Judge dismisses witness tampering accusation in Garrett Foster case

The trial for Army Sergeant Daniel Perry in the death of Garrett Foster will move forward, after a judge dismissed claims meant to halt the trial on Wednesday.

The judge dismissed claims by the lead investigator in the case that the Travis County District Attorney’s office tampered with evidence during grand jury proceedings.

Those claims came in the form of an affidavit filed Tuesday by Daniel Perry’s lawyer, Doug O’Connell.

"Those are some remarkable serious allegations that warrant further investigation," said O’Connell in an interview with FOX 7.

Perry is accused of shooting and killing Black Lives Matter protester Garrett Foster in July 2020. Perry claimed self-defense, but the grand jury indicted him on murder and aggravated assault charges.

Det. David Fugitt, a 27-year veteran of the Austin Police Department and an 18-year homicide detective, put together evidence to present to the grand jury.

In the affidavit, Fugitt claimed the DA’s office forced him to remove "exculpatory evidence" from his presentation.

"It became clear to me that the District Attorney’s Office did not want to present evidence to the grand jury that would be exculpatory to Daniel Perry and/or to show that witness statements obtained by the family of Garrett Foster and/or their attorneys were inconsistent with prior interviews such "witnesses" gave the police and/or the video of the incident in question," the affidavit stated in part.

Fugitt went on to say his 158-slide powerpoint presentation was reduced to 56 slides.

"It’s certainly not normal for a DA’s office to order a witness appearing before the grand jury not to discuss certain evidence," said O’Connell. "I was a prosecutor for almost 15 years, and I’ve never ever heard of that happening."

However, Jessica Brand, a former defense attorney herself, had a much different take. "I’ve never seen a case where a police officer goes to the defense and says, ‘I don’t think what happened in the grand jury was fair to your client,’" she said. "It’s pretty unusual, if not totally rare."

Brand said what happens in a grand jury is private and Detective Fugitt had no way of knowing what other evidence may have been presented. Additionally, she noted the difference between a grand jury and a trial jury.

"To suggest that the DA’s office behaved unethically because they didn't present every piece of information (to the grand jury) that this officer thought should be presented is just wrong," said Brand. "The trial is where everything gets aired."

On Wednesday, after hearing the claims, a judge denied a future evidentiary hearing, allowing the trial to move forward.

According to O’Connell, the judge denied it without prejudice, allowing the defense the opportunity to come up with more evidence to back their claims. There is also the possibility of a law enforcement entity carrying out a separate investigation into Fugitt’s claims.

The attorneys representing Army Sergeant Daniel Perry sent this statement to FOX 7 Austin:

While we are disappointed that Judge Brown did not order an evidentiary hearing to get to the bottom of Jose Garza's actions, it is important to recognize that Judge Brown simply concluded that an evidentiary hearing was not needed because prosecutors are not absolutely required to present exculpatory evidence to a grand jury. This certainly does not excuse Mr. Garza's actions and Judge Brown has also agreed to allow us to present additional evidence if the Texas Rangers conduct a review of Jose Garza’s politically motivated actions in this case.

What does not change is that the top homicide detective in the Austin Police Department has now stated unequivocally, under oath that, based upon his 28 years' experience, he believes that Mr. Garza has engaged in the felony offense of witness tampering. 

In the end, we also believe people are missing the distinction between the obligation to present exculpatory evidence and actively interfering with its presentation. As an example, a person has no obligation to help someone bleeding on the side of the road but that does not mean they can actively interfere with a third party attempting to render aid to the person.

While we are fully confident that a jury that hears all the evidence and not just the evidence cherry picked by Jose Garza with the help of Foster family lawyers will ultimately acquit Sgt. Perry, Garza's actions should trouble all Travis County citizens . Garza's actions, however characterized, leave a noxious odor permeating this case that can only be removed with a fully investigation.

FOX 7 reached out to the district attorney's office on Wednesday, and they said they were unable to provide a comment. 

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