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Citing misconduct that prosecutors deny, attorney for shooter in Garrett Foster's death wants case dismissed

U.S. Army Sgt. Daniel Perry has previously been indicted in the shooting death of an Austin protester.

AUSTIN, Texas — The attorney for a U.S. Army sergeant who shot and killed a Black Lives Matters protestor in downtown Austin last year has accused prosecutors of demanding that a veteran homicide detective leave out favorable evidence toward his client during grand jury proceedings.

Travis County District Attorney Jose Garza and other prosecutors say those accusations, built largely on a written report by APD homicide Detective David Fugitt, create an incomplete picture of grand jury proceedings and that they presented a fair case before Daniel Perry's indictment on murder, aggravated assault and deadly conduct charges.

"The state made a thorough and balanced presentation ... in keeping with its obligations under state law," prosecutors said. "The defendant's assertions about the state's presentation of evidence are based on uninformed assumptions."

RELATED: US Army sergeant indicted on multiple charges in Austin protester Garrett Foster’s death

State District Judge Cliff Brown has been asked to have a hearing on issues raised by Perry's defense attorney, Clint Broden of Dallas. It is unclear when or if a hearing will happen.

Prosecutors have asked that Brown deny the request for a hearing. However, they said in a response to Broden's request that they would not object to the release of grand jury testimony that would show their presentation was fair.

Perry has said that he fired at Foster, who was carrying a military-style weapon, in self-defense after Foster raised the gun at him – an issue that is key to the case. The incident happened in July 2020 along Congress Avenue as protestors took to the streets following the murder of George Floyd in Minneapolis.

According to Broden's filing, Fugitt determined that the shooting was a justifiable homicide.

The issue again reveals tension between Austin police and the Travis County District Attorney's Office.

According to Broden's filing, Fugitt expressed frustration when he was asked by prosecutors to edit a PowerPoint presentation to the grand jury that he thought included important evidence.

The filing said that based on information Fugitt documented in a report, he asked prosecutors if he would face "ramifications" if he did not agree to do so.

The filings say that information included evidence that witnesses who said they saw Foster raise a gun at Perry were not able to have seen that.

Garza and prosecutors point out in their response that Fugitt could not have known what other information prosecutors presented because he did not attend the entire proceeding.

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