Karmelo Anthony didn鈥檛 testify on his own behalf at the trial where he was convicted for the killing of Austin Metcalf 鈥� 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.
The hearing on Friday on the motion for a new trial lasted until after 6 p.m. 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 judgment under Texas law. The motion is automatically denied if Chitty doesn鈥檛 sign an order for a new trial by the deadline.
Toby Shook, one of Anthony鈥檚 trial attorneys, testified on Friday during a hearing for the Anthony鈥檚 appellate attorney鈥檚 motion for a new trial. Had he testified, Shook said the jury may have charged Anthony with manslaughter, a lesser offense.
The gentleman鈥檚 agreement
The defense and prosecution had a gentleman鈥檚 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鈥檛 want revealed to a jury.
Text messages on Anthony鈥檚 phone revealed a 鈥渄ocumented pattern鈥� 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 鈥渧ile, racist stuff,鈥� 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.
鈥淲e 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 鈥渙pening the door鈥� 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鈥檚 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鈥檛 contemplate that Anthony would testify on his own behalf. Shook testified on Friday he was shocked they hadn鈥檛 considered it. Anthony鈥檚 defense team was arguing he acted in self-defense.
鈥淭o be effective for self-defense, you have to have a testifying defendant,鈥� 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 鈥渢ips for the defense鈥� said 鈥渢he client should (probably) testify.鈥�
鈥淲hat was taught to attorneys across the state by Bill Wirskye is that your client probably needs to testify, 鈥漌ilson said.
The word probably, Wirskye said, was in parenthesis because there are exceptions. He also said as a prosecutor, he wanted Anthony to testify.
鈥淥pening the door鈥�
Anthony chose not to testify, Shook said, because he didn鈥檛 trust Wirskye to stick to the agreement in his cross-examination.
鈥淗e said, 'Bill鈥檚 just going to find a reason to open the door no matter what I say,' 鈥� 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 鈥� and wasn鈥檛 鈥� covered in the agreement. Some of those tensions resurfaced during Friday鈥檚 hearing.
鈥淚 was expecting y鈥檃ll to come to us and say he鈥檚 planning on testifying,鈥漌irskye 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鈥檛 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鈥檛 obligated to do. But ultimately, Anthony chose not to take the stand.
Anthony鈥檚 trust in the agreement, Shook said, was broken after the argument. He said Anthony鈥檚 testimony would鈥檝e bolstered the self-defense argument, something that could鈥檝e 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鈥檛 sign an order for a new trial by the deadline.
A different outcome?
Both the defense and the state pointed to things they withheld from the jury they believed could鈥檝e supported their case during the hearing for a new trial.
Mike Howard, Anthony's trial lawyer, said Thursday said that there was an offense report naming Metcalf and two others related to graffiti that was obtained during discovery.
The graffiti they were accused of painting included "KKK," "Kill all Black people," the N-word. "Heil Hitler" and an upside down cross.
Austin and his twin brother were sentenced to 12 months of probation in Denton County, Howard said. Videos and text messages on Austin's phone, he said, painted a "pervasive picture of a racist outlook" 鈥� including using the N-word with a hard 'r' 鈥� up, until the day before the attack.
Howard also testified that Austin was taken into custody for an assault in May 2018, when he was ten years old, after shoving another student during a game of capture the flag at school.
The defense argued during this week鈥檚 hearings Metcalf鈥檚 history would鈥檝e proven self-defense. The agreement, they said, was more beneficial to the state.
Wirskye disagreed during his witness testimony on Friday. Dewey Mitchell, who served on the prosecution鈥檚 trial team, asked Wirskye about Anthony鈥檚 text messages and school disciplinary records.
Anthony鈥檚 texts included conversations with his girlfriend about starting fights and photos of him holding a gun.
鈥淲hen I get mad I can鈥檛 control myself,鈥� he said in a text message in December 2023.
Anthony鈥檚 texts, Wirskye said, would鈥檝e benefited the state鈥檚 case during punishment.
鈥淲e gave up a whole bunch, and we honored our word,鈥� Wirskye said. 鈥淣one of this got up in front of the jury.鈥�
Where the agreement stood the final day of the trial and which side benefited the most was rehashed at length during the hearings for the motion for a new trial. The attorneys were unable to reach a complete consensus on their opinions on how it impacted the trial, something the judge may weigh in on by Monday.
This is a developing story and may be updated with more information.
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