Smokey and the Bandit

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Ed Forchion is no saint. If his arrest record were of the musical variety, it would be a double album or a boxed set. And yet in these warped through-the-looking-glass times we live in, where official truth more often than not turns out to be a lie, Ed Forchion, 38, is something of a role model. Forced by circumstance and his own lapse of judgement, this formerly apolitical Rastafarian trucker has become a radicalized constitutional warrior. He has dared to ask out loud, in a court of law no less, the question the estimated 80 million Americans who have tried marijuana have asked themselves in private: Why is it illegal?

With neither the money nor the justice it can buy, he has fought the law--in this case, the law that makes it a crime to pluck the leaves off a certain fragrant weed growing in the earth and smoke them for pleasure or medicinal use--and the law has called it a draw. Forchion did not pick this fight--he's sort of the stoner analogue of the drunken underclassmen at a frat party who trips and spills his beer down the blouse of the homecoming queen and gets taken outside by the jocks for a good beat-down--but he did not run from it. And before it was over, he had lost pretty much everything he ever had except his phonebook-thick stack of court transcripts, which he pores over like a biblical scholar hunched over the Dead Sea Scrolls.

His name probably doesn't ring a bell, but you may know him by his nickname: New Jersey Weedman. Or maybe by his antics: smoking a joint at the Liberty Bell, or on the floor of the New Jersey State Assembly or in the offices of Congressman Rob Andrews (D-N.J.). Or his quixotic bids for a congressional seat representing the Legalize Marijuana Party, a party of one--him. Or his well-publicized efforts to legally make his name and his web site (www.NJweedman.com) one and the same--a desperate prison-house bid to bring attention to the collateral damage of the War on Drugs.

While most people probably mistook these acts of civil disobedience for giggle-worthy outtakes from a Cheech and Chong movie when they showed up on the evening news, they were in fact all part of kamikaze legal defense strategy that was, by all conventional standards of jurisprudence, crazy--but in the end proved to be crazy like a fox.

In 1997, Ed Forchion was arrested for receiving 40 pounds of marijuana and was looking at 20 years in prison. For the next three years, serving as his own counsel, he attempted to put the marijuana laws on trial. Fearing a public debate about the fairness of these laws--and the legitimacy of the scientific evidence behind them--or maybe just tired of Forchion's media circus act, the prosecution offered him a deal that was too good to turn down: three to six months in prison and two years of parole.

If his story ended there, this article probably would not have been written. Having served 18 months in prison, Forchion is today a semi-free man. As part of his plea bargain, he has been given Intensive Supervised Parole, and if he keeps his nose clean for the next 20 months he walks away free and clear from this whole nightmare. But Forchion is appealing for a new trial, another chance to put the marijuana laws on trial by using a semi-obscure legal technique known as jury nullification, wherein the jury can agree to acquit on the grounds that the law in question is illegitimate or unfairly applied. There's just one catch: If he does get a new trial and is found guilty, Forchion could go to prison for 20 years.

(The following account of the events leading up to and resulting from Forchion's arrest are told from his perspective and backed up wherever possible by court records and newspaper accounts. Neither Forchion's court-appointed attorney, the Camden County public defender's office nor the prosecutor's office would speak on the record for this story.)

Ed Forchion has, by his own admission, done some dumb things in his life. He got busted for smoking dope while in the Army. He once lost $13,000 at the blackjack table at Trump Taj Mahal, and in a drunken stupor grabbed $6,000 worth of chips off the table and ran out the door. He got away with it until the day he got pulled over by the police and they found an unregistered double barrel shotgun and a bag of pot. But the dumbest thing he ever did was drive to Bellmawr, N.J., around Thanksgiving 1997 to pick up a FedEx package containing 40 pounds of marijuana even though he had a pretty good hunch that the cops had set a trap for him.

Forchion first tried marijuana when he was 15 years old. "I instantly enjoyed it," he says. "I instantly knew it wasn't dangerous."

By the time he was 19, he was a daily user, bogarting upwards of five joints a day. A longtime sufferer of asthma--an ailment that would one day get him thrown out of the Army--Forchion found that marijuana opened up his chest to the point that he could throw away his inhaler. In the early '90s, Forchion became a long-haul trucker, and before long bought his own $70,000 rig. During a trip to Arizona, he met up with a cousin who, in between hits off a shared joint, told him that the same marijuana that cost $1,000 a pound in New Jersey could be purchased in Phoenix for just $300. Forchion bought three pounds, buried it deep inside the load he was carrying and snuck it back to New Jersey.

Without having to resort to street dealing, he managed to get rid of most of it through friends and associates--including his brother, Russell--turning a tidy profit and holding onto enough to keep himself stoned off his tits. He returned to Arizona frequently, and eventually fell in with some Mexican drug dealers who offered him bigger and better deals. It was the Mexicans who dubbed him "New Jersey Weedman." He got an apartment in Tucson that he used as a base of operations, and five times a year he would smuggle upwards of three hundred pounds to places like Cleveland and New York as well as New Jersey, earning as much as $20,000 per run. "They offered me coke and heroin, but I always turned them down," says Forchion. "To me pot wasn't a drug, those were drugs. Besides, I am the exact opposite of a coke person, there is absolutely nothing about me that wants to go fast."

Forchion was extremely cautious on those pot runs, driving only at night when the interstates were largely free of traffic and state troopers. He invested in pricey, highly detailed maps that pinpointed where all the weigh stations and agricultural checkpoints were, and plotted out alternative routes. He estimates that these smuggling runs earned him $100,000 a year, which nearly doubled his trucker's salary. It was a fat and happy time. But one day in Texarkana, his luck nearly ran out. "I got pulled over at an inspection station and when they saw I was coming from Arizona they wanted to search the truck because that's where all the pot from Mexico comes through," says Forchion. "I remember thinking 'I'm a black man in Arkansas with 120 pounds of pot. I am going to jail.'" At the time, Forchion owned a Rottweiler named Buster. The inspector took a shine to Buster, telling Forchion he used to raise Rottweilers. Just as the inspector was opening the back doors of Forchion's rig, Buster ran off to pee and was run over by a passing truck. "I was crying, but I think the inspector was even more upset," says Forchion. "He put Buster in a bag and handed it to me and sent me on my way."

He was not quite aware of it at the time, but Ed Forchion had just cashed his last get-out-of-jail-free card. One afternoon in November 1997, Forchion noticed a van parked across the street from his house in Chislehurst, N.J. He asked all around the neighborhood and nobody knew who owned it. He set up a camcorder in his house and recorded himself walking over to the van and knocking on the tinted black windows. When he got no response, he went back to his house and retrieved a can of shaving cream, which he proceeded to smear over all the windows of the van. As he walked away, chuckling to himself, the van suddenly started up and drove away.

Not willing to let well enough alone, Forchion pursued the van in his own car, camcorder in hand. A few blocks later, he pulled up alongside the van, honking his horn and aiming the camcorder at the driver. The driver looked over, and when he recognized Forchion and saw the camcorder, he turned his head the other way, speeding off. On the tape, you can hear Forchion guffawing loudly.

As he sits contritely on the sofa of his wife's modest ranch home tucked away in the leafy hollows of Bells Mill, N.J., Forchion shakes his head and tells PW, "I guess I got a little arrogant there towards the end. Two weeks later I was arrested."

In between trucking runs, both legit and otherwise, Forchion and his brother would occasionally use FedEx to send pot from Arizona to New Jersey. They would wrap the weed in industrial shrink-wrap, cover it in Vaseline to disguise the smell, shrink-wrap it again, put it inside an airtight cooler and glue the lid shut, then double-box the cooler. Russell Forchion had a friend named Eric Poole who worked as the shipping clerk at Berg Labs in Bellmawr, and the Forchion brothers would have FedEx deliver the packages there.

Such was the case on Thanksgiving 1997 when Forchion arranged for 40 pounds of decent-grade Mexican cannabis to be sent to his brother back in New Jersey. Forchion had planned to spend the Thanksgiving holiday in Arizona with his girlfriend, but he got a call from his brother telling him that the package never showed up on Saturday as expected. FedEx told Russell that the package had missed the plane and would arrive on Monday. "Looking back now I don't know why but I decided to fly back and find out what was going on--I couldn't help myself," says Forchion. "I guess curiosity got the best of me."

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.

And it just got worse. On Sept. 1, Forchion was arrested at a Dunkin' Donuts in Cherry Hill for possession of a quarter-ounce of pot. He couldn't make the $10,000 bail, so he sat in jail for nearly two weeks until his mother bailed him out just days before his trial was scheduled to begin. And then, at the last minute, the judge, who was fairly sympathetic to Forchion's plight, was removed from the case without explanation and replaced with another judge, who made it clear that this case had dragged on long enough.

At a Sept. 11 hearing, Forchion argued that he should be allowed to use jury nullification, and Kaigh asked to be removed from the case. Both requests were denied. "That left me without a defense and an attorney that didn't want to represent me," says Forchion. The first day of the trial, Sept. 18, Kaigh didn't even bother to show up. A court officer called his law firm and a few hours later Kami Hockfield--daughter of Kaigh's partner, fresh out of law school and having never tried a case before--showed up and announced that she would be representing Forchion. "I told the judge that this woman is not my attorney," says Forchion.

The judge summoned the defense and the prosecution into his chambers, wherein prosecutor John Wynne offered Forchion a deal: 33 months in exchange for a guilty plea. Forchion declined. After the jury was seated and Forchion made his opening arguments, one of the jurors broke down crying, saying she couldn't be responsible for sending this man to jail. "I'm thinking, 'It's working'," says Forchion.

Two days later Wynne offered another deal: six months in jail and 27 months on Intensive Supervised Parole. "I thought to myself, 'Six months? I could do that standing on my head'," says Forchion. He told the judge he would accept the plea bargain as long as he could still appeal and would be given a chance to address the jury one last time.

"I asked how many of them were feeling my argument, that marijuana should be legal, and five people raised their hands," says Forchion, who unsuccessfully tried to get out of the plea bargain agreement a week later. Sentencing was set for Dec. 1, 2000.

Two months after the trial Forchion took a bus up to Ontario, where he applied for political asylum at the Swiss, Dutch and Cuban embassies. "I wanted to force a new trial," he says. "The Swiss basically laughed at me. The Dutch were nicer about it, but they said no, too. The Cuban embassy thought about for a while. The woman there suggested that I just get on a plane and fly to Cuba, but I didn't have a passport." So he got on a bus and came home in time for his sentencing.

On Jan. 12, 2001, Forchion reported to Riverfront Prison in Camden. It took prison guards less than five minutes to find the 10 joints hidden in the sole of his shoe. On Feb. 6, Forchion received a letter from the director of the state's Intensive Supervised Parole program informing him that he was not eligible due to his extensive criminal history.

"Classic bait and switch," says Forchion. Ultimately, Forchion served 15 months before his release on April 3 of this year.

Before entering prison Forchion began preparing his appeal, a process that requires him to secure a copy of his trial transcripts. Nobody at the court reporter's office seemed to be in much of a hurry to make this happen, as it would take nearly 16 months--plus a lawsuit, a threatened hunger strike and Dr. Fenichel plunking down the $380 fee--for Forchion to get his transcripts. Oddly enough, there are key passages missing from several of the transcripts. A reconstruction hearing is set for next month where all parties involved in the proceedings will attempt to recreate the missing dialogue.

Ed Forchion is now awaiting a decision on his request for a new trial. Attorney-author Clay Conrad has agreed to advise Forchion in the event the appellate court sides with him. "I have warned him that if he takes it to a new trial and he loses, he could go to jail for a long time," says Conrad. "But I have no doubt he is up to the task--what lawyers do is not magic. He's only got one case to figure out and only one law to master and all the time in the world to figure it out."

And Forchion seems to have a kindred spirit in John Vincent Saykanic, his new court-appointed attorney. "We just want to say some of the drug laws are ridiculous," he says. "The government is wrong when it comes to the marijuana issue."

Jonathan Valania (jvalania@philadelphiaweekly.com) last wrote at length about the life and travails of Chubby Checker.

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