosecutors meeting with board members soon to argue against a pardon.

A Feb. 7 exchange shows that Garza asked to make a presentation in late March or early April with Chairman David Gutierrez. Wells responded that “we will move forward with interviews/meetings of other persons and schedule a time to meet with you and your staff afterwards.”

More: Judge sentences Daniel Perry to 25 years in prison but governor has vowed to pardon him

Separately, the Statesman confirmed that now-retired Austin police Detective David Fugitt, who deemed Perry’s shooting of Garrett Foster justified, presented evidence last month to board members about his investigation. Fugitt declined to comment.

The revelation that the board is now actively considering a possible pardon for Perry – a former Army sergeant and self-avowed racist – could reignite a firestorm about the case and fears of what critics say is the blatant politicization and an affront to the criminal justice system.

In an unprecedented move, Gov. Greg Abbott directed the seven-member board, which he appoints, to review Daniel’s conviction less than 24 hours after a jury in Austin found him guilty in April 2023 of murder in Foster’s death three years earlier.

Abbott faced calls to pardon Perry from Tucker Carlson, who on his Fox network show that night called it a “legal atrocity,” and from Kyle Rittenhouse, found not guilty after he shot and killed two protesters in Wisconsin, and who called it “an unfair conviction.”

The governor, who attended no portion of the trial, said he would grant a pardon request as soon as a request “hits my desk.”

More: Gov. Greg Abbott announces he will push to pardon Daniel Perry after murder conviction

Days later, state District Judge Cliff Brown allowed the court to unseal evidence that jurors did not see in trial that included statements by Perry, who was sentenced to 25 years in prison. They included statements such as, “Black Lives Matter is racist to white people…It is official that I am racist because I do not agree with people acting like monkeys.”

Perry’s attorneys argued during the trial that Perry acted in self-defense, shooting Foster because Foster raised a rifle at him. Abbott suggested that the conviction violated Texas’ so-called stand your ground law. But prosecutors contend Perry instigated the incident by driving toward a group of marchers and that Foster was defending himself when he approached Perry's car.

Abbott sought an “expedited review” of the case, and the board responded last year that it would undertake the effort immediately. Under Texas law, Abbott cannot grant a pardon without a board recommendation.

The panel has been awaiting a recently completed full transcript of the case.

The Board of Pardons and Paroles said in a statement Wednesday that it is “still in the process of investigating Daniel Perry for a possible pardon recommendation to the governor. Upon completion of the investigation and vote, the decision of the board of pardons and paroles will be available.”

The Travis County District attorney's office said in a statement: "Attempts by the governor to override the fair and just verdict of guilty after the defendant’s trial for political gain are dangerous not only to our community, but to the integrity of our justice system. We will continue to fight to uphold the jury’s decision and insist to the board of pardon and parole that Mr. Perry be treated like any other defendant – including that he serve out his sentence."

In an interview Thursday, Whitney Mitchell, Foster's partner, told the Statesman that the new discussion of a pardon has stirred her trauma.

"This happening right now is just reliving it all over again," she said. "I feel like everything was put out there, the evidence, everything we went through and all I can say is it is devastating and just brings it up all over again."

Perry’s attorney, Doug O’Connell, declined to comment.

Documents the Statesman obtained show Garza, soon after Abbott’s request, sent a message to the board requesting that prosecutors and Foster’s family have a chance to present evidence before a decision.

The emails show that Garza’s office and the board worked earlier this month to discuss the matter via Zoom, with a more formal meeting in coming weeks. Wells also wrote that she had received information from Perry’s attorneys, and Garza said that his office would be “working to get” grand jury transcripts to the board as requested.

It was unclear until now whether the pardon effort had stalled. Perry was not included in December among three pardons Abbott issued to Texans convicted of theft and marijuana possession, but Perry’s attorneys said at the time that the board had not begun reviewing the case.

Andrew Mahaleris, an Abbott spokesman, told the Statesman in December that the governor “looks forward” to reviewing the board’s recommendation.

Abbott has seldom granted pardons, almost always for minor crimes, and has more often rejected recommendations from the board. It is extremely rare for a pardon to be granted to a currently incarcerated person. The granting of a pardon would allow Perry to vote, serve on a jury and hold public office, among other restored rights.

This article originally appeared on Austin American-Statesman: Daniel Perry pardon under review after killing BLM protester in Texas