“Humans are essentially storytellers.”
— Walter Fisher

It would be unfair to depict the previous appellate work by the Parnell brothers’ attorneys as legal theories thrown against the wall in hopes that something would stick. But, in the first round before the 11th U.S. Circuit Court of Appeals in Atlanta, they failed to persuade a three-judge panel.

The motion for rehearing filed with the court this week breaks from that previous work by telling a compelling story, one with characters and plot that seeks justice for the victims. And, the victims in this saga are Stewart and Michael Parnell. The attorneys’ story ends by crying out for a new trial for the brothers.

One of the most renown appellate attorneys to practice in the 11th Circuit wrote the new appellate brief. Atlanta attorney Amy Levin Weil, who until a decade ago was the top Department of Justice (DOJ) appellate attorney in the federal circuit, is now representing Stewart Parnell.

Her approach breaks with previous filings. Instead of rehashing everything, Weil tells merely one story that is undoubtedly a “good read.” She believes the story will compel the 11th Circuit to grant the brothers a new trial.

Some necessary background
Stewart and Michael Parnell, along with Mary Wilkerson, are currently in the custody of the U.S. Bureau of Prisons. The trio was involved with Peanut Corporation of America, the Blakely, GA, peanut processor that caused the deadly 2008-09 Salmonella outbreak. A 2014 federal jury trial ended with their convictions.

Sentencing occurred about a year later. Chief Executive Officer Stewart Parnell’s sentence was for 28 years; Michael, his peanut broker brother, got 20 years; and Wilkerson, PCA’s quality control manager, got five.

While thousands were sickened and at least nine died, none of the charges against the Parnell brothers or Wilkerson were about causing human illnesses or deaths. The convictions were for conspiracy, introducing adulterated and misbranded food into interstate commerce, mail and wire fraud, and obstruction of justice.

The Parnells’ convictions were for multiple felony counts. Wilkerson was found guilty on one of two counts of obstruction of justice.

The ‘wicked fellow’ defendant
If there is a bottom line in attorney Weil’s new appeal brief, it involves the “wicked fellow.” She argues the opinion of a three-judge panel from the 11th Circuit, which previously upheld all District Court decisions in the case, conflicts with the Supreme Court’s decision in the Parker v. Gladden case.

In the 1966 case, the Supreme Court said there is a right to trial by 12 impartial jurors. In that case, a bailiff told some of the jurors that the defendant was a “wicked fellow” who was “guilty” and if there were anything wrong with finding the defendant guilty, the Supreme Court would correct it.

Weil says the appeal “involves one or more questions of exceptional importance.” Her brief states those questions include:

• 

  “Whether jury misconduct that alerts several jurors during deliberations to evidence that multiple deaths resulted from the charged fraud offense —evidence that previously had been excluded at trial because it was too prejudicial — violations the defendant’s Sixth Amendment right to a fair trial.

• “Whether it is highly prejudicial for trial jurors to learn from extrinsic evidence obtained outside of the courtroom that multiple deaths resulted from the charged fraud offense.”
• “Whether a district judge conducts a ‘full investigation’ into jury misconduct if he delivers a chill-inducing warning to jurors before taking their testimony, refuses to question a juror regarding prior inconsistent statements and refuses to ask if learning of deaths impacted their verdict.”

She also wants to know whether the opinion of the three-judge appeals panel conflicts with Parker v. Gladden.

Weil’s 24-page brief supports the “en banc” petition filed by Joseph R. Pope, Michael Parnell’s attorney. It requests all 11th Circuit judges hear the appeal, instead of a three-judge panel.

Before the 2014 trial, attorneys for the DOJ and the assistant attorney for the Middle District of Georgia agreed not to introduce any evidence about the outbreak deaths at trial because of its potential for prejudicial impact. The government attorneys promised only to present evidence of illnesses.

At trial, an epidemiologist and an “elderly witness” explained about the symptoms of salmonellosis, but there was nothing about deaths.

Juror No. 34  changes story on misconduct
The 35-day trial came under the jury misconduct charge shortly after it was over. “Juror 34” ran into Wilkerson at a local athletic event. He told the former PCA quality control officer, who was awaiting sentencing, that the jury considered the extrinsic evidence of the deaths caused by the Salmonella outbreak linked to PCA.

Wilkerson and the Parnell brothers filed a joint motion for a new trial based on affidavits by Juror 34 and a local college journalism student who attended the proceedings and spoke with jurors after the conviction.

The student, Dallas Carter, was also a freelance writer. Food Safety News published a half dozen of her articles, but only during the 2014 trial.

In an affidavit, Carter claimed all the jurors knew about the deaths, and it was the “number one item of evidence” that influenced at least one juror.

In response to the new trial motion, the trial court judge held two “sealed, in-chambers” hearings to investigate the alleged jury misconduct. Those hearings, conducted by U.S. District Court Judge W. Louis Sands, were under his strict control.

Defense attorneys could not ask whether the death discussions impacted the verdict. Sands insisted that what influence the information might have had on the jury was “not in question.” He said the question was only “whether or not the matter occurred.”

When called before Sands, the juror that Carter said told her the deaths were “number one item of evidence” that influenced his guilty verdicts, his story changed. He told the judge he’d never heard any juror say anything about the deaths at any time during the proceedings.

Also, over defense objections, Sands gave each juror a stern warning before the questioning about the possibility they could be held in contempt or charged with perjury if they did not tell the truth. The defense feared the harsh notice would inhibit jurors from talking.

The juror who changed his story from what he told Carter gave a similar statement to one of the defense attorneys, but Sands would not recall him to explain the differences.

Sands also decline to call Carter as a witness, saying by not taking her testimony, it “avoids any potential problems regarding freedom of the press and reporter privilege.” Weil says Carter “had not asserted any such privilege and in fact had waived it by providing an affidavit.”

Sands ruled that the defendants “failed to demonstrate that the jury was exposed to extrinsic evidence” and even if they had demonstrated that, the government had rebutted “any presumed prejudice.”

The three appellate judges rejected part of the Sands’ ruling. They found several jurors, not just two, were aware of the deaths. However, the appellate judges agreed with Sands in the opinion that the death discussion did not influence or contribute to the jury’s verdict.

Weil’s narrative tracks the juror statements about the misconduct in more detail than in previously submitted court documents. She then offers this summary:

“Stewart Parnell was denied his Sixth Amendment right to a fair trial decided by 12 impartial jurors. Jury misconduct resulted in nine out of the 12 jurors deliberating his fate knowing that multiple salmonella-related deaths were caused by the Defendants’ conduct — evidence that previously had been excluded at trial because it was too prejudicial.”

Weil says Parnell is “entitled to a new trial in front of 12 untainted jurors.”

Because the government is unable to prove beyond a reasonable doubt that extrinsic evidence of salmonella-related deaths influenced not even one juror, the defendants are entitled to a new trial, says Weil.

Michael Parnell joins in the Weil brief filed on behalf of his brother, Stewart. His appellate attorney, Joseph R. Pope, says he found the three-judge panel’s ruling that extrinsic evidence of deaths was not highly prejudicial “mystifying.”

“The introduction of deaths into the jury room effectively turned a financial fraud case into a murder trial,” says Pope.

The Richmond, VA-based Williams Mullen attorney said the three appellate judges made hearing evidence of salmonella illnesses “tantamount to hearing evidence that people died from Salmonella poisoning.”

“This reasoning not only defies logic and established social science: it is squarely at odds with the Supreme Court’s recognition that ‘death is different,’ ” Pope added.

Pope says with jurors pronouncing them guilty before evidence was presented, “the defendants did not stand a chance.”

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