Joseph R. Pope, an appellate attorney from Williams Mullen in Richmond, VA, says he can be in Atlanta on any day for the rest of this year to make oral arguments for the release of Michael Parnell while his client’s appeal is heard by the U.S. Court of Appeals for the Eleventh Circuit. If the appeal is successful, the 56-year-old Parnell could be home for Christmas after being held in the custody of the U.S. Marshals Service since he was sentenced to 20 years in prison on Sept. 21 by U.S. District Court Judge W. Louis Sands. A former peanut broker, Michael Parnell is the brother of Stewart Parnell, former CEO of the Peanut Corporation of America (PCA), who was sentenced the same day to 28 years in prison. In his motion for review of Sands’ order denying bond for Parnell pending appeal, Pope leveled broadsides against the trial judge’s main rulings in the most important criminal case ever brought involving food safety. And while the topics are not especially new, some of Pope’s legal research and arguments are breaking new ground. Parnell’s fate may rest on whether these new arguments capture the interest of the appellate jurists, who have the power to overturn the trial court verdicts and/or order a new trial. Pope begins his arguments by challenging one of the underpinnings of the trial of the PCA managers. That was a ruling by Sands that allowed extensive microbiological testing results to be introduced at trial without allowing defense attorneys to cross-examine the document authors. “Michael’s case also presents several substantial legal issues, including whether this Court is prepared to become the first in the nation (besides the district court) to hold that reports produced in connection with a multifunction agency’s investigation of a known investigative target are non-testimonial for purposes of the Confrontation Clause — a ruling inconsistent with Supreme Court precedent,” Pope’s filing says. “The Government attempted to sidestep this serious issue by arguing it was clear that the primary purpose of the FDA’s microbiological testing was to stop an ongoing emergency, but it utterly failed to lay a foundation to support its claim,” he continued. “In fact, the Government’s cursory claim that its primary purpose in conducting the tests was to stem an ongoing outbreak smacks of post hoc rationalizing,” Pope argues. “This is so because the testing was conducted after Minnesota state authorities identified Peanut Corporation of American (‘PCA’) as the source of the 2008 salmonella outbreak.” Pope says the Confrontation Clause issue “could reasonably be decided in Michael’s favor” and the question of when an ongoing criminal investigation has begun has “great import” and “broad national implications.” In his argument, Pope acknowledged that whether laboratory tests for a multifunction agency like the U.S. Food and Drug Administration (FDA) “is a close one” under the Supreme Court’s “primary purpose” test. FDA has responsibilities for both public health and criminal investigations. Pope submits that “… a rigorous examination of Supreme Court precedent reveals that the district court’s ruling should be reversed.” At issue is whether defense attorneys should have had the right to cross-examination. The “primary purpose” test, according to precedents cited by Pope, has evolved through various cases up to the Supreme Court. Everything from 911 call records to witness and victim statements made before an emergency has been abated have come in for review. And Pope says the government presented the trial court with an erroneous Confrontation Clause analysis and did not show that the primary purpose of the FDA investigation was “to end an ongoing emergency.” “In fact, Government failed to adduce any evidence to establish a foundation for its claim,” he said. The only evidence was “threadbare recitals.” Pope cites Jan. 9 and 10, 2009, as important dates. On Jan. 9, public health officials in Minnesota traced the source of the Salmonella outbreak to products supplied by PCA. “In fact, based on information provided by Minnesota health officials, on January 10,2009, famed personal injury attorney and food safety advocate Bill Marler stated in an article, ‘If you’ve consumed King Nut peanut butter (a product produced by PCA) and are ill, be sure to visit a doctor and get a stool sample.'” It was after that, Pope says, that “dozens of FDA investigators descended on PCA’s Blakeley facility.” He also notes that, by Jan. 30, the Washington Post reported that FDA had confirmed that it was involved in a criminal investigation involving PCA. (Marler, who is also publisher of Food Safety News, released his comments to Business Wire.) Pope also calls “dubious” a government claim that it was unreasonable to conclude that any criminal prosecution would result from its PCA investigation in light of its 2003 announcement that it would be pursuing aggressive criminal enforcement in such cases. Finally, he notes that FDA was involved in a criminal investigation at another nearby peanut processing plant owned by ConAgra. Pope charges that the government “disingenuously characterized the entirety of its conduct as being concerned with public safety to avoid having its analysts appear at trial.” Thus, Michael Parnell was denied rights under the Confrontation Clause, he concludes.

In an entirely new twist, Pope challenges the validity of the investigation of jury misconduct Sands carried out after the jury trial ended in September 2014 and calls the jury misconduct investigation into question. “Before interviewing a particular juror, the district court told him or her that he was investigating an allegation of juror misconduct and any intentionally false statement made during the interview might result in perjury charges,” Pope explained. “He also reminded each juror, sua sponte, that he had earlier instructed him or her that during the course of the trial they were to report any misconduct to him immediately, otherwise, they faced charges of contempt.” “Having effectively threatened each juror with contempt sanctions for failing to report misconduct, the court then asked if during deliberations the particular juror heard or witnessed juror misconduct,” the appellate lawyer continued. “Predictably, the majority of the jurors (particularly the ones interviewed after the lunch break) told the district court that they had not heard any of their follow jurors state that the Defendant’s actions had caused any deaths.” After the jury trial, one juror (No. 34) and a local journalism student, who helped cover the trial for Food Safety News, both provided affidavits to the defense that claimed “prejudicial extrinsic evidence” was introduced during jury deliberations. The information involved the nine deaths that resulted from the 2008-09 Salmonella outbreak caused by PCA products. Sands had permitted testimony about the outbreak illnesses, but not the deaths. During the judge’s investigation, two other jurors (No. 4 and No. 12) admitted that the deaths had been mentioned in the jury room. (The trial was held five years after the deadly outbreak was a major news story in Georgia.) Juror No. 12 said Juror No. 35 was corrected during deliberations by others who said illnesses were in evidence, not the deaths as mentioned by No. 35. Pope argues that once it is shown that the jury was exposed to extrinsic evidence, prejudice is presumed and the “heavy burden” shifts to the government to show the “error was harmless beyond a reasonable doubt.” This error, Pope says, “had a devastating impact.” “In the eyes of the jury, the case became about much more than corporate fraud and conspiracy— it became a case about life and death,” he said. “The Government in fact conceded that evidence of death was inherently prejudicial and vowed to the Court before trial began that ‘it would not introduce evidence of deaths resulting from salmonella poisoning.’” Pope also points to the evidence that Juror No. 35 knew of the nine deaths before she was selected to serve on the jury. And he questions the way Sands went about his investigation. “This questioning technique was ill suited to discern the truth,” Pope argues. “It is like a police officer telling a motorist that he is subject to a $500 fine for failing to report he had exceeded the speed limit in the past week, and then asking if the motorist had in fact violated the speed limit in the past week.” Pope says it creates a “threat-response” bias, causing the vast majority to deny witnessing or committing wrongdoing. He also questioned Sands’ decision to discount Juror No. 34’s testimony because of a “personal encounter” she had with defendant Mary Wilkerson after the trial. Juror No. 34 reportedly felt a “sense of responsibility” for Wilkerson’s conviction. “But this is no reason to discount Juror 34’s testimony,” Pope says. “Any juror with a developed conscience who knows that an individual has been convicted on improper evidence should have such a reaction. Moreover, such a juror should make every effort to correct grievous injustice.” In his motion, Pope also argues that the closing trial arguments by the government were improper and prejudicial for their advocacy of safe food. There is enough possibility the convictions of Michael Parnell will be reversed and he should be released in the meantime, Pope argues. (A similar motion by Wilkerson was denied before she had to surrender to a federal women’s prison in Florida.) Pope further notes in his motion that the Eleventh Circuit U.S. Court of Appeals in Atlanta has scheduled special hearings for Dec. 15. In his request to make oral argument, Pope says he can be available then or “on another day during the months of November or December, at the Court’s convenience.”

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