AMARILLO (AP) – A federal appeals court has tossed an Amarillo womanâs 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 Holbergâs 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 Holbergâs constitutional right to a fair trial.
The appeals court disagreed, saying that the informant was critical to the juryâs determination of guilt and that the prosecution violated Holbergâs 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 Holbergâs case as a blight on the criminal justice system.
âWe 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,â 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 Holbergâs jail cellmate Vickie Marie Kirkpatrick, who alleged that Holberg had admitted to killing Towery âin order to get moneyâ and said she âwould do it all over again for more drugs.â
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 âdisinterested individual who âwanted to do the right thing,ââ 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 Toweryâs 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 Attorneyâs 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 Kirkpatrickâs testimony to reach their decision of guilt.
âThe jury was presented with graphic physical evidence that Holberg sadistically butchered a sick old manâwith a lamp rammed down his throat as the coup de grâce,â Duncan wrote. âThat evidence doomed Holbergâs self-defense theory and there is no chance that impeaching Kirkpatrick would have resurrected it.â
Randall County District Attorney Robert Love, who was the assistant district attorney when Holbergâs case was first prosecuted, said in an emailed statement that he was âdisappointedâ by the 5th Circuitâs ruling. He declined to comment further on the case until the Texas Office of the Attorney General decides how to proceed. âThey are currently discussing the legal options available,â Love said.
Holbergâs attorneys didnât immediately respond to The Texas Tribuneâs request for comment on Monday. A Texas Department of Criminal Justice spokesperson said the agency had no comment on Holbergâs case. Holberg is currently being held at the Patrick L. OâDaniel 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 stateâs 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 Texasâ death row, and seven of them are women.