Two weeks out from the evidentiary hearings that could see a federal magistrate vacate their convictions and sentences, the Parnell brothers have traded witness and exhibit lists with government lawyers. The hearings, held under 28 U.S.C. § 2255,  beginning on May 24 for Stewart Parnell and May 27 for Michael Parnell are both being held before U. S. Magistrate Judge Thomas Q. Langstaff for the Middle District of Georgia.

A Middle District jury in 2014 convicted the brothers on multiple federal felonies stemming from the deadly 2008 multistate Salmonella outbreak that was traced to a Blakely, GA, peanut processing plant owned and operated by the now-defunct Peanut Corporation of America. Stewart Parnell was PCA’s chief executive and Michaele Parnell was a peanut broker.

The brothers have served about six years of the sentences they received in 2015 — 28 years for Stewart and 20 years for Michael. If at the May hearings one or both of the brothers can make a “substantial showing of the denial of a constitutional right,” they could be freed.

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.

For the first hearing, on behalf of Stewart Parnell, defense attorneys Amy Levin Weil of Atlanta and Amy Lee Copeland of Savannah have presented a witness list with four names: E. Scott Austin, Thomas J. Bondurant, Ken Hodges and Justin Lugar.

All four served as  Stewart Parnell’s defense team during the original jury trial. Austin, Bondurant, and Lugar were from Gentry Locke in Roanoke.  Hodges, who has since been elected to the Georgia Court of Appeals, was practicing law in Atlanta. And Lugar is now an assistant U.S. Attorney for Georgia.

Stewart Parnell’s attorneys, Amy Weil and Amy Copeland believe their client was denied effective counsel at and around the original trial.   Arguments around ineffective counsel are commonly made in Motion 2255 hearings.

The government also has those four attorneys on its witness list.In addition, however, it plans to call Edward D. Tolley and Devin Hartness Smith, Michael Parnell’s trial attorneys, and Thomas G. Ledford, the Albany attorney the court appointed to represent Mary Wilkerson, PCA’s quality control officer. She was convicted of one count of obstruction of justice and served five years.

Weil and Copeland have produced an exhibit list with a Gentry Locke fee, invoice, and fee and cost entries along with various email chains involving jury selecion and the possible use by the defense of a jury consultant.

At his Motion 2255 hearing, Michael Parnell is represented by Charlottesville, VA ,defense attorney Elliott M Harding. Both he and the government’s attorneys have submitted their witness lists, but the court has not released them to the public. Both of their exhibit lists for the Michael Parnell hearing run into several pages.

Harding, who practices solo, has won the right to unseal Voir Dire transcripts from the trial. The Magistrate granted Harding access to the documents for the course of the Motion 2255 hearing. “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.”  Langstaff further ordered all copies of the transcripts along with other documents containing information from the transcripts destroyed by all parties at the end of the Motion 2255 proceedings.

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 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.

On Nov. 10, 2008, the CDC’s PulseNet staff first noted a small and highly dispersed multistate cluster of 13 Salmonella Typhimurium isolates with an unusual DNA fingerprint or pulsed-field gel electrophoresis (PFGE) pattern reported from 12 states. By  April 20, 2009, 714 people in  46 states were confirmed with the outbreak strain of Salmonella Typhimurium associated with the PCA facility Blakely, GA. Nine deaths were a direct result of the outbreak, according to the Centers for Disease Control and Prevention.

Mary M. Englehart, trial attorney for the Department of Justice Consumer Protection Branch, will be returning to Albany for the Motion 2255 hearings. She, along with Patrick Hearn and  Alan Dasher, was part of the DOJ trio of attorneys that won the convictions at the 2014 jury trial.  Englehart will be joined by Speare I. Hodges, who moved from being an Assistant U.S. Attorney in Virginia to the Consumer Protection Branch at main Justice.