A US Army sergeant who was convicted of murdering a protester at a Black Lives Matter rally in 2020 is expected to be sentenced to a significant prison term on Wednesday morning -- even as Texas' governor pushes to pardon him.
Daniel Perry, 35, faces between 5 and 99 years in prison for fatally shooting 28-year-old Garrett Foster at an Austin, Texas, racial justice rally following the murder of George Floyd in Minneapolis. Perry and Foster are White.
In court Tuesday, Perry's defense team asked District Court Judge Clifford A. Brown to sentence him to 10 years, citing his lack of criminal history, his psychological issues, including complex post-traumatic stress disorder, and praise from several of his military colleagues.
The prosecution requested a sentence of at least 25 years in prison, highlighting a stream of racist and inflammatory social media posts Perry wrote prior to the shooting. Prosecutors also said the defense's own analysis of his mental disorders and mindset showed he was a "loaded gun ready to go off."
The sentencing comes nearly three years after Perry killed Foster, an Air Force veteran, in a case that has touched on fraught political issues of gun rights, self-defense and Black Lives Matter protests.
Prosecutors said Perry, who was stationed at Fort Hood, initiated the fatal encounter when he ran a red light and drove his vehicle into a crowd gathered at the protest. Foster was openly carrying an assault-style rifle -- legal in Texas -- and approached Perry's car and motioned for him to lower his window, at which point Perry fatally shot him with a handgun, prosecutors said.
Perry's legal team argued his actions were justified as self-defense. He told police during an interview that he believed Foster was going to aim the firearm at him, according to CNN affiliate KEYE.
He was indicted by a grand jury nearly a year after the killing. In April, a Texas jury convicted Perry of murder but found him not guilty on a charge of aggravated assault with a deadly weapon. A deadly conduct charge is still pending.
The length of the sentence may ultimately be moot. Shortly after his conviction last month, Texas Gov. Greg Abbott, a Republican, said he wanted to pardon Perry and issued an unusual request for the state Board of Pardons and Paroles to expedite a review of the case before a sentence was handed down.
"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," the governor said in a statement on Twitter.
The governor can only pardon Perry if the Board of Pardons and Paroles recommends it, according to Texas law.
The board said at the time it was opening an investigation immediately and will report to the governor with recommendations once complete. The board said Tuesday the investigation is ongoing and declined further comment.
Perry had "us versus them" mentality, psychologist testifies
At a sentencing hearing on Tuesday, a number of witnesses testified about Perry's background and the impact of the shooting.
For the defense, Greg Hupp, a forensic psychologist who examined Perry twice earlier this year, testified he diagnosed him with complex post-traumatic stress disorder and autism spectrum disorder.
Combined with his military experience, Perry had an "us versus them" mentality in which his mindset was, "I protect myself. I am ready for any imminent attack and anything out there can be a potential threat," Hupp said.
On cross-examination, the prosecution noted that military records did not indicate either of these psychological issues.
The prosecution also referenced documents that were unsealed by a Travis County judge following Perry's conviction that show he had a yearslong history of making racist comments in messages and social media posts.
Just weeks before the shooting, Perry told a friend in a May 2020 Facebook message that he "might have to kill a few people" who were rioting outside his apartment, according to the documents. And in a June 1, 2020, social media comment, Perry compared the Black Lives Matter movement to "a zoo full of monkeys that are freaking out flinging their sh*t," the documents show.
Clint Broden, Perry's attorney, criticized the release of the documents in a statement to CNN, calling it a political decision by prosecutors.
Broden said Foster also made social media posts advocating for violence and supporting riots, most of which can't be made public due to Texas discovery rules. A few posts are public, however, including a post praising the burning down of a Minneapolis police station in 2020.
CNN reached out to the governor's office for comment on the social media posts. An attorney for the Foster family declined to comment on the unsealed documents.
For the prosecution, Whitney Mitchell, Foster's fiancée, testified through tears Tuesday how her life had changed since his death.
Mitchell is a quadruple amputee and said Foster had been her sole caretaker for the past 11 years, helping her get ready for the day, eat and work as a costume designer. They had bought a house in Austin together, and she said it's difficult to stay there without him.
"It's hard every day that I'm there. It's hard to sleep in my bed because he's not there," she said. "He was my main caregiver for 11 years and I've had friends who have been taking care of me and have to learn how to do all that stuff that Garrett was doing for me for a decade, and it's hard because I had to get comfortable being vulnerable."
