Appellate attorney Amy Lee Copeland has provided the U.S. Court of Appeals for the Eleventh Circuit with Stewart Parnell’s Reply Brief. The reply is to the government’s opposition to Parnell’s 5-year-old motion for his release from federal custody.

“The parties’ briefs are ships that pass in the night,” Copeland wrote in Parnell’s Reply. “Parnell now replies to the government, addressing what the government said. And what the government didn’t say—and what to make of that silence.”

Parnell is the former president of the defunct Peanut Corporation of America that was responsible for a deadly multi-state salmonella outbreak in 2008. He was found guilty in a 2014 jury trial of 67 federal felonies and sentenced in 2015 to 28 years in federal prison.

Parnell, 69, will likely be required to serve 15 more years in federal prison unless he is successful in this Eleventh Circuit appeal. He is in custody at the federal correctional facility at Hazleton, WV.

His current appeal before the 11th Circuit is over a 2255 Motion open to federal inmates who believe their convictions and sentences were obtained by means that violated the U.S. Constitution.   

The trial judge at the District Court level denied Parnell’s Habeas Corpus motion. His appeal to the 11th Circuit was granted for two issues, which are:

1. Whether the district court erred in determining that Parnell could not establish a presumption of jury prejudice based on adverse pretrial publicity, under Skilling v. United States, 561 U.S. 358 (2010); and

2. Whether a showing of presumed jury prejudice, under Skilling, operates to establish both prongs of an ineffective assistance of counsel claim based on counsel’s failure to move for a venue change.

Skilling is a precedent-setting case in the 11th Circuit for these issues.

“When the government endeavored to answer the question about the presumption of jury prejudice, it ignored key facts, like its representations at a motion hearing, statements by the presiding judge during jury selecion, and what prospective and seated jurors actually said during jury selecion and in a post-trial inquiry hearing,” Copeland wrote. “Significantly, the government never acknowledged jurors’ admissions that the empaneled jury discussed that nine deaths had been attributed to the salmonella outbreak at Peanut Corporation of America (“PCA”) – information that the government agreed to exclude from evidence at trial due to its prejudicial nature and that came from pretrial publicity.”

At the heart of Parnell’s motion are claims of ineffective counsel and jury misconduct during his original trial.  And in numerous places in the brief, Copeland points to wher significant facts are left out of the government’s brief.

Copeland writes: “The characteristics of the community were such that the district judge remarked that in his combined 50 years of lawyering and judging, he had never ‘spent all day on one question’ in jury selecion – that is, what the venire-persons knew or had heard about the case. The government does not address this remark, either.”

At trial, the defense attorneys sought to prevent the government from presenting evidence about the outbreak’s deaths, and the government agreed:

“. . . We don’t intend to put on evidence that people died from the salmonella that emanated from the PCA plant. What we intend to put on is evidence that people were sickened.

“There is an obligation to put on our evidence to make sure that we don’t overstep the bounds of the evidence, and it goes into the area of prejudicial evidence that would be objected to by the defense and, on appeal, may be the basis for reversal. We also have to keep our eyes on that.”

Copeland writes that “True to its word, the government did not introduce evidence of any deaths at trial.”  But then she writes: “Although never mentioned in the government’s brief, two venire-persons who had heard about the deaths and admitted it during voir dire – jurors 37 and 84 – were on the jury. 

In a post-trial inquiry hearing, three additional jurors (jurors 10, 12, 34) and three alternates (jurors 98, 112, 116) disclosed that they had heard about the deaths either during the trial or deliberations.”

Copeland says the government never mentions evidence about how the jury was breached.  “The government addresses none of this, not even its concerns at the motions hearing about the prejudicial nature of the death of evidence,” she adds.

“The power of those reports – the relaying of heinous, sensational facts and of information that that viewers or readers could not shut from sight – is demonstrated both by 1) venire-persons’ expressing automatic belief in the defendant’s guilt based on reports of deaths and 2) jurors’ discussing reports of deaths throughout jury selection, trial, and deliberation,” Copeland wrote.