Prosecutor slams Abbott's 'unlawful' pardon of Army sergeant who killed Black Lives Matter protester, wants higher court to intervene

Prosecutors are seeking to overturn a pardon for Daniel Perry, in courtroom photo and top inset, convicted of murdering Garrett Foster, bottom inset. (Victim’s photo from GoFundMe; Perry’s mug shot from Austin Police Department; Courtroom photo from The Associated Press)

A Texas prosecutor is asking a higher court to reverse what he says is an “unlawful” pardon by Texas Gov. Greg Abbott of an Army sergeant convicted of murdering a Black Lives Matter protester.

Travis County District Attorney José Garza announced he was issuing a writ of mandamus asking the Texas Court of Criminal Appeals to overturn the pardon for Daniel Perry , 37, who killed Garrett Foster, 28, in the summer of 2020.

In a statement on Facebook , Garza said the Texas Board of Pardons and Paroles and the Governor “put their politics over justice and made a mockery of our legal system.”

“They should be ashamed of themselves,” he said. “Their actions are contrary to the law and demonstrate that there are two classes of people in this state where some lives matter and some lives do not. We will not stop fighting for justice.”

Prosecutors said Abbott violated the separation of powers clause in the Texas Constitution by interfering with a lawful jury verdict and the appellate process.

“Here in Texas, it is up to our judicial system to determine whether a person is guilty or innocent and what the outcome should be,” Garza said in a news conference . “And there is a lengthy appellate process that should be followed in every case. Here, the executive, the governor, interceded, intervened in that process, and prohibited the judiciary from doing their work.”

On X , Abbot said:

“NOT GONNA HAPPEN”

“The Texas Constitution provides: In all criminal cases, the Governor shall have power, after conviction, on the written signed recommendation and advice of the Board of Pardons and Paroles, to grant pardons,” he also wrote in the statement.

Perry’s defense attorney, Clinton Broden, said in a statement emailed to Law&Crime that Perry defended himself against Foster, who had been discharged from the Air Force for mental health issues. Broden said Foster had been illegally carrying an assault rifle on the streets of Austin.

“On May 16, 2024, Texas Governor Greg Abbot recognized this and pardoned Daniel Perry pursuant to the laws and Constitution of the State of Texas,” the statement said. “Governor Abbot used pardon powers similar to the pardon powers given to almost every other state governor in the United States as well as similar to the pardon powers given to the President of the United States.”

He called Perry’s prosecution political and said Garza was “making a mockery of our constitutional system of government.”

The victim’s mother, Sheila Foster, was floored.

“It is absolutely unacceptable to our family, and we will fight this until we get justice for Garrett,” she said. “My own child was killed on American soil for doing nothing but practicing his First and Second Amendment rights. And our governor just said, ‘That’s OK.'”

“We had justice for Garrett for 18 hours,” she also said. “After waiting three years for a trial. We got justice for my son. It was planned. It was premeditated. And the very next day, the governor announced his plans to pardon. And now here we are. And he has done it. And I am not OK with this. And nobody should be OK with this.”

As Law&Crime reported, Perry was working as an Uber driver when he approached protesters blocking a road and drove into the crowd at the rally. He fired his pistol at Foster, 28, and claimed Foster pointed an AK-47 at him. Perry was indicted by a grand jury on July 16, 2021, and was found guilty of the murder in April 2023.

At his trial, prosecutors argued the killing was premeditated and presented evidence they claimed showed he harbored violent attitudes toward “rioting” and people he called “looters.”

His defense attorney said the posts were taken out of context and were protected by the First Amendment. The lead police investigator also testified that he didn’t arrest Perry the night of the shooting due to the possibility of self-defense. Despite that, Perry was sentenced to 25 years in prison the following month.

Following his pardon, Perry walked free on May 16.

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