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April 10, 2023

Did the Daniel Perry prosecutors nullify Texas law?

By Andrea Widburg

Andrew Branca is one of the best gun-rights legal analysts in the country. However, it’s possible that he erred when he suggested that the key issue in the trial was whether Daniel Perry, the former Army Sergeant convicted for shooting Garrett Foster, a BLM protestor, actually saw Foster point a rifle at him. If news reports are correct that the prosecution effectively nullified Texas’s “stand your ground” self-defense law, the jury may not have reached or cared about anything that Foster did. (UPDATE: I've learned that the preceding sentence is a little too "inside the law" in form. Here's what I was trying to say: With the wrong law before them, the jurors may never have discussed among themselves whether Foster aimed a rifle or, even if they did, they may have considered that fact legally irrelevant. If the only thing they cared about was that Perry should have escaped, everything else would be a matter of indifference to them.) In that case, the verdict was a clear miscarriage of justice due to prosecutorial misconduct.

Thomas Lifson wrote a post this morning in which he discussed Branca’s contention about Foster’s rifle and where it was pointed. In brief, Branca argued that, if the jury concluded that Foster was not pointing the rifle at Perry when Perry shot him, Perry’s self-defense argument was invalid, and the jury’s verdict convicting him was justified.

Image: Daniel Perry upon hearing the verdict. YouTube screen grab.

My first instinct when I read this argument was to point to a photograph that seemingly shows Foster immediately outside of Perry’s car, with his elbow pulled back as if holding a rifle horizontally at someone. That photo, combined with testimony that Foster was known to wave his rifle around, would seem to indicate that he was, in fact, pointing a rifle at Perry:

It’s entirely possible, though, that the jury had concluded that Foster aimed the rifle at Perry but didn’t care. That’s because of an argument the prosecution made that effectively nullified Texas law:

During closing arguments in Perry's murder trial, defense attorneys said Perry had no choice but to shoot Garrett Foster five times as he approached Perry’s car with an AK-47 rifle. Prosecutors countered that Perry had plenty of choices, including driving away before he fired his revolver. (Emphasis mine.)

If the jurors accepted the prosecution’s argument, they could have concluded that Perry, by not instantly reversing his car the moment he saw people in the street, had forfeited his right to self-defense, regardless of what Foster did. In other words, once Perry “allowed himself” to get trapped by a screaming mob, it no longer mattered whether Foster aimed a rifle at Perry because Perry could not defend himself as a matter of law.

The problem is that this isn’t Texas law. As Greg Abbott stated in his tweet about working for a pardon, “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.”

If a prosecutor gives a jury permission to ignore the law, any subsequent conviction is invalid.

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