By John Kanelis
Randall County Criminal District Attorney James Farren has had it up to here with capital criminal cases.
He points to a particular case that has given him fits to the point that he has declared that only under certain circumstances – for as long as he is district attorney in Randall County – will he from now on seek the death penalty for those being tried for capital crimes.
The time and expense are too costly for the "taxpayers of this county and I do not want to subject them to this kind of thing any longer," Farren said.
Farren estimated the cost "conservatively to be at least $400,000," although he added that "it's difficult to calculate the entire cost precisely." He said the county and the state have accrued what he called "soft costs."
Brittany Holberg has been housed in a Death Row cell for 18 years awaiting her date with the executioner. Her trial, sentencing and their aftermath have driven Farren past the point of exhaustion, the DA said.
On Nov. 13, 1996, Holberg murdered A.B. Towery Sr. in his Amarillo apartment. She was 24 years of age at the time. A trial jury convicted her of capital murder on March 26, 1998. The crime she was convicted of committing involved a murder in the commission of a robbery, which qualified it as a death penalty case.
Holberg was convicted of stabbing Towery 58 times with a paring knife, a butcher knife and two forks; she beat Towery repeatedly with a cast-iron skillet, a steam iron and a hammer. She then, according to trial testimony, shoved a lamp base several inches down Towery's throat.
Holberg's defense counsel had claimed she acted in self-defense against Towery, who was 81 years of age.
The jury that convicted her of the crime then sentenced her to death by lethal injection. The Texas Court of Criminal Appeals – the state's highest criminal appellate court – upheld the death sentence on Nov. 29, 2000.
That's not nearly the end of it, according to Farren, who became district attorney in January 1995. "Holberg has exhausted her state writs and this has now gone to the federal system," according to Farren.
The cost to the state has been enormous, Farren said, so much so that he has decided to forgo seeking the death penalty in future capital cases presented in Randall County.
"Don't misunderstand me," Farren said with emphasis. "I favor capital punishment." But in the future, he said, he intends to seek a death sentence only under certain circumstances. What would those circumstances involve? "A guy walks into a day care center and kills the children," Farren answered, "or if someone kills a police officer or a firefighter in the line of duty."
Farren also believes that eventually the U.S. Supreme Court "likely will decide society has evolved to the point that it's no longer appropriate" to administer the death penalty. "I don't agree with that," he said, but he thinks that's what lies in the future. Farren didn't offer a prediction on when that would occur, other than to offer a guess that it might occur "within the next 10 to 25 years."
Farren added that contrary to what many believe, incarcerating a criminal for the rest of his or her life costs less than sentencing someone to death. It's the seemingly endless appeals process involving those convicted of capital crimes that runs up the tab, Farren said.
Holberg's conviction occurred 18 years ago. Farren predicts that at minimum, Holberg will be on Death Row for another five years. "That'll be 22 to 23 years since her conviction, maybe longer," he said.
Although her state appeals have been exhausted, Holberg still can seek help from the federal system. Farren said it's a lengthy and arduous process.
What are left now are writs to be filed. They will go through the U.S. District Court in Amarillo, where District Judge Mary Lou Robinson has presided since 1980. If that court rejects Holberg's request for relief, it goes to the Fifth U.S. Circuit Court. If it fails there, then it's on to the U.S. Supreme Court, Farren said.
After that, if the nation's highest court rejects an appeal, the case conceivably heads back to the U.S. District Court. Farren said at that point, the case could come to a halt if the district judge refuses to hear it again. "If the Supreme Court says 'no,'" Farren said, "that's when the district judge can feel safe in stopping this process."
Farren also predicted that "by the time she (Holberg) gets a death date, I'll likely be retired, Mary Lou Robinson may be gone from the bench. Judge (David) Gleason, who tried the case initially, has been long retired."
Farren, who served as a police officer before obtaining his law degree from Texas Tech University in the early 1980s, said the appeal process is "complicated by design. Opponents of capital punishment want to make it so expensive and so impractical." He said anti-death penalty advocates "don't have the (political) support to end capital punishment, so they seek to make the system even more complicated."
The criminal justice system, he said, will have to settle on sentences of "life without parole," Farren said. "And, yes, there will be those who attack that on the basis of a lack of finality or consistency. That will be their fundamental argument."
The Holberg case also resulted in Farren and his office being recused from further involvement after Holberg's defense team – which now comprises lawyers from a large firm based in San Francisco – of "coercing witnesses and hiding evidence."
The case then took a strange turn when the DA's office asked the state to appoint a special prosecutor, Farren said. The state appointed Warren Clark, an Amarillo lawyer, who Farren described as an "excellent appellate lawyer." Clark then left his private practice – and went to work as one of Farren's deputy district attorneys.
It was then that the Texas Attorney General's Office took over as the state's legal representatives in the Holberg case, Farren said.
"It's been an endless process. Back and forth," Farren said, adding that none of the accusations regarding alleged misconduct by Farren's office has held up. "The court has ruled that there's no evidence to support this," he said.
Meanwhile, Holberg, who's now 42, sits on Death Row, awaiting her fate.
Adding to what he described as the bizarre nature of the case, Holberg has been named on a list created on the Internet as "one of the 10 most attractive Death Row inmates in the United States," Farren said. "Someone with a lot of time on his hands came up with this macabre contest idea," Farren said.
"It's all symptomatic," Farren said, "of the strangeness of this case."
By John Kanelis