‘Fry them’ comments in jury room could get Parnells a new trial

‘Fry them’ comments in jury room could get Parnells a new trial

The conduct of the 2014 jury that convicted Peanut Corporation of America executives delayed sentencing for about year, but in its final analysis the district court found a new trial based on jury misconduct was not warranted.

Appellate attorneys for peanut broker Michael Parnell filed lengthy after-hours arguments Monday with the U.S. Court of Appeals for the 11th Circuit in Atlanta that appear to blow some holes in that conclusion.

atlantacourtofappeals_406x250Michael Parnell, his brother PCA chief executive Stewart Parnell, and a PCA quality assurance manager were charged with charged with multiple, federal felony counts including fraud, conspiracy and obstruction of justice. The charges stemmed from a four-year FBI investigation into the 2008-09 nationwide Salmonella outbreak that sickened thousands and killed at least nine people.

Prior to the trial, U.S. District Court Judge W. Louis Sands ruled the jury could hear about the Salmonella illnesses, but not about the deaths. After the jury convicted the trio of defendants on all but a handful of counts, defense attorneys learned discussion of the deaths might have played a role in the jury’s deliberations. Sands proceeded to conduct an extensive investigation of his own, ultimately finding the defense had failed to prove the jury was exposed to extrinsic evidence to such a degree as to merit a new trial.

Attorneys Joseph R. Pope of Richmond, and Edward D. Tolley and Devin H. Smith of Athens, busted through the 24,000 word limit for the PCA executives’ Reply Briefs to make the most significant arguments to date that there was jury misconduct during the 2014 trial.

The arguments offered for Michael Parnell were also embraced in advance of their filing by Justin M. Lugar, appellate attorney for Michael’s brother Stewart Parnell, in written arguments he submitted earlier Monday.

The jury “was repeatedly exposed to extraneous prejudicial information that the defendants killed nine people,” Pope, Tolley and Smith wrote. They contend the finding by Judge Sands that defendants failure to prove the jury exposure to extrinsic evidence was “clearly erroneous.”

The trio of defense attorneys claim the government “does not fully defend” Sands finding and “thereby implicitly concedes that the defendants satisfied the first prong of the test in exposure to extrinsic evidence cases. They argue the only jury related issue is whether or not the district court correctly ruled that the government rebutted the presumption of prejudice.

The defense attorneys say the rule is that if the defendant shows exposure, prejudice is presumed and the burden shifts to the government to show the jury’s consideration of extrinsic evidence was harmless.

Defense attorneys are now pointing to the Sands investigation to show that several jurors spoke of the deaths in the jury room.

pcaBlakeley_406x250“On this record, even under a ‘clearly erroneous’ standard of review, the district court’s finding that the jury was not exposed to extrinsic evidence is unsalvageable,” Pope, Tolley and Smith wrote in the briefs.

Sands questioned jurors under oath, and the Parnell lawyers pointed to Juror 10, who said other jurors made statements about the deaths “a few times during the trial” and shared their opinions that the defendants were guilty before deliberations began.

“It was pretty much just stated up front,” said one juror.

Juror 37 recalled that “a bunch” of other jurors “knew about the case” and made comments such as “fry them.” Jurors knew “seven or nine people died, and then stuff like that.”

The lawyers for the PCA executives said the evidence “strongly corroborates” Juror 34’s original report that the jury had discussed the deaths, and defendants’ guilt “when they weren’t suppose to be even discussing the case.”

In deciding to go with a full blown recitation of the possible jury misconduct, the Parnell lawyers blew past their 9,963 word limit for their brief.  They decided to go with their “oversized Reply Brief of 12,171 words, asking the appellate justices for forgiveness after the fact rather than permission ahead of time.

“This is the most significant food safety case in the history of the United States,” the defense lawyers wrote, adding “the juror misconduct issue requires an extraordinarily detailed discussion of the record and citation to key quotations and case law that spans 7,076 words.”

“After spending much time writing, editing, and revising counsel for Michael Parnell has concluded that 9,963 words is insufficient to allow him to adequately address the extraordinarily complex issues in this case,” the attorneys said.

As for the jury, they said it may depend on how you look at it.

“Indeed, throughout its brief the government treats the jury as a single unit, a group that was ‘conscientious’ and ‘fair minded’ and that deliberated for more than four days while ‘it carefully weighed the evidence,’ ” Michael Parnell’s lawyers wrote. “But evidence about how the jury acted collectively is beside the point if individual jurors were tainted.”

The defense lawyers go on to say all defendants are entitled under the Sixth Amendment to be tried by twelve impartial jurors based only on evidence introduced in court. If only one juror was influenced by the excluded information about deaths, they say the defendants are “entitled to a new trial.” Also, they point out that salmonella-related deaths were seen as so prejudicial before trial that the introduction would risk reversal.

The prosecution promised not introduce evidence of the salmonella-related deaths at trial.

All three defendants are appealing their convictions and sentences. Joining the Parnells  in the process is Mary Wilkerson, the former quality assurance manager at the PCA plant in Blakely, GA. All three are currently in federal custody. Stewart Parnell is serving 28 years, Michael Parnell is doing 20, and Wilkerson is incarcerated for 5 years.

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