Brittany Marlowe Holberg has spent more than half of her life on death row since her 1998 capital murder conviction, the majority noted Friday in its precedential opinion, calling her years behind bars "a showcase of the state's failure to abide by a core structure of prosecution: the Brady doctrine."
The overturning of Holberg's murder conviction came after she argued that the State of Texas violated her due process rights by not following the directives set forth by the U.S. Supreme Court in 1963's Brady v. Maryland
, which requires prosecutors disclose any potentially exculpatory evidence to defense counsel. In this instance, the prosecution failed to notify the defense that witness testimony came from a jailhouse informant who had spent months working for the city of Amarillo Police Department.After her direct appeal and collateral review in state court failed, Holberg petitioned a federal district court for a writ of habeas corpus, but the district court denied her petition. She then appealed to the Fifth Circuit, which issued a certificate of appealability in 2023, opening the door for her to challenge the constitutionality of her murder conviction and death sentence.
U.S. Circuit Judge Patrick E. Higginbotham wrote the opinion for the majority, with U.S. Circuit Judge Stuart Kyle Duncan dissenting.
Holberg, who was 23 at the time of her murder conviction, had been the victim of childhood sexual abuse before she "fell into the iron grip of crack cocaine" and took up sex work, according to the majority opinion.
In November 1996, Holberg, who had been high on crack cocaine for 10 straight days, was involved in what the majority described as a "minor traffic accident" and fled to the apartment of a former customer, A.B. Towery Sr.
"A heated argument followed that quickly turned violent, leaving Towery dead with stab wounds and part of a lamp in his throat, and with Holberg leaving the apartment cut and bruised, bleeding from the head where Towery struck her and tore out clumps of her hair," the majority opinion said.
Holberg was arrested the following February. While being held in the Randall County Jail, local prosecutors attempted offering deals to other inmates in exchange for them testifying against her, the majority opinion said, with prosecutors reportedly feeding them "false narratives" including that Holberg "bragged" about the killing.
In May 1997, prosecutors placed confidential police informant Vickie Marie Kirkpatrick in Holberg's cell, the majority opinion said. Within days, Kirkpatrick "produced her statement to the Amarillo police detailing Holberg's alleged admission," which "corroborated findings from the autopsy report and the crime scene investigation, which had been with law enforcement for six months," according to the opinion.
On the same day Kirkpatrick handed over the statement, a criminal trespass charge against her was dropped. Prosecutors kept a remaining felony burglary charge pending until after her testimony at trial, the majority stated.
Holberg presented a self-defense argument at trial, claiming Towery attacked her after seeing drug paraphernalia on his countertop. Holberg said she "lost it," the majority stated, and "in the frenzy of the fight, repeatedly struck Towery." According to Holberg's testimony, Towery threw money at her during their heated argument, which she collected when she departed the apartment.
Kirkpatrick testified that Holberg initiated the attack to steal Towery's money and said Holberg called Towery's "fountain" of blood "pretty," "fun" and "amazing."
A third occupant of the jail cell testified that she never heard Holberg describing the attack to Kirkpatrick.
Neither Holberg nor the jury was aware that Kirkpatrick had spent months as a confidential informant for the Amarillo police prior to her alleged confession, the majority said in its opinion. Though prosecutors knew, they chose not to disclose her work as an informant until after Holberg's sentencing.
Amid a state habeas proceeding in 2011, Kirkpatrick recanted her testimony, "asserting that the state used her pending burglary charge as leverage to ensure her testimony at Holberg's trial," according to the majority. According to Kirkpatrick's later admission, the district attorney at the time coached and threatened her.
"Holberg contends she is entitled to relief under Brady because the evidence of Kirkpatrick's informant status was favorable to Holberg, suppressed by the state, and material to her conviction and sentence," the majority said. "We find that Holberg is entitled to relief under Brady — and in doing so — find that the state habeas court's decision to the contrary was an unreasonable application of clearly established Supreme Court law."
In its opinion, the majority also headed off arguments made in the dissent.
The majority opinion said the dissent glossed over several important elements of the prosecution, including "dismissing" Kirkpatrick's later recantation of her testimony against Holberg and arguing that her testimony "played virtually no role in the punishment phase," despite the punishment being doled out by the same jury that found Holberg guilty.
"Furthermore, common experience supported by empirical studies demonstrate[s] that evidence and arguments presented during the guilt phase of a capital trial will often have a significant effect on the jurors' choice of sentence," the majority wrote.
"Our colleague in dissent underestimates the power of an advocate armed with the evidence here illegally withheld and its impact on the trial," the majority added, noting that, since the prosecution was aware but did not disclose that Kirkpatrick had been a government informant who entered into a deal with prosecutors, it "had to know that there was — at best — a high risk of presenting false testimony."
In his scathing dissent, Judge Duncan called Holberg a "23-year-old cocaine-addled prostitute" and said "no jury in its right mind" would believe she had acted in self-defense against a "sickly 80-year-old man."
The majority was wrong to assert that the jury would have given more weight to Holberg's self-defense theory if Kirkpatrick's evidence had been suppressed, according to the dissent, arguing there was "zero chance" the jury would have believed Holberg's "laughable" self-defense argument.
The dissent goes into graphic detail of Towery's death and prior health problems, emphasizing that the physical evidence at the scene was enough to prove Holberg had not acted in self-defense and that Kirkpatrick's evidence about the robbery was also not necessary to establish that Towery had been robbed, since his wallet containing $1 was found on his body and other testimony stated Holberg spent lots of cash later that night.
U.S. Circuit Judges Stephen A. Higginson, Patrick E. Higginbotham and Stuart Kyle Duncan sat on the panel for the Fifth Circuit.
Counsel for Holberg and a spokesperson for the Texas Department of Criminal Justice did not immediately respond to requests for comment Monday.
Brittany Marlowe Holberg is represented by David F. Abernethy of Faegre Drinker Biddle & Reath LLP.
Eric Guerrero, director of Texas Department of Criminal Justice, Correctional Institutions Division, is represented by Travis G. Bragg of the Texas Attorney General's Office.
The case is Holberg v. Guerrero, case number 21-70010, in the U.S. Court of Appeals for the Fifth Circuit.
--Editing by Rich Mills.