Jury and trial expert says Stewart Parnell’s trial attorneys dropped the ball

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Were the jury and venue back in 2014 sufficiently free of bias to give Stewart Parnell and Michael Parnell a fair trial or not? Latest to offer an answer is trial scientist Denise de La Rue. She is a jury and trial consultant from Decatur, GA.

The Parnell brothers are serving federal sentences related to a deadly outbreak traced to their peanut butter and peanut paste products.

de La Rue has submitted a written report to federal Magistrate Thomas Q. Langstaff with her expert opinion about Stewart Parnell’s claims of ineffective assistance of counsel.  The report is now part of the record in the “Habeas” petition to vacate all or part of Parnell’s sentence.

She prepared the expert witness report in support of Stewart Parnell’s petition, also known as a Motion 2255 proceeding. A jury in 2014 convicted the Parnell brothers of multiple federal felonies. In a separate 2255 proceeding, Michael Parnell seeks to vacate his sentence.

Langstaff last month heard testimony in both Motion 2255 proceedings at the federal courthouse in Albany, GA. The Parnell brothers, wearing striped prison clothing and chains, were permitted to attend their hearing while in the custody of U.S. Marshals.

de La Rue is a licensed attorney who works exclusively as a jury and trial consultant. She frequently lectures on jury selection and voir dire at law schools and continuing legal education programs.

The joint defense team for the Parnell brothers did not seek a change of venue and decided not to hire a jury consultant, leaving the venue and jury selection process in the hands of now Judge Ken Hodges.

Hodges was for 12 years the elected District Attorney for Dougherty County in Albany, GA. When he joined the defense team, he was practicing law in Atlanta. He recently won a statewide election to the Georgia Court of Appeals.

Picking the jury and accepting Albany as the venue were Judge Hodges duties, defense team members have testified.

“In my opinion, trial counsel for Stewart Parnell should have investigated the scope and effects of pre-trial publicity, as well as the degree of bias against him, in the trial venue in contemplation of a change of venue motion,” de La Rue writes.

“There is no debate that events involved in his case were headline news, both locally and nationally, ” she continues. “In addition to the intense coverage of these events, there was coverage of pre-trial proceedings about court cases. Perhaps even more pervasive in many of the small towns and agriculturally rich counties in the Albany Division was the ‘word of mouth’ about the situation with Peanut Corporation of America, the subsequent closure of the plant in Blakely, the effects on the peanut industry in the community, and the many lives affected by it. All of these factors make this particular case one that in my view supports a potential change of venue issue.”

de La Rue says with supporting data, Parnell’s defense required a change of venue motion. “I cannot think of a strategic reason that this work was not done in this case,” she continued.

In her comments about jury selection, de La Rue opens with a review of the 77-question, 14-page questionnaire used to select the Parnell jury.  Named “skilling,” she said the “exhaustive questionnaire.” was “one of the measures” to obtain a fair jury in trial surrounded by much publicity.

For the Parnell jury, she said skilling was helpful but with a lot of unrelated open-end questions. de La Rue says prospective jurors reveal more in written questionnaires than speaking in court or raising their hands.

Parnell’s defense broke down during voir dire questioning, especially with sequestered individuals, according to de La Rue. Parnell’s trial attorneys were “at key times” ineffective.

“They failed to probe jurors to assist them in disclosing what information (or misinformation) they might know about the defendants,” she said. They did not regularly use open-ended questions.

“The jurors of primary interest are, of course, those who served as petit jurors,” she continues. “Jurors #34 and #83 reported that they had knowledge of the case and were questioned individually by the court out of the presence of other jurors. “Defense counsel asked no questions of juror #34, and follow-up of 83 did not deal with probing his knowledge of the case”

“Most remarkably, Petit Jurors #37 and #84 knew that there were deaths associated with the salmonella outbreak at the Blakely plant, a fact that was so prejudicial it was deemed not admissible at trial. Counsel did not attempt to explore a challenge for cause for either of them.

“Instead of questioning these two jurors as to the details of their knowledge, counsel asked leading questions that amounted to more of rehabilitation than an exploration of a potential cause challenge.”

In addition, the jury expert said, Alternate Jurors 111,112,115 and 116 “disclosed having information and were questioned individually by the court with “no follow up challenging on pre-trial publicity or case awareness by counsel for Mr. Parnell.”

Alternate jurors did not deliberate but sat with the jurors who did.

de La Rue also says the knowledge of the outbreak deaths held by Jurors #37 and #84 likely “infected the jury pool in a significant way if that information were disclosed to other jurors before or during deliberations.”

“People tend to make attributions about the behaviors of others based in part on the outcomes of that behavior,” said de La Rue. “Knowing that there were deaths associated with the events of this case alleged to have been caused by Mr. Parnell could most certainly affect the jurors’ judgment about Mr. Parneell’s conduct.”

“In my opinion,” she continues, “the only competent approach to these two jurors by counsel for Mr. Parnell would be to conduct a thorough and probing voir dire on this issue to try to establish the basis  for cause a challenge; to challenge them for cause based on the fact they had this knowledge of inadmissible and prejudicial evidence, arguing the potential for it to bias not only their own decisions but that of the rest of the jury if disclosed, and if the challenge for cause was denied, to use peremptory challenges to ensure that they would not sit as jurors in this case.”

The expert witness report was filed with the court on June 8 by Atlanta’s Amy Levin Weil and Savannah’s Amy Lee Copeland, Stewart Parnell’s attorneys for the Motion 2255 proceedings. de La Rue was paid $10,000 as a retainer for the report. Her billing rate is $375 an hour.

Parnell was chief executive of the now-defunct Peanut Corporation of America, which was based in Lynchburg, VA, with peanut processing plants in Blakely, GA, and Plainview, TX.  His brother Michael was involved with PCA as a peanut broker.

In late 2008, a multi-state outbreak of Salmonella was traced to peanut butter and peanut paste products from PCA’s Blakely plant. It would lead to 714 confirmed cases of Salmonella in 46 states and Canada and nine deaths. Also, peanut products from more than 3,900 companies were recalled.

A federal investigation lasting more than four years resulted in two criminal indictments, charging the Parnell brothers and three other former PCA employees with multiple federal felonies. The Parnells’ first appearances in federal court in Albany, GA, came in February 2013.

A 2014 jury trial convicted the Parnells and PCA’s quality control manager in Blakely, Mary Wilkerson. Stewart Parnell was sentenced to 28 years in federal prison, His brother Michael was sentenced to 20 years, and Wilkeson, who has since been released, served  5 years.

Two other former PCA managers agreed ahead of the trial to plead guilty and testify for the government.  They served three and six years terms and have since been released.

Written arguments on the two Habeas petitions are likely to take up the summer months.   After that Judge Langstaff will make his recommendation.

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