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NUESTRA FAMILIA TRIAL UNDER WAY IN UNIQUE COURTROOM One of the largest jury selections in the history of the Northern District concluded last week when 12 jurors and six alternates were picked for a trial that’s expected to last five months. U.S. v. Rubalcaba, 00-0654, is a complicated criminal conspiracy case with eight defendants whom the government alleges are part of the Nuestra Familia California prison gang. The trial is scheduled to begin Oct. 12 in front of Judge Charles Breyer, who conducted the selection over three days. The court began by sending out summonses to 1,000 potential jurors — a starting pool that Northern District jury administrator David Weir said was the largest he’d sent out at one time in his three years on the job. People were asked if they’d be able to sit for five months and had to offer documentation in their written replies to get a hardship excuse. Normally the court calls people into court to explain themselves, but at $40 a day and 37.5 cents per mile in expenses, that would quickly have run up quite a tab. “It saves the court money. There was no point in bringing in several hundred people,” Weir said. The initial summons pool was winnowed down to about 160 people, who filled out questionnaires and were questioned by the court and attorneys. Defense attorneys have challenged the jury selection process, arguing that the pool did not contain enough Hispanics. The jury selection took place in a special courtroom on the 17th floor that was upgraded for the trial. To address government security concerns, a special tiered dock was built into the courtroom where the defendants and their attorneys sit, directly across from the jury. The defendants are shackled to the floor, out of sight from jurors. The court also set up a metal detector outside the courtroom that people will have to go through even after being checked by security at the entrance to the federal building. Defendants have objected to the use of the heightened security measures. In response, prosecutors claim that “hit lists” of government witnesses are already being circulated. — Jeff Chorney FIRST AMENDMENT CATCH-22 Kavin Rhodes just wanted to get his typewriter fixed. Instead, the Tehachapi State Prison inmate got the runaround from the guards. When he complained about it, guards tried to transfer him to another prison, forced him to submit to a strip search, and later destroyed his typewriter, the prisoner says. Rhodes filed a pro se lawsuit alleging that the guards chilled his free-speech rights. Prison officials, who were backed by a federal magistrate, argued that Rhodes’ First Amendment rights weren’t completely hampered. After all, Rhodes was able to file complaints and was able to pursue a lawsuit, they reasoned. The Ninth Circuit didn’t buy it. It’s a “legal quandary only Joseph Heller, the author of ‘Catch-22,’ could have imagined,” wrote Judge Diarmuid O’Scannlain. Judge Kim McLane Wardlaw and Sixth Circuit Judge Eugene Siler Jr., who sat by assignment, concurred. Rhodes’ suit is “the very archetype of a cognizable First Amendment retaliation claim,” wrote O’Scannlain, who quoted a passage from Heller’s classic in the opinion. The prison officials’ argument would make it impossible for inmates to challenge a free-speech rights violation: If a prisoner filed a First Amendment complaint, the state could use the lawsuit to prove that the inmate’s free-speech rights still exist, the panel observed. “We have never required a litigant to demonstrate a total chilling effect of his First Amendment rights,” the panel ruled, reversing and remanding the case. The attorney general’s office did not return a call for comment. — Jahna Berry ‘DELUSIONAL’ APPEAL DISMISSED Kidnappings, spiked soy milk, conspiratorial policemen, a conniving politician and sinister Chinese agents. It sounds like a bad spy novel, but all those elements came together in a lawsuit dismissed Thursday by San Francisco’s First District Court of Appeal. Loli Wang had filed the suit in 2001 against an unlikely couple of defendants — the city of Oakland and Communist China. She claimed that Chinese agents had conspired with two Oakland police officers to kidnap and try to kill her with poison gas in June 1999. An amended version in 2003 added Oakland Mayor Jerry Brown as a defendant, accusing him of imprisoning Wang between 1993 and 1996, and working with the Chinese and city police to attempt to poison her with carbon monoxide gas and spiked soy milk at different times and places in 1999. First District Justice Linda Gemello, who didn’t address the allegations, dismissed the case by saying it was barred by the statute of limitations. Justices Lawrence Stevens and Mark Simons concurred. Deputy City Attorney Peter Hallifax said Friday that Wang’s claims are “obviously” without merit. The appeal court, he added, didn’t even note some of Wang’s other allegations. In her court papers, he said, she claimed to be a direct descendant of Genghis Khan and the rightful heir to the throne of China, and accused Brown of being both the Green River and Zodiac killers. “She’s clearly delusional in regard to the allegations,” he said. Hallifax also said he wasn’t surprised that the First District resolved the case on procedural grounds without commenting on the “extreme” allegations. “They don’t decide facts,” he said, “until they have to.” Wang had filed the case pro per. The unpublished ruling is Wang v. City of Oakland, A105713. — Mike McKee

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