Exclusive: Austin police officials drafted letter advocating for Daniel Perry's pardon

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Days before Gov. Greg Abbott pardoned Daniel Perry for killing a Black Lives Matter protester, the Austin Police Department drafted a two-page letter to state officials advocating that Perry be freed.

The document, on departmental letterhead, echoes the belief of the lead investigator in the case that the prosecution of Perry in the shooting death of Garrett Foster was based on “conjecture,” “innuendo” and a “character assassination” of Perry, who wrote racist and threatening social media posts.

The draft, obtained by the American-Statesman and KVUE-TV on Tuesday, bears the signature line of interim Police Chief Robin Henderson.

The letter rejects the guilty verdict of a Travis County jury a year earlier and reiterates the Police Department’s finding that the shooting was justified, adding, “Mr. Perry should have never been charged.”

The department was poised to send the document to the Texas Board of Pardons and Paroles a day before Gov. Greg Abbott granted clemency to Perry last week. But Henderson said in a statement Tuesday to the Statesman that "ultimately the drafted letter was not submitted. After discussions with city leadership, as is standard in certain situations, I decided not to submit the letter."

More: Gov. Greg Abbott announces he will push to pardon Daniel Perry after murder conviction

Still, the draft letter represents a highly unusual move by the department in a case marked by extraordinary developments.

It offers a deeper insight, extending beyond that of the lead investigator in the case, into how the department more broadly views evidence in the shooting, which polarized much of the community and further splintered the relationship between police and prosecutors.

It adds that although retired police Detective David Fugitt, who has vigorously fought on Perry’s behalf, determined that the June 2020 shooting was justified, the department as an organization supports that finding as well.

Daniel Perry, center, walks last year into the Austin courtroom where a jury convicted him of murder for fatally shooting Garrett Foster during the 2020 Black Lives Matter protests. Gov. Greg Abbott last week pardoned Perry.
Daniel Perry, center, walks last year into the Austin courtroom where a jury convicted him of murder for fatally shooting Garrett Foster during the 2020 Black Lives Matter protests. Gov. Greg Abbott last week pardoned Perry.

“As law enforcement officers, we are bestowed the honorable duty to investigate, collect and provide complete and honest unbiased facts to the citizens of this state,” the letter stated. “This unbiased collection and presentation of evidence must be conducted separate from political and emotional influence.

“This duty is not taken lightly and is essential for justice to occur in order for the public to maintain trust in a system that is designed to protect the innocent while at the same time holding those who violate the law accountable,” the document stated.

The letter concluded by saying that the department’s homicide unit, including its supervisors, and Henderson believe that the shooting, which Perry contends happened when Foster raised an assault-style rifle at him, was a “justifiable homicide.”

“We collectively feel that for justice to be served, a full pardon and restoration of his firearm rights should be granted to Mr. Perry,” the letter concluded.

Draft letter sparks reaction

In a statement, Travis County District Attorney José Garza said that during Perry's trial, a jury heard evidence that Perry's attack was "deliberate and premeditated." He added that Austin police did not investigate the certain facts of the case — although his statement did not elaborate — and he added that Henderson did not attend the trial.

"Had she been at the trial, she would have known that Mr. Perry had a full and fair opportunity to argue the killing was in self-defense and that after deliberate consideration, the jury did not find that it was in self-defense," Garza said.

He added: "I am grateful for the service of the jury members, and unlike the interim chief of police, I believe that jury service is a foundation of our criminal justice system, and their verdict should not be disturbed."

Mayor Kirk Watson said in a statement that whether the department sent the letter is "irrelevant."

"This is not an appropriate role for the Austin Police Department, and those words have no place on official letterhead," he said.

Interim Assistant City Manager Bruce Mills said in a statement released by the city: "We support the chief's decision not to send the letter. Clearly, the draft letter is outside the police department's role."

Whitney Mitchell, Foster's fiancée, said in an interview with the Statesman on Tuesday that she has struggled repeatedly since the night of the shooting and that her feelings have been intensified by the granting of the pardon.

"I don't know how to really live with this," she said. "And it makes me feel like I don't feel safe. I don't feel safe being here."

A case outside the norm

The department began drafting the letter last week after receiving an inquiry from the pardons and parole board into whether it wished to provide input on Perry’s proposed clemency.

It is not clear who in the department authored the letter.

The department typically does not advocate during a pending parole or pardon review. It is not unusual, however, for individual detectives to write letters concerning an inmate's possibility for parole, and, generally, to argue against release.

But Perry’s case has tested norms in the law enforcement and criminal justice community from its earliest days.

The shooting happened downtown after Perry, who was stationed at Fort Cavazos as an Army sergeant but was in Austin to drive for a ride-hailing company, turned his car onto a street crowded with protesters.

Foster, who was armed with an AK-47, saw himself as a protector of fellow protesters. The case centered on whether Perry shot in self-defense, a claim the jury rejected, or whether he provoked the incident. The Austin police letter noted that the departmental investigation found that Perry had the right to be on a public roadway and did not provoke the “armed encounter.”

In the months before trial, Perry’s attorneys tried unsuccessfully to have the case dismissed, citing statements from Fugitt that prosecutors edited his presentation to a grand jury to exclude evidence supporting Perry’s self-defense claims.

By law, prosecutors do not have an obligation to present favorable evidence to a grand jury, state District Judge Cliff Brown ruled. Dismissing an indictment would require "egregious conduct," which Brown said he did not see.

A day after the April 2023 verdict, following calls from far-right conservatives, Abbott said on social media that he would pardon Perry after receiving a legally required recommendation from the seven-member board he appoints.

That week, Brown ordered a trove of social media posts that were excluded during trial to be unsealed. Those posts include messages that Perry “might go to Dallas and shoot looters” and “it is official that I am racist because I do not believe in people acting like monkeys.”

The messages also show he had online conversations with a 16-year-old girl in which he told her not to send nude photographs of herself until she was “of age” and to “come up with a reason why I should be your boyfriend.”

The Austin Police Department’s letter does not address Perry’s social media posts.

The Statesman reported in February that the parole board had begun a more extensive review of the case and had received a presentation from Fugitt.

Editorial: Texas Gov. Greg Abbott pardoned Daniel Perry and shifted the rule of law | Editorial

The department’s letter said it consulted heavily with Fugitt, who it said is an expert in homicide investigations and has participated in hundreds of cases during his career, in writing the letter.

“In all fairness, the district attorney’s office and the judge and the Travis County sheriff’s office were all afforded the opportunity to write a letter, and it was my stance that APD should provide one as well,” Fugitt, who now works in the prosecutor assistance unit handling capital murder cases for Texas Attorney General Ken Paxton, told the Statesman.

Neither Brown nor the sheriff’s office wrote a letter.

The day after the department decided not to send the letter, the pardons board recommended Perry’s clemency for Perry and a restoration of his gun rights. In a two-hour span, Abbott granted the pardon, and Perry was released from a prison near Houston.

Perry’s attorney, Doug O’Connell, said in a statement that “Daniel is optimistic about his future. He wishes that this tragic event never happened.”

This article originally appeared on Austin American-Statesman: Austin police drafted letter advocating for Daniel Perry's pardon