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Salvo 07.08.2024 8 minutes

Correcting an Injustice

Tip the scales of justice concept as a the hand of a person illegally influencing the legal system for an unfair advantage.

Public order needs to be maintained in the face of the Left's targeted anarchy.

Daniel Perry was convicted of murder following the shooting death of a rioter who had approached him with an AK-47 during a riot in Austin, Texas. He was granted a full pardon by Governor Greg Abbott in May.

Perry was a Sergeant in the U.S. Army who was moonlighting as an Uber driver at the time of the incident on July 25, 2020. He drove into the middle of a street protest where Black Lives Matter activists were blocking traffic. Protester Garrett Foster walked up to him with an AK-47 and demanded that he roll down the window of his car. In addition to the very real danger of being shot, Perry also faced the possibility of being pulled out of his car and physically attacked by the angry mob, as happened to Reginald Denny during the 1992 riots in Los Angeles. Perry realized he was in a dangerous situation and acted to defend himself, shooting and killing Foster.

Based on the totality of the circumstances, Daniel Perry’s actions were clearly consistent with Texas law pertaining to the use of force in self-defense. Section 9.31 of the Texas Penal Code prescribes the applicable rules for the use of force in defense of oneself and others and provides that the use of deadly force is “presumed to be reasonable” when an individual “knew or had reason to believe that the person against who the force was used” was “attempting to enter one’s occupied habitation, vehicle, or place of business or employment.” This section also authorizes an individual to use force to prevent being unlawfully removed from any of those places. It also authorizes the use of force against an aggressor who “was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.”

Since his actions were plainly justified under the applicable standards of Texas law, he should have never been charged, much less convicted for his action in that incident. However, this incident occurred in Travis County (Austin), Texas. District Attorney Jose Garza is a former public defender whose electoral campaign was funded by George Soros. He is also a member of the Austin Chapter of the Democratic Socialists of America. His sympathies were with the rioters.

The trial was clearly problematic. There was a 900-page police investigative report which was plainly exculpatory. It concluded that Perry’s actions had been consistent with the Texas legal standard for justifiable homicide. However, the prosecution was able to prevent the jury from seeing this report. There was also an affidavit by a juror which stated that another juror had gone home and done his own research on the Texas Penal Code and then discussed his interpretation of it with the other jurors.

Governor Abbott’s pardon was long overdue, but it was not possible to do it any sooner due to the specific terms of the Texas Constitution. While the U.S. Constitution provides for an almost unlimited presidential pardon power, including a pre-emptive pardon prior to an actual conviction, many states limit the gubernatorial pardon power to cases which have already resulted in a conviction. The process is even lengthier in Texas due to the additional requirement for a favorable recommendation by the Board of Pardons and Paroles before the governor can grant a pardon. This resulted in Daniel Perry having to spend 372 days in prison before he could be pardoned.

Fortunately for Perry, his legal problems now appear to be over. Jose Garza asked the Texas Court of Criminal Appeals to overrule the pardon. There did not appear to be any legitimate basis for such an action, and there was no reason to expect that it would succeed. The Court denied the writ on June 26, 2024 without issuing an opinion. This action by the district attorney was essentially a publicity stunt.

It has been four years since the summer of “mostly peaceful protests” that followed the death of George Floyd. Those events resulted in approximately 20 deaths and more than two billion dollars in property losses. In addition to those immediate losses, there have been lasting effects in terms of increased insurance costs, the closure of many businesses, higher crime rates, and a significant reduction in the quality of life in many localities.

The death of George Floyd, like any death occurring during the course of an arrest, would normally be the subject of a lengthy and extensive investigation that would typically take weeks, and possibly months. It would then result in the issuance of an extensive report that would describe the actual facts and circumstances in great detail, and there would ultimately be a legal resolution. However, this event presented a perfect occasion for the Left to “never let a crisis go to waste.” The incident quickly resulted in more than 2,000 simultaneous outbreaks of civil disorder throughout the United States. While these were allegedly a spontaneous expression of protest, there is evidence that many of these events were part of a carefully planned, well-funded, and coordinated effort to create an atmosphere of chaos and fear in order to intimidate the voting public in the run-up to the 2020 election. The apparent intent was to convince the public that the only way to end the chaos would be to support such things as defunding the police, ending cash bail, reducing penalties for criminal offenses, and ultimately voting for Democrats.

As if all of this was not bad enough, the governments in many blue cities refused to take necessary action to restore order in a timely fashion. The riots were characterized as being so essential to achieving the greater good that they even justified massive gatherings without wearing masks in the middle of a supposedly deadly pandemic. Many elected officials described the riots and violence as justified expressions of social protest. They prevented law enforcement from stopping the riots and used the legal system to punish those who acted to defend themselves, as in the case of Kyle Rittenhouse.

Since the Left viewed the 2020 riots as a legitimate form of protest, they were willing to engage in lawfare to discourage any use of force by private citizens who found it necessary to act when the government refused to restore and maintain order. One of the most notorious incidents occurred in New York City in July 2022. Jose Alba, age 61, was working in a bodega when he was attacked by a much larger 35-year-old who came behind the store counter and attacked him. He grabbed a knife and ended the attack by fatally stabbing the assailant. Despite the fact he had responded in self-defense, Manhattan District Attorney Alvin Bragg was quick to charge him with murder and asked for a $50,000 bond. Part of the money was raised by the owners of the store where he worked. The charges were ultimately dismissed, largely due to the public outcry over the blatant injustice of charging him with murder for simply defending himself.

A year later, on the New York City subway, former Marine Daniel Penny restrained Jordan Neely, a homeless man who was screaming and behaving erratically. Neely, held in a chokehold, died. Alvin Bragg elected to charge Penny with manslaughter, and he is going to trial this fall.

These cases are clear examples of a dystopian future in which leftist governments will tolerate crime when it is committed by those whom they view as more worthy than their victims. They will tolerate political terrorism by the Left and simultaneously use the instruments of state power to demonize and destroy anyone who refuses to passively accept being a victim of this anarcho-tyranny.

Pardon power varies widely between states. Though Greg Abbott would have undoubtedly wanted to do so in these instances, he lacked the authority to grant a pre-emptive pardon. However, he acted as soon as he was legally able to do so. Governors in states whose laws do provide for pre-emptive pardons should do so in cases such as these.

The procedures to remove a district attorney vary widely by state, but such measures should be aggressively pursued when the prosecutors have failed to uphold their responsibility to ensure public safety. Some states give the governor the authority to remove a local official. For example, Florida’s Ron DeSantis suspended Soros prosecutors in Hillsborough County and Orange County when they demonstrated that they were not willing to actually focus on prosecuting criminals. Both of these actions were subsequently upheld when those prosecutors asked courts to overturn the suspensions. He also removed the Sheriff of Broward County for failure to respond effectively during the Parkland school shooting incident. Though he was not elected, New York’s Lee Zeldin vowed to remove Alvin Bragg as Manhattan District Attorney if he won the 2022 gubernatorial election. Some states use the impeachment process as the means to remove locally elected prosecutors. The Pennsylvania House of Representatives voted to impeach Philadelphia District Attorney Larry Krasner. This was unsuccessful due to a Pennsylvania Supreme Court ruling on technical legal grounds, but it may be reintroduced in the future.

There are also a number of states which have statutory provisions which allow the public to file suit to remove prosecutors for official misconduct. Texas enacted such a law, which took effect in September 2023; an action was filed against Jose Garza in April 2024 and is pending.

However, the best way to prevent far-left district attorneys from cratering public safety is to get actively involved in the political process. Just as George Soros and his ilk have devoted effort and money to elect candidates who will pursue their pernicious policies, conservatives should support and elect candidates who will uphold traditional concepts of justice. All politics are local. That is why it is critical to put forward and strongly support good candidates for these positions in every election in every locality. The stakes are too high to do anything less.

The American Mind presents a range of perspectives. Views are writers’ own and do not necessarily represent those of The Claremont Institute.

The American Mind is a publication of the Claremont Institute, a non-profit 501(c)(3) organization, dedicated to restoring the principles of the American Founding to their rightful, preeminent authority in our national life. Interested in supporting our work? Gifts to the Claremont Institute are tax-deductible.

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