A federal appeals court tossed out the murder conviction of a Texas woman sitting on death row for more than a quarter-century, ruling she'd been unjustly convicted on the basis of tainted testimony from a paid jailhouse informant.
Brittany Marlowe Holberg , 52, remains behind bars at the Patrick L. O'Daniel Unit in Gatesville in the slaying of A.B. Towery, 80, in Amarillo on Nov. 13, 1996.
Holberg had turned to sex work to support a crack cocaine habit when she got into a heated argument with Towery, her customer, at his home. Towery was found "dead with stab wounds and part of a lamp in his throat," according to court records.
Holberg had always maintained that she killed Towery in self-defense after he started beating her.
But at trial, prosecutors brought to the stand Holberg's cellmate, Vickie Marie Kirkpatrick, who testified that Holberg confided that she murdered Towery for the money, court records showed. Holberg denied having ever spoken to Kirkpatrick about the slaying.
Holberg, defense lawyers and the jury "had no knowledge that Kirkpatrick was a confidential informant" for Amarillo police, the court said.
"At the time of Holberg’s trial, the State knew about Kirkpatrick’s confidential informant work for the Amarillo police but presented her to the Amarillo jury as a disinterested individual who 'wanted to do the right thing' and was attempting to be 'as truthful ... and complete as [she] could be,'" according to Judge Patrick E. Higginbotham, writing for the majority in the 5th U.S. Circuit Court of Appeals ruling, which was published Friday.
"The State did not disclose Kirkpatrick’s work as a paid informant until after Holberg was sentenced to death. Holberg’s counsel’s cross-examination of Kirkpatrick spanned only six pages of the trial transcript, a reality that speaks volumes," he wrote.
Judge Stuart Kyle Duncan, writing in dissent, argued that Kirkpatrick’s testimony played only a small role in the case.
"So, even had Kirkpatrick been impeached, there’s zero chance that a jury would have credited Holberg’s laughable claim of self-defense or spared her the death penalty for slaughtering a sick old man," Duncan wrote.
The appellate court ruling kicks the case back to the trial court.
Randall County District Attorney Robert Love, previously a prosecutor on the case, said he's "disappointed" by the ruling but vowed that "this legal action is not over."
“The Texas Attorney General’s Office has been handling this appeal since 2010 and they are currently discussing the legal options available to the State of Texas in this case," Love said in a statement Wednesday evening. "Our office has agreed to not weigh in on the legal aspects of the case until the Attorney General’s Office has decided their course of action in this matter."
Holberg's appellate attorneys could not immediately be reached for comment Wednesday.
Since the U.S. Supreme Court affirmed the constitutionality of capital punishment in 1976, Texas has put 593 inmates to death.
Lisa Coleman, 38, was the last woman put to death in Texas, via a lethal dose of pentobarbital, on Sept. 17. 2014. She had been convicted of the starvation and torture death of her girlfriend’s 9-year-old son.
