Travis County DA Garza to Defend Daniel Perry Conviction at Parole Board

Originally published by Truthout.

Texas Gov. Greg Abbott’s plan to pardon former U.S. Army Sgt. Daniel Perry, who was unanimously convicted by a Travis County jury this month for the 2020 murder of racial justice protester Garrett Foster, may already be backfiring, according to internal emails Truthout obtained from the Travis County District Attorney’s office.

According to an April 17 email from Travis County District Attorney José Garza to the Texas Board of Pardons and Paroles General Counsel Bettie Wells, the parole board has agreed to allow the DA to present evidence related to Perry’s ongoing criminal case to Wells and Board Chair David Gutiérrez.

Additionally, according to the email, the full board will hear from Foster’s family before issuing its final recommendation under the pardon review process required by the Texas Constitution. The DA’s office sent a letter requesting the presentation on April 11, and, according to an April 14 email, Wells followed up with a phone call to discuss the process and presentation.

Governor Abbott has asked parole board to expedite his requested review of Perry’s conviction, as Texas law doesn’t allow the governor grant a pardon without the approval of a majority of the seven appointed members of the parole board. The email exchange between the DA and the board’s general counsel signals the board’s intention to allow the legal process to play out first.

Perry, who is white, was found guilty of fatally shooting white Air Force veteran Foster on July 25, 2020, after driving his car into a group of protesters that included Foster, who was legally open-carrying an AK-47. Perry’s attorneys argued Perry shot Foster five times through his car window in self-defense. An activist on the street that night, however, told Truthout that Foster couldn’t have raised his rifle and put himself in between Perry’s car and his quadruple-amputee wife, Whitney Mitchell, who is Black, to protect her.

The presentation is likely to take place after Perry’s official sentencing, which could be scheduled after a May 3 hearing in the case, during which a Travis County state district judge will determine whether to grant Perry a new trial. Defense attorneys filed a motion for a new trial on April 11, alleging that the court erred in excluding key evidence they say shows Foster and protesters were the “first aggressor,” not Perry.

But newly unsealed evidence in the form of Perry’s social media posts and texts make clear not only Perry’s premeditated desire to kill protesters in the months leading up to Foster’s death, but also his routine racist and sexually predatory behavior. Just days after George Floyd’s police-perpetrated murder sparked nationwide protests and uprisings, Perry sent a text message saying, “I might go to Dallas to shoot looters.” Two days later, Perry wrote a Facebook message saying that when he’s in Dallas, “no protestors go near me or my car.”

The unsealed posts also included messages like, “Black Lives Matter is racist to white people … It is official I am racist because I do not agree with people acting like monkeys.” The message is just one of several racist and anti-Muslim messages Perry sent before and after Floyd’s death.

The unsealed evidence also shows Perry initiating an inappropriate exchange with a 16-year-old girl on the Kik instant messaging platform after searching “good chats to meet young girls.” He first warned the apparent minor not to send him nudes “until you are old enough to be of age” and later told her, “I am going to bed come up with a reason why I should be your boyfriend before I wake up.”

Travis County DA Garza told Truthout that prosecutors intentionally filed the recently released 82-page document under seal in March to shield the evidence from the jury prior to the trial in order to protect Perry’s rights as a defendant. Information depicting a defendant’s character is often considered too prejudicial to be introduced while a jury weighs guilt versus innocence but becomes relevant during sentencing.

“The state presented evidence that the defendant instigated this fight, that he fantasized about causing a confrontation with protesters so that he could murder them and claim self-defense,” Garza told Truthout about the recently unsealed evidence. “It has become clear in the aftermath of the trial that he held vile views about working-class people, about communities of color, about religious minorities, and that in this case, he sought and did act on those views.”

Despite Perry’s apparent sexual solicitation of a minor, far right politicians and pundits championing baseless narratives about protecting children from sexual grooming by drag queens are nonetheless rallying to his defense. The right has likened him to a new Kyle Rittenhouse, who was acquitted of killing two protesters in Kenosha, Wisconsin, last year. Rittenhouse and former Fox News host Tucker Carlson immediately called for Perry’s pardon, arguing Perry’s shooting of Foster was justified self-defense, despite Foster’s legal right to open carry on the streets — a cause the right typically champions.

Within hours of Carlson’s call, Governor Abbott declared his intent to pardon Perry, requesting the parole board hand him the legally required recommendation as soon as possible. “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’s Twitter post said, referring to DA Garza. “I look forward to approving the Board’s pardon recommendation as soon as it hits my desk.”

After newly unsealed court documents, the Texas governor has appeared to change his tone, releasing a blanket statement in response to the newly unsealed evidence, saying, “All pertinent information is for the Board of Pardons and Paroles to consider, as this is part of the review process required by the Texas Constitution.”

Texas Republicans have accused Garza, considered one of the country’s most progressive prosecutors, of pursuing the case because of a political donation from wealthy Jewish philanthropist George Soros—an antisemitic dog whistle. In regard to the recent attacks, Garza says, “Those aren’t attacks on me, and quite frankly, this isn’t about me. Those are a part of a broader strategy to attack and weaken our democracy. We’re seeing Republican members of Congress attempt to interfere with ongoing criminal prosecutions in states across the country.”

Perry faces between five years and life in prison—unless the parole board intervenes. After a heated gubernatorial primary in 2020, the board, citing unspecified “procedural errors,” withdrew its recommendation to grant clemency to George Floyd in December 2021 after it previously voted unanimously in favor of a full posthumous pardon of Floyd’s 2004 drug conviction. The about-face, critics say, shows how nakedly political the state’s pardon process under Abbott has become.

It was Floyd’s police-perpetrated murder in Minneapolis after all, that sparked the national wave of protests that Foster and his wife Mitchell had dedicated themselves to during that 2020 summer in Austin. In February 2022, Abbott suggested he would pardon 19 Austin police officers indicted on felony assault charges for their policing of those same 2020 protests, should they be convicted. Trial dates for the officers have not yet been set.

“Living Without Garrett”

The trial process and Abbott’s recent pardon pledge has been agonizing for Foster’s surviving common-law wife, Whitney Mitchell, and the activists close to her. Although Mitchell could not be reached for comment, Dani Reichman, president and co-founder of the Queer, Black and Indigenous Austin-based shelter Queertopia, where Mitchell is a board member, told Truthout Mitchell has had to contend with extremely traumatizing racist, sexist and ableist harassment since Foster’s death at the hands of Perry in 2020. She’s also faced barriers to accessing her own personal information, as Foster was also Mitchell’s primary caretaker and handled Mitchell’s personal accounts.

Reichman got to know Foster and Mitchell after working together to organize mutual aid for the unhoused community underneath I-35 bridge at Austin’s Eighth Street on Wednesday nights prior to Foster’s shooting. Mitchell, Reichman says, lived with her for about a month after the shooting since she felt unsafe at her own home due to repeated doxing and death threats. On top of that, Reichman says, the Austin Police Department (APD) never returned Mitchell’s house keys, which were seized from Foster’s body.

Foster began open-carrying, Reichman says, after a previous incident I documented on Twitter about a month prior to Perry shooting Foster. On June 27, 2020, a motorist attempted to drive through protesters gathered in front of APD’s headquarters on Eighth Street. Demonstrators surrounded the driver’s car, and a protester who asked not to be named told me that the driver brandished a handgun and waved it at her and other protesters after she confronted the driver through his window. APD briefly apprehended the driver and commandeered his car, but later appeared to let him go. Police arrested at least two protesters after the incident, according to a National Lawyers Guild observer.

“Garrett started [open-]carrying as a means to … deter people from trying to physically harm the crowd,” Reichman told Truthout. “It was really just like a deterrent, like a visual.” In fact, she says, Foster’s shoulder strap was so tight that he physically couldn’t raise the rifle out of the low-ready position to fire it without taking the entire strap off, Reichman said. Foster told her he’d ordered a new shoulder strap, but it hadn’t yet arrived.

On the night of Foster’s shooting on July 25, protesters gathered at APD’s headquarters and proceeded to the south side of the state capitol building to host speeches. I was also present for this portion of the protest that night but went home from the capitol before the march proceeded to Austin’s W. hotel and residence building. From there, Reichman said, protesters turned left on Congress Avenue.

That’s when Perry ran a red light and drove into the crowd of protesters. The crowd, including Foster, surrounded the vehicle, and then Perry shot Foster. Reichman told Truthout that while she didn’t have a direct vantage, she said Foster couldn’t have raised his rifle, due to the tight shoulder strap, and only approached Perry’s car because he was trying to get in between Perry’s car and Mitchell. Foster’s gun was recovered with the safety on and no round in the chamber.

“It felt like [Perry’s car] drove across so fast,” Reichman told Truthout. “It just felt like there was no way that someone didn’t get run over.” When gunshots rang out, she said, everyone either ran or dropped to the ground. Reichman started running toward Mitchell, she said, because she knew Mitchell was unable to run and might have difficultly dropping to the ground. After she saw Mitchell jump out of her wheelchair to the ground, Reichman dropped herself. Mitchell’s screams from that night, Reichman says, are forever etched into her mind.

Reichman waited with Mitchell in front of the hospital and was with her when she learned that Foster had died. Mitchell was told at the time that she wasn’t allowed to view Foster’s body. She only learned that Foster died instantly after hearing testimony in Perry’s trial, Reichman said.

APD, Reichman tells Truthout, were there when Foster was shot but didn’t immediately respond until after Perry drove away from the crowd. She had been marching toward the back of the crowd, and had witnessed police following the protesters in a white van for several blocks. When Reichman attempted to cross a police line to approach Mitchell after the shooting, police attempted to arrest her as Mitchell screamed at them not to, she said.

In fact, Reichman still has an open case stemming from her arrest on a misdemeanor charge during a memorial march organized shortly after Foster’s shooting, during which, she says, police dumped Mitchell out of her wheelchair near the area where Foster died. Reichman told Truthout police repeatedly destroyed Foster’s memorial site.

The fact that Perry’s unsealed texts and social media posts reveal two texts on March 20, 2020, in which Perry says, “I killed a homeless man by accident. The police already know and let me go,” just adds to the complex layers of trauma both Reichman and Mitchell are struggling with as the Perry case continues to unfold and return to the news cycle, especially as the two, Reichman says, continue to advocate for Austin’s unhoused community.

“There is no justice because Garrett will not ever be brought back. But Perry being in prison means at least [Mitchell] doesn’t have to worry about this man murdering her as well,” Reichman told Truthout.

For now, Reichman is holding out hope that the Texas parole board will not intervene in Perry’s upcoming sentencing, and that the closing of the case will help both her and Mitchell breathe a little easier.

“Garrett loved Whitney for who Whitney is. Garrett lived and breathed Whitney. Garrett stood in front of Whitney when [Perry’s] car fucking pulled in front of her. Garrett could not live without Whitney, and now every single day is hell for Whitney living without Garrett,” Reichman said.

Copyright, Truthout.org. Reprinted with permission.