The government wants one of the attorneys defending former Peanut Corporation of America CEO Stewart Parnell on criminal, fraud and other criminal charges thrown off the case. The attorney the government wants to disqualify for “an alleged potential conflict of interest” is Atlanta-based lawyer Kenneth B. Hodges, III, who is well-known because he was the unsuccessful Democratic candidate for Attorney General of Georgia in 2010.  Hodges, along with two Roanoke, VA-based attorneys – Edward Scott Austin and Thomas Jack Bondurant, Jr – are defending Parnell in the 76-count criminal indictment against four former executives of the now defunct Peanut Corporation of America (PCA). The peanut processing business was the source of a nationwide Salmonella Typhimurium  outbreak in late 2008 and early 2009 that sickened at least 700 people, killed 9 and brought about one of the most expensive and costly recalls in U.S. history. Government attorneys say Hodges cannot represent Parnell because he previously represented Grey and Stewart Adams in September 2012 when the couple was questioned in the case by federal agents. Grey Adams is Parnell’s daughter, and was previously employed by PCA. She is married to Stewart Adams. The government might call upon the couple to testify at the trial and it argues that could create a conflict for Hodges, especially during cross-examination. Hodges does not see it that way. In an “instant response” he filed with the U.S. District Court for the Middle District of Georgia, the litigator with 20 years of experience, including 15 years as a prosecutor, says all he did was attend interviews with the couple in Washington, D.C. “The Government never issued a target letter to the Adamses, nor did the Government investigate or indict the Adamses,” Hodges said in his response. He says he’s discussed the issue with both Parnell and the Adamses “regarding the alleged potential conflict, the implication of his prior representation of the Adamses, and potential future conflict (including that of cross-examining the Adamses) that may arise if the Adamses are called as witnesses.” Hodges has advised all involved to consult with independent legal counsel and Parnell has waived any actual or potential conflict and “expressed his desire to retain Mr. Hodges.”  The criminal defense attorney cites his client’s Sixth Amendment right to choose his own legal counsel and the “Garcia hearing” process used by federal courts to advise clients of potential conflicts. Hodges, the former District Attorney for Georgia’s Dougherty Judicial Circuit, is now with the Atlanta law firm of Ashe Refuse & Hill, LLP.  Hodges and his co-counsel won the conviction of former DeKalb County Sheriff Sidney Dorsey for the assassination of Sheriff-elect Derwin Brown, the killer’s would-be successor in office. U.S. District Court Judge W. Louis Sands, a former federal prosecutor appointed to the federal bench by President Bill Clinton in 1994, has scheduled a hearing on the conflict of interest issue involving Hodges for April 22. On the same date, Judge Sands plans to set deadlines for the various stages in the litigation, which he previously ruled a “complex” case and one both the government and defendants agree will not be conducted under the “speedy trial rule.” Nevertheless, Sands is asking the parties to jointly propose a scheduling order by April 15 that he will consider when everyone gathers in his courtroom on April 22. He wants the order to address deadlines including:

  • Preliminary motions, such as challenges to the indictment and the joinder of parties
  • Discovery and required productions and disclosures
  • Motions related to discovery or for additional discovery (motions for depositions, Brody materials, etc.)
  • Motions to suppress evidence
  • Required noticed and requests for notices
  • Proposed jury charges and voir dire questions
  • Motions in limine
  • Proposed dates for trial

Where the defense and prosecution attorneys cannot agree amongst themselves, the court wants them to make their individual suggestions. All four former executives have pleaded not guilty to the charges, which were unsealed on Feb. 21.   In addition to the 74-year old-Parnell, charges were brought against his brother Michael Parnell, former plant operator Samuel Lightley and former quality-assurance manager Mary Wilkerson. Charges indict conspiracy and fraud; shipping adulterated and misbranded food in interstate commerce, wire and mail fraud and obstruction of justice. More than 100 of the those sickened with Salmonella in the nationwide outbreak were awarded $12 million in damages in a civil suit. The recall that followed of all PCA-related peanut butter and peanut paste involved nearly 4,000 products and cost other manufacturers an estimated $1.5 billion. It is also remembered as the outbreak caught the attention of President Obama, who publicly stated that his daughter Sasha eats peanut butter several times a week, and it is credited with leading Congress to pass the 2010 Food Safety Modernization Act. PCA was forced into bankruptcy shortly after the outbreak.  Parnell is remembered for his “S—, just ship it,” email written after he learned that a customer’s shipment was being held up while PCA waited on the results of a Salmonella test.  Former PCA manager Daniel Kilgore plead guilty to a similar set of charges that was unsealed on Feb. 20.