Andrew Branca: Like It or Not, sufficient evidence was presented to allow the jury to reject self-defense.
This past Friday, April 7, 2023, Daniel Perry was found guilty in the 2020 murder of Garret Foster during a Black Lives Matter protest in Austin.
Immediately following the announcement of the guilty verdict, social media rather exploded with outrage at a guilty verdict so insanely inconsistent with Perry’s narrative of shooting in self-defense only after facing the muzzle of Foster’s rifle. Indeed, the only evidence to support Perry’s claim of Foster pointing his rifle at him are Perry’s own self-serving statements following the shooting.
This is, obviously, purely a question of fact, and as such it falls exclusively within the purview of the finders of fact, the jury. They are free to believe either narrative and return a verdict consistent with the narrative they find most compelling. I would suggest that a genuinely unbiased, impartial jury could easily come to that conclusion and that verdict on the evidence presented in this trial. As a result, this verdict of guilty is legally sound and meritorious—even if any one of us doesn’t particularly like the outcome for political, social, or personal reasons.
The defense sought to counter this inference by arguing that Perry find himself enmeshed in that night’s fatal Black Lives Matter protest entirely innocently, having no idea that the protest was even taking place. According to the defense, Perry simply made a right-hand turn, and boom, found himself surrounded by angry protestors slapping and kicking his vehicle.
And what was there to counter the State’s narrative of guilt and support Perry’s claim that Foster had initiated the deadly force confrontation by pointing his rifle at Perry? Nothing.It is worth noting here that Perry elected to not take the stand and testify in his own defense. A criminal jury is told, of course, that the defendant has no obligation to take the stand, and the jury is not to make any inference of guilt if the defendant chooses to not testify.
In the context of legal analysis, however, these talking points are leading well-intentioned people to bad legal conclusions. This doesn’t make these people bad, it makes them normal—but bad legal reasoning rarely arrives at the right legal answer.
Such conduct certainly would strike most reasonable people as unfair—after all, shouldn’t the grand jury be entitled to hear both sides of the story, both the narrative of guilt and the narrative of evidence, both the incriminating evidence and the exculpatory evidence.The role of a grand jury is explicitly not to hear both sides of the argument—hearing both sides of the argument is the role of the trial jury, not the grand jury.
This happened in the 2014 case of the Michael Brown shooting. Then St. Louis County Prosecutor Robert McCulloch presented the grand jury with both the incriminating and exculpatory evidence in the shooting death of Brown by police officer Darren Wilson—and the grand jury declined to indict the officer.
And this is sound decision-making by the officer. If there is evidence consistent with self-defense, the officer ought to consider that evidence before making a mindless decision to subject a lawful defender to arrest and everything that comes with that arrest. In fact, the bullet hole in Perry’s car was caused by a bystander who shot three times at the car as Perry fled the scene of the shooting. That being the case, the bullet hole in the car could have provided no justification for Perry’s shooting of Foster.
Of course, in the Rittenhouse case we had the benefit of the video of Rosenbaum’s attack, clearly showing Rosenbaum to be the aggressor—but what if we hadn’t had such clear video evidence, as we don’t have here in the Perry case? But a proper legal analysis must be done rationally, independent of emotion and political or other biases. The evidence and the law must guide us in our analysis. Sometimes the destination we arrive at will be unpleasant. That does not make it legally unsound, however, and forcing a legal conclusion to satisfy emotional and political desires is simply not sound legal analysis.
Second, appeals are not like a second bite at the legal apple. At trial all the legal presumptions are in your favor–you are presumed innocent unless proven guilty beyond a reasonable doubt. Once you have been proven guilty beyond a reasonable doubt, however, now you are presumed guilty, and all the legal presumptions are against you.has researched how often appeals result in meaningful relief, and he’s found this occurs in less than 1% of appeals.
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