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APPELLATE
DIVISION DOCKET
NO. A-368-01T4 STATE OF NEW Plaintiff-Respondent,
FINAL JUDGMENT OF CONVICTION v.
SUPERIOR COURT LAW DIVISION EDWARD R. FORCHION, Defendant-Appellant. SAT
BELOW Hon.
Thomas A. Brown, Jr., J.S.C. Hon.
Ronald J. Freeman, J.S.C. Hon.
Linda G. Rosenzweig, J.S.C. APPELLANT EDWARD R. FORCHION ___________________________________________ Public
Defender Office
of the Public Defender (973)
877-1200 THE
DEFENDANT IS CONFINED JOHN VINCENT SAYKANIC, ESQ. Designated Counsel Of Counsel and on the Brief LEGAL ARGUMENT:
POINT I DEFENDANT’S FOURTEENTH
AMENDMENT DUE PROCESS RIGHTS THROUGHOUT
THE HISTORY OF THIS CASE MANDATES A REVERSAL
AND DISMISSAL OF THE
INDICTMENT .............................................19
POINT II UNCONSTITUTIONAL
AS THEY VIOLATE THE FREE RELIGIOUS EXERCISE
CLAUSE OF THE FIRST AMENDMENT ALONG
WITH ARTICLE 1, PARAGRAPH 3 OF THE NEW RELIGIOUS FREEDOM
RESTORATION ACT OF 1933 (42 U.S.C.A.
§ 2000bb(a)) AS THE DEFENDANT IS A
PRACTICING RASTAFARIAN; THE COURT BELOW
ERRED IN NOT DISMISSING THE INDICTMENT
.........................................35 POINT III ARE UNCONSTITUTIONAL
ON THE GROUNDS OF “MEDICAL NECESSITY;”
THE COURT BELOW ERRED IN NOT DISMISSING
THE INDICTMENT .......................41 POINT IV ASSISTANCE OF TRIAL
COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT
AND BY ARTICLE I, PARAGRAPH 10 OF THE NEW FOURTEENTH AMENDMENT
EQUAL PROTECTION AND DUE PROCESS RIGHT TO
A FAIR TRIAL BY THE OFFICE OF THE PUBLIC DEFENDER’S
REFUSAL TO CONSIDER THE MERITS OF AND
REFUSING TO PRESENT HIS JURY NULLIFICATION DEFENSE
.............................44 POINT V ASSISTANCE OF TRIAL
COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT
AND BY ARTICLE I, PARAGRAPH 10 OF THE NEW AMENDMENT EQUAL
PROTECTION AND DUE PROCESS RIGHT TO A FAIR TRIAL BY
THE OFFICE OF THE PUBLIC DEFENDER’S REFUSAL TO CONSIDER
THE MERITS OF HIS RELIGIOUS AND MEDICAL NECESSITY DEFENSES
.............................57 POINT VI TO ARGUE JURY NULLIFICATION,
ALONG WITH THE RELIGIOUS USE AND
MEDICAL NECESSITY DEFENSES IN VIOLATION OF
HIS SIXTH AMENDMENT RIGHT TO A FAIR AND IMPARTIAL
JURY AND HIS RIGHT TO PRESENT DEFENSES, ALONG
WITH HIS FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS
.................................... 58 POINT VII SINCE THE SEARCH
AND SEIZURE VIOLATED THE FOURTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH
7 OF THE NEW JERSY CONSTITUTION .... 59 POINT VIII FOURTEENTH AMENDMENT
DUE PROCESS RIGHTS WERE VIOLATED DUE TO
THE WITHOLDING/SUPPRESSION/FAILURE TO DISCLOSE THE
“
POINT IX
IN CONFORMANCE WITH CASE LAW AND THE GUIDELINES AND VIOLATES THE
EIGHTH AMENDMENT PROHIBITION AGAINST CRUEL AND
UNUSUAL PUNISHMENT ...................64
CONCLUSION ..................................................65 PLEA FORM ( JUDGMENT OF CONVICTION ( JUDGMENT OF CONVICTION ( A-2911-09-00; filed JUDGMENT OF CONVICTION ( JUDGMENT OF CONVICTION ( NOTICE OF APPEAL (filed ATLANTIC OCEAN ORDER CONSOLIDATING INDICTMENTS (filed LETTER FROM DEFENDANT TO JUDGE ROSENZWEIG ( LETTER FROM DEFENDANT TO PROSECUTOR REQUESTING DISCOVERY ( LETTER FROM JUDGE ROSENZWEIG TO DEFENDANT ( LETTER FROM DEFENDANT TO JUDGE ROSENZWEIG ( CASE SCHEDULING ORDER ( DEFENDANT’S PRO SE MOTION TO
PROCEED PRO SE ( DEFENDANT’S MOTION TO PROCEED PRO SE
(WITH ATTACHMENTS INCLUDING PSYCHOLOGICAL EVALUATION ( LETTER FROM JUDGE FREEMAN ( PROSECUTOR’S BRIEF IN OPPOSITION TO DEFENDANT’S PRO SE MOTION ( DEFENDANT’S MOTION FOR RECONSIDERATION OF DENIAL OF PRO SE APPLICATION ( LETTER FROM DEFENDANT TO JUDGE FREEMAN ( (WITH decided DEFENDANT’S LETTER TO JUDGE BROWN ( DEFENDANT’S LETTER TO JUDGE BROWN ( FAX OF evidence
as S-1 at 14T31-3 to 4) .................. Da
67 to 70 FAX OF SUPPLEMENTAL “ FAX OF SUPPLEMENTAL “ FAX OF FED EX 14T56-5 to 7) ..........................................Da 75 FAX OF COVER SHEET FROM PROSECUTOR JOHN WYNNE ( DEFENSE COUNSEL LETTER TO CLERK ( NOTICE OF MOTION TO SUPPRESS EVIDENCE SEIZED
IN WARRANTLESS SEARCH OF THE VAN ( LETTER BRIEF IN SUPPORT OF MOTION TO SUPPRESS EVIDENCE FOUND IN SEALED PARCEL ( LETTER BRIEF CONTESTING VALIDITY OF SEARCH OF THE VAN ( PROPOSED ORDER SUPPRESSING EVIDENCE
......................Da 85 DEFENSE COUNSEL LETTER TO CLERK ( NOTICE OF MOTION TO SUPPRESS EVIDENCE FOUND
IN WARRANTLESS SEARCH OF CAR DRIVEN BY DEFENDANT ( PROPOSED ORDER SUPPRESSING EVIDENCE
.......................Da 89 PROOF OF MAILING ( DEFENSE COUNSEL LETTER TO PROSECUTOR ( DEFENSE COUNSEL LETTER TO CLERK ( NOTICE OF MOTION TO SUPPRESS EVIDENCE SEIZED UNDER FRANKS ( PROPOSED ORDER SUPPESSING EVIDENCE .......................Da 95
UNDER FRANKS WITH EXHIBITS (
F. AUDINO ( VERIFICATION OF
COMPLAINT OF JEROME KEE ( VERIFICATION OF
COMPLAINT OF INVESTIGATOR NICHOLAS ( AFFIDAVIT OF KEE
REQUESTING WARRANT TO SEARCH PARCEL (dated SEARCH WARRANT
OF JUDGE TRABOSH AUTHORIZING SEARCH OF “CARDBOARD BOX”
(dated at 15T17-6 to 16; 15T31-3 to 4) .............. Da 118 to 119 SEARCH WARRANT
OF JUDGE TRABOSH AUTHORIZING SEIZURE OF “ONE CARDBOARD
BOX” (dated S-2 at 15T16-9
to 17; 17-2 to 10; 15T31-3 to 4) ....Da 121 SEARCH WARRANT
OF JUDGE TRABOSH AUTHORIZING SEARCH OF BERG LABS (130C 15T16-18 to 20;
15T31-3 to 4) .......................Da 123 SEARCH WARRANT OF
JUDGE TRABOSH AUTHORIZING SEARCH OF “BERG LABS” (130C “ONE CARDBOARD BOX”
(dated at
15T16-21 to 23; 15T31-3 to 4) .................... Da 125
MOTION ( DEFENDANT’S PRO SE MOTION FOR,
INTER ALIA, RIGHT TO PROCEED PRO SE (date DEFENDANT’S PRO SE MOTION, INTER
ALIA, DISMISSAL OF INDICTMENT BASED UPON FREEDOM OF RELIGION AND
TO ALLOW NULLIFICATION AS A DEFENSE (dated PROSECUTOR’S BRIEF IN OPPOSITION TO MOTION
TO SUPPRESS ( DEFENDANT’S PRO SE BRIEF IN SUPPORT
OF MOTION TO SUPPRESS (filed DEFENDANT’S PRO SE LETTER TO
JUDGE BROWN REQUESTING, INTER ALIA, A POSTPONEMENT OF
TRIAL (dated correct date
should be ORDER OF JUDGE BROWN DENYING MOTION TO SUPPRESS (filed DEFENDANT’S PRO SE MOTION FOR,
INTER ALIA, JURY NULLIFICATION (dated DEFENSE COUNSEL’S NOTICE OF MOTION TO BE RELIEVED
AS ADVISOR ( CERTIFICATION OF COUNSEL IN SUPPORT OF MOTION ( PROSECUTOR’S BRIEF IN OPPOSITION TO DEFENDANT’S PRO SE MOTIONS ( ORDER OF JUDGE BROWN DENYING FIRST AMENDMENT RELIGIOUS, MEDICAL NECESSITY, JURY NULLIFICATION, DEFENSE COUNSEL’S MOTION TO BE RELIEVED (filed PRO SE LETTER (dated PRO SE STATEMENT TO BE READ INTO
RECORD (dated and filed PRO SE MOTION TO COMPEL PRODUCTION
OF TRANSCRIPTS FOR PCR MOTION (WITH ATTACHMENTS) ( RELIEF AND COVER LETTER ( LETTER FROM COURT TO DEFENDANT ( PRO SE MOTION TO VACATE CONVICTION,
TO REINSTATE BAIL, AND TO COMPEL SURRENDER OF TRANSCRIPTS (dated filed [Attachments to Above Motion] .....................Da 217 to 227 PRO SE BRIEF IN SUPPORT OF MOTION
( [Attachments to Above Motion] .....................Da 233 to 258 PRO SE LETTER TO APPELLATE DIVISION
( PRO SE LETTER BRIEF ENCLOSED
REFERENCE IN ABOVE LETTER ( STATE’S ANSWER TO PRO SE MOTION
TO VACATE CONVICTION, REINSTATE BAIL AND COMPEL THE PUBLIC DEFENDER
TO PROVIDEDEFENDANT WITH TRANSCRIPTS ( PRO SE REPLY TO STATE’S RESPONSE
( [Attachments to motion] ...........................Da 296 to 317 ORDER OF APPELLATE DIVISION DENYING MOTION
FOR BAIL, TO VACATE CONVICTION, TO COMPEL SURRENDER OF TRANSCRIPTS ( PRO SE MOTION FOR RECONSIDERATION
( attachments)
.................................... Da
319 to 327 STATE’S ANSWER TO PRO SE MOTION
TO SETTLE THE RECORD ( PRO SE REPLY TO STATE’S RESPONSE
( [Attachments] ....................................Da 337 to 347 ORDER OF APPELLATE DIVISION REMANDING
TO SETTLE THE RECORD ( PRO SE MOTION TO SETTLE RECORD
OF TRANSCRIPT OF SETTLE RECORD ( ORDER OF APPELLATE DIVISION ORDERING EXAMINATION
OF VALIDITY OF PRO SE MOTION TO AMEND ORDER
AND TO REMOVE PUBLIC DEFENDER OVERSIGHT ( STATE’S LETTER RESPONSE TO PRO SE
MOTION TO AMEND ORDER AND TO REMOVE PUBLIC DEFENDER OVERSIGHT ( LETTER OF DEFENSE COUNSEL TO PROSECUTOR DATED
(attached as exhibit Pma 1 to LETTER OF PROSECUTOR TO DEFENSE COUNSEL DATED DEFENSE COUNSEL LETTER CONCERNING RECONSTRUCTION HEARINGS (WITH ATTACHMENTS) ( ORDER ( STATE’S LETTER TO JUDGE FREEMAN WITH PROPOSED ORDER ( STATE’S LETTER TO JUDGE BROWN WITH PROPOSED ORDER ( DEFENSE COUNSEL LETTER OBJECTING TO ENTRY OF PROPOSED ORDER OF JUDGE BROWN ( ORDER OF JUDGE FREEMAN SETTLING RECORD ( ORDER OF JUDGE THOMPSON SETTLING RECORD ( ORDER OF JUDGE BROWN SETTLING RECORD ( VIOLATION OF THE INTENSIVE SUPERVISION PROGRAM CHARGES ( ADDENDUM TO ISP VIOLATION REPORT ( LETTER TO COUNSEL FROM ISP ADVISING THAT THE
ISP VIOLATION HEARING IS TO BE HELD ON AT CENTER ( DEFENSE BRIEF IN OPPOSITION VIOLATION OF THE
ISP CHARGES (WITH ATTACHMENTS ( ACLU BRIEF ON BEHALF OF DEFENDANT ( ORDER OF JUDGE THOMPSON DENYING BAIL PENDING APPEAL ( ORDER OF APPELLATE DIVISION DENYING BAIL PENDING APPEAL ( ORDER OF APPELLATE DIVISION DENYING EMERGENT APPLICATION FOR BAIL PENDING APPEAL ( ORDER OF NEW FOR BAIL, FOR STAY OF SENTENCE AND DENYING
MOTION FOR LEAVE TO APPEAL THE ISP CONDITIONS ....................Da 482 ISP LETTER TO COUNSEL ADVISING OF ISP HEARING DATE ( INCORRECT TRANSCRIPT REQUEST NOTICE ( JURY RIGHTS DAY PROCLAMATION ( JURY RIGHTS DAY PROCLAMATION ( TRANSCRIPT REFERENCES “2T” denotes transcript dated November 13,
1998, of pretrial hearing before the Honorable Linda G. Rosenzweig. J.S.C. “3T” denotes transcript dated January 25, 1999,
of scheduling conference before the Honorable Ronald J. Freeman, J.S.C. “4T” denotes transcript dated March 9, 1999,
of pretrial hearing before Judge Freeman. “5T” denotes transcript dated April 19, 1999
of pretrial conference before Judge Freeman. “6T” denotes transcript dated May 10, 1999,
of motion to relieve counsel before Judge Freeman. “7T” denotes transcript dated May 24, 1999,
of pretrial hearing before Judge Freeman. “8T” denotes transcript dated June 18, 1999,
of defendant’s motion to proceed pro se before Judge Freeman. “9T” denotes transcript dated August 9, 1999
before Judge Freeman again denying the motion to proceed pro se and ordering defendant
to have no contact with co-defendants. “10T” denotes transcript dated September 28,
1999, J.S.C. of hearing regarding assignment of a pool counsel before
the Honorable Thomas A. Brown, Jr., J.S.C. “11T” denotes “Memorandum” from Sharon Alphonse,
Supervisor, Court Reporters, dated September 28, 2001, which contains matters
discussed on “12T” denotes “Trial Memo” transcript dated
December 20, 1999, before Judge Brown. “13T” denotes transcript dated May 26, 2000,
of motion to proceed pro se before Judge Brown (the transcript
inaccurately states that the judge was the Honorable Stephen W. Thompson,
J.S.C.) “14T” denotes transcript dated July 7, 2000,
of defendant’s suppression motion before Judge
Brown. “15T” denotes transcript dated July 18, 2000,
of defendant’s motion to suppress before Judge
Brown (testimony of Moody and Nicholas). “16T” denotes transcript dated August 10, 2000,
of Judge Brown’s opinion regarding the motion
to suppress. “17T” denotes transcript dated September 11,
2000 of motion before Judge Brown to dismiss the indictment, to permit
jury nullification, and for counsel to be relieved as legal advisor. “18T” denotes transcript dated September 11,
2000, regarding case status before the Honorable Stephen W. Thompson,
J.S.C. “19T” denotes transcript dated September 18,
2000, of motion before Judge Thompson to remove Mr. Kaigh as legal advisor, and for a trial continuance. “20T” denotes transcript dated September 19,
2000, of Miranda hearing, opening statements before Judge Thompson,
and the testimony (direct and cross) of Russell Forchion. “21T” denotes transcript dated September 20,
2000 of plea before Judge Thompson. “22T” denotes sentencing before Judge Thompson
dated December 1, 2000. “23T” denotes transcript of reconstruction
hearing dated July 29, 2002 before Judge Freeman. “24T” denotes transcript of reconstruction
hearing dated July 29, 2002, before Judge Brown. “25T” denotes transcript of reconstruction
hearing dated July 29, 2002, before Judge Thompson.
TABLE OF AUTHORITIES 2157, 138 L.Ed.2d 624, (1997) .............................38 151 N.E. 839 (1926) ........................................
34 S.Ct.
1595, 108 L.Ed.2d 876 (1990) ...................... 38,39 L.Ed.2d 228 (1968) ......................................... 34 45 L.Ed.2d 562 (1975) ....................................
1,21 31 L.Ed.2d 104 (1972) .....................................20 53, 65 L.Ed.
185 (1920) ................................. 49,51 2d 262 (1987) .............................................52 People of 2002) ................................................
39,40,64 363 (1927) .................................................
34 L.Ed.
343 (1895) ........................................ 46,48 certif. denied, 154 N.J.
609 (1998) .......................31 certif. denied, 157 N.J.
542 (1998) .......................43 certif. denied, 81 N.J.
328 (1979) ........................59 denied,
126 N.J. 322 (1990) ................................ 22 State v. Simmons, 331 N.J. Super.
512 (App. Div. 2000), sub
nom. Simmons v. Beyer, 44 F.3d 1160 (3rd
Cir.), cert. denied, 516 L.Ed.2d 192 1995) ..........................................
19 80 L.Ed.2d 674, reh. den., 467 (D.N.J. 1973) .............................................52 1996) ...................................................
37,65 80 L.Ed.2d 657 (1984) ................................ 54,56,58 1993) ................................................
46,48,49 Cir. 1972) ................................................34 1972) ..................................................46,47 1652 (1984) ................................................
59 100 L.Ed. 8 (1955) ......................................... 50 ( (1980) ....................................................59 (1979) ....................................................43 L.Ed.2d 446 (1970) ........................................49 20 L.Ed.2d 776 (1968) .....................................49 STATUTES CITED N.J.S. 2C:35-5b(10)
................................... 1,6,35,41 PROCEDURAL HISTORY
In October of 1998, the defendant Edward R. Forchion was charged in Camden County Indictment
No. 3596-10-98 (with Russell Forchion and
Eric Poole), with possession with intent to distribute a cds (marijuana), contrary to N.J.S. 2C:35-5a(1)/2C:35-5b(10)
(first degree) (Count 1).Count 2 alleged conspiracy (second degree), in
violation of N.J.S. 2C:35-5b(10) and 2C:5-2. (Da 1 to 3). The first court appearance
was on November 13, 1998, before the Honorable Linda G. Rosenzweig, J.S.C. (now Judge Baxter).The defendant
was indigent and represented by the Office of the Public Defender (“OPD”).Since
the OPD refused to argue necessary defenses, defendant wished to proceed
pro se. (2T7-23 to 24).Instead of questioning defendant
under Faretta v. California,
422 U.S. 806, 95 S.Ct.
2525, 45 L.Ed.2d 562 (1975), the court advised defendant that, prior
to proceeding pro se, he would have to undergo a psychiatric
examination—-confinement in a psychiatric hospital for 30 days. (2T5-11
to 6-3).The defendant, wishing to avoid 30 days in a hospital, reluctantly
agreed to cooperate with assigned counsel. (2T11-15 to 16). By letter dated As you may
recall, the Court ultimately did not order the competency evaluation because
you withdrew your request to represent yourself. For that reason,
I did not order a competency evaluation. (Da
28). (Emphasis supplied). The defendant next appeared
on By way of motion dated
20, 1999, the On May 24, 1999, the
defendant explained in court his desire to raise jury nullification and
his “First Amendment right to practice his religion ...” (7T4-12 to 13;
7T6-11 to 14).He advised (as reflected in the OPD’s May 20, 1999 letter; Da 46) that the OPD would not raise necessary defenses.
(7T6-11 to 14). The Prosecutor’s Office opposed defendant’s
motion to proceed pro se
allegedly because “the defendant does not possess the required legal knowledge
necessary to pass the test for pro se representation.” (Da 49)
On On On Defendant filed a Motion
to Suppress Evidence due to the warrantless
search of the van (Da 78 to 79), and also requested
an evidentiary hearing pursuant to Franks v. Delaware, 438 and searched: “There is therefore a facial
irregularity in the affidavit utilized to obtain the warrant.” (Da 97). On By way of letter-motion
dated Defendant was arrested
on Camden County Jail
until September 14, 2000, on two charges which were later administratively
dismissed.Defendant maintains that he
was arrested because the authorities were aware that he planned a “Jury
Rights Day Protest.” On request for relief
to show that the application of N.J.S.A. 2C:35-5 and N.J.S.A.
2C:5-2 will violate his constitutional rights under the Free Exercise
Clause of the First Amendment; 2) defendant’s
request for relief to use “medical necessity” as a defense against charges
under N.J.S.A. 2C:3-5 and N.J.S.A. 2C:5-2; 3) defendant’s request that he be permitted to pursue
jury nullification as a defense to charges under
N.J.S.A. 2C:3-5 and N.J.S.A. 2C:5-2; and 4) the request
by [counsel] to be relieved as legal advisor. (16T5-4 to 14-15; order
annexed at Da 181). On that same date
( before the Honorable Stephen W. Thompson,
J.S.C. and a trial date was set for On continuance.(19T3-20 to 4-13).Counsel was not present at the
time. (19T4-12 to 13).As defendant explained, counsel has not returned
my phone calls, made any scheduled appointments and in fact, he wasn’t available for the ruling on the motion to suppress
hearing on August 10th.Again, he’s
not even here, the first day of trial.I want
to make sure I point that out. (19T5-13 to 18). Trial commenced on
On 5 Camden County Indictment
Number 3596-10-98 (second degree possession with intent to distribute a cds) (21T5-7 to 25; 22T18-14 to 19-23); Count 1 of
Camden County Accusation Number 2911-09-00 (second degree conspiracy to
possess with the intent to distribute a cds,
marijuana, in excess of five pounds) (21T6-14 to 7-18; 17T20-5 to 21-4)
(Accusation annexed at Da 4 to 7; plea
form at Da 8 to 11); Count 1 of Atlantic
County Indictment 96-1174-C-CP for theft (the unlawful taking on April
10, 1996, of TajMahal Casino gaming cheques in excess of $500) (third degree), contrary
to N.J.S.A. 2C:20-3a (21T7-3 to 7; 21T22-7 to 23-3); and Count
1 of Ocean County Indictment I-96-10-00990 for theft (receiving on April
18, 1996, a .45 calibre pistol, knowing
same to be stolen or believing it had probably been stolen) (third degree).
(21T6-19 to 7-3; 21T21-5 to 22-5; Da 8
to 11). Prior to sentencing,
defendant filed a pro se motion to withdraw his plea, arguing
that the OPD had denied him the funds to present his witnesses (22T5-10
to 20) and to present properly the jury nullification defense. (22T6-17
to 24; 22T7-2 to 9).The Court denied the motion. (22T12-1 to 12). On Count 1,
manufacture/distribute/dispensing C.D.S. (second
degree) (N.J.S.A. 2C:35-5b(10)): ten
(10) years flat. $2,000 DEDR; $50 Lab Fee; $75 SSA; $30 LEO; $50 VCCB;
6 months revocation of driver’s license. Count
2 and Bellmawr complaints W-1997-000480 and 000478-0404 dismissed. (Judgment
of Conviction annexed at Da 12 to 13;
22T15-7 to 16-21). Count 1,
conspiracy (second degree) (N.J.S.A. 2C:5-2): ten (10) years flat,
to run concurrent with Ind. No. I-3596-10-98; Z-1174-6-96 and Z-990-10-96.$50
VCCB; $75 SSA.Collingswood complaint W-2000-000041-0411
dismissed. (Judgment of Conviction annexed at Da 14 to 15; 22T17-5 to 8). Count 1,
receiving stolen property (third degree) (N.J.S.A.
2C:20-7): four (4) years flat; $50 VCCB; $75 SSA. (Judgment annexed
at Da 18; Indictment at Da 23; 22T17-9 to 13). A Notice of Appeal was
filed on September 6, 2001. (Da 20). Defendant filed a pro
se motion to compel the OPD to provide transcripts for his
post-conviction relief (“PCR”) petition. (Da
187).Defendant filed a pro se post-conviction relief motion
on
Defendant filed a pro se motion dated reconsideration
of the denial of the motion to vacate the conviction, to reinstate
bail, and to compel surrender of the transcripts. (Da
319).
On On to the Law Division to determine whether
the transcript of
On May 31, 2002, defendant was placed on house arrest
for allegedly violating ISP rules—-a condition of ISP that he not advocate
the use of marijuana.Neither defendant nor counsel
received any statement or confirmation in writing as to the ban on advocation--this despite numerous requests. (See letters
of counsel to Thomas Bartlett of the ISP dated On 8
On September 17, 2002, at 9:00 a.m. defense counsel was
present at the ISP hearing with subpoened
witnesses in court.After repeatedly being told
that defendant was on his way, at approximately 1:00 p.m. counsel was
advised that, through ISP’s inadvertence, the
defendant had never been writ to Court.The matter
was postponed.On December 4, 2002, the hearing
was not completed.*A continuation date of January 17, 2003 was set. Motions for bail
pending appeal were denied by Judge Thompson on STATEMENT OF FACTS On ________________________________
** “Arizona Report I” annexed at Da 67 to 70; admitted as S-1 at 15T31-2 to 4; supplemental
“Arizona Report II” dated November 24, 1997, annexed at Da 71 to 72; supplemental “Arizona Report III” dated
November 25, 1997, annexed at Da 73 to
74. odor of marijuana coming from the box.
(Da 68). A
narcotics sniff dog “made a positive alert to the cooler
for the presence of illicit drugs.” (Da 69).Prior
to any warrant being signed in any state, On In October, 1998, a
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SUPPRESSION MOTION STATEMENT OF FACTS I THE INVESTIGATION
IN
Although the genesis of this case was in On In Detective Galbari’s report dated Facility of Sky
Harbor Airport) who advised that “a suspicious parcel had been brought
into the facility just moments before the facility closed ... this parcel
weighed approximately 100 pounds and had a very strong odor to it that
employees believed smelled like marijuana.” (Da
68; 15T31-2 to 4).
Galbari went to the airport and
noted the box “had been cut open revealing at least two white bedroom-type
pillows and a white coleman-style ice
chest inside the box ... the ice chest was taped rather heavily ...” (Da 68).While Galbari
“detected a mild odor of something that reminded [her] of a mothball type
smell.[She] could not smell any odor of marijuana coming from the box.”
(Da 68). Detective Galbari writes that she: ... briefly
spoke with a customer service clerk who stated that the large parcel had
been brought in by a black male subject just moments before
closing.This black male was described
as being about 5’10” with a stocky build and with very short hair.He wore a plaid flannel jacket (possibly lined)
and unknown color pants.The clerk also stated
that this black male apparently parked a distance from the doors
... asked for a dollie (sic) ... then pushed
one to an unknown location coming back with the described parcel. (Emphasis
supplied; Da 69). Defendant submits that
there was nothing unusual about the truck not being parked directly outside
of the door, and that the reason that
the clerk thought the individual’s actions
were “strange” and why
this person’s suspicions were improperly aroused
was because the individual was African-American.* Phoenix Police Detective
Ronald Perreira then brought a “certified
narcotic detection K-9 ‘Scout’” who “scratched at the cooler on two occasions
... Scout had made a positive alert to the cooler for the presence of
illicit drugs.” (Da 69). The cooler inside the
package was, evidently, never opened in looked inside the cooler. (15T59-7 to 9).Moody
testified at the suppression hearing that Galbari
told him she never saw marijuana. (15T51-5 to 6). No search warrant was
ever obtained in II DELIVERY OF THE
PACKAGE BY ENFORCEMENT TO
NEW IN A WARRANT ON ____________________________________ * Although not
raised at the suppression hearing, these facts smack of racial profiling
(as the “black male’s” actions are innocuous).There
is no name ascribed to this “clerk” and the “clerk’s”
identity was never determined at the hearing. Galbari and addressed to Moody. (15T80-8
to 10).Moody knew of no III BY NEW REMOVAL/IMPORTATION
TO NEW A WARRANT ON was no warrant authorizing
any to Detective Moody, who
was “not too familiar” with the Fourth Amendment (15T39-22 to 24), who
has no arrest powers in Pennsylvania (15T40-3 to 5), and who in his sixteen
years of law enforcement experience never picked up a parcel in a manner
such as this (15T38-15 to 20), decided to go to Pennsylvania to seize the
package without any warrant. (15T37-19 to 38-4). _______________________________ On IV THE AFFIDAVITS
IN SUPPORT OF AND ISSUANCE OF THE
SEARCH WARRANTS IN NEW ______________________________________ * On cross-examination,
when asked which officers had gone from “reckless disregard
for the truth” misrepresent the true facts. THE APPLICATION
AND SEARCH WARRANT DATED On THE APPLICATION
AND SEARCH WARRANT DATED
On V ENFORCEMENT TO
BERG LABS
ON NOVEMBER 24 box” that was sealed (15T81-21 to 22):
was delivered by Investigator Nicholas to Berg Labs. (10T62-16 to 22).Nicholas, 16 posing as a Federal
Express deliveryman,* had the package on a dolly, knocked on the door and announced
“Federal Express.”Co-defendant Eric Poole
met Nicholas at the door with a box cutter in hand. (15T63-5 to 8).Nicholas
left the package on a hand truck near the van.**
(15T64-5 to 15).Poole signed the inventory, and Nicholas left. (15T64-1
to 4).
On November 24, surveillance was conducted at Berg Labs.A white van with two black males in it arrived,
and the black male passenger exited the van and entered Berg Labs. (15T61-23
to 62-15).The white van was backed into a loading area, with the doors
open. (15T63-10 to 21).About 20 to 30 minutes after the package was delivered,
the van was observed driven out of Berg Labs. (15T64-24 to 65-1).The van
headed in the direction of Route 42 South.
(15T65-4 to 6).A small gold vehicle “followed the van out towards Route
42.” (15T65-4 to 6). VI THE SEARCH AND
SEIZURE OF THE VAN DRIVEN BY RUSSELL FORCHION,
THE SEIZURE OF THE PACKAGE, AND
ARREST OF DEFENDANT ON ________________________________ Russell Forchion was the driver of the van. (15T41-1 to 5). Nicholas first testified
that once the van was stopped, he “took a glance in
the van and the box was readily seen” (15T68-7 to 8), and he was able
to see the box inside the van “[f]rom the front.” (15T68-9 to 12).When advised it
is impossible to see inside the van from the front due to “a wall,” he stated “[t]hen maybe I didn’t see it through the front.” (15T69-22 to 70-3). The defendant Edward Forchion was driving the gold vehicle, and the reason
he was arrested was, according to Nicholas, “it appeared that you were
together and when the lights and sirens were activated, [the two] took
off a little bit and then pulled over ...” (15T67-16 to 19).Moody could
not recall if the driver of the van committed any traffic offense. (15T41-15
to 21).No traffic summonses were issued. (15T67-24 to 68-2).A package
containing marijuana was seized from the van. (15T22-3 to 5).No surveillance
film or tape was made of the arrest/search and seizure. (15T32-25 to 33-6). THE JUDGE’S DECISION
Judge Brown found that: The actions of
the Thus, the controlled
delivery had to be organized and orchestrated quickly, so that the suspect
did not become concerned and refuse delivery of the package. Therefore, the
law enforcement officials did not exceed the scope of the non-governmental
search conducted by the Federal Express employees and the Motion to Suppress
the Evidence is denied. (16T15-4 to 14). |
|
POINT I DENIAL OF DEFENDANT’S
FOURTEENTH AMENDMENT DUE PROCESS
RIGHTS THROUGHOUT THE HISTORY OF THIS
CASE MANDATES A REVERSAL AND DISMISSAL
OF THE INDICTMENT The first constitutional
violation is the suppression of the “ The second constitutional
violation occurred when, prior to any warrant being signed in any state,
Arizona law enforcement, working with Camden County law enforcement, arranged
for the package to be shipped from Arizona to Philadelphia, Pennsylvania,
where it was picked up by New Jersey law enforcement. (Da 69).The package was then brought into ________________________________ the package was
in In October of 1998,
the grand jury was told that defendant was driving a car following the
van (in which the marijuana was transported). (T6-10 to 20).Also, The fifth constitutional
violation occurred when defendant sought to represent himself due to the
refusal of the OPD to provide necessary defenses and ancillary services.The defendant’s
first court appearance was on defenses and ancillary services, defendant
wished to proceed pro se.” (2T7-23 to 24).At this point,
the proper procedure would have been for the court to voir dire defendant under Faretta v. California, 422 U.S.
806, 95 S.Ct. 2525, 45
L.Ed.2d 562 (1975), State v. Cristafi, 128 N.J. 499 (1992) and State
v. Russo, 243 N.J. Super. 383, 400 (App. Div.), certif.
denied, 126 N.J. 322 (1990) (“sole prerequisite” of
a defendant’s right of self-representation
is a showing that he has “knowingly and intelligently” waived his right
to counsel).Instead of voirdiring
the defendant to determine whether his choice was “knowingly and intelligently”
made, the court advised defendant that he would first have to undergo
a psychiatric examination—-confinement in a psychiatric hospital for 30
days. (2T5-11 to 6-3).That defendant was not properly voirdired as to whether his decision to proceed
pro se and waive counsel was “knowingly and intelligently”
waived is the fifth constitutional violation. (Sixth and Fourteenth Amendments). The defendant, wishing
to avoid 30 days in a psychiatric hospital, reluctantly agreed to cooperate
with assigned counsel--as he advised the court, “You’re
forcing me to so I have to say yes.” (2T11-15 to 16).This was defendant’s first court appearance, and there is
nothing in (or outside) the record to require in-house psychiatric review.By letter dated As you may
recall, the Court ultimately did not order the competency evaluation because
you withdrew your request to represent yourself. For that reason,
I did not order a competency evaluation. (Da
28). (Emphasis supplied). By letter dated On Public Defender
dated
The eighth constitutional violation (Sixth Amendment)
occurred when the Prosecutor’s Office opposed
defendant’s motion to proceed pro se because “the
defendant does not possess the required legal knowledge necessary ...” (Da 49).The Prosecutor also objected to defendant’s jury nullification argument. (Da 49).The Prosecutor’s
Office and OPD acted as allies in an adversarial relationship to defendant
as to jury nullification. On 23 Freeman, after focusing
on the defendant’s legal qualifications, denied defendant’s
pro se motion. (8T31-7 to 21).Judge Freeman (like
Judge Rosenzweig) incorrectly focused
on defendant’s ability to represent himself
rather than on whether his waiver of counsel was “knowingly and intelligently”
made.This is the ninth constitutional
violation (Sixth Amendment). On of the warrant,
a Franks hearing was conducted.At
the start of the hearing, the
prosecutor stated that: ... the only
allegation that we believe testimony is necessary for is the defendant makes
an allegation that the package was open and the contents
actually seized by looking at them and knowing that they were, in fact,
narcotics before going to the judge to get the search warrant ... That
is not what, in fact, occurred and we are prepared to provide testimony
with regard to the actual procedure that was utilized which, I believe,
is set forth in the affidavit. (14T3-19 to 4-3). concerning the cooler
containing cds, the following occurred: Q [THE PROSECUTOR].
Okay.So you don’t
know where they came up with the information in the warrant where it says
and containing a cooler which contains CDS? A [INVESTIGATOR
KEE]. No. Q [THE PROSECUTOR].
And Investigator Nicholas might know or might not know or Dan Moody from
Bellmawr Police Department may know or may not know.Is
that correct? A [INVESTIGATOR
KEE]. That’s correct. (14T31-6 to 13). don’t think we
can go any further.” (14T31-17 to 19). It cannot be overemphasized
that the defendant had not yet been provided with either of the three That the defendant was
forced to proceed with a Franks hearing without being provided with crucial
information (that the box had been opened in
On Assistant Prosecutor
Wynne on in After the Ironically, the State
took this position after the prosecutor had stated at the Franks
hearing that the defendant’s contention that
the package had been opened prior to issuance of the warrant was untrue.
(14T3-19 to 4-3).The change in the State’s
position as to the legality of the search and seizure after the On request for relief
to show that the application of N.J.S.A. 2C:35-5 and N.J.S.A.
2C:5-2 will violate his constitutional rights under the
Free Exercise Clause; 2) defendant’s request
for relief to use “medical necessity” as a
defense against charges under N.J.S.A. 2C:3-5 and N.J.S.A.
2C:5-2; 3) defendant’s request that he be permitted
to pursue jury nullification as a defense to charges under N.J.S.A.
2C:3-5 and N.J.S.A. 2C:5-2; and 4) the request by [counsel] to
be relieved as legal advisor. (16T5-4 to 14-15; order annexed at Da 181).These rulings constitute the thirteenth,
fourteenth, fifteenth, and sixteenth constitutional violations (First,
Sixth and Fourteenth Amendments).The constitutionality of N.J.S.
2C:35-5a(1) is raised in Point II, infra; the medical necessity
defense is raised in Point III; and the jury nullification defense
is raised in Point IV. Defendant was arrested
on _________________________________________
* Jury rights day, celebrated on September 5th
in New Jersey, marks the 322nd anniversary of the day when
jurors in the William Penn trial refused to convict him for preaching
what was then an illegal religion (Quakerism), to what was then an unlawful
assembly (his congregation), gathered on a London Street after being locked
out of their church.The Penn jury, in refusing
to convict, provided a basis for the On [counsel]
has not returned my phone calls, made any scheduled appointments and in
fact, he wasn’t available for the ruling on
the motion to suppress hearing on August 10th.Again, he’s not even here, the first day of trial.I want to make sure I point that out. (19T5-13
to 18). Trial commenced on On ____________________________________ months. (21T15-2 to 18; 21T32-17 to 33-4).That
defendant was forced (due to the pretrial rulings and OPD’s refusal to assist in his defense) to accept
the plea deal on September 20th is the twentieth constitutional
violation (Sixth Amendment). Following his sentence,
the defendant was incarcerated on Prior to sentencing,
the defendant filed a pro se motion to withdraw his plea,
arguing that the OPD had denied him the funds to present his defense witnesses.
(22T5-10 to 20).The defendant also argued that he had been denied the
right to present properly the jury nullification defense. (22T6-17 to 24;
22T7-2 to 9).The Court denied the motion to withdraw the plea. (22T12-1
to 12).The denial of the defendant’s motion
to withdraw his plea is the twenty-second violation of his constitutional
rights (Fifth, Sixth and Fourteenth Amendments). By way of Orders dated and Thompson.At the hearing before Judge Brown, defendant
argued that the July 18, 2000 hearing date transcript does not accurately
reflect what occurred in court since defense counsel had made Brady
violation arguments concerning the failure of the State to have provided
the “Arizona Reports.”At the reports; 2) the MR. SAYKANIC:
I discussed this with my client and [prior counsel] and he will not waive
his – the privilege.He will not waive it, Judge.He will – we will proceed in any event with
this hearing.He will state his recollection,
but as far as anything coming in that a client told an attorney,
Judge, it’s outrageous.I mean, I can’t possibly recommend
that he does that.I recommended most strongly,
Judge, most strongly that he does not waive that.I
think it would be ridiculous.I can’t put it strong enough and Mr. Forchion, do you agree with me?You have to state this on the record. MR. FORCHION:
I agree, but I’d like to ask the Judge a question. MR. SAYKANIC:
Would Your Honor want to hear a question? THE COURT: Yes,
that’s fine, sure. MR. FORCHION:
Could I cross-examine [prior counsel]
about the events of July 18 without – MR. SAYKANIC:
Question him. MR. FORCHION:
-- question him about just the events
of July 18 that I’m raising in this reconstruction hearing without bringing
in other issues? THE COURT: In
other words limiting his testimony with regard to this very specific and
discreet information.Then the question is would
– I guess, I’m not speaking for [prior counsel],
but would – would you waive any attorney/client privilege with regard
to this very discreet (sic) bit of information regarding what’s been set forth in D-6? MR. SAYKANIC:
Judge, that’s what we’re
here for, just to recreate as best as we can what occurred on that date.Nothing else, Judge.Nothing
else. THE COURT: [Prior
counsel]? MR. WYNNE: Judge,
first of all, is counsel waiving his privilege? MR. SAYKANIC:
No, I just said no. MR. WYNNE: With
reference to the events of July 18? MR. SAYKANIC:
Judge, I think that’s irrelevant. MR. WYNNE: That’s the only thing we’re
here for. MR. SAYKANIC:
Judge, I’m presenting Mr. Forchion to testify as to what he remembers, the best of his recollection. THE COURT: And
that’s fine. MR. SAYKANIC:
Anybody else can testify. He’s not waiving
anything, Judge. (Emphasis supplied) (24T11-12 to 13-11). the trial judge must settle the record
...”Instead, the Prosecutor’s Office and OPD
acted as allies combined in an adversarial relationship to the defendant. The defendant testified
at the hearing that, at the
That the transcript dated 32 assistance of counsel.This
would be the twenty-fifth constitutional violation (Sixth Amendment). On rules—-that he not
advocate the use of marijuana.Aside from the
First Amendment issues, neither defendant nor counsel received any statement
in writing as to the supposed ban on advocation.This
despite numerous requests. (See letters to ISP dated On June 6, defendant
was incarcerated due to alleged ISP violations; on
On ISP violation hearing
and had subpoened witnesses in court. After repeatedly
being told that his client was on the way, at approximately 33 ISP’s inadvertence, the defendant had
never been writ to Court and the matter was postponed.The
failure of the State to bring defendant to the ISP hearing is the twenty-eighth
constitutional violation (First, Fifth and Fourteenth Amendments). This multitude of constitutional
violations evokes cases such as Dred
Scott v. Sandford, 19 How.
393 (U.S. 1857) (Supreme Court held that African-Americans were not citizens
within the meaning of the Constitution); Plessy
v. Ferguson, 163 U.S. 537 (1896) (Supreme Court upheld a Louisiana
statute providing for separate railway carriages for whites and blacks);
Powell v. State of Alabama, 287 U.S. 45 (1932) (“The
Scottsboro Boys” trials -- rape convictions of three African-American
youths reversed); Korematsu
v. United States, 323 U.S. 214 (1944) (Supreme Court upheld
evacuation of the Japanese); United States v. Dellinger, et al.,
472 F.2d 340 (7th Cir. 1972) (“The Chicago Seven” trial
-- reversing convictions of violations of the 1968 federal Anti-Riot Act);
Commonwealth vs. Nicola Sacco
and Another, 255 Mass. 369, 151 N.E. 839 (1926);
Scopes v. The State, 154 34 |
|
POINT II N.J.S.A. 2C:35-5a(1)
AND b.10(a) ARE UNCONSTITUTIONAL AS THEY VIOLATE THE FREE RELIGIOUS EXERCISE
CLAUSE OF THE FIRST AMENDMENT ALONG WITH ARTICLE 1, PARAGRAPH 3 OF THE
NEW JERSEY CONSTITUTION AND THE RELIGIOUS FREEDOM RESTORATION ACT OF 1993
(42 U.S.C.A. § 2000bb(a)) AS THE DEFENDANT IS A PRACTICING
RASTAFARIAN; THE COURT BELOW ERRED IN NOT DISMISSING
THE INDICTMENT THE MARIJUANA LAWS ___________________________________ * N.J.S. 2C:35-2 defines “marijuana.”Title 24 categorizes controlled substances
into five Schedules—-with Schedule I substances considered to have the
highest potential for abuse with “no accepted medical use in treatment
...” N.J.S. 24:21-5a. Schedule V substances have “low potential
for abuse” with “currently accepted medical use in treatment ...” N.J.S.
24:21-8.1a. ** “Cannabis saliva L. was one of the first
plants to be used by man for fiber, food, medicine, and in social and
religious rituals.There were approximately
20 traditional medicinal uses of cannabis ... in Western medicine from
the mid-19th to the early 20th century ... In 1941,
marijuana passed out of the National Formulary and the Although the Act did
not make medical use of marijuana illegal, from the years 1937 through
1939 the Federal Bureau of Narcotics, under Harry Anslinger, prosecuted 3,000 doctors for “illegally”
prescribing cannabis-derived medications.In
1939, the American Medical Association reached an agreement with Anslinger and stopped prescribing marijuana. (Da 142).In 1942 marijuana was removed from the
As explained in defendant’s
pro se motion: The MTA of
1937 remains one of the toughest Jim Crow laws still being enforced.It is no mistake that blacks are [disproportionately]
incarcerated ... The government knows marijuana is safe ... The marijuana
laws are a major vehicle for the legalized enslavement of citizens into
the all white controlled private & public prison industry ... These
laws, which enslave citizens also enrich [investors] in the prison industry.
(Da 142). communities
with the alcohol prohibition, it was ended
because of the ... blackmarket element
(MAFIA) the prohibition created.During the
roaring 20’s ... from Chicago, Los Angeles, to New York ... [whites] started
shooting each other, drive by killings became common place in some cities,
the only difference from then and now is the color of the combatants, and
the drug ... In 1933 the all white Congress ended the “War on Alcohol”
with the 31st Amendment. (Da 143
to 144). THE RELIGION OF
RASTAFARIANISM The defendant is a practicing
Rastafarian.Rastafarianism is a recognized
religion which first took root in nineteenth century,
and is based on a combination of Old Testament ideology
and East African philosophy.During the 1920’s, with the
rise of Jamaican Nationalism and the African- American leader
Marcus Garvey, the religion gained adherents in the Rastafarianism proclaims
the divinity of HaileSelassie, former
Emperor of ANALYSIS OF THE
RELEVANT LAW The First Amendment
provides that “Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof.”Article
I, paragraph 3 of the Constitution provides:
“No person shall be deprived of the inestimable privilege of worshipping
Almighty God in a manner agreeable to the dictates of his own conscience
...” In Employment Division
v. Smith, 494 In direct response to
Employment Division v. Smith, Congress enacted the Religious
Freedom Restoration Act of 1993 (“RFRA”) (42 U.S.C.
§2000bb(a)).The Supreme
Court in City of Boerne v. P.F. Flores, 521
In Bauer, supra, the defendants, practicing
Rastafarians, challenged their convictions for conspiracy to manufacture
and distribute marijuana and distribution of marijuana, along with simple possession
of marijuana on the grounds that the 38 convictions violated
the RFRA.The Ninth Circuit reversed the convictions for
simple possession and held that the prosecution had the obligation to show
that universal enforcement of the marijuana laws was the least restrictive
means of preventing the sale and distribution of marijuana.* Id.
at 1559.The Court explained that in enacting the RFRA, Congress found “the
framers of the Constitution, recognizing free exercise of religion as an
unalienable right, secured its protection in the First Amendment to the
Constitution.” In Forchion, Judge Brown relied upon Employment
Division and Boerne.However, in
People of Guam v. Guerrero, 290 F.3d 1210 (9th
Cir. 2002) (decided on May 28, 2002, after Judge Brown’s decision), the Ninth Circuit ruled that
the RFRA forbids prosecuting Rastafarians for using marijuana within the
federal realm, such as a United States territory or a national park, thus
upholding a portion of the RFRA.In Guerrero,
the defendant, a Rastafarian arrested at the _________________________________ *The which follows other
appeals courts, applies to This distinction in
Guerrero does not make sense since it is the equivalent to
saying that, while wine is a necessary sacrament for some Christians, the
persons administering the sacrament would have to grow their own grapes.If a Rastafarian is permitted to smoke ganja
on federal grounds as aconstitutionally
protected behavior, it is illogical to prosecute the person who provides
the ganja. The RFRA protects the
religious use of marijuana by practicing Rastafarians, just as the
1919 Volstead Act (Prohibition Act) protected
the religious use of alcohol in the Catholic Church.When 40 |
|
POINT III ARE UNCONSTITUTIONAL
ON THE GROUNDS OF “MEDICAL NECESSITY;”
THE COURT BELOW ERRED IN NOT DISMISSING
THE INDICTMENT Defendant made several
“medical necessity” arguments in his motion; first, that “medical marijuana”
is legal under 21 U.S.C. 321(p)(1).
(Da 145).Accordingly, “[s]ince ‘medical marijuana’ is a federally recognized
pre-1938 medicine, not a Schedule I substance, defendant’s
conduct does not constitute an offense in violation of [N.J.S.
2C:35-5b.10(a)].” (Da
147). Second, since in 1996
the State of Third, defendant argued
that the 1997 statute “is seriously flawed in that it erroneously classifies
marijuana as a schedule 1 drug, which requires
substances in the schedule 1 classification to have no medical value in
the Justices Garibaldi (with
Justice Stein) also dissented, ruling that the defense of medical necessity
may be available to certain seriously ill persons as a legal justification
to a marijuana possession charge.
In
The court below also relied on State v. McCague, 314 N.J. Super.
254 (App. Div.), certif. denied, 157 N.J. 542 (1998)
(17T11-17 to 12-8).In McCague,
the Appellate Division held that the defense of “medical necessity” was
inapplicable in a prosecution of members of a nonprofit organization for
furnishing or giving a hypodermic needle or syringe to another.The court reasoned that “There is no fundamental
right to obtain a disinfected needle to inject heroin or any other prohibited
substance.” McCague,
involving hypodermic needles (and, thereby, heroin use) is clearly distinguishable
from Forchion. For the foregoing reasons
and authorities cited, defendant’s convictions
must be reversed and the indictment dismissed. 43 |
|
POINT IV ASSISTANCE OF TRIAL
COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT
AND BY ARTICLE I, PARAGRAPH 10 OF THE NEW HIS FOURTEENTH AMENDMENT
EQUAL PROTECTION AND DUE PROCESS RIGHT
TO A FAIR TRIAL BY THE OFFICE OF THE PUBLIC DEFENDER’S
REFUSAL TO CONSIDER THE MERITS OF AND
REFUSING TO PRESENT TO THE COURT HIS JURY
NULLIFICATION DEFENSE 44 Assistant Deputy
PD assigned replied: “ ... that jury nullification is not something
which is openly advocated to a jury.” (8T18-17 to 20). As defendant explained
that “I believe ... if the public defender is forced upon me ... I don’t believe I would ... be able to defend myself.”
(8T24-8 to 11). Due to the OPD’s refusal to provide “assistance in his defense,” the defendant was forced to proceed to trial pro
se.He was also deprived of necessary
and proper ancillary services needed to raise the religious and medical
use defenses. THE DEFENSE OF
JURY NULLIFICATION
“Jury nullification of law,”
is a traditional American right defended by the Founding Fathers, who
intended the jury to serve as one of the tests that a law must pass before
it assumes enough popular authority to be enforced.The
Constitution provides five separate tribunals with veto power—-representatives,
senate, executive, judges and jury-—that each enactment of law must pass
before it gains the authority to punish those who violate it. The power of the jury
to judge the justice of the law and to hold laws invalid by a finding
of “not guilty” for any law that a juror felt was unjust or oppressive
dates back to the Magna Carta in 1215.At that
time, King John could pass any laws any time he pleased; the oppression
became so great that the nation rose against King John, who pledged that
he would punish no freeman for a violation of any laws without the consent
of his peers.The Magna Carta was reluctantly bestowed by the King, and
its sole means of enforcement was the jury. (2 Elliots Debates, 94, Bancroft, History
of the Constitution, 267).In seventeenth century Jurors exercised the
power of nullification in 18th century [became] ... the most effective, and therefore most
disliked” of all methods used to enforce the acts of trade. Holdsworth, A History of English Law (1938)
(XI, 110). In newspaper criticized
the royal governor of criticizing public officials, laws or government.The defendant admitted the facts charged
but pleaded non-culpability, and the jury acquitted. See J. Alexander,
A Brief Narration of the Case and Trial of John Peter Zenger (1963); see also Dougherty,
473 F.2d 1113, 1130 (D.C.Cir. 1972).The
jury’s nullification in Zenger is praised today as a hallmark of
freedom of the press in the At the time of the American
Revolution, the jury was considered to be both the judge of the law and
facts.In a case involving the civil forfeiture
of private property by the state of jurors that the jury has “a right to determine
the law as well as the fact in controversy.” At the trial of Aaron
Burr in the Circuit Court of the United States for the District of Virginia
in 1808, for treason by levying war in Blennerhassett’s
Island, Chief Justice Marshall, in delivering
an opinion upon the order of evidence, said: “Levying of war is a fact,
which must be decided by the jury.The court
may give general instructions on this, as on every other question brought before them,
but the jury must decide upon it as compounded of fact and law.” 1 Burr’s Trial, 470. Sparf,
supra, 156
In the middle of the 1800’s, federal and state judges
often would instruct juries that they could disregard the court’s view of the law. Barkan, citing 52 Harvard Law Review, 682.Northern juries began refusing to convict abolitionists
who had violated the 1850 Fugitive Slave Law.Today
these jury nullification verdicts are praised as helping bring an end
to slavery. In 1895, the Supreme
Court, under pressure from large corporations, ruled that courts no longer
had to inform juries that they could veto an unjust law.The corporations had lost numerous trials against
labor leaders trying to organize unions. Jury nullification thus helped
form and shape the unions. In Sparf v. United States, supra,
the defendants were convicted of murder upon the high seas on board an
American vessel.The issue on appeal was
whether the trial judge erred in instructing the jury that “a jury is expected
to be governed by law, and the law it should receive from the court.”
(Emphasis in original). Sparf,
supra, 156 After Sparf, in effect “[t]he
right [to nullify] was gone, but the power remained.”* Datcher, 830 F.Supp.at 414.Sparf was not decided
on Constitutional grounds-—the Court stated that case was not binding
on the States, which were free to follow their own rules—-therefore, any
State cases following Sparf were ____________________________
* The Supreme Court
has consistently endorsed the traditional power of the jury to nullify
a law or a specific conviction. Datcher,
supra, 830 F.Supp.at
413-13.The Sixth Circuit has likewise endorsed the concept.See wrongly decided.In
Horning v. During the Vietnam
War attorneys for defendants on trial for war protests attempted to introduce
moral and political arguments on the war to gain jury sympathy; however,
most often the jury during these trials was given instructions such as
“You must apply the law that I lay down.” (Conspiracy trial of Benjamin
Spock et al., 1969).In the few anti-Vietnam war trials where juries were
allowed to hear of their nullification power they were acquitted. Bancroft,
History of the Constitution.Jury acquittals based
on nullification in the colonial, abolitionist, and post-Civil War
eras helped advance political activist causes and restrained government efforts at social
control. The respect for nullification
flows from the role of the jury as the “conscience of the community” in
our criminal justice system. Witherspoon v. deny a defendant the possibility of jury
nullification would be to defeat the central purpose of the jury system.” In State v. Ragland,
105 N.J. 189 (1986), the Court acknowledged the power of the jury
to acquit despite not only overwhelming proof of guilt but despite the
jury’s belief, beyond a reasonable doubt,
in guilt. There are
various elements in this view of the jury as the “conscience of the community.”Some laws are said to be unfair. Only the
jury, it is thought, is capable of correcting
that unfairness—through its nullification power.Other laws, necessarily general, have the
capacity of doing injustice in specific applications.Again,
only the jury can evaluate these specific applications and thereby prevent
injustice through its nullification power.Cast
aside is our basic belief that only our elected representatives may determine
what is a crime and what is not, and only they may revise that law if
it is found to be unfair or imprecise; only
they and not twelve people whose names are picked at random from the box. We have generally
accorded the jury a unique assignment in the trial of criminal cases,
reflecting our acceptance of the jury as society’s
surrogate in the effectuation of its criminal laws.The
jury acts as ‘the conscience of the community and the embodiment of the
common sense and feelings reflective of society as a whole,” State v. Ingenito,
supra, 87 N.J. at 212. The ultimate
discretion accorded to a jury in a criminal case is deeply embedded in our jurisprudence and has served society
well. See Thomas A. Green, Verdict According to Conscience: Perspectives
on the English Criminal Trial Jury: 1200-1800 (Univ. of “a verdict
of innocence in the face of overwhelming evidence of guilt.” State
v. Cristanos (Arriagas), 102 N.J. 265, 272 (1986) (quoting
State v. Ingenito, supra,
87 N.J. at 212); see State v. Champa,
__ R.I. __, __, 494
A.2d 102, 106 (1985).“A jury may acquit or convict on a lesser charge
even though the greater charge is satisfactorily proven beyond a reasonable
doubt ... [and] may return illogical or inconsistent verdicts that would
not be tolerated in civil trials.” State v. Cristantos (Arriagas),
supra, 102 N.J. at 272 (citations omitted).As Justice
Holmes observed, “the jury has the power to bring in a verdict in the teeth of both
law and fact.” Horning v.
As Justice Handler wrote
in his concurrence in State v. Ingenito,
87 N.J. 204, 212 (1981), “[A] jury has the prerogative of returning a verdict of innocence in
the face of overwhelming evidence of guilt.”Such
a verdict in favor of the criminal defendant, even in a death-penalty case,
is subject to neither review nor reversal. SeeMcCleskey
v. Kemp, 481 U.S. 279, 311, 107 S.Ct.
1756, 1777, 95 L.Ed.2d 262, 291 (1987); State v. Ramseur,
106 N.J. 123, at 296-97 (1987) (notions of jury nullification are
appropriately implicated in our recognition that a jury in a capital-murder
prosecution may indeed be allowed to consider sympathy for the defendant);
State v. Hunt, 115 N.J. 330, 400-401; State v.
Maldonado, 137 N.J. 536, 568-570 (1994). States such as Georgia, constitutional provisions that protect
jury nullification. In Selection Procedures:
Our Uncertain Commitment to Representative Panels, 239-240
(1977).Many federal district court judges have written articles saying
that, while jury nullification cannot be explicitly argued, a defendant
may be given wide latitude concerning what evidence is relevant when attempting
to prove the law is unjust and should not be applied to him. See Hon.
Kenneth M. Hoyt, What Juries Know: A Trial Judge’s
Perspective, 40S.Tex.L.Rev. 907 (1999); Hon. Jack Weinstein,
Considering Jury “Nullification”: When May and Should a Jury Reject
the Law to Do Justice, 30 Am. Crim.L.Rev.
239, 244 (1993). THE LAW REGARDING
INEFFECTIVE ASSISTANCE OF COUNSEL In all criminal
prosecutions, the accused shall enjoy the right ... to have compulsory
process for obtaining witnesses in his favor, and to have the assistance
of counsel for his defense. (Emphasis supplied). 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. den., 467 that counsel made
errors so serious that counsel was not functioning as the “counsel” guaranteed
by the Sixth Amendment.Second, the defendant
must show that the deficient performance prejudiced the defense.In United States v. Cronic, 466 HISTORY OF THE
DEFENSE OF INDIGENTS IN NEW crimes has existed
in [i]t shall be the duty of the Public Defender to
provide for legal representation of any indigent defendant who is formally
charged with the commission of an indictable offense. All necessary
services and facilities of representation (including investigation and
other preparation) shall be provided in every case.The factors of need and
real value to a defense may be weighed against the financial constraints
of the Public Defender’s office in determining
what are the necessary services and facilities of representation. [N.J.S.A.
2A:158A-5]. (Emphasis supplied). addressed the scope
of OPD’s obligations under the Act.In Cannady,
supra, the defendant Janice Cannady
was indicted for the murder of her live-in boyfriend.Members
of her family retained private counsel to represent her.Counsel concluded that Cannady was suffering from Battered Women’s Syndrome when she killed her boyfriend.Counsel wished to retain Cissie Alfonso, who had testified before
as an expert on Battered Women’s Syndrome;
her fee was $3,000.00.Although Cannady’s
family paid her attorney’s retainer, they could
not afford to pay for Alfonso’s services.The trial judge granted Cannady’s motion compelling the OPD to pay for Alfonso’s services, and the Supreme Court affirmed. 1. Is the service
requested reasonably related to the issue in contention? 2. Is the service
requested reasonably related to the applicant’s
method of refuting the State’s proofs? 3. Is the service
requested needed and of real value to the defense when weighed against
the financial constraints of the OPD? 4. Is the requested
service one that is generally available to defendants represented by the
OPD? psychological examination. In Forchion, the defense of nullification was
a necessary service that the OPD was required to provide.The
defense of jury nullification is a legitimate defense in many jurisdictions.
The OPD’s dismissal of one of the defendant’s primary defenses out of hand with no research
or meaningful consideration constitutes ineffectiveness of counsel as a
matter of law.Prejudice should not only be
presumed under Cronic, supra,
but undoubtedly occurred in this case based upon the juror’s comments.That
the OPD has provided numerous challenges to “Megan's Law” (resulting in
that law being greatly eviscerated), while rejecting defendant’s request out of hand constitutes a violation of not only defendant’s due process right to a fair trial, but
a violation of the equal protection clause. On the day of trial
assigned counsel refused to argue jury nullification (20T10-8 to 24), and
the defendant was forced to proceed pro se. (20T12-4).Both
the Sixth Amendment and New with the right to “assistance in his defense.”Indeed, the Public Defender
Act required the OPD to provide “all necessary services” including
the jury nullification defense.Jury nullification defenses are presented every
day in courts throughout the country-—both federal and state. The defendant, as a
client, had the right to determine the grounds of his defense, as long
as said grounds were not unethical—-which they were not.The
OPD was ineffective as a matter of law for rejecting the client’s defense out of hand.The
OPD gave no real consideration to this permissible jury persuasion technique,
made no request to the judge for permission to argue nullification, gave
no reasons for rejecting the feasibility of nullification, and disparaged
the defendant’s main ground for defense.When the OPD refused to even consider the
merits of the defense, defendant was deprived of effective counsel and
forced to proceed pro se, and, eventually, forced into
accepting a plea in violation of his due process rights. POINT V DEFENDANT WAS DENIED
HIS RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT
AND BY ARTICLE I, PARAGRAPH 10 OF THE NEW FOURTEENTH AMENDMENT
EQUAL PROTECTION AND DUE PROCESS RIGHT TO A
FAIR TRIAL BY THE OFFICE OF THE PUBLIC DEFENDER’S
REFUSAL TO CONSIDER THE MERITS OF HIS RELIGIOUS AND
MEDICAL NECESSITY DEFENSES consider the merits
of religious and medical necessity defenses: THE DEFENDANT:
It wasn’t only the jury nullification issue. THE COURT: Yes. THE DEFENDANT:
There – there are several others, one being the religious issue. THE COURT: I’m sorry. THE DEFENDANT:
One being the First Amendment issue. (Emphasis supplied; 8T20-1
to 8). POINT VI THE DEFENDANT TO ARGUE
JURY NULLIFICATION, ALONG WITH THE RELIGIOUS
USE AND MEDICAL NECESSITY DEFENSES
IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT TO
A FAIR AND IMPARTIAL JURY AND HIS RIGHT TO PRESENT
DEFENSES, ALONG WITH HIS FOURTEENTH AMENDMENT
RIGHT TO DUE PROCESS Ragland
discussed that some belief (sic) that the jury is the conscious (sic) of
the community, and therefore, the jury is capable of correcting unfair
laws through its nullification power.
Defendant was deprived of his Sixth Amendment and Fourteenth
Amendment due process right to a fair trial, mandating reversal. 58 |
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POINT VII MOTION TO SUPPRESS
SINCE THE SEARCH AND SEIZURE VIOLATED
THE FOURTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, PARAGRAPH 7 OF
THE NEW The actions of
the Thus, the controlled
delivery had to be organized and orchestrated quickly, so that the suspect
did not become concerned and refuse delivery of the package. Therefore, the
law enforcement officials did not exceed the scope of the non-governmental
search conducted by the Federal Express employees and the Motion to Suppress
the Evidence is denied. (16T15-4 to 14). Therefore, insufficient
probable cause existed for the issuance of the search warrants. Finally, law enforcement
in both POINT VIII FOURTEENTH AMENDMNET
DUE PROCESS RIGHTS WERE VIOLATED DUE
TO THE WITHHOLDING/ SUPPRESSION/FAILURE
TO DISCLOSE THE “ led to a Franks
hearing.In March of 2000 (more than two
years after the arrest and issuance of the warrants), defendant was still
seeking discovery, and did not know that individuals in 60 embark on a “wild
goose chase” concerning the question of how Judge Trabosh knew that the package contained a cooler.Much time had to be devoted
to this issue, and the entire defense thrown awry.Due
to the withholding of the Arizona Reports the defendant was deprived of
any meaningful investigation in Arizona—-including the identities of the
individuals who opened the package.The sole
reason the marijuana was admissible was due to the State’s claim that an unnamed Federal Express employee
(non-law enforcement) opened said package.Had
defendant been timely provided with the reports, he could have investigated
the source of the search and seizure.As it stands,
the truth will never be known. It should be emphasized
at this point that in The blatant disregard
for defendant’s fundamental discovery rights resulted
in an absurd Franks hearing that would be laughable had it not resulted
in a ten year sentence.Both the prosecutor and Kee maintained that the package had not been opened
prior to the warrant being issued (14T3-19 to 4-3): Q [Prosecutor]:
Now, at the time the package was picked up and brought to the Bellmawr
Police Department, was the package opened? 61 search warrant of prosecutor explained: ... with
reference to whether it contains a cooler, when you pick up a cardboard
box that’s got one of those white coolers in
it, you can tell there’s a white cooler in
it by just feeling it, touching it, things like that.You
know there’s a white cooler in it. (14T26-13
to 18). The defendant points
no fingers at the Assistant Prosecutor for the fiasco at the office’s investigation of the case and
indeed ‘has a duty to learn of any favorable evidence known to the others
acting on the government’s behalf in the case,
including the police ...’) After the July 7, 2000
Franks hearing, the Prosecutor’s
office for the first time revealed the existence of the Q. [Prosecutor]:
I’ll show you what’s
been marked on the back as S-1 for identification.Is
that the fax that you sent me on July 10th of this year?Is that correct? A. Yes. (15T7-12
to 15). After the hearing on
July 7 was conducted and Kee had testified,
the State changed its entire theory to one of the package being opened
by an independent source in remains unnamed).No
matter who is to blame in the Prosecutor’s
camp, defendant’s litigation of the suppression
issue was severely hampered due to the withholding of the ____________________________________
* Since the events in the |
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The convictions
must be reversed and Indictment dismissed. IN CONFORMANCE WITH
CASE LAW AND THE GUIDELINES AND VIOLATES THE EIGHTH
AMENDMENT PROHIBITION AGAINST CRUEL AND
UNUSUAL PUNISHMENTS The judge erred in not
finding the following mitigating factors: number 1 –- defendant’s conduct neither caused nor threatened
serious harm (the offense involved marijuana--decriminalized in many states).See
Guerrero, supra; Tate, supra; number 2 –-
defendant did not contemplate his conduct would cause or threaten serious
harm; number 4 -- there were substantial grounds tending to excuse or justify
defendant’s conduct, though failing to establish
a defense (as the marijuana was to be used for religious use and, in part,
for medicinal purposes); number 6 -- defendant will participate in community
service; and number 11 -- imprisonment of defendant would entail excessive
hardship to his dependents (discussed infra). ________________________________ * Defendant was
incarcerated on The defendant is
a professional truck driver and veteran of both the army and the marines
(honorable discharge from both).He also served in the Since the mitigating
factors substantially outweigh any aggravating factors, defendant should
have been sentenced to the minimum five (or presumptive seven) year sentence. CONCLUSION
Defendant respectfully submits that the Indictment must
be dismissed based upon the unconstitutionality of the statutes.Also, the Order denying the motion to suppress
evidence seized must be reversed and the Indictment dismissed.In addition, due to the rampant and pervasive
pattern of constitutional violations by the State (including those committed
by the Prosecutor’s Office, OPD and ISP),
the convictions must be reversed and indictment dismissed.At
the very least, a remand is necessary to determine whether the OPD should
have engaged the services of expert witnesses (related to the medical,
nullification, and theological defenses). Bauer, supra; Cannady, supra.A
remand is also necessary to determine whether the OPD properly analyzed
the defendant’s requests as to jury nullification
and other defenses under the Cannady
criteria. Cannady, supra,
at 495. Respectfully
submitted, Yvonne
Smith Segars Public
Defender ______________________ JOHN
VINCENT SAYKANIC Dated:
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