Case 2:18-cr-00422-SMB Document 1243 Filed 08/26/21 Page 1 of 9
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`Joy Bertrand, Esq.
`PO Box 2734
`Scottsdale, Arizona 85252-2734
`Telephone: 602-374-5321
`Fax: 480-361-4694
`joyous@mailbag.com
`www.joybertrandlaw.com
`Arizona State Bar No. 024181
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`ATTORNEY FOR: DEFENDANT
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
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`United States of America,
`Plaintiff,
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`v.
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`Joye Vaught,
`Defendant.
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` CR-2018-0422-SMB
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`DEFENDANTS’ OBJECTION AND
`BRIEF IN OPPOSITION TO THE
`COURT’S PROPOSED USE OF
`SIMULTANEOUS PEREMPTORY
`JUROR STRIKES
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`
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`NOW COMES the Defendant through their Counsel, to submit their
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`opposition to the Court’s proposed use of simultaneous peremptory juror strikes,
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`often referred to as “blind strikes.” As further grounds therefore, the Defendants
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`submit the following:
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`Page 1
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`Joy Bertrand, Esq.
`PO Box 2734
`Scottsdale, Arizona 85252-2734
`Telephone: 602-374-5321
`Fax: 480-361-4694
`joyous@mailbag.com
`www.joybertrandlaw.com
`Arizona State Bar No. 024181
`
`ATTORNEY FOR: DEFENDANT
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
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`
`United States of America,
`Plaintiff,
`
`v.
`
`
`
`
`Joye Vaught,
`Defendant.
`
`
`
`
`
`
` CR-2018-0422-SMB
`
`DEFENDANTS’ OBJECTION AND
`BRIEF IN OPPOSITION TO THE
`COURT’S PROPOSED USE OF
`SIMULTANEOUS PEREMPTORY
`JUROR STRIKES
`
`
`
`NOW COMES the Defendant through their Counsel, to submit their
`
`opposition to the Court’s proposed use of simultaneous peremptory juror strikes,
`
`often referred to as “blind strikes.” As further grounds therefore, the Defendants
`
`submit the following:
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`Page 1
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`Case 2:18-cr-00422-SMB Document 1243 Filed 08/26/21 Page 2 of 9
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`INTRODUCTION
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`A defendant’s right to exercise peremptory challenges is “one of the most
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`important of the rights secured to the accused.”1
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`Local Rule of Criminal Procedure 24.1 does not mandate blind strikes.
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`Rather, it allows this Court to direct a different form of strikes. The Ninth Circuit
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`has consistently noted that the strike method used in a particular trial rests in the
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`sound discretion of the Court.2
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`The question for this specific case is:
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`Both Fed. R. Crim. Pro. 24(b) and local rule 24.1 allow for different strike
`methods. In this complex matter, with a large venire panel and differing
`interests of the Parties, would the blind strike method ensure a fair trial for
`all involved? The answer is “No.”
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`The “Arizona” or “blind strike” method in this case is not in the best
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`interests of either the Government or the Defense. Because it has fewer strikes to
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`use and risks wasting the few it does have, it was shocking to hear the
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`Government oppose alternating strikes. If the Court is not amenable to
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`alternating strikes, then one option may be a method recently used by Judge
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`Collins in Tucson, in which each side conducts a group of strikes at a time. This
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`option will be discussed further, below.
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`1 Pointer v. United States, 151 U.S. 396, 408 (1894).
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`2 United States v. Warren, 25 F.3d 890, 894 (9th Cir. 1994) (internal cites omitted).
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`Page 2
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`Case 2:18-cr-00422-SMB Document 1243 Filed 08/26/21 Page 3 of 9
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`DISCUSSION
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`I.
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`This Unusual Case is Not Appropriate for Blind Strikes.
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`Of all the times in this trial to choose possible time saving over process,
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`jury selection is not it.
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`The one thing all involved in this can agree upon is that nothing about this
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`case is “normal.” Not its novel issues. Not its complexity. Not the number of
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`people involved. Not the times in which this trial will be held – in the midst of
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`the Covid pandemic.
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`This trial will be lengthy. It will be exhausting for all involved. In
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`conducting this trial in the midst of an uncontrolled spread of the Delta Covid-19
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`variant, all involved will be asked to put their health and lives in jeopardy to
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`hold this trial.3 The last thing any of the Parties want to do is add any more
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`inconvenience or time to this event.
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`3 Kathy Katella, “5 Things to Know About the Delta Variant,” Yale Medicine, last
`updated August 18, 2021, available at https://www.yalemedicine.org/news/5-
`things-to-know-delta-variant-covid (last visited August 25, 2021):
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`“Delta will certainly accelerate the pandemic.” The first Delta case was
`identified in December 2020, and the variant soon became the
`predominant strain of the virus in both India and then Great Britain. By
`the end of July, Delta was the cause of more than 80% of new U.S. COVID-
`19 cases, according to CDC estimates.
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` .
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` . . .
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`“In a completely unmitigated environment—where no one is vaccinated or
`wearing masks—it’s estimated that the average person infected with the
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`Case 2:18-cr-00422-SMB Document 1243 Filed 08/26/21 Page 4 of 9
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`To be clear, this trial – like the jury trials that convene every week in this
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`nation – is an event. The American jury trial – with all of its imperfections – is
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`the cornerstone of our democracy. As Justice Scalia wrote, the jury trial, “was
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`designed ‘to guard against a spirit of oppression and tyranny on the part of
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`rulers,’ and ‘was from very early times insisted on by our ancestors in the parent
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`country, as the great bulwark of their civil and political liberties.”4
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`The logistics of voir dire and jury selection in this case are complex. We
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`anticipate a venire panel of more than 100 people. Because of Covid social
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`distancing rules, voir dire will be done in what appears to be groups of twenty
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`venire persons. As the Defense understands it, the Parties will exercise their
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`peremptory strikes after all one hundred-or-so people have been examined. This
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`portion of the proceedings, in itself, is a massive undertaking.
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`original coronavirus strain will infect 2.5 other people,” Dr. [F. Perry]
`Wilson [Yale Medicine epidemiologist] says. “In the same environment,
`Delta would spread from one person to maybe 3.5 or 4 other people.”
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`“Because of the math, it grows exponentially and more quickly,” . . . “So,
`what seems like a fairly modest rate of infectivity can cause a virus to
`dominate very quickly.”
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`4 United States v. Guadin, 515 U.S. 605, 510-11 (1996) (quoting J. Story,
`Commentaries on the Constitution of the United States 540-41 n.2 (4th ed. 1873).
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`Case 2:18-cr-00422-SMB Document 1243 Filed 08/26/21 Page 5 of 9
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`Then the Parties will confer with the Court about strikes for cause. Once
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`those strikes are complete, the Parties will have the opportunity to make their
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`peremptory strikes.
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`The Defendants share some interests. They are, however, in no way
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`similarly situated. The Government indicted the former owners of a multi-
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`million dollar company, along with the company’s former middle-managers and
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`two people, who are, in essence, “street level” employees. The Court has allotted
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`eighteen peremptory strikes for the Defense –three for each Defendant.
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`With these limits, each strike for each Defendant has much more value
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`than peremptory strikes usually would. Blind strikes create the risk of wasting
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`one, if not all, of a Defendant’s three precious strikes.
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`To what end? Possibly saving twenty minutes in a twelve-week trial?
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`II. Alternating Strikes Make Batson Problems Easier to Spot than with
`Blind Strikes.
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`Blind strikes, with such a large venire panel also make protecting against
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`race-based strikes by the Government extremely difficult. As Justice Kavanaugh
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`noted in Flowers v. Mississippi, Batson now extends beyond striking African-
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`Americans from a jury panel. Batson prohibits juror strikes based on any race.
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`Batson also prohibits juror strikes based on gender.5 The job of enforcing Batson
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`5 ___ U.S. ___, 139 S.Ct. 2228, 2243 (2019).
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`Case 2:18-cr-00422-SMB Document 1243 Filed 08/26/21 Page 6 of 9
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`“rests first and foremost with trial judges . . . America’s trial judges operate at the
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`front lines of American justice. In criminal trials, trial judges possess the primary
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`responsibility to enforce Batson and prevent racial discrimination from seeping
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`into the jury selection process.”6
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`With blind strikes, we only see the first seventee (twelve plus five
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`alternates) people remaining. The pattern of strikes is not shown. As one
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`commentator has noted, “Race-based peremptory strikes are almost always
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`invisible, or at least, as Batson has shown, hard to prove. Only when such strikes
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`are added up can they be seen. Batson is a reminder that a legal system formally
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`blind to race is just as often blind to racism.”7
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`III. A Suggested Balance Between Blind Strikes and Alternating Strikes.
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`If the Court believes, despite the details above, that efficiency demands
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`blind strikes, then the Defense suggests an alternative recently used in a Tucson
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`federal jury trial: a modified alternate strike system. In this system, the
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`Government would make half of its strikes first, then each Defendant would
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`make one of his or her strikes; the venire list would then be sent back to the
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`6 Id. (internal cites omitted).
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`7 Gilad Feldman, “Why is it so Easy for Prosecutors to Strike Black Jurors?” The
`New Yorker, June 5, 2015, available at
`https://www.newyorker.com/news/news-desk/why-is-it-so-easy-for-
`prosecutors-to-strike-black-jurors (last visited August 25, 2021).
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`Page 6
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`Case 2:18-cr-00422-SMB Document 1243 Filed 08/26/21 Page 7 of 9
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`Government to make its remaining strikes; then each Defendant would make the
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`rest of his or her strikes.
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`This approach was used recently by Judge Collins in Tucson in United
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`States v. Langford, 18CR1307. According to defense counsel in that matter, Tom
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`Higgins, the process went smoothly and kept jury selection moving forward in a
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`timely manner.
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`CONCLUSION
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`For the foregoing reasons, the Defendants respectfully asks this Court to
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`allow back-and-forth peremptory juror strikes, instead of simultaneous strikes.
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`Alternatively, the Defense asks this Court to implement a modified strike
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`method, in which the two sides make their strikes in alternating groups.
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`DATED: August 27, 2021
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`Respectfully submitted,
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`Thomas H. Bienert Jr.
`Whitney Z. Bernstein
`Bienert Katzman Littrell Williams LLP
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`By:
`
`/s/ Thomas H. Bienert, Jr.
`Thomas H. Bienert Jr.
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`Attorneys for Defendant James Larkin
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`Case 2:18-cr-00422-SMB Document 1243 Filed 08/26/21 Page 8 of 9
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`DATED: August 27, 2021
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`DATED: August 27, 2021
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`DATED: August 27, 2021
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`DATED: August 27, 2021
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`DATED: August 27, 2021
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`Gary S. Lincenberg
`Ariel A. Neuman
`Gopi K. Panchapakesan
`Bird, Marella, Boxer, Wolpert, Nessim,
`Drooks, Lincenberg & Rhow, P.C.
`
`By:
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`/s/ Gary S. Lincenberg
`Gary S. Lincenberg
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`Attorneys for Defendant John Brunst
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`Paul J. Cambria
`Erin McCampbell
`Lipsitz Green Scime Cambria LLP
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`By:
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`/s/ Paul J. Cambria
`Paul J. Cambria
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`Attorneys for Defendant Michael Lacey
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`Feder Law Office, P.A.
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`By:
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`/s/ Bruce S. Feder
`Bruce S. Feder
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`Attorney for Defendant Scott Spear
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`The Law Office of David Eisenberg, PLC
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`By:
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`/s/ David Eisenberg
`David Eisenberg
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`Attorney for Defendant Andrew Padilla
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`Joy Bertrand Esq. LLC
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`By:
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`/s/ Joy Malby Bertrand
`Joy Malby Bertrand
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`Attorney for Defendant Joye Vaught
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`Page 8
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`Case 2:18-cr-00422-SMB Document 1243 Filed 08/26/21 Page 9 of 9
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`CERTIFICATE OF SERVICE
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`On August 26, 2021, I, Joy Bertrand, attorney for the Defendant, Joye
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`Vaught, filed the foregoinng with the Arizona District Court’s electronic filing
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`system. Based on my training and experience with electronic filing in the federal
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`courts, it is my understanding that a copy of this request will be electronically
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`served upon opposing counsel and codefendant counsel upon its submission to
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`the Court.
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`Respectfully submitted this 26th day of August, 2021.
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`s/Joy Bertrand
`Joy Bertrand
`Attorney for Defendant Vaught
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`Page 9
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