His calendar at the medium-security federal prison at Hazelton, WV, might well have March 9 circled. His move there last year puts 65-year old Steward Parnell just 200 miles away from his family in Lexington, VA, much closer than he was when held in South Carolina.

Marks on his calendar are not likely there to remind Parnell about family, but what is shaping up quietly in federal court in Georgia. Parnell has been in federal prison for five years because of what happened in Georgia 12 years ago.

Parnell, then the top executive for his family’s Peanut Corporation of America, was at the center of a multistate Salmonella outbreak, sickening an estimated 20,000 people in 46 states. Linked to the outbreak were nine deaths and 166 hospitalizations.

Peanut butter and paste were the sources of the outbreak, and the contaminated came from PCA’s plant in Blakely, GA.

After a four-year federal investigation, five former PCA executives, including Parnell, were indicted on federal criminal charges. Two pleaded guilty in exchange for consideration at sentencing, and a 2014 jury trial convicted the other three.

The stiffest sentence went to Parnell, 28 years. The U.S. Court of Appeals for the Eleventh Circuit in Atlanta took up the convictions and sentence on review.

Case closed?

Amy Levin Weil and Amy Lee Copeland, two elite Georgia appellate lawyers, are attorneys for Stewart Parnell. The two Amys share some background as former assistant U.S. Attorneys who also managed appeals involving the government in their districts.

Since fall 2019 they’ve been pursuing a new legal strategy on behalf of their client. If successful, it could result in a court vacating Parnell’s conviction and setting aside his sentence.

The Parnell attorneys filed a motion for an evidentiary hearing based on two claims. Their motion and supporting brief claim:

1. counsel rendered constitutionally ineffective assistance when it failed to seek a change of venue due to adverse and extensive pretrial publicity and widespread pretrial publicity, jurors preconceived notions and the amount of media exposure that the case received throughout the entire division of this court; and

2. counsel rendered ineffective assistance in failing to move to strike for cause jurors with knowledge of the allegations that a salmonella outbreak caused deaths, resulting in the failure to secure a fail and impartial jury.

The case claims he was denied his constitutional right to a fair and impartial jury. The two Amys say structural errors like the right to an impartial adjudicator are not subject to “harmless error review.”

Filed under a “Section 2255,” the attorneys say the district court must “grant a prompt hearing” to allow them to “flesh out” the extent of the adverse pretrial publicity and juror bias.

While PCA’s role in the deadly Salmonella outbreak received extensive national media coverage, the Parnell attorneys are focusing their concern on local media.

“Mr. Parnell’s claims are not patently frivolous, based on unsupported generalizations or affirmatively contradicted by the record,” his attorney brief says.

“First, Mr. Parnell’s brief sets forth portions of the media coverage during that time, the size of Blakely, Georgia (the location of the Peanut Corporation of America plant), and the dependency of the entire region on agribusiness generally and peanuts specifically.

But there are other facts from the record in this case that demonstrate the pervasiveness of the media coverage it occasioned.

During the selection process 47 of 77, or 60 percent, of the prospective jurors acknowledged hearing news or talking about the case. Hostility at PCA during jury selection was not usual. Parnell’s trial attorney has provided an affidavit with details about a juror excused for cause after saying he wanted to “exact my pound of flesh” and then waiting for Parnell in a parking garage.

The U.S. Department of Justice’s Consumer Protection Branch and the U.S. Attorney for the Middle District of Georgia oppose Parnell’s motion to “vacate, set aside, or correct” the sentence.

Parnell was responsible, they say, for a “chronic salmonella problem.” More than 70 lots of peanut products tested positive for salmonella GX 786 between February 2003 and January 2009. The peanut paste and peanut butter PCA was producing was not fit for human consumption, according to the Food and Drug Administration.

The “broader criminal scheme” involved withholding all those positive results from PCA’s customers.

“Worse still, PCA also knowingly shipped products that tested positive for salmonella or were outside microbiological specifications by repeatedly retesting peanut products until they received a negative result,” the government brief says. The fraud, it says, was perpetrated on PCA’s customers.

The government is again relying upon Parnell’s emails to his staff to make the case against him. In Aug 2007, he wrote, “these lab tests and COA’s are f___ing breaking me/us.”

“His desire to save money by knowingly shipping contaminated products led to his conviction.” prosecutors said.

March 9 is the deadline for all briefs and their responses.  Any word on a hearing will come after that.