Closing Arguments Made in the Killing of Austin Black Lives Matter Protester

Daniel Perry enters the courtroom on the final day of his trial (Photo by Jana Birchum)

“This case is about an age-old story, since we all started walking on two feet,” said Guillermo Gonzalez, lead prosecutor of the Travis County District Attorney’s Office. “It’s about a man who couldn't keep his anger under control.”

Gonzalez was describing Army Sgt. Daniel Perry, accused of murder in the 2020 shooting death of Black Lives Matter protester Garrett Foster. The remarks came in today's closing arguments at Perry’s trial; moments later, District Judge Cliff Brown sent the jury out to determine Perry’s fate. He is facing life without parole.

Perry killed Foster during a Black Lives Matter demonstration on July 25, 2020. That evening, just before 10pm, he drove into a group of marchers at Fourth and Congress who surrounded his car on the sides and at the back. Foster, a fixture at BLM marches that summer with his fiancée, Whitney Mitchell, approached the driver’s side window carrying an AK-47 across his chest. The window opened and Perry shot Foster five times. The Army sergeant drove away and immediately called police, who interrogated him and let him go. He was indicted by a Travis County grand jury one year later.

Perry’s trial got underway two weeks ago and has been packed every day. On Thursday, family members, journalists, and the protesters who had marched with Foster sat squeezed together, their shoulders sometimes touching, to hear final arguments from the prosecutors and defense. These hinged on whether Perry shot Foster in self-defense. Without pictures or video that unquestionably demonstrate what occurred, prosecutors have argued that Perry manufactured the confrontation by unnecessarily driving into the crowd of protesters. The defense countered that Perry had no choice but to shoot Foster, considering how quickly he could have raised the barrel of his gun and fired himself.

Garrett Foster’s fiancée, Whitney Mitchell, with his mother, Sheila Foster (to her left), awaits the beginning of the final day of the trial (Photo by Jana Birchum)

Assistant prosecutor Elizabeth Lawson began the prosecution’s closing argument by saying Perry “instigated this whole thing,” recalling evidence presented in the first week of the trial that showed he knew protesters were marching near him on the night of the killing, contrary to what he told police. Next, she reminded jurors of the social media posts and personal text messages that Perry had sent, in which he talked about killing protesters and how a person could get away with such a killing – by claiming self-defense.

Lawson also displayed photos showing that after Perry turned in amongst the protesters, the area in front of his car remained empty. “He could have kept driving,” Lawson said. “He did not have to engage with the protesters, Garrett Foster, or anybody else.” She wrapped up her presentation by saying, “You cannot shoot and kill someone for walking up to you while exercising the right to open carry.”

Next came Clint Broden, the first of Perry’s two attorneys. He said, “You’ll never be able to truly put yourself in Daniel Perry’s shoes,” but asked the jury to consider how afraid they would feel if they were confronted by a person holding an AK-47 on a “dark street corner.” He made the first of what would be three descriptions of the protesters as “ants on candy.” “Picture the swarm around the car, picture the ants on the candy,” he said.

Broden restated the defense’s analysis of indistinct photos of the shooting, shot by photographer Gordon Lefferd. He said the photos and other evidence show that Foster was either raising his AK-47 to point it at Perry or was positioned to do so within a split second, and he reminded the jury that AK-47 rounds can pass through car doors. He then asked the jury to imagine that a relative was being arrested for a murder – “a knock comes at the door” – and referred to Perry’s online discussion of how a person could get away with killing a protester as a “robust discussion.”

Perry’s other attorney, Doug O’Connell, took up where Broden left off, saying he “didn’t like” his client’s social media posts. But he dismissed the posts – one of which contained speculation by Perry as to whether he could cut off the ears of protesters who “committed suicide” by challenging him – as “stupid stuff on the internet.” He described Perry’s killing of Foster as a legitimate act of self-defense, saying, “He had two seconds to decide what to do. He chose to live.”

O’Connell replayed dash-cam video of Uber driver Robert Garrett that briefly showed Perry’s car turning into the group of protesters on the night of the shooting, calling it one of the most important pieces of evidence in the trial. He emphasized that Perry’s car doesn’t seem to go particularly fast in the video and again described the protesters’ reaction to the car as “ants on candy.” As Foster’s mother, Sheila, wept on Whitney Mitchell’s shoulder, he said, “They boxed in a car and attacked. And that could have happened to you.”

The final speaker was lead prosecutor Gonzalez. Throughout his presentation, Gonzalez came back to the concept of instigation, arguing that it was Perry, not Foster, who instigated the confrontation by knowingly pulling into a crowd of protesters who he hated. Gonzalez reminded jurors that Perry initially told police that he ran a red light into the group; that he lied by later telling them that he’d been texting on his phone and pulled into the group by mistake; and that he lied again when he later claimed that the light had been yellow when he rounded the corner.

“That’s the crux of this case – why did he run that red light?” Gonzalez asked. He then mentioned Perry’s social media posts, tying them together with what he described as Perry’s instinctive recognition of a “target of opportunity.” “They fit together quite nicely, the social media posts and the red light. ‘And in Texas, I can get away with it’ – that’s his state of mind.”