Attorneys Randy Fallin and Tate Davis filed a petition for a writ of corm nobis — a legal avenue to correct an error that, if it hadn’t happened, would have resulted in a different conclusion.
Basically, the petition claims that had the defense known about statements co-defendant Jamie Curd — who testified against Potter — made to investigators and the prosecutor, Assistant District Attorney Dennis Brooks, they would have approached the case differently.
“The whole tenor of the trial would have been different,” Fallin said. “The book Dennis wrote, we read it and there was stuff in there we didn’t know about.”
If a judge grants the defense’s petition, Barbara Potter would win a new trial.
The case started with the Jan. 31, 2012, shooting deaths of Bill Payne, 36, and Billie Jean Hayworth, 23, inside that couple’s Johnson County home. Before the slayings, Payne had befriended Jenelle Potter, the daughter of Buddy and Barbara Potter. Through Payne, Jenelle Potter met Jamie Curd and after Payne began dating Hayworth, Jenelle developed a crush on Curd.
But Jenelle Potter was jealous of Payne and Hayworth’s relationship. Witnesses in the case said each side harassed the other.
The situation played out on social media, including Facebook and the gossip site called Topix. Jenelle Potter said she had a protector of sorts, a man named Chris, who was in the CIA and was watching out for her safety.
Prosecutors said Jenelle convinced Curd and her parents that Chris was a real person, and while he wanted to ultimately take care of the situation, he couldn’t, so Curd and Marvin Potter did.
All three Potters have now been convicted on two counts of first-degree murder and sentenced to life in prison. Curd made a deal with prosecutors to testify and plead guilty to facilitation to commit murder in exchange for a 25-year prison sentence.
Marvin Potter’s convictions and sentence have been upheld by the Court of Criminal Appeals, while appeals in Barbara and Jenelle Potter’s cases are still being filed.
A second issue addresses the defense discovering from the book the fact that the Johnson County Sheriff’s Office placed a real-time camera that provided live footage from outside the Potter house before the women were arrested. The petition states that no recordings, footage, images or audio were ever handed over.
A second camera was given to Barbara Potter to place inside the house, pointing to the driveway and mailbox because she had claimed people were driving by to harass them and throwing trash into the yard.
JCSO Investigator Joe Woodard testified the camera inside the house only showed the mail carrier putting items in the mailbox and Jenelle walking up the driveway.
“Undisclosed data from the camera could have illuminated at least three important issues at petitioner’s file,” the documents states. “First, the limited trial testimony about the camera and what it had shown worked to reinforce the state’s claims that the petitioner and her daughter, Jenelle Potter, had fabricated groundless accusations of harassment.”
“Second, Chief Deputy Joe Woodard was a key witness in the state’s case and data from the camera could either corroborate his testimony or undermine it, which would have had a significant impact on the jury’s critical assessment of the overall quality of the police investigation. Third, the absence of the suspicious activity recorded by the camera could have introduced significant doubt as to whether the petitioner and Jenelle Potter had indeed engaged in any criminal conspiracy and certainly could have bolstered testimony provided by the state’s key witness, Jamie Curd, in which he swore there had ‘never been any discussion of killing anyone.’”
The petition goes on to say that in Brooks’ book, he quotes from Curd extensively, and ‘many of the statements directly quoted by General Brooks are evidence favorable to Ms. Barbara Potter, either because the statements are exculpatory or because they impeach Jamie Curd.”
The petition cites numerous instances where Brooks quotes Curd directly in the book, but those statements were not included in any material turned over to the defense, according to Fallin.
“There’s a federal rule ... where they’re required to give us exculpatory evidence,” Fallin said. “Dennis wrote his book … then we got to looking at the book and there was stuff we didn’t know. In the book, Dennis had direct quotes from Curd and we didn’t get that stuff and it was real important stuff about the conspiracy.”
In light of filing the petition, Fallin said he has also asked the Court of Criminal Appeals to stay the appeal until the coram nobis is heard in state court.
“If we win our motion, we get a new trial,” Fallin said, which would make the appeal unnecessary.
Brooks, contacted by text messaging, had no comment about the petition.
“I will respond in court,” he said.
At this point, Jenelle Potter’s attorney, Cameron Hyder, has not joined Fallin’s petition because his duties associated with the case in state court are over. He was appointed to defend Jenelle, and was also appointed to handle her appeal. If Jenelle files a pro se motion to join her mother’s petition, she can then ask for an appointed attorney and it’s likely Hyder would be assigned to the case.
“I’m assessing all of the legal avenues and I will proceed appropriately,” Hyder said.