Ten years after a jury trial convicted him of 31 charges, resulting in a 20-year federal prison sentence, peanut broker Michael Parnell, 65, has filed his opening brief in his appeal of that conviction and sentence with the U.S. Court of Appeals for the 11th Circuit in Atlanta.
In the brief, his attorney, Elliott Harding of Charlottesville, VA, says one of the issues “is novel and warrants oral argument.”
Parnell’s company, P.P. Sales, transported peanut products from the Peanut Corporation of America (PCA) plant in Blakely, GA, to Kellogg’s. After a nationwide Salmonella outbreak — that sickened at least 700 and killed 9 — the submission of false salmonella testing by PCA was discovered, resulting in several convictions, including Parnell’s.
He is currently incarcerated in the low security lockup at the federal prison at Butner, NC.
Parnell’s conviction and sentence imposed by the trial court were also “affirmed” on appeal by the 11th Circuit in 2018, and the Supreme Court decided then not to hear it. His Habeas Corpus, or Motion 2255, was filed in late 2019 to vacate his sentence. However, the trial court, the U.S. District Court for the Middle District of Georgia, last year denied Parnell’s Habeas motion.
This current appeal to the 11th Circuit was made on May 26, 2023, and on Jan. 10, 2024, the appellate court issued a certificate of appealability for two issues. Harding’s new 68-page brief filed on Feb. 20 makes Parnell’s best arguments.
Early in the Parnell brief, it claims the district court “erred in determining that Michael Parnell could not establish a presumption of jury prejudice based on adverse publicity..”
The brief says reports about the “700 illnesses and nine deaths were prejudicial to all defendants, but especially Michael Parnell because Kellogg’s was not associated with the products linked to any reported deaths.”
It says his trial attorney, Edward Tolley, “knew this, yet failed to move for a change of venue” either before trial or once it came out that some jurors had pre-trial knowledge of the deaths. All the attorneys, defense, and prosecution agreed that the salmonella deaths would not be brought up at the trial.
“Ultimately, eleven prospective jurors revealed pre-trial knowledge of the alleged deaths, and two made it on to the final jury, jurors 37 and 84,” the brief says.
“Empaneling these jurors was reversible error, but it compounded when at least one of the twelve jurors learned of the allegations from others before trial, and another three of twelve learned after the trial began. Allowing the case to remain in Albany fostered an atmosphere of pervasive media coverage and preconceived notions that could not be refuted, distinguished, or mitigated at trial.”
“It was impossible to rehabilitate jurors by having them state they could set aside extrinsic information. Even if they could, Jurors 4, 10, and 12 could not be questioned about what impact such information would have on their ability to decide the case because they learned of it during the trial from other jurors,” it added.
“Prospective Juror 26 stated he heard “the talk was people got sick and died from it” on the first morning of jury selection,” Harding writes.
“Tolley knew the extrinsic information was uniquely prejudicial to Mr. Parnell,” the brief continues. “He knew prospective jurors were aware of the information. He claimed he intended to strike jurors who knew these details, but he did not ask questions concerning pretrial knowledge to most of the venire and never moved for a change of venue.”
Harding writes that “Tolley maintained an erroneous belief that jurors could be rehabilitated if they “agree that they can put any prejudice aside and render a verdict based only on the evidence as it comes from the witness stand.”
In addition to tainted jurors, the Parnell brief argues the PCA criminal prosecutions should have been moved out of the Middle District of Albany because public opinion blamed the salmonella outbreak damaged the peanut industry.
The appellate brief describes the climate where jurors were picked this way:
“Everyone in Albany wanted to be distanced from the case. They considered it “toxic.” While one venire-person wanted to “exact a pound of flesh,” another wanted to “fry” the defendants. Another was excused for cause and acknowledged that “If I didn’t live in Blakely and hadn’t seen all this and everything, it probably be a little different story, but living there in Blakely with all the talk going on and all, it would be pretty hard for me, I think, to get over that.”
Another said his co-workers told him the defendants “should be held responsible for the deaths.” A prospective juror’s wife told him: “[T]hey ought to hang somebody for doing that.” Another personally executed her store’s recall of affected peanut butter and saw the corporate memo.”
In conclusion, Mr. Harding, on behalf of his client, “ respectfully requests for this honorable Court to HOLD that the district court erred when it found that he could not establish a presumption of prejudice, HOLD that he did establish of prejudice, HOLD that his counsel was ineffective for failure to move for a change of venue in violation of his Sixth Amendment right to effective assistance of counsel, ORDER that the district court’s judgment and order dismissing his motion to vacate his sentence and conviction be reversed, vacated, and remanded, ORDER that his conviction and sentence be vacated, and ORDER any further relief that this Court may deem reasonable and appropriate.”
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