With their clients starting  their second year behind bars, criminal defense attorneys in the Peanut Corporation of America case finally filed briefs asking for those convictions and sentences to be over-turned.

Appellate attorneys for Stewart Parnell, his brother Michael Parnell, and Mary Wilkerson together filed briefs totaling 236 pages on the day after Thanksgiving — the deadline — with the U.S. Court of Appeals for the Eleventh Circuit based in Atlanta.

The attorneys, Justin M. Lugar for Stewart Parnell, Joseph R. Pope for Michael Parnell, and Thomas G. Ledford for Wilkerson are all asking the appellate court to also schedule oral arguments.

Pope, the Williams Mullen attorney from Richmond, VA who represents Michael Parnell and wrote the brief linking the three appeals, did not waste time in making the case for reversing the convictions.

“Two legal errors, however, require reversal of the convictions,” his brief says. “First, the jurors were exposed during the trial and deliberations to prejudicial extrinsic evidence that the Defendants’ actions had the cause of the deaths of nine people.

“This improper evidence contaminated the jury’s verdict and the Government failed to rebut the resulting presumption of prejudice beyond a reasonable doubt,” he added.

Pope said the other error by the district court was “In admitting a barrage of improper lay opinion testimony regarding the mental state of the Defendants.”  In that he is challenging much of the testimony of two government witnesses at the 2014 trial over company documents, some of which they did not know anything about.

The Parnell brothers and Wilkerson were convicted in a 2014 jury trial over a 2013 indictment on 76 federal felony counts that were charged after a federal investigation of a 2008 nationwide salmonella outbreak that was traced to PCA’s plant at Blakely, GA.

Stewart Parnell, who was an PCA owner and chief executive officer, is currently serving a 28 year federal prison sentence, his peanut broker brother, Michael,  is doing 20 years, and Wilkerson is down for five years. She was the quality control manager for the PCA Blakely plant.

Pope calls those sentences “by far the most severe ever imposed in a food safety case.”

Thousands were sickened because PCA peanut butter and peanut paste was contaminated in 2008, but there were also nine deaths associated with the outbreak. Pope says the jury never should have had knowledge of those deaths.

Before the trial, attorneys for both Stewart and Michael Parnell argued evidence about the illnesses and deaths would be “unfairly prejudicial.”  None of the defendants were charged with causing illnesses or deaths.

The government ultimately agreed that it would not put on evidence that people died from the “salmonella that emanated from the PCA plant.” It did put on evidence that the outbreak did result in human illnesses.

After the trial, however, defense attorneys learned that at least some of the jurors had knowledge of the deaths and they filed motions for a new trial. Those allegations of juror misconduct resulted in a sealed, in-chambers inquiry by the trial judge.

While the inquiry delayed sentencing for a year, U.S. District Court Judge W. Louis Sands ultimately denied motions for a new trial based on juror misconduct. The newly filed briefs claim knowledge of the deaths was more widespread among the jurors than acknowledged by Sands.

Lugar, the Gentry Locke attorney from Roanoke, VA, casts doubts on the accuracy of the loss amounts used in calculating Stewart Parnell’s sentence. The pre-sentence reports found Parnell was responsible for losses of more than $100 million but less than $200 million, resulting in a 26 level increase in his “offense level” under federal sentencing guidelines.

But Lugar calls those calculations “unreliable, speculative, arbitrary and overstated…” He says the government provided “minimal documentation” of the alleged losses, amounting in a “utter travesty of justice.”

He pointed to testimony of FBI Agent Cynthia Allard, who admitted under oath tht she did not investigate any of the numbers.

Ledford, the Albany, GA attorney appointed by the court to represent Wilkerson, continued to press his claims that the government used a “data dump of millions of pages of documents” to hide “exculpatory evidence” that resulted in his client’s wrongful conviction.

Wilkerson was convicted on one of two counts of obstruction of justice.

“This data dump was not an accident, it was a well calculated and deliberate plan to prohibit the Defendant from finding anything exculpatory whatsoever in a timely manner,” says  Ledford.   “For the reasons set out above the Appellant’s conviction should be reversed.”

Among his arguments, Ledford says the way the “electronic data dump” was used to effectively hide all exculpatory evidence amounts to “prosecutorial misconduct.”

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