By Eric Levenson, Lucy Kafanov and Nouran Salahieh, CNN
Attorneys for a US Army sergeant who was convicted of murdering a protester at a Black Lives Matter rally asked a judge to sentence him to 10 years in prison in court Tuesday — even as Texas’ governor has expressed plans to pardon him.
Daniel Perry, 35, wore a striped black-and-gray jail uniform in Travis County court in Austin, Texas, on Tuesday for the punishment phase of the trial, in which a number of witnesses testified about his background and the impact of the shooting. He faces between 5 and 99 years in prison.
The defense asked the judge 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.
In contrast, the prosecution asked that he be sentenced to at least 25 years in prison. They highlighted a stream of racist and inflammatory social media posts Perry wrote prior to the shooting and the defense’s own analysis of his mental disorders and mindset.
“This man is a loaded gun ready to go off on any perceived threat that he thinks he has to address in his black and white world and his us versus them mentality,” a prosecutor said.
The judge said he will reconvene court at 10 a.m. Wednesday.
The sentencing comes nearly three years after Perry shot and killed 28-year-old Garrett Foster at an Austin racial justice rally following the murder of George Floyd in Minneapolis, which triggered nationwide protests against police brutality. Perry and Foster are White.
Prosecutors said Perry, who was stationed at Fort Hood, initiated the fatal encounter on July 25, 2020, 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 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.
“I believe he was going to aim it at me,” Perry said in a police interview after the shooting, according to CNN affiliate KEYE. “I didn’t want to give him a chance to aim at me, you know.”
Perry’s legal team argued his actions were justified as self-defense.
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, and a deadly conduct charge is still pending.
Shortly after Perry’s April 7 conviction, Texas Gov. Greg Abbott 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.
The governor can only pardon Perry if the Board of Pardons and Paroles recommends it, according to Texas law.
“The board will be commencing that investigation immediately” and will report to the governor with recommendations when it’s done, board spokesperson Rachel Alderete said following Abbott’s request. She didn’t specify how long the review would take. The board said Tuesday the investigation is ongoing and declined further comment.
Victim’s fiancée says life is hard without him
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.”
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.
Perry made comments about killing protesters on social media, documents show
Documents related to the case that were unsealed by a Travis County judge following Perry’s conviction show he had a yearslong history of making racist comments in messages and social media posts.
In a Facebook message from May 2020, just weeks before the shooting, Perry told a friend he “might have to kill a few people” who were rioting outside his apartment.
The documents also contain a May 2020 text sent by Perry that said, “I might go to Dallas to shoot looters.” Some messages included “white power” memes.
Perry wrote in a 2019 message that it was “to bad we can’t get paid for hunting Muslims in Europe.”
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.
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CNN’s Rosa Flores, Andy Rose and Alisha Ebrahimji contributed to this report.