Federal appeals court reverses Texas death row inmate’s conviction

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A federal appeals court has tossed an Amarillo woman’s death sentence after it found that local prosecutors had failed to reveal that their primary trial witness was a paid informant.

With a 2-1 decision, the U.S. 5th Circuit Court of Appeals last week sent Brittany Marlowe Holberg’s 1998 murder conviction back down to the trial court to decide how to proceed.

Holberg has been on death row for 27 years. In securing her conviction in 1998, Randall County prosecutors heavily relied on testimony from a jail inmate who was working as a confidential informant for the City of Amarillo police. That informant recanted her testimony in 2011, but neither a Texas Court of Criminal Appeals or a federal district court found that prosecutors had violated Holberg’s constitutional right to a fair trial.

The appeals court disagreed, saying that the informant was critical to the jury’s determination of guilt and that the prosecution violated Holberg’s due process rights by hiding information that, according to a landmark U.S. Supreme court ruling, must be disclosed. Writing for the majority, judge Patrick E. Higginbotham cast Holberg’s case as a blight on the criminal justice system.

“We pause only to acknowledge that 27 years on death row is a reality dimming the light that ought to attend proceedings where a life is at stake, a stark reminder that the jurisprudence of capital punishment remains a work in progress,” wrote Higginbotham, a Ronald Reagan appointee.

Holberg was sentenced to death by an Amarillo jury when she was 23 years old. The jury found her guilty of murdering A.B. Towery, an 80-year-old man and former client of Holberg, a sex worker. During trial, Holberg asserted that she acted in self-defense and that she stabbed Towery because she feared for her life and sought to protect herself after he struck her on the back of the head and refused to relent.

The prosecution, however, presented testimony from Holberg’s jail cellmate Vickie Marie Kirkpatrick, who alleged that Holberg had admitted to killing Towery “in order to get money” and said she “would do it all over again for more drugs.”

Kirkpatrick was at the time working as a confidential informant for the City of Amarillo police, a fact prosecutors did not disclose. They instead presented Kirkpatrick as a “disinterested individual who ‘wanted to do the right thing,’” Higginbotham wrote.

Holberg had experienced severe and repeated sexual abuse during her childhood and fell into a crack cocaine addiction. She turned to sex work to support her addiction, according to court documents.

On Nov. 13, 1996, she had a minor traffic accident and then sought refuge in Towery’s apartment. A heated argument turned violent, leaving Towery dead with part of a lamp lodged within his throat. Holberg left the apartment cut, bruised and bleeding from her head where Towery struck her.

While in jail, the Randall County District Attorney’s Office approached multiple inmates to question them about Holberg, offering them a deal in exchange for testimony. Kirkpatrick, who was placed in the same cell as Holberg, produced a statement detailing an alleged admission from Holberg. That same day, Kirkpatrick was released on bond.

In a lone dissent, circuit judge Stuart Kyle Duncan, a Donald Trump appointee, wrote that the jury did not solely rely on Kirkpatrick’s testimony to reach their decision of guilt.

“The jury was presented with graphic physical evidence that Holberg sadistically butchered a sick old man—with a lamp rammed down his throat as the coup de grâce,” Duncan wrote. “That evidence doomed Holberg’s self-defense theory and there is no chance that impeaching Kirkpatrick would have resurrected it.”

Randall County District Attorney Robert Love, who was the assistant district attorney when Holberg's case was first prosecuted, said in an emailed statement that he was "disappointed" by the 5th Circuit's ruling. He declined to comment further on the case until the Texas Office of the Attorney General decides how to proceed. "They are currently discussing the legal options available," Love said.

Holberg’s attorneys didn’t immediately respond to The Texas Tribune’s request for comment on Monday. A Texas Department of Criminal Justice spokesperson said the agency had no comment on Holberg’s case. Holberg is currently being held at the Patrick L. O’Daniel Unit, a Gatesville prison that houses females on death row, among other inmates.

Texas leads the country in executions and is among the top three in imposing death sentences. The state’s use of capital punishment has waned, however, and the number of people on death row has dropped by more than half over the past twenty five years. There are 174 people on Texas’ death row, and seven of them are women.

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