Calling it a “showcase” of prosecutorial misconduct, the U.S. Court of Appeals for the Fifth Circuit reversed the conviction of Brittany Holberg, who was sentenced to death in 1998 after Texas prosecutors failed to disclose that their key witness at trial was a paid informant.
“There is a reason Brittany Marlowe Holberg has been on death row for over 27 years,” Circuit Judge Patrick E. Higginbotham wrote in last week’s decision. “The State denied her right to due process by keeping from the jury evidence favorable to the Defendant, and this suppression prejudiced her case.”
A Bright Young Woman
Brittany Holberg was “a bright young woman who—after a childhood and adolescence marked by repeated sexual abuse and trauma—fell into the iron grip of crack cocaine and turned to prostitution to support her addiction,” the court explained.
In November 1996, she crashed her car while high on crack cocaine and sought refuge in the apartment of a former customer, who became enraged about her drug use and attacked her. Ms. Holberg testified he struck her on the back of her head, then shoved her to the floor. He took money from his wallet and threw it at her.
When he pulled her by her hair, tearing out clumps and refusing to let her go, she stabbed him to protect herself. Grabbing the money he’d thrown at her, she left the apartment cut and bruised, bleeding from the head where he’d hit her and torn out her hair.
Planting a Professional
Ms. Holberg was arrested and taken to the Randall County Jail, where local prosecutors offered multiple women, including her cellmates, deals in exchange for testifying against her, the court wrote.
After three months with no takers, Vickie Kirkpatrick, a paid informant for the City of Amarillo police who was facing a felony burglary charge, was placed in a cell with Ms. Holberg.
Ms. Kirkpatrick was a prolific informant who had secured some 40 search warrants and multiple convictions for the City of Amarillo, received thousands of dollars in cash payments for her information, and had been in daily communication with Amarillo police for the past several months.
It took her two days to supply the statement prosecutors needed. She told police that Ms. Holberg admitted she’d killed “in order to get money” and said she “would do it all over again for more drugs,” and added gruesome details that conveniently matched forensics reports.
That same day, the court found, police had Ms. Kirkpatrick’s criminal trespass charge dismissed and helped her get released on bond—but they held the felony burglary charge over her until after she testified against Ms. Holberg at trial.
“To Do the Right Thing”
Prosecutors are constitutionally required to disclose evidence favorable to the defense—this is the longstanding rule of Brady v. Maryland, designed to ensure that criminal trials are fair and to prevent wrongful convictions.
As the Fifth Circuit underscored, American prosecutors must disclose evidence to the defense because the State’s duty “is not that it shall win a case, but that justice shall be done.”
But Ms. Kirkpatrick’s testimony “was critical to the State’s case, providing the supporting evidence for the robbery, undercutting Holberg’s account of self-defense, and painting her as an unremorseful addict who posed a continued threat to society,” the court found.
The State had gone to great lengths to obtain it, the court explained—compensating Ms. Kirkpatrick by dismissing her criminal trespass charge and releasing her on bond, coaching her testimony, and threatening to send her to jail “if she did not give [the district attorney] what he wanted” while also offering her a deal if she cooperated.
And so prosecutors presented her to the jury as a “disinterested individual who ‘wanted to do the right thing.’”
Having no idea that the State’s key witness was a paid informant or that her testimony was coached, compensated, and coerced, the jury convicted Ms. Holberg and sentenced her to death.
She was 23 years old.
A Stark Reminder
On appeal, the State conceded that it had suppressed favorable impeachment evidence. But the Texas Court of Criminal Appeals and the federal district court denied Ms. Holberg’s Brady claim, finding the evidence would not have made a difference at trial.
The Fifth Circuit disagreed. Had the State disclosed Ms. Kirkpatrick’s status as a confidential informant, the court found, “defense counsel could have challenged Kirkpatrick’s credibility and the true source of her statements so as to raise ‘a reasonable probability that at least one juror would have struck a different balance’’”—and one juror was all it would have taken to prevent Ms. Holberg’s conviction and death sentence.
That’s precisely why prosecutors chose to illegally suppress the evidence, the court observed.
To win a conviction and death sentence, prosecutors needed the jury to believe Ms. Kirkpatrick’s testimony.
“[T]he prosecution’s failure to disclose was no oversight,” the court wrote. “It was rather a tactical decision in service of its reliance upon the credibility of Kirkpatrick throughout the trial.”
Because the “State’s intentional nondisclosure of Kirkpatrick’s informant status strikes at the heart of the jury’s conviction, and most assuredly its sentence of death,” the court found the prosecution’s failure to disclose prejudiced Ms. Holberg.
Accordingly, the federal appeals court reversed and vacated Ms. Holberg’s conviction and remanded to the lower court—but not without characterizing the case as a stark reminder of enduring problems in the death penalty.
“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,” the court wrote, “a stark reminder that the jurisprudence of capital punishment remains a work in progress.”