By Eric Levenson, Lucy Kafanov and Nouran Salahieh, CNN
A US Army sergeant who was convicted of murdering a protester at a Black Lives Matter rally in 2020 was sentenced to 25 years in prison Wednesday morning — even as Texas’ governor pushes to pardon him.
Daniel Perry, 35, faced between five and 99 years in prison for fatally shooting 28-year-old Air Force veteran Garrett Foster at an Austin, Texas, racial justice rally two months after the murder of George Floyd in Minneapolis.
Foster’s mother praised the sentence and District Court Judge Clifford Brown afterward. “Finally, after three long years, we’re finally getting justice for Garrett,” Sheila Foster said.
Perry, wearing a black and gray striped jail uniform, put his head in his hands and cried after the sentence was issued. His attorney said he plans to appeal the verdict.
A day earlier, Perry’s defense team asked for a sentence of 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 in a case that, like that of Kyle Rittenhouse in Kenosha, Wisconsin, touched on fraught political issues of gun rights, open-carry laws, self-defense and Black Lives Matter protests. Perry and Foster are White.
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.
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.
Defense attorney praises governor’s push for pardon
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.
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 Wednesday the investigation is ongoing and declined further comment.
Prior to issuing the sentence Wednesday, the judge praised the jury for grappling with the nuances and complexities of the case over several weeks.
“The hard work, the service and the sacrifice of this jury deserves our honor and it deserves to be respected,” he said.
Clinton Broden, Perry’s attorney, issued a statement minutes after the sentencing praising the governor’s push for a pardon as a check on the system.
“In short, in the event Sgt. Perry might ultimately receive a pardon, it would simply reflect the strong self-defense laws that exist in Texas and the political efforts of a rogue district attorney to curtail the rights of Texas citizens in an effort to appease the district attorney’s own political supporters,” he said.
Travis County District Attorney José Garza rejected the defense’s criticism and said the issues were all considered by a grand jury, judge and trial jury.
“At the end of the day the defendant in this case went through a process and an outcome that was rooted in the facts and the law, as it should be,” Garza said.
The pardons board has committed to hearing a presentation from his office and from Foster’s family in the coming weeks, Garza said.
“Our criminal justice system is not perfect but in this case it worked exactly as it should, and the Travis County district attorney’s office is not done fighting for Garrett and for the integrity of that process here in Travis County,” he said.
Family speaks on Foster’s behalf
After the sentencing, several people close to Foster offered high praise of the Air Force veteran and criticized Perry.
Sheila Foster, his mother, praised the 25-year sentence as well as her son’s strong moral beliefs in racial equality.
“Me and everybody who loves Garrett will fight for the rest of our lives for the things that mattered the most to him. That is racial equality, standing up against abuse of power, doing the right thing, feeding the less fortunate, loving everyone no matter what,” she said. “Violent hate-filled racists have no place here.”
Foster’s sister, Anna Mayo, said she did not believe Perry had remorse and called him a “small man” with no honorable traits.
“You swore to protect this country and its Constitution and then you killed somebody for exercising their constitutional rights to protest and their right to open carry, and you killed a veteran for that,” she said.
Whitney Mitchell, Foster’s fiancée, testified a day earlier 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.”
On Wednesday, Mitchell’s mother, Patricia Kirven, told the court her daughter has suffered in the past three years.
“He was there day and night. Now she has no one. She doesn’t know what to do with herself. She is broken. She is a broken shell of the person she once was. I don’t see any joy in her life, in her face, in her eyes, nothing,” she said. “And I’m hoping that starting tomorrow she can claim her life back.”
Army says it’s reviewing the case
Perry has served as an infantryman since January 2012, including stints in Afghanistan and Poland, but he is “pending separation from the Army,” according to Army spokesperson Bryce S. Dubee.
“The Army has reviewed the evidence released by the Travis County District Court and has passed the information to the Army Criminal Investigation Division to conduct an independent review of the allegations contained within the document,” Dubee said Wednesday.
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.
Broden 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 Michelle Watson, Chris Boyette, Rosa Flores, Andy Rose and Alisha Ebrahimji contributed to this report.