A federal appeals court has overturned the death sentence of an Amarillo woman after concluding that prosecutors failed to disclose that their primary witness was a paid informant. The U.S. 5th Circuit Court of Appeals issued a 2-1 decision last week, sending Brittany Marlowe Holberg’s 1998 murder conviction back to the trial court for further proceedings.
Holberg has been awaiting execution for 27 years. Her conviction heavily relied on testimony from a jail inmate who was secretly acting as a confidential informant for the Amarillo police. Although this informant recanted her testimony in 2011, neither the Texas Court of Criminal Appeals nor a federal district court had previously concluded that Holberg’s constitutional right to a fair trial was compromised.
The appeals court reached a different conclusion, stating that the informant’s testimony was pivotal in determining Holberg’s guilt and that the prosecution violated her due process rights by withholding information that, according to a significant U.S. Supreme Court ruling, should have been shared. Writing for the majority, Judge Patrick E. Higginbotham criticized the handling of Holberg’s case, calling it a blemish 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, who was appointed by Ronald Reagan.
At the time of her sentencing, Holberg was 23 years old, convicted by an Amarillo jury for the murder of 80-year-old A.B. Towery, a former client of Holberg, who was a sex worker. Holberg claimed self-defense during the trial, stating she acted out of fear for her life after Towery struck her and refused to stop.
Prosecutors presented testimony from Holberg’s cellmate, Vickie Marie Kirkpatrick, who claimed Holberg admitted to killing Towery “to get money” and said she “would do it all over again for more drugs.” However, authorities did not reveal that Kirkpatrick was an informant, instead portraying her as an impartial witness motivated by a sense of duty.
Court documents reveal that Holberg endured repeated sexual abuse during her childhood, leading to a crack cocaine addiction. She turned to sex work to sustain this habit. On November 13, 1996, after a minor traffic accident, Holberg sought refuge in Towery’s apartment, resulting in a violent altercation that left Towery dead with a part of a lamp in his throat.
In jail, the Randall County District Attorney’s Office approached inmates for information on Holberg, offering deals for testimony. Kirkpatrick, who shared a cell with Holberg, provided a statement alleging Holberg’s admission. That same day, Kirkpatrick was released on bond.
In a dissenting opinion, Circuit Judge Stuart Kyle Duncan argued that the jury’s decision did not solely hinge on Kirkpatrick’s testimony. “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. He believed that the physical evidence was enough to dismiss Holberg’s self-defense claim.
Randall County District Attorney Robert Love, who served as assistant district attorney during the original prosecution, expressed disappointment with the appellate ruling. He reserved further comments pending a decision from the Texas Attorney General on how to proceed next. “They are currently discussing the legal options available,” Love stated.
Holberg’s legal team did not immediately respond to requests for comments, nor did the Texas Department of Criminal Justice. Holberg remains in custody at the Patrick L. O’Daniel Unit, a Gatesville prison facility that houses female death row inmates.
Texas has the highest execution rate in the nation and ranks among the top states for issuing death penalties. However, the state’s application of capital punishment has seen a decline, with the death row population shrinking by over 50% in the last 25 years. Currently, there are 174 inmates on Texas’ death row, with seven of them being women.
