More than two months ahead of the evidentiary hearing over Stewart Parnell’s motion to vacate his conviction and sentence, his appellate attorneys and the government are disputing the ground rules.

The government on Dec. 7 asked the court to “order setting a reasonable deadline for the parties to exchange exhibit and witness lists . . . or in the alternative, order a scheduling conference  at this court’s convenience.”

On Oct. 9, 2020, U.S. Magistrate Judge Thomas Q. Langstaff ordered the government to have Parnell at the  C.B. King Federal Courthouse in Albany, GA, for a Feb. 24, 2021, evidentiary hearing on the motion to vacate his conviction and sentence due to “ineffective trial counsel.”

Parnell, 66, was, prior to 2010, the top executive at the now-defunct Peanut Corporation of America. Unless successful in the upcoming motion hearing, Parnell has 18 more years to serve on his 28-year sentence for convictions associated with PCA peanut butter and peanut paste that caused a deadly multi-state Salmonella outbreak in late 2008 and early 2009.  Parnell is in custody at a federal prison in South Carolina.

 Appellate attorneys, Savannah’s Amy Lee Copeland and Atlanta’s Amy Levin Weil, are representing Parnell at the motion hearing. Formerly, both Copeland and Weil were appellate attorneys for the Department of Justice. They have objected to the government’s request for Parnell’s witness and exhibit lists.  

“Any such order confers a one-sided benefit on the government, invites further litigation over ‘good cause’ and is not a request supported by federal rules, the local rules, or case law.” they wrote in a Dec. 14 response.

Parnell’s appellate attorneys have told the Court that they need at least two days to present multiple witnesses and evidence, according to Speare I. Hodges and Leach E. McEwen, both from DOJ’s Consumer Protection Branch. “To date,” they wrote, “the government expects petitioner to call four former trial counsel to the stand, among other potential witnesses. The government also expects petitioner to present a significant volume of exhibits at the hearing, and he already has cited to the court copious documentary evidence that he believes supports his position regarding pretrial publicity and alleged juror bias.”

Hodges and McEwen said they expect hundreds of pages of trial testimony, many news articles, online sources such as Wikipedia and census records. They say: “As in virtually any proceeding, the exchange of specific witness and exhibit lists between parties would help ensure an orderly, efficient, and fair hearing  through which the court can best determine a just resolution.”

The government prosecutors also argue that with the “ongoing pandemic,” making travel and other logistics “difficult,” taking “reasonable measures” to allow all the parties to prepare will avoid surprises. They also point to a local rule in Georgia’s Middle District that calls for hearing exhibits to be provided in advance. They also note that the court could conduct a scheduling conference to work out details.

Parnell has won what’s known as a “2255 hearing” for the federal code that permits someone in federal custody to mount a challenge if they can prove their sentence was imposed in violation of the U.S. Constitution or laws of the United States.

According to his attorneys, Parnell will be making two claims of infective assistance of council, both “centered around his fundamental right to a fair and impartial jury.”  The first is that his trial counsel failed to move to strike for cause jurors who had heard that people died from a salmonella outbreak linked to Peanut Corporation of America, and second, that trial counsel failed to seek a change of venture based on the overwhelming publicity and juror bias surrounding the case.

As for exchanging more information prior to the Feb. 24 hearing, Parnell’s attorneys say the government knows enough, including the names of the four primary witnesses — the four attorneys who represented Parnell at trial– their general strategy, and the media files.

They note, Parnell has the “burden to prove the claims” in a 2255 hearing. “If the court were to grant the government’s motion, Mr. Parnell would have to disclose his entire case three weeks prior to the hearing,” the appellate attorneys wrote “The government conceivably — even likely — would have nothing to disclose. Mr. Parnell’s disclosure would give the government three weeks to seek and find rebuttal witnesses and exhibits, which would then seek to add to its lists for cause shown.   This would run the clock, meaning that if Mr. Parnell likewise sought to find rebuttal witnesses to attack the government’s rebuttal witnesses, he would likely run out of time”

They insist that nothing in any of the rules requires such pre-hearing disclosures and the government has not said what would be accomplished at a scheduling conference.

In its response to Parnell’s lawyers, the government argues that trading witness and exhibit lists do not give it an advantage, nor would it “trigger an arms race.” And the DOJ said the prediction it would have nothing to disclose is entirely speculative.

Also during pre-hearing skirmishing, Parnell’s attorneys have asked the magistrate judge to order the Clerk of the District Court to provide them with copies of the jury questionnaires used to impanel the jury in 2014.

Stewart Parnell and his peanut broker brother, Michael Parnell, are the only subjects of the PCA criminal prosecution that remain in federal custody. Michael Parnell, 61, has 11 years remaining on a 20-year sentence. He is being held at the federal prison at Fort Dix, NJ. He is not part of the 2255 claim that his brother has sought since 2019.

Three other former PCA executives were released from federal custody after serving sentences of 3 to 6 years.

The outbreak associated with the PCA criminal convictions resulted in thousands of illnesses and at least nine deaths. No one, however, was charged with those deaths.   The 76-count indictment in the case brought in early 2013, resulted in convictions for the Parnell brothers on multiple federal felony counts for fraud, conspiracy, and putting adulterated food on the market.