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`Case 2:18-cr-00422-SMB Document 1246 Filed 08/30/21 Page 1 of 5
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`GLENN B. McCORMICK
`Acting United States Attorney
`District of Arizona
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`KEVIN M. RAPP (Ariz. Bar No. 014249, kevin.rapp@usdoj.gov)
`MARGARET PERLMETER (Ariz. Bar No. 024805, margaret.perlmeter@usdoj.gov)
`PETER S. KOZINETS (Ariz. Bar No. 019856, peter.kozinets@usdoj.gov)
`ANDREW C. STONE (Ariz. Bar No. 026543, andrew.stone@usdoj.gov)
`Assistant U.S. Attorneys
`40 N. Central Avenue, Suite 1800
`Phoenix, Arizona 85004-4408
`Telephone (602) 514-7500
`
`DAN G. BOYLE (N.Y. Bar No. 5216825, daniel.boyle2@usdoj.gov)
`Special Assistant U.S. Attorney
`312 N. Spring Street, Suite 1400
`Los Angeles, CA 90012
`Telephone (213) 894-2426
`
`KENNETH POLITE
`Assistant Attorney General
`Criminal Division, U.S. Department of Justice
`
`REGINALD E. JONES (Miss. Bar No. 102806, reginald.jones4@usdoj.gov)
`Senior Trial Attorney, U.S. Department of Justice
`Child Exploitation and Obscenity Section
`950 Pennsylvania Ave N.W., Room 2116
`Washington, D.C. 20530
`Telephone (202) 616-2807
`Attorneys for Plaintiff
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF ARIZONA
`
`
`No. CR-18-422-PHX-SMB
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`
`RESPONSE TO DEFENDANT JOYE
`VAUGHT’S OBJECTION TO THE
`COURT’S PROPOSED USE OF
`SIMULTANEOUS PEREMPTORY
`JUROR STRIKES
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`United States of America,
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`Plaintiff,
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`v.
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`Michael Lacey, et al.,
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`Defendants.
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`Case 2:18-cr-00422-SMB Document 1246 Filed 08/30/21 Page 2 of 5
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`On August 26, 2021, Defendant Joye Vaught, joined by all other Defendants, moved
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`this court to reconsider the Court’s August 20, 2021 ruling that, pursuant to Federal Rule
`of Criminal Procedure 24 and Local Rule of Criminal Procedure 24.1, the Court would
`implement the simultaneous, or “blind” strikes, method for the use of peremptory
`challenges by the parties. (Doc. 1243.) Defendant’s motion should be denied, as the Court
`properly applied Local Rule 24.1, and Defendant has presented no reason to deviate from
`the Local Rules. Indeed, the COVID-19 pandemic strongly supports conducting jury
`selection as quickly and efficiently as possible to limit the time potential jurors spend in
`the selection process, and the blind strike method presents the most efficient method of
`conducting jury selection here.
`LEGAL BACKGROUND
`Federal Rule of Criminal Procedure 24(b)(2) states that in a non-capital felony
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`prosecution, “[t]he government has 6 peremptory challenges and the defendant or
`defendants jointly have 10 peremptory challenges when the defendant is charged with a
`crime punishable by imprisonment of more than one year.” Local Rule of Criminal
`Procedure 24.1 clarifies how Rule 24(b) is executed in this district, stating that “[i]n
`criminal cases, peremptory challenges by the government and the defense shall be
`exercised simultaneously unless otherwise directed by the Court.” The use of simultaneous
`peremptory challenges – often referred to as “blind strikes” – has consistently been upheld
`by the Ninth Circuit. See United States v. Warren, 25 F.3d 890, 894 (9th Cir. 1994) (“Even
`when the government and a defendant challenge the same juror, the blind strike method
`does not impair a defendant’s full use of his or her peremptory challenges.”). Accordingly,
`a Defendant seeking to deviate from the Local Rules typically must present some
`justification for doing so.
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`ARGUMENT
`While Defendant’s motion goes into detail as to the burden on the parties and
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`counsel in this trial, it notably says nothing about the burden on venirepersons appearing
`for possible jury service during a pandemic. While Defendant notes the prevalence and
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`Case 2:18-cr-00422-SMB Document 1246 Filed 08/30/21 Page 3 of 5
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`seriousness of the Delta Covid-19 variant, Defendant fails to recognize the importance of
`conducting prompt jury selection to minimize the exposure for potential jurors not selected
`to serve. Even if the blind strikes method were not prescribed by Local Rule 24.1, there is
`no question that it presents the most expeditious method of selecting a jury and releasing
`all other non-selected jurors promptly. In contrast, permitting back-and-forth strikes is
`certain to lengthen the jury selection process, which make little sense during a pandemic,
`and any such delay is particularly unacceptable for members of the venire who appear but
`are ultimately not selected for jury service. Selecting a jury and releasing non-selected
`venirepersons as promptly as possible should be of paramount concern for the parties and
`the Court, and the government submits that the simultaneous strikes method, as set forth
`in Local Rule 24.1, is the safest means of accomplishing this goal here.
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`Not only is the blind strike method the safest and most efficient use of the
`venirepersons’ time, it does not seriously prejudice Defendants. Pursuant to Rule 24,
`Defendants were collectively entitled to 10 peremptory challenges, and the Ninth Circuit
`has held that a multi-defendant case such as this does not require additional peremptory
`challenges. See United States v. McClendon, 782 F.2d 785, 787 (9th Cir. 1986) (noting
`that there is no “right” to “additional peremptory challenges in multiple defendant cases.”).
`Nonetheless, the Court has granted Defendants three peremptory challenges each, for a
`total of 18, nearly doubling the number of strikes available to Defendants collectively. In
`addition, at the August 20, 2021 hearing, the Court explicitly stated that Defendants could
`coordinate their challenges so as to avoid multiple Defendants striking the same potential
`juror. In sum, assuming Defendants coordinate as the Court has permitted them to,
`Defendants are entitled to challenge 18 potential jurors.
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`If Defendants happen to use a strike simultaneously with the government on a
`particular prospective juror, the defense has lost nothing: the juror Defendants object to
`will still be removed. What Defendants have ‘lost’ is effectively a free strike, where the
`government’s strike removes a juror the defense found objectionable, but without costing
`the defense a peremptory challenge. While it is easy to see why Defendants may want such
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`Case 2:18-cr-00422-SMB Document 1246 Filed 08/30/21 Page 4 of 5
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`free strikes, Defendants have no such right. The Court has already gone well beyond the
`standard of challenges required, giving Defendants nearly double the number required by
`the Federal Rules. Permitting extended back-and-forth strikes, particularly when
`Defendants will likely need to coordinate amongst themselves, risks extending jury
`selection into a second (or even third) day, increasing the risk of COVID-19 exposure for
`all venirepersons, whether or not selected to serve.1
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`In conclusion, the Court should not reconsider its order, and should follow Local
`Rule 24.1, and direct the parties to use peremptory challenged simultaneously.
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`Respectfully submitted this 30th day of August, 2021.
`
`GLENN B. McCORMICK
`Acting United States Attorney
`District of Arizona
`
`
`s/ Kevin M. Rapp
`KEVIN M. RAPP
`MARGARET PERLMETER
`PETER S. KOZINETS
`ANDREW C. STONE
`Assistant U.S. Attorneys
`DAN G. BOYLE
`Special Assistant U.S. Attorney
`
`
`KENNETH POLITE
`Assistant Attorney General
`Criminal Division, U.S. Department of Justice
`REGINALD E. JONES
`Senior Trial Attorney
`U.S. Department of Justice, Criminal Division
`Child Exploitation and Obscenity Section
`
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`1 Defendant’s only substantive justification for alternating strikes is an argument
`that the blind strikes method could make challenges pursuant to Batson v. Kentucky, 476
`U.S. 79 (1986), more difficult. This argument makes little sense, however, as the
`Defendants are explicitly permitted to coordinate amongst themselves and would know
`which potential jurors they challenged, and thus, which they did not. Accordingly, the
`Defendants would certainly see and be able to challenge any potentially-problematic
`pattern of strikes (unless they themselves were engaging in problematic strikes at the same
`time). Ultimately, Defendant’s hypothetical Batson challenge problem offers no reason to
`deviate from the Local Rules, particularly when blind strikes present the most efficient
`method of releasing jurors not needed during a pandemic.
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`Case 2:18-cr-00422-SMB Document 1246 Filed 08/30/21 Page 5 of 5
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`CERTIFICATE OF SERVICE
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`I hereby certify that on August 30, 2021, I electronically transmitted the attached
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`document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a
`Notice of Electronic Filing to the CM/ECF registrants who have entered their appearance
`as counsel of record.
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`s/Marjorie Dieckman
`U.S. Attorney’s Office
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