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DEFENDANT VAUGHT’S OBJECTION TO AND MOTION TO VACATE FRYE-COOPER HEARING

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Joy Malby Bertrand (AZ Bar No. 024181)

JOY BERTRAND ESQ LLC

P.O. Box 2734

Scottsdale, Arizona 85252

Telephone: (602)374-5321

Facsimile: (480)361-4694

joy.bertrand@gmail.com

Attorney for Joye Vaught

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

 Plaintiff,

vs.

Michael Lacey, et al., 

 

 Defendants.

NO. CR-18-00422-PHX-SMB

DEFENDANT JOYE VAUGHT’S 

OBJECTION TO FRYE-COOPER

HEARING AND MOTION TO VACATE 

HEARING

NOW COMES Defendant Joye Vaught, by and through her undersigned attorneys, to object 

to the setting of a Frye-Cooper hearing and to move this Court to vacate the hearing, currently set 

for August 15, 2023. She further submits the following:

INTRODUCTION

The Government has asked for an opportunity to bring each Defendant into Court, place on 

the record the plea offers it extended to each Defendant, and confirm that each Defense Counsel 

relayed and explained the plea offer to their respective clients. In support of its request, the 

Government cites to Missouri v. Frye, 566 U.S. 134, 147 (2012), and Lafler v. Cooper, 566 U.S. 156 

(2012).

Case 2:18-cr-00422-DJH Document 1681 Filed 08/08/23 Page 1 of 8
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The Supreme Court suggested in that the Parties “memorialize in some fashion” that a 

defendant has knowingly rejected a plea offer. Missouri v. Frye, 566 U.S. 134, 147 (2012), citing In re: 

Alvernaz, 2 Cal.4th 924, 928 n. 7 (1992). The gravamen of this Objection and Motion to Vacate is:

Neither Frye nor Cooper require a hearing. Can an ex parte submission of an affidavit from 

Defense Counsel regarding the review and rejection of the Government’s plea offer create a 

sufficient record under Frye? The answer is a clear “yes” – no hearing is necessary to satisfy Frye. 

APPLICABLE LAW

The Government’s pursuit of a Frye-Cooper hearing in this case presents three legal issues. 

First, it presents issues regarding what constitutes an adequate record under Frye. Second, it 

presents issues of intimidation and interference in the attorney-client relationship. Third, it presents 

issues regarding the limits Fed. R. Crim. Pro. 11 places on the Court’s involvement in plea 

negotiations. The principles for each are set forth in the following sections. 

I. The Supreme Court’s Guidance in Frye.

Nowhere in Frye or Cooper does the Court even infer, much less require, that the defendant in 

a criminal case be made to state in open court that he acknowledges the prosecution’s proposed 

plea agreement, understands it and now rejects it. In Lafler, all parties conceded that the defense 

attorney provided ineffective assistance in advising his client to reject a plea offer, because, even if 

proven, the evidence did not support a charge of assault with intent to murder because Cooper shot 

the victim below the waist. In Frye, defense counsel never told his client about the first, more 

lenient plea offer. 

The Court merely held that “as a general rule, defense counsel has the duty to communicate 

formal offers from the prosecution to accept a plea on terms and conditions that may be favorable 

to the accused.” 566 U.S. at 145. To prevent such claims from being raised in the future, the Court 

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suggested various methods for guarding against ineffective assistance, including documenting the 

plea offers in writing or that the terms of a plea offer “can” be placed on the record. The Court 

cannot require the defendant to respond to questions by the court as to the terms of the agreement 

or anything else pertaining to or emanating from his or her discussions with counsel. 

II. The Attorney-Client Relationship.

"The attorney-client privilege is an evidentiary rule designed to prevent the forced disclosure 

in a judicial proceeding of certain confidential communications between a client and a 

lawyer." United States v. Rogers, 751 F.2d 1074, 1077 (9th Cir. 1985), quoted in Wharton v. 

Calderon, 127 F.3d 1201, 1205 (9th Cir. 1997). The purpose of the privilege is to encourage "full and 

frank communication between attorneys and their clients and thereby promote broader public 

interests in the observance of law and administration of justice." Upjohn Co. v. United States, 449 U.S. 

383, 389(1981); see also Hunt v. Blackburn, 128 U.S. 464, 470 (1888) (grounding the privilege "in the 

interest and administration of justice, of the aid of persons having knowledge of the law and skilled 

in its practice, which assistance can only be safely and readily availed of when free from the 

consequences or the apprehension of disclosure").

The attorney-client privilege limits the power of a court to compel disclosure of attorneyclient communications or otherwise admit the communications themselves into evidence. Outside 

the courtroom, the privilege does not provide grounds for sanctioning an attorney's voluntary 

disclosure of confidential communications to third parties. Wharton, 127 F.3d at 1205-06 (attorneyclient privilege could not provide grounds to bar respondents from informally communicating with 

petitioner's former attorneys). This is not to say that attorneys may freely reveal their clients' 

confidences should they so desire. Mechanisms other than the attorney-client privilege protect 

against voluntary disclosure of confidential communications by counsel. The ethical rules 

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governing attorneys require that all information pertaining to a client's case be kept confidential. 

Ariz. E.R. 1.6, Comment 2 “A fundamental principle in the client-lawyer relationship is that. in the 

absence of the client's informed consent. the lawyer must not reveal information relating to the 

representation. . .”; see also, Cal. Bus. Prof. Code § 6068(e) (setting forth attorney's duty "[t]o 

maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of 

his or her client"); Model Rules of Prof'l. Conduct, R. 1.6 (3d ed. 1999). The comment to ABA 

Model Rule of 1.6 discusses the relationship between the attorney-client privilege and the ethical 

duty of confidentiality:

The principle of confidentiality is given effect in two related bodies of law, the attorneyclient privilege (which includes the work product doctrine) in the law of evidence and the 

rule of confidentiality established in professional ethics. The attorney-client privilege applies 

in judicial and other proceedings in which a lawyer may be called as a witness or otherwise 

required to produce evidence concerning a client. The rule of client-lawyer confidentiality 

applies in situations other than those where evidence is sought from the lawyer through 

compulsion of law. The confidentiality rule applies not merely to matters communicated in 

confidence by the client but also to all information relating to the representation, whatever 

its source. 

Id., R. 1.6 cmt. 

The ethical duty of confidentiality may be enforced by more than just sanctions against an 

offending attorney. In a criminal case, where an attorney violates this ethical duty by revealing a 

client's confidences to the government, a court may suppress the resulting evidence. Rogers, 751 

F.2d at 1078-79. Prosecutors may also be subject to sanctions where they have induced an attorney 

to violate her duty of confidentiality. ABA Model Rules of Prof'l Conduct, R. 8.4(a).

III. Fed. R. Crim. Pro. 11 Prohibits Courts from Involvement in Plea Negotiations. 

Rule 11(c)(1) provides that “the court must not participate in these discussions” between the 

Government and defense counsel, referring to plea agreements. The Sixth Circuit has noted that 

the Supreme Court requires strict compliance with Fed. R. Crim. Pro. 11. Phillips v. United States, 

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519 F.3d 483, 484-85 (6th Cir. 1975), citing McCarthy v. United States, 394 U.S. 459 (1969). Phillips 

addressed a trial court’s compliance with the portions of Rule 11 pertaining to a court’s conduct in a 

change of plea hearing. Phillips, 519 U.S. at 484. 

DISCUSSION

Ms. Vaught objects and move to vacate the August 18, 2023 hearing. Frye and Cooper do not

require a hearing and such a hearing would interfere with defendants’ attorney-client relationship. 

To the extent that the Court believes any inquiry into the extent of Counsel’s communication of the 

Government’s plea offer is appropriate, an ex parte submission of an affidavit from defense counsel 

regarding the review and rejection of the Government’s plea offer suffices. 

Filed instanter with this Objection and Motion is Counsel’s ex parte affidavit that confirms Ms. 

Vaught has knowingly and intelligently rejected the Government’s plea offer. The record need not 

contain more than that confirmation, made under penalty of perjury, by an officer of the Court. No 

hearing, therefore, is required. 

I. A Hearing is Not Required to Create a Proper Record. 

In United States v. Braxton, 784 F.3d 240, 247 (4th Cir. 2015), the Fourth Circuit determined 

that a trial court’s responsibility to ensure effective assistance of counsel did not include examining 

the defendant himself to determine if his rejection of the plea was knowingly and intelligently made: 

Nor, contrary to the government's suggestion, does Frye require a district court to satisfy 

itself of the intelligence of a defendant's decision to exercise his right to trial instead of 

accepting a plea offer. Frye and its companion case [citation omitted] concern the duty of 

defense counsel to advise their clients regarding formal plea offers; they do not obligate or 

permit judges to give advice to defendants on whether to accept such agreements. There is 

no allegation in this case that [defense counsel] either failed to inform [the defendant] of the 

government's plea offer in violation of Frye or improperly advised [the defendant] to reject 

the offer . . . and the record is plainly to the contrary. And the district court, as described 

above, fulfilled its role under Frye by memorializing the offer on the record at the 

government's request, prior to making the remarks at issue in this case. Nothing more was 

required or justified by Frye. 

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Here, the accompanying ex parte affidavit confirms that the Defendant has received, 

considered, and rejected the Government’s plea offer. The Court need not order Defense Counsel 

and the Defendant into open court to further discuss this decision. 

II. A Hearing – in Addition to the Record Created by the Defense’s Ex Parte

Submissions -- Only Serves to Attempt to Interfere in the Attorney-Client Relationship and 

Intimidate the Defendant into Accepting its Plea Offer.

The Government is not entitled to a conviction of any defendant. In this case, even with the 

benefit of erroneous court decisions permitting the Government to invade attorney-client privileges 

and seemingly permitting one-sided evidence of “notice” evidence, the Government still cannot 

prove the elements of the charges. It certainly is not entitled to the conviction of any of the 

Defendants seeking to vindicate their innocence. 

The Government is not entitled to any information regarding Defense Counsel’s 

communications and advice to her client. An encroachment on the attorney-client privilege and 

attorney-client relationship is highly improper and potentially subject to sanctions. 

The Government’s request implies that the Defense Counsel has been deficient in their 

representation of their clients, because its plea offers have been rejected. In essence, the 

Government is saying, “Only an ineffective lawyer would reject this plea agreement.” A proceeding 

designed to pressure a defendant into accepting a plea agreement, to include questioning the 

communication and advice the Defendant has received from her lawyer, is wholly inappropriate.

III. Given the Record Created by the Defense’s Ex Parte Submissions, the Government’s 

Pursuit of a Hearing is an Impermissible Attempt to Draw the Court Into Plea 

Negotiations. 

Given the gravity of the protections established in Rule 11, a more lenient interpretation of 

section (c)(1) makes no sense. 

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Here, the Government seeks the Court’s interference to pressure the Defendant to accept 

the guilty plea she rejected months ago. 

CONCLUSION

The accompanying ex parte affidavit from Defense Counsel creates a more than adequate 

record of her communication and advice regarding the plea offer the Government extended to Ms. 

Vaught. No proper purpose is served by forcing her into open court to discuss any aspect of its 

plea offer and her decision to reject it. 

The Court will find attached a proposed Order. 

RESPECTFULLY SUBMITTED this Eighth day of August, 2023, 

By: /s/ Joy Bertrand 

Joy Bertrand

Attorney for Joye Vaught

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CERTIFICATE OF SERVICE

On August 8, 2023, I, Joy Bertrand, attorney for the Defendant, filed the foregoing with the 

Arizona District Court’s electronic filing system. Based on my training and experience with 

electronic filing in the federal courts, it is my understanding that a copy of this pleading will be 

electronically served upon opposing counsel and co-defendants’ counsel, upon its submission to the 

Court. 

Respectfully submitted this Eighth day of August, 2023.

s/Joy Bertrand

Joy Bertrand

Attorney for Defendant

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