Food safety’s complicated case that still isn’t over

ALBANY, GA — Just more than eight years ago, well-known Georgia defense attorney Edward D. Tolley told a young majistrate judge that the criminal case they were both looking at was “complicated.”

Tolley had just joined the defense in the Peanut Corporation of America (PCA) criminal case, which Magistrate Judge Thomas Q. Langstaff presided over.

It did not take long for the magistrate to rule that the multiple PCA indictments were “complicated” cases. The effect of the ruling was that Tolly and other defense attorneys working the case had more time to get up to speed.

Another Middle District of Georgia trial judge tried, convicted, and sentenced the PCA defendants. Those prosecutions all stemmed from a now 13-year-old multistate Salmonella outbreak that killed nine.

However, all that “ancient history” got replayed this past week, back in that same Magistrate courtroom in Albany, GA, where it all began. This time  Judge Langstaff was looking at Tolley through a two-way video hookup.

Tolley and Devin Hartness Smith, both from the law firm of Cook and Tolley in Athens, GA, represented Michael Parnell for his 2014 jury trial and sentencing less than a year later.

They both testified under subpoena Thursday through the video set-up in Judge Langstaff’s courtroom. Michael Parnell’s new Virginia lawyers, Elliott M. Harding and William J. Dinkin, have filed a 2255 Motion to vacate the remaining 14 years on their client’s sentence.

Michael Parnell listened from just below the bench.  He was wearing black and white striped jail clothes and remained under the watchful eyes of a pair of armed U.S. Marshals. His ankles and wrists were chained with one hand free to take notes.

Langstaff presided over the evidentiary hearing for the motion to vacate, which took about eight hours over Wednesday and Thursday. Also testifying at the Michael Parnell hearing were Thomas J. Bondurant and Ken Hodges, who represented Stewart Parnell at trial.

Stewart Parnell, who has about 22 years remaining to serve on his sentence, is also pursuing a 2255 Motion. Judge Langstaff conducted that hearing on Monday and Tuesday.

Bondurant, Hodges, and Tolley also testified at the Stewart Parnell hearing. Others testifying at the first hearing were F. Scott Austin and Justin Lugar, who assisted with Stewart Parnell’s defense.

The Parnell brothers are the only PCA criminal defendants that remain behind bars. 2255 Motions are an opportunity for federal prisoners to raise constitutional issues that cause judges to adjust their sentences with a wide range of possibilities.

The Parnell hearings, which Langstaff would not consolidate, got into some of the same issues. For example, should their trial attorneys have moved for a change of venue?

By not making a change of venue motion, the Parnell brothers lost their right to appeal that issue to the Eleventh Circuit Court of Appeals. Some testimony suggested the lawyers thought the Parnells were popular in Albany but were not well known and not much liked.

Tolley said during the Michael Parnell hearing that the criminal case never met the standard set by the Eleventh Circuit for either a regular change of venue or just a transfer to another city in the district.

If they went venue shopping, it would also have been possible they’d be picking a jury from Atlanta or the Atlanta suburbs, and they doubled that would be in the best interest of their clients.

Jury conduct or misconduct is the other issue dominating the two cases.

After the jury’s convictions, it came to light that the jury knew about and discussed the deaths caused by the 46-state outbreak. The trial heard no testimony about the deaths because government prosecutors had promised not to raise the issue.

That the jury considered facts not in evidence during their deliberations does hang over the Parnell prosecutions.

Once transcripts of the past four days of testimony are ready, the lawyers begin the written competition, which might take as much as 85 days.

Only after that will Langstaff prepare his recommendations for submission to the District Court.

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