Daniel Perry murder case: Defense team claims jury misconduct in motion for new trial

Four days after Daniel Perry was convicted by a jury of murder for killing protester Garrett Foster, his defense team called for a new trial. The motion claims excluded evidence and jury misconduct.

"They allege that there were errors in the conduct of the trial that warrant the verdict being thrown out and Daniel Perry getting a new trial," said Rick Cofer, a criminal defense attorney.

The 26-page motion says key evidence was withheld from the jury. This includes a series of photos taken from protests before the incident that claimed Foster used his fiancé's wheelchair to block cars. 

The defense says evidence like the photos could have shown the jury that the protests were not peaceful, and that Foster was trying to intimidate people.

Cofer says he does not think these evidence claims of excluded evidence will warrant a new trial.

"That claim is unlikely to be successful because the judge is not going to decide that he was wrong earlier with his rulings, and more than likely the judge was correct in his rulings," said Cofer.

However, Cofer says the next claim regarding jury misconduct listed in the motion could be a little more successful in getting Perry a new trial.


"First, it's alleged that one of the jurors brought outside information about the law concerning self-defense into the jury room in terms of conversation," Cofer recalled from the motion.

According to the motion, a juror printed out information at home during an overnight break and showed the other jurors their findings.

The defense also claims an alternate juror participated in deliberations when they were not supposed to. The motion says an alternate juror did not actually speak during deliberations, but did snort, huff, gasp, and make other noises expressing displeasure with certain comments made.

"Those claims mean there is sizzle. There's smoke, but the judge will determine whether there's really meat on the table, and then he'll decide whether to grant a new trial or not," said Cofer.

The Travis County District Attorney’s Office released a statement to FOX 7 Austin on the motion. 

"Our office has full confidence in the guilty verdict reached by the jury in this case. These motions are standard motions filed by the defense following a guilty verdict. We applaud the defense team for making use of the procedural safeguards that are available to defendants in our criminal justice system. However, we continue to stand by the jury’s unanimous decision to convict Daniel Perry for the murder of Garrett Foster."

Cofer says the motion is not unexpected, but he says it is definitely surprising since Perry is being considered for a pardon by the Texas Board of Pardons and Paroles.

"That might be an example of being safe with a belt and suspenders, or it could mean that there are concerns the pardon may not go through," said Cofer.

Perry’s sentencing is still expected to happen, but a date has yet to be set.