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

Daniel Perry's decision to fatally shoot protester Garrett Foster was "just based on pure evil," said the mother of Foster's wife. She spoke to Perry after Travis County state District Judge Clifford Brown sentenced him to 25 years in prison for the killing of Foster in 2020 during a Black Lives Matter march in downtown Austin.

"The decision you made was not based on PTSD and was not based on autism," Patricia Kirven said to Perry during the part of the trial that allows victims to make impact statements. "My son who has autism does not know how to deal with this kind of grief. You do. You hide your head and keep your eyes bowed down to the ground."

Perry kept his head down and did not look at Kirven or two other people who spoke to him after the sentencing about how the killing affected them.

But if Gov. Greg Abbott pardons Perry, as he has vowed to do, then Perry might serve little time.

A jury found Perry, 36, guilty of murder on April 7. Perry, an Army sergeant, was working as an Uber driver in Austin when he ran a red light and turned into a Black Lives Matter march on July 25, 2020. He told police that Foster, 28, approached his car with a raised AK-47, so he shot Foster, 28, five times with a handgun and then drove away.

Prosecutors have said that Perry instigated the incident by running a red light at Fourth Street and Congress Avenue, where he could clearly see the marchers before he drove into them. Perry also posted racist comments and memes denigrating Black people on social media, prosecutors said.

'I am a racist': Daniel Perry's social media posts reveal racist comments, anti-protester views

After the jury's guilty verdict, defense lawyers made a motion for a new trial saying that a juror had introduced illegal evidence about the state's self-defense laws to the jury during the deliberations. The judge rejected the motion last week.

Amid Gov. Abbott's pardon vow, prosecutors ask judge to sentence Daniel Perry to 25 years

A prosecutor on Tuesday asked Brown to sentence Perry to at least 25 years in prison, saying Perry was a "loaded gun" who could harm other people. A psychologist had testified Tuesday that Perry was autistic and had post-traumatic stress disorder.

Defense lawyers had asked the judge to sentence Perry to 10 years, saying he was an Army veteran with no criminal history and was not the racist that prosecutors claimed him to be.

Abbott posted on Twitter on April 8, one day after Perry was convicted, that he would pardon Perry as soon as a request "hits my desk." He cannot pardon Perry unless he receives a request from the Board of Pardons and Paroles to do so.

Abbott faced growing calls from national conservative figures such as then-Fox News host Tucker Carlson and Kyle Rittenhouse, who was acquitted in the shooting deaths of two Wisconsin protesters in 2020, to act to urgently undo the conviction.

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

Travis County District Attorney José Garza said in a news conference after the sentencing Wednesday that he hoped the outcome "brought some sense of justice for the Foster family and for (wife) Whitney and her family."

"This is not a normal case because in early April the Texas governor made a decision to insert politics into this case and requested the Board of Pardons and Parole to review this case less than 24 hours after the jury issued a verdict," said Garza.

He said that since the governor's announcement, his office has been in contact with the board. The board has committed to hearing a presentation about the case from the district attorney's office as well as a presentation from Foster's family, Garza said.

"The Travis County DA's office is not done fighting for Garrett and for the integrity of the process here in Travis County," Garza said.

The district attorney also praised Judge Brown: "He did a fantastic job of keeping politics out of his courtroom and at the end of the day, you can say definitely that this case and the outcome was rooted in facts and laws as it should be."

In a statement after the sentencing, defense attorney Clint Broden said he was disappointed that the judge did not give Perry 10 years or fewer, and that the team would now focus on the appeal process.

He said the appeal would center on efforts by Foster and other protesters "to terrify" other motorists that night, on Foster’s dismissal from the Air Force for mental health reasons and on allegations from former police detective David Fugitt that the district attorney tampered with his grand jury testimony.

Broden also said the military had prohibited Foster from ever possessing a firearm. He also said the judge would not allow defense attorneys to present some of Foster's posts on social media, including that Foster had supported the "blinding of police officers."

With the sentence announced, Broden said the defense team was prepared to cooperate in the pardon process.

“While we are aware of the criticism that has unfairly surrounded Governor Abbott’s expressed intent to pardon Sgt. Perry, that criticism fails to account for the fact that the pardon process was designed, in part, to be a check on the system,” Broden said. “Moreover, those who claim that Governor Abbott’s expressed intent is based on politics simply choose to ignore the fact that it was only the political machinations of a rogue district attorney which led to Sgt. Perry’s prosecution in the first instance.”

Defense attorney Doug O’Connell also said outside the courtroom that the evidence unsealed after the jury found Perry guilty was "nothing but a character assassination" of Perry. The judge unsealed more than 70 pages of Perry's social media posts, much of it containing racist comments and memes after the verdict.

"If it contains evidence of a crime, it is only a thought crime and not a crime of the Texas penal code," O'Connell said. He said the defense lawyers have not been in contact with the Board of Pardons and Paroles, but they plan to present its members soon with a packet of evidence from the trial.

Garza said in his news conference that he had never heard that Foster was dismissed from the military for mental health reasons or that the military had forbidden Foster from possessing a gun. He also said the prosecution had most of Perry's social media posts sealed before the verdict was announced because they were considered prejudicial for the jury to consider. They were unsealed because they were considered relevant to sentencing, he said.

Foster's mother, Sheila Foster, also spoke to Perry in the courtroom after Perry was sentenced. She said her son loved everyone regardless of race and believed strongly in the Black Lives Matter movement.

"The love of his life is Black," said Foster, referring to her son's wife, Whitney Mitchell. During the summer of 2020, her son not only participated in social justice marches in Austin but also prepared and served meals to homeless people for 50 days, she said.

"He got down on the ground and fed them," Sheila Foster said. "He got on his knees. My son was literally following Christ."

She also said that "me and everyone who loves Garrett will fight for the rest of our lives for the things that mattered most to him. Racial equality. Standing up against the abuse of power and doing the right thing."

Garrett Foster's sister, Anna Mayo, also spoke to Perry, saying he had shown "no remorse for what you have done."

"You can't even look at my family," she said. "You killed someone for exercising their constitutional rights to protest and right to carry and you killed a veteran for that. ... I wonder how many people suffer with real PTSD now strictly due to your actions."

This article originally appeared on Austin American-Statesman: Judge sentences Daniel Perry to 25 years in prison