Karmelo Anthony didn’t testify on his own behalf at the trial where he was convicted for the killing of Austin Metcalf — and his appellate attorneys claim that harmed his defense.
Anthony, now 19, was convicted of murder in June and sentenced to 35 years in prison for the fatal stabbing of Metcalf at a Frisco high school track meet. Both were 17 at the time of the attack.
Toby Shook, one of Anthony’s trial attorneys, testified on Friday during a hearing for the Anthony’s appellate attorney’s motion for a new trial. Had he testified, Shook said the jury may have charged Anthony with manslaughter, a lesser offense.
The gentleman’s agreement
The defense and prosecution had a gentleman’s agreement to focus on what happened the day of the track meet under the Memorial High School tent and not bring up prior behavior or character. Both sides had information they didn’t want revealed to a jury.
Text messages on Anthony’s phone revealed a “documented pattern” of an obsession with guns, knives and fighting, lead prosecutor Bill Wirskye said on Thursday. Metcalf also had a history of getting into fights and had sprayed graffiti with “vile, racist stuff,” he said.
Wirskye told the judge yesterday at a hearing over a motion for a new trial the deal was meant to protect Anthony and others involved in the case.
Anthony's arrest, trial and murder conviction has drawn national attention over issues of race. Anthony is Black and Metcalf was white. Many posts on social media have racist undertones.
“We were all worried one of these racists were going to come into town and take his life," he said.
The agreement was contingent on neither side “opening the door” to bring up character or history. Wirskye and the trial attorneys said they agreed to approach the other side if they felt something said during trial opened the door.
Judge John Roach Jr., the trial judge, said there was no legal mechanism for him to enforce the gentleman’s agreement.
Roach was recused by an outside judge on Wednesday. Roach did an interview with Channel 8 shortly after the verdict. The defense argued Roach violated judicial conduct rules.
Sid Harle, a judge from Bexar County, ruled that the interview didn't pass the test of a neutral third party's view of his impartiality.
The prosecution, Wirskye said, didn’t contemplate that Anthony would testify on his own behalf. Shook testified on Friday he was shocked they hadn’t considered it. Anthony’s defense team was arguing he acted in self-defense.
“To be effective for self-defense, you have to have a testifying defendant,” Shook said.
Wirskye and Shook have a long history. Wirskye told Shook on Friday he trusted him deeply.
They both gave talks for continuing legal education, a requirement for attorneys in Texas to maintain their license, and shared presentations. Wilson referenced a 2018 presentation Wirskye gave about self-defense. A slide titled “tips for the defense” said “the client should (probably) testify.”
“What was taught to attorneys across the state by Bill Wirskye is that your client probably needs to testify, ”Wilson said.
The word probably, Wirskye said, was in parenthesis because there are exceptions. He also said as a prosecutor, he wanted Anthony to testify.
“Opening the door”
Anthony chose not to testify, Shook said, because he didn’t trust Wirskye to stick to the agreement in his cross-examination.
“He said, 'Bill’s just going to find a reason to open the door no matter what I say,' ” Shook said.
The day Anthony was supposed to testify, Wirskye told Shook the defense opened the door to bring up Anthony's character during cross examination during opening statements when they mentioned he played chess in opening statements.
The attorneys got into a heated argument in chambers over what was — and wasn’t — covered in the agreement. Some of those tensions resurfaced during Friday’s hearing.
“I was expecting y’all to come to us and say he’s planning on testifying,”Wirskye said.
Shook said the agreement, which covered what happened under the tent, included Anthony, who was under the tent that day. Explicitly stating Anthony would testify, he said, wasn’t needed.
After the argument, Howard and Wirskye were able to renegotiate the terms of the agreement. Howard walked Wirskye through the questions he planned to ask Anthony during his testimony to ensure nothing he asked would open the door, something defense attorneys aren’t obligated to do. But ultimately, Anthony chose not to take the stand.
Anthony’s trust in the agreement, Shook said, was broken after the argument. He said Anthony’s testimony would’ve bolstered the self-defense argument, something that could’ve led the jury to decide on a lesser charge with a shorter punishment.
Michael Chitty, the retired Kaufman County judge overseeing the hearing on the motion for a new trial, has until Monday to make his ruling.
An order for a new trial has to be signed within 75 days of the judgement under Texas law. The motion is automatically denied if Chitty doesn’t sign an order for a new trial by the deadline.
This is a developing story and may be updated with more information.
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