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Wilkerson remains in search of PCA ‘exculpatory documents’

Mary Wilkerson has been here before. She’s the only defendant in the Peanut Corporation of America criminal case to be convicted and sentenced for the cover-up related to Salmonella testing rather than the criminal conspiracy related to a deadly outbreak.

Wilkerson, 43, is serving a five-year sentence at the federal prison in Marianna, FL, for a conviction of obstruction of justice. Indicted on two counts of obstruction, a jury acquitted her on one and convicted her on the other.

PCA logoThrough her court-appointed defense attorney, Thomas G. Ledford, Wilkerson is asking for a 30-day extension — to Nov. 4 — on the deadline to file an appellate brief on her conviction and sentence.

The 11th Circuit Court of Appeals in Atlanta is reviewing the convictions and sentences for Wilkerson, and brothers Stewart Parnell and Michael Parnell. Attorneys for all three have until Oct. 5 to file appeal briefs. Stewart Parnell, chief executive of PCA, is serving a 28-year sentence. His brother, peanut broker Michael Parnell is serving a so-year sentence. 

Ledford was appointed by the U.S. District Court in Albany, GA, to represent Wilkerson and the Appeals Court in Atlanta has continued the assignment. During the trial phase and now at the appellate court, Ledford has held out the notion that, if given enough time, talent and technology, he just might discover documentation to sway the judiciary on behalf of his client.

“This case was designated a complex case by the District Court with a trial that lasted 35 days and the government produced at least 8 to 15 million pages of documents of discovery which continued even after the trial began,” Ledford writes in his brief asking for more time to work on Wilkerson’s appeal.

Wilkerson began at PCA as a secretary-receptionist in 2002 and was promoted to quality assurance manager in 2008.

Since June 1, Ledford has sought the Appellate Court’s approval for “expert services” funding to assist in his discovery work. This includes the leasing of Concordance Desktop Search Software for one year and hiring an information technology consultant/specialist at the rate of $80 per hour.

But it has not been going well. It seems the 11th Circuit isn’t paying the bills.

“The IT consultant is not able to dedicate the necessary time to the appellant’s research and operation of the software until timely payment for services is rendered is implemented, otherwise he must continue to dedicate his time to other projects in which he does receive payment and can only occasionally assist the appellant due to the delay in payment by the Eleventh Circuit Court,” Ledford stated in court filings.

Ledford says the IT consultant and the Concordance software, a LexisNexis product, “are essential” in the defense search to “locate key exculpatory documents.” His is a one-attorney law office with one paralegal, who has been working on the appellate brief. But, Ledford states, the IT services and software “are necessary to timely complete the brief.”

During the trial, Ledford also made the same argument, namely that somewhere “exculpatory documents” exist that could free his client from prison if only they could be found. Wilkerson’s conviction hangs on how she responded when asked if samples of peanut butter had come up positive for Salmonella.

Gavel and scales of justiceFood Safety News looked at Wilkerson’s claims in more detail in November 2014 after the trial.   Here’s what we found:

“Her protestations notwithstanding,” said U.S. Department of Justice trial attorney Mary M. Englehart, “The evidence against Defendant Mary Wilkerson at trial was considerable.”

Englehart, one of three government attorneys who prosecuted the PCA criminal cases, said Wilkerson obstructed justice by falsely telling Janet Gray, the lead U.S. Food and Drug Administration (FDA) investigator into the 2008-09 Salmonella outbreak traced to the company’s peanut butter products, that she was not aware of any positive Salmonella test results for peanut products being distributed by the Blakeley, GA, plant.

Evidence presented to the jury against Wilkerson included:

  • Gray testified on Aug. 6 that when she specifically asked Wilkerson if she knew of any positive test results, Wilkerson responded by saying she was not working in quality assurance earlier in that year, 2008, and was not aware of any positives. Asked about her memory of the event from early 2009, Gray testified, “There are some conversations you never forget.”
  • Gray further testified at trial that she was certain Wilkerson denied knowledge of positive tests because if she and other PCA officials had been truthful and forthcoming during the inspection, it would have resulted in an earlier and broader recall of peanut products from the facility, including granulated peanuts and other products not initially recalled. It would have meant those products would have been removed sooner from retail stores and homes than they were.
  • Gray also told the jury that regulatory inspectors and microbiologists without any FDA criminal investigators conducted a January 2009 inspection of the PCA processing plant at Blakely. At that time, it was purely an inquiry into the source of the Salmonella outbreak in peanut products, seeking to obtain truthful information from interviews.
  • Gray’s findings were recorded contemporaneously in her diary, then memorialized in her FDA Establishment Inspection Report (EIR), both sources she referenced while on the witness stand even though neither document was admitted into evidence.
  • FDA Inspector Robert Neligan testified that the agency issued a “Form 482c” to PCA to compel the company to produce, within 24 hours, the very records Wilkerson and others were not being truthful about on a voluntary basis.

The prosecution argued that Gray contemporaneously recorded notes, and a June 30, 2008, email chain involving Jesus Garrocho, PCA’s operations manager in Plainview, TX, documented Wilkerson’s knowledge of the Salmonella contamination problems the company was experiencing.

Wilkerson had emailed Garrocho about Salmonella being a problem “at least every other week if not every week.” In addition, on June 6, 2008, she emailed Stewart Parnell, saying, “this lot is presumptive on SALMONELLA!!!!”

“This email demonstrates Defendant Wilkerson’s knowledge of presumptive positive test results and knowledge that this is a common occurrence in the facility,” Englehart contended. She also cited email evidence that Wilkerson suspected mice were responsible for contaminating the peanut processing plant.

The Justice Department lawyer says there was more than enough evidence for a rational juror to have found beyond a reasonable doubt that Wilkerson had obstructed justice. She dismisses arguments made on Wilkerson’s behalf as “unavailing in light of the jury’s reasoned determination that the witness testimony and documentary evidence were credible and supported a finding of guilty … .”

The government’s brief states that court rules do not require more or different evidence to support a jury’s finding of guilt. The prosecution attorneys argue, “Wilkerson’s repeated attempts to undercut the credibility of the government’s evidence are likewise irrelevant … .”

They claim that, under the rules, the court must assume the truth of the evidence offered by the government.

The bottom line for the government is that Wilkerson had knowledge of additional positive Salmonella tests results at PCA and lied about them when the outbreak investigation team arrived in Blakely in January 2009. That slowed what would eventually become the largest ingredient recall in U.S. history, including both PCA’s own products and those made by hundreds of other companies with PCA peanut butter and/or paste.

That initial stonewalling was a barrier the FDA outbreak team had to overcome as they scrambled to find the source of the deadly Salmonella Typhimurium pathogen that would ultimately cause nine deaths among more than 700 people who were sickened throughout the country.

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