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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

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:

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

Case 2:18-cr-00422-DJH Document 1243 Filed 08/26/21 Page 1 of 9
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INTRODUCTION

A defendant’s right to exercise peremptory challenges is “one of the most 

important of the rights secured to the accused.”1

Local Rule of Criminal Procedure 24.1 does not mandate blind strikes. 

Rather, it allows this Court to direct a different form of strikes. The Ninth Circuit 

has consistently noted that the strike method used in a particular trial rests in the 

sound discretion of the Court.2

The question for this specific case is:

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.” 

The “Arizona” or “blind strike” method in this case is not in the best 

interests of either the Government or the Defense. Because it has fewer strikes to 

use and risks wasting the few it does have, it was shocking to hear the 

Government oppose alternating strikes. If the Court is not amenable to 

alternating strikes, then one option may be a method recently used by Judge 

Collins in Tucson, in which each side conducts a group of strikes at a time. This 

option will be discussed further, below. 

1

 Pointer v. United States, 151 U.S. 396, 408 (1894). 

2

 United States v. Warren, 25 F.3d 890, 894 (9th Cir. 1994) (internal cites omitted).

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DISCUSSION

I. This Unusual Case is Not Appropriate for Blind Strikes.

Of all the times in this trial to choose possible time saving over process, 

jury selection is not it. 

The one thing all involved in this can agree upon is that nothing about this 

case is “normal.” Not its novel issues. Not its complexity. Not the number of 

people involved. Not the times in which this trial will be held – in the midst of 

the Covid pandemic. 

This trial will be lengthy. It will be exhausting for all involved. In 

conducting this trial in the midst of an uncontrolled spread of the Delta Covid-19 

variant, all involved will be asked to put their health and lives in jeopardy to 

hold this trial.3 The last thing any of the Parties want to do is add any more 

inconvenience or time to this event. 

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):

“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. COVID19 cases, according to CDC estimates.

. . . . 

“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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To be clear, this trial – like the jury trials that convene every week in this 

nation – is an event. The American jury trial – with all of its imperfections – is 

the cornerstone of our democracy. As Justice Scalia wrote, the jury trial, “was 

designed ‘to guard against a spirit of oppression and tyranny on the part of 

rulers,’ and ‘was from very early times insisted on by our ancestors in the parent 

country, as the great bulwark of their civil and political liberties.”4

The logistics of voir dire and jury selection in this case are complex. We 

anticipate a venire panel of more than 100 people. Because of Covid social 

distancing rules, voir dire will be done in what appears to be groups of twenty 

venire persons. As the Defense understands it, the Parties will exercise their 

peremptory strikes after all one hundred-or-so people have been examined. This 

portion of the proceedings, in itself, is a massive undertaking. 

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.”

“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.”

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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Then the Parties will confer with the Court about strikes for cause. Once 

those strikes are complete, the Parties will have the opportunity to make their 

peremptory strikes. 

The Defendants share some interests. They are, however, in no way 

similarly situated. The Government indicted the former owners of a multimillion dollar company, along with the company’s former middle-managers and 

two people, who are, in essence, “street level” employees. The Court has allotted 

eighteen peremptory strikes for the Defense –three for each Defendant. 

With these limits, each strike for each Defendant has much more value 

than peremptory strikes usually would. Blind strikes create the risk of wasting 

one, if not all, of a Defendant’s three precious strikes. 

To what end? Possibly saving twenty minutes in a twelve-week trial? 

II. Alternating Strikes Make Batson Problems Easier to Spot than with 

Blind Strikes. 

Blind strikes, with such a large venire panel also make protecting against 

race-based strikes by the Government extremely difficult. As Justice Kavanaugh 

noted in Flowers v. Mississippi, Batson now extends beyond striking AfricanAmericans from a jury panel. Batson prohibits juror strikes based on any race. 

Batson also prohibits juror strikes based on gender.5 The job of enforcing Batson 

5 ___ U.S. ___, 139 S.Ct. 2228, 2243 (2019). 

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“rests first and foremost with trial judges . . . America’s trial judges operate at the 

front lines of American justice. In criminal trials, trial judges possess the primary 

responsibility to enforce Batson and prevent racial discrimination from seeping 

into the jury selection process.”6

With blind strikes, we only see the first seventee (twelve plus five 

alternates) people remaining. The pattern of strikes is not shown. As one 

commentator has noted, “Race-based peremptory strikes are almost always 

invisible, or at least, as Batson has shown, hard to prove. Only when such strikes 

are added up can they be seen. Batson is a reminder that a legal system formally 

blind to race is just as often blind to racism.”7

III. A Suggested Balance Between Blind Strikes and Alternating Strikes.

If the Court believes, despite the details above, that efficiency demands 

blind strikes, then the Defense suggests an alternative recently used in a Tucson 

federal jury trial: a modified alternate strike system. In this system, the 

Government would make half of its strikes first, then each Defendant would 

make one of his or her strikes; the venire list would then be sent back to the 

6 Id. (internal cites omitted).

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-forprosecutors-to-strike-black-jurors (last visited August 25, 2021).

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Government to make its remaining strikes; then each Defendant would make the 

rest of his or her strikes. 

This approach was used recently by Judge Collins in Tucson in United 

States v. Langford, 18CR1307. According to defense counsel in that matter, Tom 

Higgins, the process went smoothly and kept jury selection moving forward in a 

timely manner. 

CONCLUSION

For the foregoing reasons, the Defendants respectfully asks this Court to 

allow back-and-forth peremptory juror strikes, instead of simultaneous strikes. 

Alternatively, the Defense asks this Court to implement a modified strike 

method, in which the two sides make their strikes in alternating groups. 

DATED: August 27, 2021 Respectfully submitted,

Thomas H. Bienert Jr.

Whitney Z. Bernstein

Bienert Katzman Littrell Williams LLP

By: /s/ Thomas H. Bienert, Jr.

Thomas H. Bienert Jr.

Attorneys for Defendant James Larkin

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DATED: August 27, 2021 Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

Bird, Marella, Boxer, Wolpert, Nessim,

Drooks, Lincenberg & Rhow, P.C.

By: /s/ Gary S. Lincenberg

Gary S. Lincenberg

Attorneys for Defendant John Brunst

DATED: August 27, 2021 Paul J. Cambria

Erin McCampbell

Lipsitz Green Scime Cambria LLP

By: /s/ Paul J. Cambria

Paul J. Cambria

Attorneys for Defendant Michael Lacey

DATED: August 27, 2021 Feder Law Office, P.A.

By: /s/ Bruce S. Feder

Bruce S. Feder

Attorney for Defendant Scott Spear

DATED: August 27, 2021 The Law Office of David Eisenberg, PLC

By: /s/ David Eisenberg

David Eisenberg

Attorney for Defendant Andrew Padilla

DATED: August 27, 2021 Joy Bertrand Esq. LLC

By: /s/ Joy Malby Bertrand

Joy Malby Bertrand 

Attorney for Defendant Joye Vaught

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CERTIFICATE OF SERVICE

On August 26, 2021, I, Joy Bertrand, attorney for the Defendant, Joye 

Vaught, filed the foregoinng 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 request will be electronically 

served upon opposing counsel and codefendant counsel upon its submission to 

the Court.

Respectfully submitted this 26th day of August, 2021.

s/Joy Bertrand

Joy Bertrand

Attorney for Defendant Vaught

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