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Judge OKs Use of ‘Highly Prejudicial’ Email at Stewart Parnell’s Upcoming Trial

Defense Objects to Top CDC Official As Expert Witness

An email said to be “highly prejudicial” to defendant Stewart Parnell because of its potential to “taint the jury pool” may be unsealed at next month’s trial, U.S. District Court Judge W. Louis Sand has decided. In his ruling, the federal judge in Albany, GA, said Parnell had failed to show good cause for keeping the judicial document sealed.

Parnell, his brother Michael, and Mary Wilkerson, the former quality control boss for the now-defunct Peanut Corporation of America (PCA) are less than one month away from the start of their federal jury trial on multiple felony counts stemming from the deadly 2008-09 outbreak of Salmonella Typhimurium.

And the pre-trial action is also getting deadly serious. Here’s some of what’s happening:

Stewart Parnell’s defense team from Gentry Locke Rakes & Moore LLP in Roanoke, VA, is demanding the exclusion of Dr. Ian Williams as an expert witness at trial.

Williams is chief of the Outbreak Response and Prevention Branch (ORPB) at the Centers for Diseases Control and Prevention (CDC) in Atlanta. In that position, he oversees the national network of epidemiologists and other public health officials who investigate multistage outbreaks of foodborne, waterborne, and other enteric illnesses in the U.S. He has essentially been the top CDC expert on nationally significant foodborne outbreaks since 1994.

Defense attorney Thomas J. Bondurant, Jr., says Williams should be excluded as an expert witness for a variety of reasons, including the fact that he was subjected to an investigative interview by USDA’s Office of the Inspector General (OIG) and because including a top CDC official as an expert witness only 33 days before trial is too late.

“It is also concerning that the government has noticed Dr. Williams as an expert to address the very issue that the Defendant Stewart raises in his motion in limine regarding evidence of deaths and illnesses in the present case,” Bondurant wrote. “It is not the role of the Defendant in the case to apprise the government of the government’s failure to designate experts to establish the elements of the offense, but that is precisely what the government seeks to do here: the government waited for the Defendant to make his argument in his motion in limine and then seeks to repair the defects in the government’s case by noticing Dr. Williams after the fact.”

Bondurant says that having Williams testifying as an expert witness would be “highly prejudicial” and, because of the late notice, there is no way for the defense “to adequately explore and potentially challenge the qualifications of Dr. Williams.”

The defense team for the former PCA chief executive also wants Judge Sands to order the government to “cease and desist” from “all efforts to obtain documents or information” from former attorneys for the peanut company.

At least one unnamed former law firm for PCA was contacted by letter on June 6, 2014, by the U.S. Department of Justice’s Consumer Protection Branch, which is assisting in the prosecution, and ordered to provide “all PCA and PCA related documents” to the U.S. Attorneys Office in Albany, GA. The letter also warns the law firm “not to destroy, conceal or alter” any of the documents.

Bondurant charges that the government’s trial counsel “has directly contacted and may have already received information that may be privileged from PCA’s former attorneys in this case.”

The defense wants the court to order the government attorneys to stop what it is doing until a DOJ “taint team” can be deployed to review potentially privileged materials before they can be turned over to prosecutors. Such a team was apparently used earlier in the case.

While the defense argues that documents held by previous PCA attorneys may be covered by “attorney-client” or work product privileges, the issue is complicated by the fact that those protections were waived in 2011 during the bankruptcy court proceedings that liquidated the company.

Meanwhile, Michael Parnell’s defense team, from Athens, GA-based Cook Noell Tolley & Bates LLP, is taking exception to how the government has depicted their client’s role in PCA’s activities.

“Michael Parnell was not a ‘supervisor, advisor, and director of PCA,’ as the government contends, and he did not give direction and receive information ‘regarding all aspects of PCA’s production of peanut paste,’” writes defense attorney Edward D. Tolley.

“Michael Parnell was Vice President of his and his wife’s brokerage business and his connection to this case arises from his relationship with Kelloggs out of Cary, North Carolina,” Tolley adds.

Tolley did not provide further explanation. Michael Parnell has also been previously identified as PCA’s peanut broker.

Defense attorneys are also challenging the government’s plan to introduce microbiological testing for PCA by private laboratories and by state and federal governments during the outbreak investigation as routine business records.

Tolley calls this “nontestimonial heresay” because it would not require the government to call experts who actually conducted the tests.

“Both the private laboratory records and the records from federal and state agencies are testimonial because they are offered for the truth of the matter asserted,” the defense writes.

Only through cross-examination can the reliability of the records be tested, they argue.

The government’s claims that PCA’s peanut processing plant in Blakely, GA, was the “likely” source of the contamination is even a bigger concern for Michael Parnell’s defense team.

“’Likely’ is simply not good enough: the Government has to prove PCA Blakely as the source beyond a reasonable doubt,” Tolley says.” He also says “any investigation into the outbreak of a potential foodborne illness is also an investigation into potential criminal conduct …”

The government has called the prosecution of foodborne illness outbreaks “somewhat unusual.”

The two Parnells and Wilkerson were among those named in a February 2013 indictment charging 76 federal felony counts, including fraud and conspiracy, involving the business operations of the Virginia-based peanut processing company with plants in Blakely, GA and Plainview, TX.

Nine deaths and 700 illnesses were directly connected to the outbreak.

© Food Safety News
  • John Munsell

    In all fairness, Stewart Parnell’s motions to exclude documents and testimony should be granted! Why do I say this? Because when the legal shoe is on the other foot, i.e., when our government is requested to provide documents via FOIA, the government readily redacts all evidence which is embarassing or prejudicial to the government’s image. As such, our government insulates itself from all accountability, does not face discipline, and continues on its merry way with no requirement to clean up its act. The IRS’ handling applications from conservative groups for 501(c)3 status is but one example. Why is our beloved government so sacrosanct, yet we expect private corporations to be responsible for their behavior? No, I am not suggesting that Parnell’s request be granted. Rather, all pertinent documents and testimony should be revealed to the jury. But, the same should hold true when government agencies are guilty of misconduct. John Munsell