Smokey and the Bandit

Ed Forchion, aka the New Jersey Weedman, is willing to risk his freedom to put marijuana laws on trial.

By Jonathan Valania
Add Comment Add Comment | Comments: 1 | Posted May. 29, 2002

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Come Monday morning, the Forchion brothers headed over to Berg labs in separate cars to await the FedEx man. Russell went inside while Forchion circled the block, where he noticed a car containing Jerome Kee, an acquaintance from his days growing up in Sicklerville. Everybody knew that Kee now worked as an undercover narcotics investigator for the Camden County Prosecutor's Office. Just then the FedEx man--actually another undercover cop--arrived and dropped off the package. Forchion called his brother on his cell phone and told him Kee was waiting outside--it was a set-up. Russell panicked, threw the package in his car and sped off. As Kee began to pursue, Forchion pulled in front to block him. A few blocks later, a contingent of 20 law enforcement officers--uniformed state troopers and Bellmawr patrolmen, a couple DEA agents and a bunch of plainclothes cops--pounced on their prey.

At Bellmawr police headquarters, Poole and the Forchion brothers were congratulated for being the first people to be tried under New Jersey's just-passed Omnibus Crime Act, which made possession of more than 20 pounds of marijuana a firstdegree offense, punishable by 20 years in prison. Russell, Forchion and Poole cooperated with authorities, naming names, and eventually got off with light sentences.

But the Weedman vowed that he wasn't going out like that. "I knew that laws could be challenged, especially new laws," says Forchion. "I saw how Megan's law had been effectively gutted by legal challenges. Besides, they charged me with conspiracy and possession, but I never even touched the package. How can they charge me with possession?"

Forchion talked to a number of defense attorneys about his case and the median legal fee estimate he came away with was $50,000. The day Forchion was arrested, he had $46,000 to his name. To make matters worse his truck was repossessed while he was in jail awaiting bail, effectively ending his only legitimate source of income.

And then the Weedman started reading--about the history of marijuana and its relatively recent and questionable criminalization, about the Constitution and the Bill of Rights, about society and its discontents. Reading about William Penn, he discovered a legal strategy called jury nullification. By using jury nullification, a defendant essentially argues that he isn't guilty of any wrongdoing, but that the law is.

Searching on the Internet, Forchion found a book called Jury Nullification: The Evolution of a Doctrine by a Houston attorney named Clay Conrad. "One of the earliest applications of jury nullification was the Fugitive Slave Act, which made it illegal to assist slaves to escape," writes Conrad. "As far South as Georgia, jurors refused to convict. It was used again around the turn of the last century when the conspiracy laws made it illegal for people to conspire to start labor unions. During prohibition, almost 60 percent of East Coast jurors refused to convict for possession or sale of alcohol. After a few years of that acquittal rate, the law was deemed unenforceable, which led to the end of prohibition. I think the same thing could happen with the marijuana laws, to the point where prosecutors lose interest in trying those cases and the marijuana laws dissolve."

Michael Friedman, head of the Camden County Public Defender's Office, didn't see it that way. "When I told him I wanted to use jury nullification as my defense, he told me 'That's anarchy,'" says Forchion. "I told them that I knew that in Farretta v. California in 1974 the Supreme Court ruled that a defendant has a right to choose his own defense and if they wouldn't help me I would defend myself. I knew that the Miranda laws worked both ways: anything you say can be used against you in the court of law, but it can also be used for you. That's when I decided to run for office, because the press would have to cover me."

Forchion formed his own political party--the Legalize Marijuana Party--and got himself on the ballot for Burlington County Freeholder. He found out he could run for more than one office at once, so he also got himself on the ballot for First District congressional seat. Nearly every day he would load up his van--emblazoned with the Legalize Marijuana Party logo--with pro-pot literature and drive around the county handing out information and collecting signatures. He needed only 200 signatures to get on the ballot, but he made sure he had 500 just in case.

He didn't have much luck generating press attention, though, so he decided to take more drastic measures. "I started to figure out how the press worked," says Forchion. "I couldn't just talk about marijuana as a religion. Nobody would write about that. I had to do these crazy things. If I smoked a joint at the Liberty Bell, then the press would write about me."

He smoked protest joints in a dozen public places altogether, often in the company of the media, which may explain why he was arrested only half the time. "I knew that potential jury members would hear about me and they might agree with me," he says. "I could cross-examine the arresting officers and ask them if they read me my Miranda rights and did I make any statements, and of course they would have to say 'Yeah, he made all kinds of statements in the paper,' and then I could get them read into the record and heard by the jury."

Forchion had no money for TV ads, but he was convinced that the public acts of civil disobedience and the resulting media coverage was getting his message out to voters. But two weeks before the election, Forchion was indicted on the FedEx bust, nearly a year after the fact.

Come Election Day, the groundswell of public support Forchion expected from the tens of thousands of voters he was convinced were private tokers never materialized. He got 3,500 votes, coming in fourth behind the libertarian candidate but ahead of the Conservative party candidate and the Green Party candidate--which when you think about it is not bad for dope-smoking single-issue third party candidate with zero fundraising dollars or matching funds.

A few days after the election, the prosecutor's office offered him a deal: eight years if he went out to Arizona and fingered his connections. "I was depressed. I started thinking my plan wasn't working and maybe people were right when they said I was just talking myself into prison," says Forchion. He flew out to Arizona and made a few phone calls to prove he knew certain drug dealers, but the next day he had a change of heart and told the police that he couldn't go through with it, and on the third day they sent him back home.

Kicking himself for this moment of weakness, he was more determined than ever to put the marijuana laws on trial. He would present his arguments to the jury and back up his statements by putting his own forensic experts on the witness stand: Dr. John P. Morgan, a Professor of Pharmacology at the City University of New York Medical School and co-author of Marijuana Myths, Marijuana Facts: A Review of the Scientific Evidence, a book that attempted to debunk the hysteria and pseudoscientific baggage that had attached itself to pot over the years; Dr. Julian Heiklen, a Penn State chemistry professor and a libertarian activist, who got himself arrested weekly by lighting up a joint at the front gates of the university until the judge got tired of seeing him and told the police to stop arresting him; and Dr. Steve Fenichel, an Absecon, N.J.-based M.D. and vocal medicinal marijuana advocate. Fenichel first became aware of marijuana's medical value back in 1979 when he was a resident at J.F.K. Medical Center in Edison, N.J., treating a patient with testicular cancer. "The chemo was making him violently ill," recalls Fenichel. "To the point where he said he would rather die than take another chemo treatment. I tried every anti-nausea drug available and nothing worked. I asked him to give me one more chance, and I went up to New York and procured two marijuana cigarettes. He smoked them and it killed the nausea. In fact he had an appetite. I was then called into the head of the program's office and asked if I knew anything about the funny smell in the hallway. I told him what had happened and he told me never to do that again, and if I did he would see to it that I would lose my license. I'm ashamed to say I caved in--I remember the patient asking for me before his next chemo. I vowed then that I would never again put the law above a patient's care."

They say a man who acts as his own attorney has a fool for a client, and Forchion played to type, routinely showing up in court dressed in a T-shirt emblazoned with a King Kong-sized middle finger and the slogan "F*** THE LAW SMOKE MARIJUANA ANYWAY." Forchion was swimming upstream against the justice system and he would soon find out how strong the official currents were. He was denied his expert witnesses. At a pretrial hearing, Forchion filed a motion to suppress evidence on the grounds that the FedEx package had been opened without a search warrant, and this, too, was denied.

It would take two years, 15 hearings and three judges until he was even allowed to represent himself. The judge assigned Jamie Kaigh, a private defense attorney who was part of the Public Defender's pool of lawyers assigned to cover overflow cases, as his assistant counsel. From the beginning, Forchion and Kaigh bickered like an old married couple; Kaigh wanted no part of the jury nullification defense, but agreed to advise Forchion on procedural matters. The judge set a trial date for Aug. 28 2000, to which Kaigh responded that he would be away on vacation, which didn't exactly ingratiate the defense with the judge.

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1. Anonymous said... on May 4, 2012 at 07:59AM

“possession is one thing , but wheres the gov. get to throw in INTENT to distribute, did they get him selling it ,No”

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