Fifth Circuit Vacates Capital Murder Conviction of Brittany Holberg, Holding State Court Unreasonably Applied Brady to Undisclosed Informant Evidence

The decision

On March 7, 2025, a divided panel of the U.S. Court of Appeals for the Fifth Circuit reversed, vacated Brittany Marlowe Holberg’s Texas capital murder conviction, and remanded the case to the U.S. District Court for the Northern District of Texas “for further proceedings consistent with this opinion.” The majority held that the State violated Brady v. Maryland by failing to disclose impeachment evidence that its critical trial witness was a paid informant, and that the state court’s rejection of that claim was an unreasonable application of clearly established Supreme Court law under the Antiterrorism and Effective Death Penalty Act (AEDPA).

In a footnote, the majority added that “even if one assumes that the Brady violations were not material as to Holberg’s conviction, they were as to her sentencing, a reality requiring that Holberg’s death sentence be vacated and her case returned for further proceedings.” Judge Stuart Kyle Duncan dissented. Stating that it found “the Brady claim dispositive,” the court did not reach a Strickland v. Washington claim on which it had also granted a certificate of appealability.

Background

According to the opinion, Holberg was 23 when an Amarillo jury sentenced her to death for capital murder committed in the course of a robbery, and she has spent 27 years on death row. On November 13, 1996, after ten days of using crack cocaine, Holberg had a minor traffic accident and went to the apartment of a former customer. An argument turned violent; the man died of stab wounds with part of a lamp in his throat, and Holberg left cut, bruised and bleeding from the head. She was arrested in Memphis, Tennessee in February 1997 and held in the Randall County Jail.

In May 1997, a woman who was working as a confidential informant for an Amarillo police corporal was arrested for felony burglary and placed in Holberg’s cell. Two days later she gave police a statement describing an alleged admission by Holberg, with details that matched the autopsy report and crime scene investigation. The same day, the corporal secured dismissal of a criminal trespass charge against her and helped her obtain release on bond; her burglary charge remained pending until after she testified.

At trial, Holberg testified that the man attacked her and that she stabbed him in self-defense; she denied killing him for money or drugs. The informant testified that Holberg admitted killing him, said she initiated the fight to get money for a “fix,” described his blood as “pretty,” “fun,” and “amazing,” and said she would do it again for drugs. The State presented her as someone who “wanted to do the right thing,” and defense cross-examination covered six transcript pages. The opinion states that Holberg, her counsel and the jury did not know the witness was a paid informant who had near-daily contact with the corporal, was paid $100 per drug buy, and had helped police execute approximately 40 search warrants; the State disclosed this only after sentencing. In a 2011 deposition during state habeas proceedings, the witness recanted, asserting that the district attorney coached her testimony and used her pending charge as leverage.

The Texas Court of Criminal Appeals, affirming on direct appeal, described her as “a key prosecution witness”; incorporating the state trial judge’s findings, it denied the Brady claim, citing the absence of a plea agreement. The federal district court denied relief, finding the claim “would have backfired because trial counsel knew there was no deal” and that disclosure would have let the State bolster the witness as a trusted informant.

The court’s reasoning

Judge Higginbotham’s opinion set out AEDPA’s standard under 28 U.S.C. § 2254(d)(1) and the three Brady elements—favorable evidence, suppressed by the State, and material. Because the State conceded suppression, the court addressed only favorability and materiality.

Favorability

Counsel for the State conceded at oral argument that the informant status would have been favorable bias evidence, saying “in fairness, Your Honor, I think it would be favorable.” The court agreed, reasoning that defense counsel could have impeached the witness with her search-warrant and conviction record, her cash payments, her daily police contact in the months before the alleged confession, and the legal benefits she received the day she reported it. Citing United States v. Bagley and Kyles v. Whitley, the court stated that impeachment evidence has long fallen within the Brady rule, and it rejected the State’s argument that the witness was paid only in “unrelated matters.” The court called the informant status “classic favorable impeachment evidence” and held the state court unreasonably applied Brady in concluding otherwise.

Materiality as to the conviction

The court stated that materiality asks whether there is a reasonable probability of a different result and “is not a sufficiency of evidence test.” It found that the witness supplied the State’s only testimonial account of the encounter other than Holberg’s, supported the robbery theory, and undercut self-defense, and that the State had argued on direct appeal that her testimony “alone” proved the murder was committed to get money and drugs. Tracing the prosecution’s use of her account in its opening statement, its cross-examination of Holberg, its closing and its rebuttal, the court concluded that disclosure could have raised “a reasonable probability that at least one juror would have struck a different balance,” quoting Wiggins v. Smith. It rejected the district court’s reasoning that impeachment would have allowed the State to bolster the witness, stating: “This analysis misses the mark on materiality.” It also rejected the State’s reliance on Holberg’s own damaging testimony, reasoning that she might never have testified absent the witness and that materiality is not a sufficiency inquiry. The majority described the nondisclosure as intentional: “But the prosecution’s failure to disclose was no oversight.”

Materiality as to the sentence

The court explained that Texas capital trials are bifurcated before the same jury and that the State re-offered all guilt-phase evidence at the punishment phase. It found the witness’s testimony was the State’s only evidence that Holberg enjoyed the violence and was critical to the jury’s unanimous future-dangerousness finding, noting that the prosecution’s hypothetical to its expert psychiatrist incorporated her account of the lamp. Responding to the dissent, the court wrote that the dissent could not take a “siloed view of the punishment phase,” and quoted Justice Souter’s concurrence in Strickler v. Greene 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 court discussed the Supreme Court’s recent decision in Glossip v. Oklahoma but said it did “not conflate Brady and Napue.” It concluded: “By the metric of AEDPA, fair-minded jurists could not disagree that the state court’s denial of relief involved an unreasonable application of clearly established Supreme Court law.”

Separate opinions

Judge Duncan, dissenting, accepted for purposes of argument that the claim was exhausted, that AEDPA deference applied, and that the evidence was suppressed and favorable, but wrote: “The majority is mistaken.” He argued the evidence was not material as to guilt or punishment. He characterized Holberg’s self-defense theory as “ludicrous” and wrote that it was obliterated by “a mountain of evidence” unconnected to the witness—forensic evidence of the injuries, testimony about the victim’s age and frailty, and Holberg’s own admission to inflicting the blows—and that the robbery was independently proved by testimony about missing cash and prescription bottles and about the cash Holberg carried after the killing. He wrote that the witness was “the eighteenth of twenty witnesses for the State,” that the prosecution’s closing did not mention her, that in rebuttal the prosecutor disavowed the “fountain” statements as “jailhouse talk,” and that her testimony “played virtually no role in the punishment phase,” where she did not testify. He noted that the state habeas court found her 2011 recantation “not credible,” emphasized that AEDPA asks only whether the state court’s ruling was unreasonable, and concluded: “I would affirm the district court’s denial of habeas relief as to Holberg’s Brady claim.”

Status

The court reversed, vacated Holberg’s conviction, and remanded to the federal district court “for further proceedings consistent with this opinion.” The opinion does not address retrial or any further procedures, and it does not resolve the Strickland claim on which a certificate of appealability had issued.

According to The Texas Tribune, Randall County District Attorney Robert Love, who was an assistant district attorney on the original prosecution, said in an emailed statement that he was disappointed in the ruling and declined further comment until the Texas Attorney General’s Office decides how to proceed. The Tribune also reported that a Texas Department of Criminal Justice spokesperson declined to comment and that Holberg’s attorneys did not immediately respond to a request for comment.