Defense Appeal Targets Attorney Minton in WilCo Homicide

Terence McArdle and Brandon Threet (in the cap) are seen facing each other. McArdle takes the first shot, striking Threet in the chest, knocking him back. Then Threet lands a punch to McArdle's head and continues to hit McArdle as he crumples to the ground. One of Threet's friends, Justin Choate, tries to pull him off. Threet starts swinging at Choate, then turns back toward McArdle. Threet takes three deliberate strides and kicks McArdle. Threet now seeks a retrial claiming his defense team ignored a neurosurgeon's report concluding McArdle died of a brain aneurysm that occurred before the altercation.

Papers filed in Williamson County accuse celebrated Austin attorney Roy Minton of bungling the much-publicized case of a teen accused of murder in 2001.

Brandon Threet's trial received national attention, thanks to videotape of the incident that aired on newscasts around the country as well as on The Oprah Winfrey Show. During a backyard party for recent graduates of West­wood High School, Threet was in an altercation with Terence McArdle, a student at UT-Austin. As captured on video, while McArdle was lying on the ground, Threet kicked him in the head, knocking him unconscious. A few days later, McArdle died.

With Threet portrayed as the poster child for drunken bullies, Williamson Co. District Attorney John Bradley, who was running for re-election, accused Threet of murder and personally handled the prosecution. A jury eventually acquitted Threet of murder but convicted him of manslaughter and sentenced him to 20 years.

Although they never denied Threet's culpability, his family and friends have long maintained that he was unfairly characterized in the trial and that the sentence was unjustly harsh. Before that night, he never had been arrested and never had been in a fight, his supporters say.

Threet's attorney, Houston-based Randy Schaffer, is now asking for a new trial, alleging Threet was "denied the effective assistance of counsel," based on the defense by Minton, one of Austin's most well-connected and well-known criminal defense attorneys. Minton's clients have included Bob Bullock, Ann Richards, and former Texas House Speaker Tom Craddick. Most recently he represented UT baseball coach Augie Garrido in his drunken driving case.

As recounted in a story in the Chron­icle ("Justice or Vengeance," Nov. 4, 2005), Minton offered few witnesses and no experts to refute the prosecution's case and the damning images left by the video of the incident. "I thought it would be a mistake to try to make the jury believe the kick didn't kill him," Minton said at the time.

Schaffer argues there is in fact evidence that Threet's kick may not have caused McArdle's death. In an affidavit filed with the court, Dr. Richard Hirshberg, a neurosurgeon, reviewed the case and concluded "that the cause of the decedent's death was a subarachnoid hemorrhage before the altercation from an unknown source, probably a cerebral aneurysm." During the trial, Minton never raised the possibility of an aneurysm and never challenged prosecution testimony that an aneurysm did not cause McArdle's death. Minton and co-counsel Sam Bas­sett consulted with a general surgeon but never talked with a neurosurgeon, Schaffer says.

"Minton's failure to consult with a neurosurgeon and present expert testimony challenging the cause of death constituted deficient performance," Schaffer claims in the court filing. But Bassett argues that the videotape made it pointless to raise the issue of a potential aneurysm to the Williamson Co. jury. "We felt as a matter of strategy if we tried to argue to the jury that the kick did not cause death," Bassett said, "we would have lost credibility with the jury."

Schaffer also argues that Minton and Bas­sett should never have allowed Bradley to present character testimony against Threet, which he says was inadmissible. In order to portray Threet as "hot-tempered, racially biased, and remorseless," Bradley offered evidence that Threet had called a fellow student a "chink" when he was 13 (six years earlier), drove a new truck after McArdle's death, and was once pulled over by a state trooper who "questioned" him about the odor of marijuana.

None of those accusations should have been allowed into testimony, Schaffer contends. In a court filing, Minton said it was the defense strategy to allow Threet to testify and address all the accusations against him. "The Defendant took the witness stand and gave his account concerning each of those instances, none of which I considered to be serious," Minton wrote. "The Defendant handled them very well." (Bradley did not return a call seeking comment.)

Blaming the defense is not an unusual route for appeals, but it is rarely successful. Schaffer will have to show that Minton's strategy was not simply wrong; it was beyond the realm of "reasonable professional judgment" and prevented Threet from getting a fair trial.

Although the defense attorneys were "disappointed" by the 20-year sentence, Threet was acquitted of murder, Bassett notes. "We were satisfied we had done him a significant amount of good," Bassett said. "Williamson County is a tough jurisdiction for violent felonies."