The Texan Podcast - Interview: Doug O’Connell, Daniel Perry’s Defense Attorney, on Sentencing and Jury Trial

Episode Date: May 15, 2023

See the full interview exclusively at The Texan: https://thetexan.news/video-daniel-perrys-defense-attorney-on-right-to-self-defense-trial-and-pardon-likelihood/Doug O’Connell, the defense attorney for Daniel Perry, joined The Texan senior reporter Hayden Sparks to discuss Perry’s recent trial and sentencing of Perry to 25 years in prison for the murder of Garrett Foster.At a crowded July 2020 protest in downtown Austin, Perry shot Foster with a handgun. Foster was attending the protest armed with an AK-47, and O’Connell argued during the trial that Perry was acting in self-defense.However, the jury rejected Perry’s defense and he was sentenced to 25 years in prison.In a portion of the interview exclusively available at The Texan,  O’Connell also discussed what this case could mean for the right to self-defense, the likelihood of a pardon, and what Texans can take away from this extraordinary trial.Watch the full interview here: https://thetexan.news/video-daniel-perrys-defense-attorney-on-right-to-self-defense-trial-and-pardon-likelihood/Get a free month subscription: https://thetexan.news/register/?level_id=1&coupon=9535

Hi, my name is Hayden Sparks, and I'm a senior reporter with The Texan. Today we spoke with Doug O'Connell, the defense attorney for Army Sergeant Daniel Perry, who was convicted of murdering Air Force veteran Garrett Foster at a demonstration against police violence in 2020. Perry asserted he acted in self-defense. O'Connell was a Special Forces colonel in the Army and has decades of experience serving our country in the military as a counterterrorism expert, as a prosecutor, and as a defense attorney. O'Connell shared his thoughts on this historically significant proceeding in the Texas legal system. Finally, for our subscribers only, O'Connell shared with us what

this case could mean for the right of self-defense in Texas, the likelihood of a pardon, and what Texans can take away from this extraordinary trial. Thank you for watching. Doug, thank you so much for being with us here today to talk about this important case. For our viewers, I want to give a little bit of background information because there may be some who are unfamiliar with the details of this case. So please tell me if this is a fair characterization. But on July 25, 2020, your client, Army Sergeant Daniel Perry, was stationed at Fort Hood, and he was working as an Uber driver in the downtown Austin area. And during a major protest against police violence, he navigated toward a group of demonstrators at the intersection of 4th Street and Congress. He was confronted by Air Force veteran Garrett Foster, who was carrying an AK-47-style rifle. Perry shot and killed Foster with a.357 Magnum revolver, and a jury here in Austin

convicted him of first-degree murder. Judge Clifford Brown sentenced him to 25 years in prison. The major part of the government's case was social media posts that they contended showed that he had racial prejudice and was acting out of anger toward these demonstrators. So my first question to you is, what are your thoughts on the prosecutors relying so heavily on state of mind evidence in this case? Yeah, so Hayden, first, thanks for having me. One of the reasons I agreed to sit down with you is because you were in the trial the entire time, if I'm not mistaken, and really put the time in to provide accurate coverage of what actually happened in the courtroom. And I appreciate that. Not all journalists do that. So your question is, what impact essentially did the social media and the text messages have on the case? I would tell you it had a tremendous impact because without it, I don't believe Daniel Perry would have been convicted. There was very little actual evidence that Daniel Perry did

anything wrong except for make a illegal turn on red when he turned from 4th Street onto Congress. And there was evidence that Daniel was simply trying to get to the pickup location for his next Uber or where he perceived there would be Uber fares to pick up. There was no evidence that Daniel knew there was a protest in Austin that night. In fact, the evidence that came out was that no one really knew the protest route or the fact that the protest was even going to happen. What we learned during the course of the trial was the organizers of these protests had their own internal messaging systems and the ability to rally people to come out and participate in a protest.

Daniel didn't know that was going on. And in fact, the other Uber drivers who were operating in the downtown area testified, and they said they didn't know that there was going to be a protest that night. The idea that Daniel Perry somehow had the capability to drive all around Austin, go out to the airport, dropping off and picking up Uber passengers while at the same time tracking and somehow figuring out where protesters were and then engineering a place in a moment in time where he could have some sort of conflict or engagement with protesters is ridiculous. Sergeant Perry had experience in war zones. He was deployed, and you as well have served our

country in the military. And one of the government's main arguments against Perry was that he provoked this confrontation, that he instigated these demonstrators by driving toward or into this intersection full of people. And that's the reason Foster approached him, because he feared for his safety and the safety of those around him. Is it possible that Perry, having been in war zones, didn't have the situational awareness to realize that there was a group of demonstrators and they could be dangerous? I think it's very fair to say that when confronted with a deadly threat, specifically an AK-47, Daniel Perry reacted just like the Army trained him to. He took immediate action to protect his life. And that's consistent with all of his training and his

experience while deployed. I don't believe Daniel attempted to engineer this encounter in any way. I don't think that he was looking to provoke a conflict. He was, in fact, concentrating on a series of text messages he had received shortly before making the right-hand turn. He had done an Uber fare for a young lady earlier in the evening, and you heard this testimony. And she had reached out to him to try to see if he wanted to have a romantic liaison with her. And he, of course, did. And there was text messages back and forth trying to coordinate when and where they might get to see each other. And then this young lady dropped a bomb on Daniel and said, well, if we're going to get together,

I need you to give me $200. She was looking to get paid. And that's what Daniel was focused on when he's making the right hand turn. And he was thinking about how to either provide some kind of quip back to this woman or perhaps try to convince her to still meet up with him. But he was focused on a young lady, not where the protesters were. That evidence in court was particularly interesting because of the way the government framed it during their closing argument as a source of his anger as he was approaching that intersection. And one of the prosecutors said that this was a case of a man not being able to control his anger. But then there was also that lens that you presented of he was distracted. He was focused on being an Uber driver and focused on these rides that he had just completed. So that was, I think,

a very notable aspect in the government's argument. But I want to turn to some of the reaction to the case and allegations of juror misconduct. Before we get to that, one of the things that you probably saw when you watch closing arguments was the government's entire argument seemed to shift at the very end. You'll recall the prosecutor saying, this didn't happen back at Fort Hood, it didn't happen months ago. This whole thing started when he made the right-hand turn, when he blew through the red light. And the point they were making, and to their credit, they seem to have made this argument,

was the confrontation didn't happen at the car door. It happened six seconds earlier than that when Daniel took the right-hand turn. And if that is true, which that's the argument that carried the day, then what does any of the social media posts or any of the text messages have to do with anything in this case. In other words, if this whole event started when he takes the right-hand turn and very fairly blew through a red light, then why did they introduce all that social media? And the answer is it was pure character assassination. So maybe you can help me understand as a lay person some of the legal

aspect of this, but most of the time it seems social media evidence or things that might show somebody wanted to commit a crime or was the type of person who would commit a crime, it seems like that's usually excluded from trial. Can you shed some light on why the things that were included in trial were viewed as relevant by the court? I think the court viewed, well, first of all, backing up, they tried to admit a gigantic trove of social media posts and other text messages going back years. And Judge Brown very quickly shut them down from being able to do that. He said, no way is all this coming in.

You need to scale this down and present me with what you really think is relevant and I'll decide if it's admissible. And so at the end, he did admit the social media posts, the much smaller amount, but it's the ones you saw admitted during trial. And he allowed that to come in because what was going on in the course of those social media posts seemed to relate to whether or not Daniel Perry had an interest in engaging in a conflict with protesters and an interest in, well, if I do this, if I'm in a crowd and they do attack my car, then what can I do legally? And so their argument to the judge was that was evidence of his forethought and planning in wanting something like this to happen.

And what we countered with was the very realistic idea that if you're an Uber driver and you are paranoid of people surrounding your car, then you might want to mentally rehearse what you can legally do and not legally do ahead of time, which is consistent with how soldiers are trained to rehearse what actions they would take at any given point of contact. The jury is one of the few groups of people who heard all of the evidence from start to finish. And after verdict, the role of the jury became at the center of the discussion. But the defense team, you and Mr. Brodin, accused or didn't necessarily accuse but raised concern about potential juror misconduct that might have happened, including participation by an alternate and outside research by one of the jurors.

Do you think the appellate courts that review this case, specifically the Texas Court of Criminal Appeals, will share those concerns and possibly grant a new trial? Well, so the appeal will go to the Austin-based Third court of appeals first. And then depending on what happens there, it may or may not get to the court of criminal appeals. And I do think the issue of juror misconduct is going to be very, very important. We were notified by one of the other jurors that this misconduct had occurred. And we notified the court through a motion for new trial. Judge Brown conducted a judicial inquiry,

and specifically he called the offending juror in and questioned him under oath. And to that juror's credit, he came in and testified honestly. He told Judge Brown that, yes, he did outside research. And he did that outside research over the weekend between the state's case in chief being presented and then our defense case. He told Judge Brown he did the research. He told Judge Brown, yes, I printed out the research. He told Judge Brown, yes, I printed out the research. He told Judge Brown, yes, I brought that research into the jury room and I discussed it with at least a couple other jurors. And specifically, what he discussed was his interpretation of the law of self-defense

and his interpretation was that the defense or the defendant has to prove self-defense. And unfortunately, that's 180 degrees opposite of how the law really reads. A defendant in our country, someone accused, never has the burden of proof. A defendant doesn't have to prove self-defense. The government has to prove the case beyond a reasonable doubt, and the government has to disprove self-defense. The government has to prove the case beyond a reasonable doubt, and the government has to disprove self-defense beyond a reasonable doubt. And so his confusion and instruction to the other jurors is absolutely going to be an issue for appeal. And here's why. Judge Brown ultimately ruled that he did not grant our motion for a new trial, and he ultimately ruled that his jury charge, the instructions a judge gives to the jury right before they start to deliberate,

would have cleared up any confusion the jurors had. And that is the standard answer for all judges. It's, you know, a well-known answer to these kinds of questions. But the problem in this case is that that juror's research and his coming in with the wrong law and copies of the wrong law and talking about his misinterpretation of the law occurred right and the witnesses we present, they were laboring under this false conclusion that we had something to prove. We had to prove self-defense, which is not the case at all. And so the problem isn't whether or not Judge Brown was able to clear up any confusion at the charge. The problem occurred the week prior when these jurors were receiving our evidence through a corrupted filter. So in essence, and tell me if this is fair,

the jury was really digesting the government's case. And before y'all had even risen to give your evidence and present your case, this juror had shared an incorrect perception of Texas's stand your ground law. Is that fair to say? Yeah, I think that's fair. And perhaps a broader misunderstanding of self-defense law in Texas as a whole. Okay, that makes sense. And that goes to the issue of self-defense itself. And you and Mr. Brodin have said publicly that Travis County District Attorney Jose Garza was engaging in, quote, political opportunism, end quote, with this case. And even the lead detective in this case, Detective David Fugate, who has decades of experience investigating and solving dozens of homicides

in this county, accused the district attorney of criminal witness tampering as early as August of 2021. Do you think prosecutions in Travis County are being driven by a progressive political agenda, or do you think that concern has been blown out of proportion? No, I think it's a very real concern. I think that what we are seeing going on is a political agenda at play. And it is the agenda that Mr. Garza laid out during his campaign. You know, to his credit, he is walking his walk. He is doing what he said he would do. Not all politicians keep their word.

He is very much keeping his campaign promises. He said, I'm going to target police officers. He's doing exactly that. He has said that he is going to protect minority communities, underserved communities, disadvantaged communities. very light punishments on some people that he perceives as his constituency, and then either normal or harsher sentences on people who he does not perceive as his constituency. And I would tell you that in my view, he doesn't see people like Daniel Perry as part of his constituency. Why do you think that is? I think, well, it's pure speculation, but I think he is catering his service towards people who elected him. And that is a certain segment,

more progressive segment of Austin's population. It's no secret Mr. Garz is part of the Democratic Socialist Party, not just Democratic Party, but Democratic Socialist of America Party. And I think he is catering his office towards serving that population first and foremost. If we can expand on that a little bit, because at the Texan, we've covered a lot of the attrition problems at Austin Police Department and many of those issues, but it is striking that Detective Fugate, for the first time in his career, if I remember the testimony correctly, was called to testify by the defense rather than by the state as the lead detective in a homicide investigation in which he said there was compelling evidence that Sergeant Perry did act in self-defense.

What do you make of that? You know, it's fascinating. I think that the animosity in that office towards law enforcement officers is so great that they're unable to put any credence or value in what law enforcement officers think about what the evidence shows based on their training and experience. And so you have Fugit, who is a 27-year officer, 18 years as a homicide detective. He's the finest and most successful homicide detective the Austin Police Department has ever produced. And yet they discounted his opinions wholesale. And they ordered him not to testify to certain things in front of the grand jury and ordered him to remove pieces of evidence from his grand jury presentation. And I think it's fair to say that that was in fact jury tam, and it's obviously had an effect in the overall disposition of this case. Thank you for listening to the first part of the interview.

Exclusively for our subscribers at TheTexan.News, we have an extended version of this interview where we discuss what this case could mean for the right to self-defense, the likelihood of a pardon, and what Texans can take away from this extraordinary trial. To view the full interview, please visit the link in the description.