Austin: Libertarian BLM Protester Shot Dead

[TheTexan]

You didn't even bother reading the case I gave you. You wouldn't make it past the first semester of law school. Again, the fact that Garrett went up to Perry's car carrying a gun is not in dispute. Adding other instances of that doesn't help prove any new facts so according to long established SCOTUS precedent that's not admissible. But...you didn't read the case and you're just going by what you think the law should be.

The fact that Garrett went up to Perry's car carrying a gun is not in dispute.

The fact that Garrent went up to Perry's car in an aggressive intimidating manner is in dispute. (I'm assuming, this is in dispute, yes?)

 

[jmdrake]

The DM's were (supposed to be) private, yes. AFAIK, the messages that were used in trial, were private DM's and text messages.

You're asking me to find a search warrant that was denied in a murder case?

Wrong. I'm asking you to find denial of search warrant for correspondence from to or from the defendant known to be in a particular location (you mentioned a locked drawer in his house) when probable cause of murder has already been established. Stick with what we're actually talking about.

Again, the actual text of the 4th amenment.

The right of the people to be secure in their persons , houses , papers , and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.​

If you really think that under ^that language, someone in the 1700s could kill someone, claim self defense, be arrested and prosecuted, and yet somehow defeat a search warrant that "particularly described the place to be searched" (locked drawer in his house) and the "things to be seized" (the letters in that drawer) then you're just kidding yourself.

 

[jmdrake]

The fact that Garrett went up to Perry's car carrying a gun is not in dispute.

The fact that Garrent went up to Perry's car in an aggressive intimidating manner is in dispute. (I'm assuming, this is in dispute, yes?)

The dispute is over whether or not Garret raised the gun. If he did then Garrett assaulted Perry and Perry acted in self defense. If not then Garrett did not assault Perry and Perry didn't reasonably act in self defense. Note that in one of your own links one of the witnesses had a gun but didn't shoot anybody. Aggression and intimidation are subjective. Whether your in the line of fire for an AK47 is not subjective.

 

[ClaytonB]

The fact that Garrett went up to Perry's car carrying a gun is not in dispute.

The fact that Garrent went up to Perry's car in an aggressive intimidating manner is in dispute. (I'm assuming, this is in dispute, yes?)

I'm not sure if the defense specifically claimed that, but they should have. Foster's earlier behavior that day is, obviously, relevant to the case and the prosecution's own reasoning makes it relevant, by implication (estoppel argument), since they are dredging up Perry's unrelated private messages from days or weeks prior. Whether Foster raised his rifle at any other vehicle prior is not the only relevant question, since intimidation is related to feelings of fear. Thus, if Foster had a pattern of intimidation, this lends credence to Perry's claim that he felt in fear for his life from Foster (it is more believable that Foster was being intimidating in this case).

 

[ClaytonB]

The dispute is over whether or not Garret raised the gun. If he did then Garrett assaulted Perry and Perry acted in self defense. If not then Garrett did not assault Perry and Perry didn't reasonably act in self defense.

False. It is not a simple question of whether Foster raised his rifle or not, it's a question of whether Perry's claim to self-defense (not an aggressor and acting in fear for his life or the lives of innocents) is not credible beyond a reasonable doubt. The footage and Perry's own testimony are part of that. The blows raining down on Perry's car are also checks in the column for Perry's claim to self-defense being reasonable. To convict, the prosecution was supposed to overcome -- beyond reasonable doubt -- all of those claims (or, at least, enough of them to meet the legal criterion of beyond reasonable doubt). So, trying to laser-focus on just Foster's rifle is a no-go. If, in fact, Foster raised his rifle, Perry walks. But even if he didn't raise his rifle, it's not an automatic conviction because that, by itself, doesn't prove beyond reasonable doubt that Perry had no reasonable basis to fear for his life from Foster.

 

[TheTexan]

Wrong. I'm asking you to find denial of search warrant for correspondence from to or from the defendant known to be in a particular location (you mentioned a locked drawer in his house) when probable cause of murder has already been established. Stick with what we're actually talking about.

Well a key word here, "particular location".

There's a big difference between searching a "particular location" and searching the contents of a "cell phone" (which in practice means, all private correspondence that has ever been sent or received)

So if you want to "stick with what we're actually talking about", a more accurate search would be to find a denied search warrant for correspondence from or to the defendant from many locations where correspondence is believed to exist.

If you really think that under ^that language, someone in the 1700s could kill someone, claim self defense, be arrested and prosecuted, and yet somehow defeat a search warrant that "particularly described the place to be searched" (locked drawer in his house) and the "things to be seized" (the letters in that drawer) then you're just kidding yourself.

You're missing the very critical "probable cause" part of that amendment.

If there is probable cause to believe that there is something of evidentiary value in that drawer, then absolutely, yes, its reasonable for it to be searched.

But the mere fact that a murder happened, is not probable cause that something of evidentiary value exists in that drawer.

Knowing that there are papers in a particular place, is not sufficient to issue a warrant. There still has to be probable cause that you'll find something in those papers with evidentiary value.

 

[TheTexan]

The dispute is over whether or not Garret raised the gun. If he did then Garrett assaulted Perry and Perry acted in self defense. If not then Garrett did not assault Perry and Perry didn't reasonably act in self defense. Note that in one of your own links one of the witnesses had a gun but didn't shoot anybody. Aggression and intimidation are subjective. Whether your in the line of fire for an AK47 is not subjective.

If literally the only thing that matters is whether or not Garrett raised the gun, then by that argument the text messages are no longer relevant.

If the idea is to provide context to the jury, then the text messages become relevant, but then so do the Garrett videos

 

[ClaytonB]

If literally the only thing that matters is whether or not Garrett raised the gun, then by that argument the text messages are no longer relevant.

If the idea is to provide context to the jury, then the text messages become relevant, but then so do the Garrett videos

 

[Occam's Banana]

Earlier you posted the video from a lawyer that thought Daniel Perry was innocent. [...]

I haven't posted any videos from a lawyer who thinks Daniel Perry is innocent - not that I know of, anyway.

The only video from a lawyer I have posted in this thread is the one from Andrew Branca, in this post.

I have no idea if Branca thinks Perry is "innocent" (since that is not a verdict), but he does think Perry's "guilty" verdict was legally sound.

He details his reasons for that in the article I posted right under the video:

Here's the written analysis he mentioned in the video (sections are hidden to save space):

Daniel Perry’s Murder Conviction Was Legally Sound
Like It or Not, sufficient evidence was presented to allow the jury to reject self-defense. A Pardon may happen for political reasons, but that’s politics not law.
https://legalinsurrection.com/2023/04/daniel-perrys-murder-conviction-was-legally-sound/
Andrew Branca (09 April 2023)

[...]

(In fact, that's the article ClaytonB was complaining about, which in turn prompted one of the replies by me in which I tagged you.)

The video you are talking about was published after the article (although it is placed before the article in my post). In the video, Branca does not claim that the verdict was not legally sound. Rather, it concerns a claim made by the defense which, if true, would invalidate the verdict and require a new trial. Here's the description of the video (bold emphasis added):

Daniel Perry Guilty Verdict is INVALID!
Two days ago the defense team for Daniel Perry, found guilty this past Friday for the murder of Garrett Foster, filed a motion for a new trial. Normally such motions are really just a matter of going through some hand-waving, and rarely have any substantive basis for a new trial being granted. Indeed, most of the arguments made in this motion are rather esoteric or even outright silly. That said, there is one claim by the defense that, if true, completely INVALIDATES the guilty verdict returned by this trial's jury last Friday. Join me LIVE at 3 PM ET to discuss!
https://rumble.com/v2i2l6i-daniel-perry-guilty-verdict-is-invalid.html

As I recall, it has something to do with the inclusion of outside material (from the Internet) into the jury's deliberations by one of the jurors, as well as the prejudicial behavior of an alternate juror.

 

[jmdrake]

I haven't posted any videos from a lawyer who thinks Daniel Perry is innocent - not that I know of, anyway.

The only video from a lawyer I have posted in this thread is the one from Andrew Branca, in this post.

I have no idea if Branca thinks Perry is "innocent" (since that is not a verdict), but he does think Perry's "guilty" verdict was legally sound.

He details his reasons for that in the article I posted right under the video:

​

(In fact, that's the article ClaytonB was complaining about, which in turn prompted one of the replies by me in which I tagged you.)

The video you are talking about was published after the article (although it is placed before the article in my post). In the video, Branca does not claim that the verdict was not legally sound. Rather, it concerns a claim made by the defense which, if true, would invalidate the verdict and require a new trial. Here's the description of the video (bold emphasis added):

​

As I recall, it has something to do with the inclusion of outside material (from the Internet) into the jury's deliberations by one of the jurors, as well as the prejudicial behavior of an alternate juror.

I must have gotten my wires crossed. There was some video you or somebody posted where a lawyer was going through some current prosecution and comparing it to a lot of other prosecutions that he didn't think had merit. I can't find it now.

 

[dannno]

Only the person defending himself can truly know in his own mind if he was afraid for his life.
This is something that can not be proven in court. A jury can not know for certain if he was afriad for his life or not.

This is an important perspective.

Also, I think jmdrake is not putting the situation in the proper context.

This guy was lawfully driving on a roadway where a riot was taking place. The rioters were illegally blocking the roadway and threatening him, and so he had a mob of people surrounding his car who were threatening him.

Somebody at a riot has a right to arm themselves. Kyle, for instance, went to a riot with a firearm to protect businesses and himself. He helped put out dumpster fires that were being pushed toward gas stations. All very legitimate.

A protester has a right to carry a firearm to protect themselves. The problem becomes when a protest starts to get violent, and you are on the side of the people being violent and committing crimes. As soon as you join with them, this puts yourself in a lot of risk.

Let's say the guy walked up with his gun, people in the mob saw him and decided they were now safe to attack the driver of the vehicle. Now if the driver uses his firearm to protect himself against his attacker, the rioter with the gun will shoot him.

So the driver already felt his life was possibly threatened by the mob and was trying to get out of the situation. Somebody with the mob walks up with a gun, in an aggressive manner, and they felt that they were raising their gun to point it at them.

I don't know how much more you can fear for your life than that.

Point is, if your part of a group, mob or riot that is breaking the law and threatening somebody and you are openly carrying, the standard should, in theory, be much lower for an innocent bystander to feel like you are threatening their life, so I would highly recommend not doing so.

I do not believe the jury came to the correct conclusion here, at all.

 

[jmdrake]

This is an important perspective.

Also, I think jmdrake is not putting the situation in the proper context.

This guy was lawfully driving on a roadway where a riot was taking place. The rioters were illegally blocking the roadway and threatening him, and so he had a mob of people surrounding his car who were threatening him.

Somebody at a riot has a right to arm themselves. Kyle, for instance, went to a riot with a firearm to protect businesses and himself. He helped put out dumpster fires that were being pushed toward gas stations. All very legitimate.

A protester has a right to carry a firearm to protect themselves. The problem becomes when a protest starts to get violent, and you are on the side of the people being violent and committing crimes. As soon as you join with them, this puts yourself in a lot of risk.

Let's say the guy walked up with his gun, people in the mob saw him and decided they were now safe to attack the driver of the vehicle. Now if the driver uses his firearm to protect himself against his attacker, the rioter with the gun will shoot him.

So the driver already felt his life was possibly threatened by the mob and was trying to get out of the situation. Somebody with the mob walks up with a gun, in an aggressive manner, and they felt that they were raising their gun to point it at them.

I don't know how much more you can fear for your life than that.

Point is, if your part of a group, mob or riot that is breaking the law and threatening somebody and you are openly carrying, the standard should, in theory, be much lower for an innocent bystander to feel like you are threatening their life, so I would highly recommend not doing so.

I do not believe the jury came to the correct conclusion here, at all.

I never said Perry didn't have a right to arm himself or that this wasn't a dangerous situation so don't put words in my mouth. Also I can see a reasonable jury acquitting Perry. I can also see a reasonable jury convicting Perry. At the end of the day this came down to witness credibility over a vey simple question. Did Garrett Foster point his gun at Daniel Perry or did he not? Here is the context you and everyone else trying to argue me down keep ignoring. Perry's cop "expert" would have likely shot Kyle Rittenhouse based on how Kyle was carrying his rifle. Is that the world you want to have? Seems like it. Perry also indicated animus at the protestors for being anti Jewish. There is much more evidence of anti Jewish sentiment among right wing protestors than among BLM protestors. You may argue that all of the neo Nazis and the "unite the right" rally were feds. That's irrelevant. They were there. There weren't any BLM protesters saying "Jews will not replace us." So Perry was unhinged. And Perry's texts, emails and social media posts just weeks or months prior to the shooting were absolutely relevant, discoverable and admissible as evidence. Arguing that the 4th amendment somehow doesn't allow discovery of communication just because it's electronic is patently ridiculous. Using [MENTION=33245]TheTexan[/MENTION]'s argument, Hillary Clinton's private email server could never have been a violation of the law because OMG it's electronic! She could have said "Well it's a private email server!" Now, Hillary was never prosecuted, but we all know she could and should have been prosecuted. Last point, and I know most people won't get this unless they went to law school, is that evidence of prior conduct by Garrett Foster that was not in dispute is not admissible under the Old Chief v United States ruling by the U.S. Supreme Court. You can disagree with that ruling all you want to. But the simple fact is, if both sides agree in a case that a person did X, arguing "And they did X these other times" is simply not admissible under these circumstances. Note that there is a lot of evidence the prosecution admitting at sentencing that it couldn't admit during the trial phase. Once they established Daniel Perry's state of mind they couldn't just dog pile on and say "And he said these same things 100 other times in all of these other messages." I get it. These things are tough for non lawyers to digest. As I said earlier, I've had left wing not lawyers attack me for saying Kyle Rittenhouse should have walked. That's the context that YOU keep ignoring! You and every other want to be lawyer in this case. Just because you want an outcome to come out your way so bad doesn't mean the person who disagrees with you doesn't know what he's talking about. Daniel Perry's attorneys have filed a motion for a new trial. They've raised every legitimate argument they can think of. I wish them well. I really do. They seem to be really fighting for their client. (Trump's lawyer didn't seem to even care but his client didn't seem to care either.) They did not argue, from what I can tell, that Garrett's private emails and DMs somehow should have been excluded because frankly they know that's a dead end. But if you think you know better then try to contact their law firm and explain your argument.

 

[TheTexan]

Arguing that the 4th amendment somehow doesn't allow discovery of communication just because it's electronic is patently ridiculous. Using @TheTexan's argument, Hillary Clinton's private email server could never have been a violation of the law because OMG it's electronic! She could have said "Well it's a private email server!"

If that's how you interpret my argument, you haven't read a single thing I wrote.

If there was probable cause to believe that Hillary's email server contained correspondence of evidentiary value (which there was probable cause to believe, because the emails could be traced to that server), then that email server is fair game.

Really. Not. That. Complicated.

 

[jmdrake]

If that's how you interpret my argument, you haven't read a single thing I wrote.

If there was probable cause to believe that Hillary's email server contained correspondence of evidentiary value (which there was probable cause to believe, because the emails could be traced to that server), then that email server is fair game.

Really. Not. That. Complicated.

Considering that Perry's public Facebook posts were so concerning that his mom and dad told him to knock it off or he might get himself arrested, there was probable cause that his private DMs also went to his state of mind.

 

[TheTexan]

Considering that Perry's public Facebook posts were so concerning that his mom and dad told him to knock it off or he might get himself arrested, there was probable cause that his private DMs also went to his state of mind.

Maybe.

I'm guessing they subpoenas his text messages as a matter of standard practice. Which if I understand your position correctly, this is something you agree with. In which case - fine. Who cares about 4th anyway right.

I don't agree with that.

I don't think that anyone who is defending a self defense case should have their private correspondence opened up for discovery just by default as a standard practice.

The fact that someone died does not by itself provide probable cause that correspondence of evidentiary value will be found in their private messages.

There has to be (or should be) something more.

And if the prosecution did have reason to believe they would find these DMs - and weren't just doing a fishing expedition- then great, all is above board.

And posting racist memes publicly online, as Daniel perry did, is also not adequate justification for subpoenaing private records. (By the same rule you have mentioned previously - its accepted he has posted racist stuff online, why pile on more)

 

[TheTexan]

Yea, pretty much all his private correspondence was "extracted" just as a matter of standard policy. He got arrested and his phone was "extracted" without subpoena, without search warrant. And this is "fine" because the device was in his pocket therefore its fair game

https://www.documentcloud.org/documents/23777334-daniel-perry-court-filing-unsealed-031423

Lesson to be learned here:

ENCRYPT YOUR PHONES

 

[jmdrake]

Maybe.

I'm guessing they subpoenas his text messages as a matter of standard practice. Which if I understand your position correctly, this is something you agree with. In which case - fine. Who cares about 4th anyway right.

I don't agree with that.

I don't think that anyone who is defending a self defense case should have their private correspondence opened up for discovery just by default as a standard practice.

The fact that someone died does not by itself provide probable cause that correspondence of evidentiary value will be found in their private messages.

There has to be (or should be) something more.

And if the prosecution did have reason to believe they would find these DMs - and weren't just doing a fishing expedition- then great, all is above board.

And posting racist memes publicly online, as Daniel perry did, is also not adequate justification for subpoenaing private records. (By the same rule you have mentioned previously - its accepted he has posted racist stuff online, why pile on more)

A) I'm not saying what I agree with or disagree with. I'm saying what the law is. As I already pointed out to you, and to [MENTION=10908]dannno[/MENTION], Daniel Perry's lawyers (again according to your link), aren't even contesting the phone records in a motion for a new trial. So if you think they should, you should absolutely contact them and make your pitch. Seriously.

B) It wasn't just "racist memes." It was memes about violence and the use of force. He publicly posted about when and how you could kill someone and get away with it. He certainly had a right to do that. And most assuredly by itself none of this is enough for a conviction. But we weren't even talking about if he killed Garrett Foster but why he killed Garrett Foster. It got to a question of "state of mind."

But again, make your pitch to his lawyers. Maybe they'll find it useful.

 

[jmdrake]

Yea, pretty much all his private correspondence was "extracted" just as a matter of standard policy. He got arrested and his phone was "extracted" without subpoena, without search warrant. And this is "fine" because the device was in his pocket therefore its fair game

https://www.documentcloud.org/documents/23777334-daniel-perry-court-filing-unsealed-031423

What is your source that there was no warrant?

Lesson to be learned here:

ENCRYPT YOUR PHONES

That was already a lesson years ago from Edward Snowden.

 

[TheTexan]

What is your source that there was no warrant?

I'm assuming that because I saw no mention of a search warrant in that document.

I could be wrong but I'm probably not. "Extracting" cell phone data without a warrant is a fairly common practice.

But again, make your pitch to his lawyers. Maybe they'll find it useful

It would probably be about as useful to them as the 4th amendment has been to us

 

[jmdrake]

I'm assuming that because I saw no mention of a search warrant in that document.

They wouldn't need to assert that at this point. Part of the data from the cell phone was already admitted. If there was no warrant then that issue should have already been raised and then brought up again in the motion for a new trial to preserve it for appeal.

I could be wrong but I'm probably not. "Extracting" cell phone data without a warrant is a fairly common practice.

Admitting that data in court is not common practice. If the state didn't have a warrant and his lawyers aren't raising that issue on their motion for a new trial that's legal malpractice.