Defense attorneys in the criminal prosecution of former Peanut Corporation of America (PCA) executives are charging that the document dumps they’ve been receiving from prosecutors lately amount to government misconduct.
With only one week to go before jury selection is supposed to begin in the fraud and conspiracy case against the former PCA executives, the defense claims that discovery abuses by the government are so egregious that the court should dismiss the indictment.
In a 20-page joint motion to dismiss the indictment for “Post-Stevens Discovery Abuses,” attorneys for the accused allege that their clients’ due process rights have been “inalterably compromised by systematic discovery abuses by the government.”
Defense attorneys compare “discovery abuses” in the PCA case with those made by Department of Justice (DOJ) attorneys in the prosecution of former U.S. Senator Ted Stevens (R-AK). In that high-profile case, Attorney General Eric Holder eventually moved to have the guilty verdict against Stevens set aside and the indictment dismissed with prejudice because of prosecutorial wrongdoing.
Prosecutors have not directly responded to this latest round of allegations by the defense, but they did suggest that their late naming of an expert witness could be remedied by granting a continuance. The trial is currently scheduled to begin with jury selection on July 14.
In the expert witness dispute — involving Dr. Ian Williams — the defense has also asked for exclusion of the witness. Williams is the nation’s top epidemiologist at the U.S. Centers for Diseases Control and Prevention (CDC) in Atlanta.
But the defense claims the government has failed to disclose exculpatory and impeachment evidence in enough time for its effective use at trial. For example, the government has known for some time that one source — the Golden Peanut Co. — supplied peanuts to both PCA and ConAgra.
ConAgra had to recall its Peter Pan and Great Value brands for Salmonella contamination in 2006-07, two years before PCA’s problem with Salmonella-contaminated peanut butters and peanut paste surfaced.
“I was thinking about that one PGGE-matching isolate found in a PCA product, in January 2009,” U.S. Food and Drug Administration (FDA) microbiologist Karen Satterwhite wrote in an email to colleagues. “PCA and ConAgra had a common peanut supplier (Golden Peanut), so the fact that the same Salmonella strain was (at different times) found at both manufacturers … it actually supports the theory that the contamination source was raw peanuts — not a water leak — and thus supports the theory that the roster wasn’t killing Salmonella.”
A separate email sent to FDA personnel a couple days later on Feb. 13, 2009, said the agency would not do any testing or sampling at Golden Peanut because it was among the peanut businesses thought to be doing only blanching. That decision was counter to information in an earlier Jan. 14 email from FDA’s Robert Neligan.
He reported that PCA in September 2008 was grinding peanuts previously roasted by Golden in Blakely, GA. The peanut paste order was cancelled while it was in progress, leaving PCA with 22,288 pounds of product to transfer into drums. Neligan tracked the lot numbers containing the “hot” load, adding, “Of interest: it’s plausible that the Salmonella Typh is coming from Golden Peanut Co. here in Blakely. We need to get into Golden Peanut also.”
Until now, the defense says they’d only seen the email saying there’d be no sampling or testing at Golden Peanut. They said that, standing alone, that email “appears innocuous; however, placing it into context with the other emails reveals that it is exculpatory.”
“The government’s decision to withhold this critical piece of the puzzle is tantamount to misconduct,” Thomas J. Bondurant, Jr., defense attorney for Stewart Parnell, the former PCA president and chief executive officer.
According to information filed in defense motions just before the Fourth of July weekend, the government has turned over thousands of new documents to the defense attorneys, some as recently as June 30, or just two weeks before trial.
Peanut broker Michael Parnell’s attorney, Edward D. Tolley, said that documents contained on a hard drive on June 30 should have “been turned over long ago.”
“On a different point, counsel writes to advise the Court that the receipt of 150,000 or so pages nine days before trial places counsel in an untenable position,” Tolley wrote. “If counsel does not review the material, then counsel has become ineffective; most importantly, it is impossible for counsel to review 150,000 documents in a short period of time while preparing for trial on an otherwise voluminous case.”
The third former PCA executive charged in the case is Mary Wilkerson, the company’s former quality control manager. All three are charged in a February 2013 indictment that included a total of 76 federal felony counts.
The 2008-09 Salmonella outbreak involving PCA products sickened 700 and killed nine. After a four-year investigation, the government charged the former executives with fraud and conspiracy, along with placing adulterated and misbranded food into interstate commerce.© Food Safety News