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Three additional witnesses sought by Stewart Parnell for next week’s hearing

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Three additional witnesses will likely testify at Stewart Parnell’s hearing next Monday to vacate his convictions and sentencing related to multiple federal felonies stemming from a deadly 2008 Salmonella outbreak.

The requested additional witnesses are: Denise de la Rue, a trial consultant, and strategist; James “Jay” Strother, peanut broker with James Strother and Company LLC; and John T. Powell, executive director for the American Peanut Shellers Association.

Amy Levin Weil of Atlanta, and Amy Lee Copeland of Savannah, attorneys representing Parnell in the Motion 2255 hearing, said their “intense preparation” led them to the three additional witnesses “to provide testimony in support of the petition” to vacate.

Parnell’s original witness list submitted on May 3 contained the names of four attorneys who defended him in his 2014 jury trial — E. Scott Austin, Thomas J. Bondurant, Justin Luger and Ken Hodges.

The court is permitting Bondurant to testify by video conference because of health concerns. Bondurant, Austin and Luger from the Gentry Locke law firm in Roanoke provided the core of Parnell’s defense, including Hodges, then an Atlanta attorney.

Lugar is now an assistant U.S. Attorney for Virginia, and Hodges is a judge on the Georgia Court of Appeals.

Magistrate Judge Thomas Q. Langstaff has ordered the government to respond to Parnell’s motion to add witnesses by close of business today (May 18). Langstaff is presiding over the Stewart Parnell hearing that begins on May 24 and a second hearing for his brother Michael Parnell that starts on May 27.

Weil and Copeland say the three additional witnesses they’ve identified “will provide critical testimony” to support Stewart Parnell’s motion to vacate. In court documents, they say de la Rue “has not been engaged,” and Strother and Powell weren’t identified before May 3.

Parnell’s attorneys argue that adding three additional witnesses 10 days before the hearing is a reasonable request.

Parnell’s attorneys have obtained the judge’s permission for access to voir dire transcripts from the 2014 jury selection in other pre-hearing action. That permission was first granted to Michael Parnell’s attorney for use in his hearing next week.

The attorneys have agreed to destroy all copies of the jury selection proceedings when the Motion 2255 proceedings are complete.

Both hearings are being held next week at the federal courthouse in Albany, GA.

A jury in 2014 in that same courthouse convicted the Parnell brothers of multiple federal felonies stemming from the deadly 2008 multistate Salmonella outbreak.

A Blakely, GA, peanut processing plant owned and operated by the now-defunct Peanut Corporation of America was the source of the 46-state outbreak resulting in hundreds of illnesses and nine deaths.

Stewart Parnell at the time was PCA’s chief executive, and Michael Parnell was his peanut broker brother. 

They are challenging their incarceration after serving about six years of the sentences they received in 2015 — 28 years for Stewart and 20 years for Michael. 

If one or both brothers can make a “substantial showing of the denial of a constitutional right at next week’s hearings,” they could go free.

Stewart Parnell, 66, and Michael Parnell, 62, are not currently in the custody of the Bureau of Prisons, likely because they are in transit by federal Marshals to Albany, GA, for their court appearances. They’ve been held separately at federal prisons in West Virginia and New Jersey.

Court documents show that Stewart Parnell’s attorneys will argue their client was denied effective counsel at and around the original trial. Arguments around ineffective counsel are common in Motion 2255 hearings.

At his hearing, Michael Parnell will be represented by Charlottesville, VA, defense attorney Elliott M Harding. Harding, who practices solo, was the first to win the right to use the voir dire transcripts from the jury selection for the 2014 trial.   

 “The voir dire transcripts shall remain confidential, with the information therein reviewed only by counsel, their legal and support staff, and the parties,” Langstaff’s order says. “The voir dire transcripts and the information contained herein shall only be used for purposes associated with the resolution of this pending 2255 Motion.” 

In breaking those transcripts loose, Harding reminded the Magistrate about Michael Parnell’s Motion 2255 petition. “Three of the matters raised in Mr. Parnell’s petition concern jury prejudice,” he said. “Mr. Parnell’s first claim involves trial counsel’s failure to strike jurors for cause due to their knowledge of deaths that were reportedly the result of food contamination via salmonella. A third claim involves trial counsel’s failure to investigate the issue of whether jurors were improperly prejudiced by the revelation of deaths involving salmonella once counsel was made aware of this allegation post-trial.”

Langstaff has served as the Magistrate Judge for Georgia’s Middle District of the Federal Court system since 2010. He handled some pre-trial issues in the PCA criminal case. He also ruled that the Motion 2255 petitions filed by the Parnells were sufficient to go to a hearing.

The Centers for Disease Control and Prevention in Atlanta, using  PulseNet on Nov. 10, 2008, discovered a small and highly dispersed cluster of 13 Salmonella Typhimurium isolates with an unusual DNA fingerprint pulsed-field gel electrophoresis (PFGE) pattern in 12 states. 

By April 20, 2009, at least 714 people in 46 states were confirmed with an outbreak strain of Salmonella Typhimurium associated with the PCA facility Blakely, GA. Thousands of others were likely sickened without confirmation.

Mary M. Englehart, trial attorney for the Department of Justice Consumer Protection Branch, will be returning to Albany for the Motion 2255 hearings. Along with Patrick Hearn and Alan Dasher, she was part of the U.S. Department of Justice trio of attorneys that won the convictions at the 2014 jury trial.

This time, Englehart will represent the government with Speare I. Hodges, another DOJ Consumer Protection Branch attorney.

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