UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN, NEW JERSEY

ROBERT EDWARD FORCHION September 30, 2003

P.O. Box – 1302

BROWNS MILLS, N.J. 08015

HONORABLE JUDGE IRENAS

1 GERRY PLAZA

CAMDEN, N.J. 08101

ROBERT EDWARD FORCHION, Jr : EMERGENT

: MOTION FOR INJUNCTIVE RELIEF,

Plaintiff, : to ex-post fact law, imposing DNA testing

: as unconstitutional in violation of Article I,

Vs : section 9 of the U.S. Constitution.

:

INTENSIVE SUPERVISION PROGRAM, : CIVIL ACTION NO.- 02-4942

State of New Jersey, et. al. :

Defendants :

Honorable Judge Irenas,

The Plaintiff Robert Edward Forchion, Jr. who currently is enrolled in the (ISP) Intensive Supervision Program by injunctive order issued by this court on Jan. 24^th, 2003 now moves for issuance of INJUNCTIVE RELIEF to Ex-Post Facto Law L. 2003, c. 183 signed into New Jersey Law on September 22, 2003 by New Jersey Governor McGreevy. This new, New Jersey Law L. 2003, c. 183 Plaintiff argues is a “unconstitutional” violation of Article 1 Section 9 and should not be imposed on Plaintiff. Under the present injunction issued by this court the State of New Jersey must give a 48 hour notice to this Plaintiff if ISP is to violate Plaintiff. ( Attachment 1)

http://lawlibrary.rutgers.edu/fed/html/ca02-4331-1.html

On September 30^th, 2003 the Plaintiff received in the mail a letter ordering Plaintiff to submit to DNA testing and to pay for the cost of DNA testing or be jailed for refusing so. (Attachment 2) Upon receiving attached letter Plaintiff immediately contacted his ISP officer Shirley Lemmon and verbally stated to her he was refusing to abide by the new conditions of ISP placed on him per L. 2003, c.183 on CONSTITUTIONAL grounds. Plaintiff states the new conditions are unconstitutional and anticipates his imminent arrest for doing so, similar to how he was arrested for refusing to comply with “unconstitutional” directives of ISP previously in regards to his exercise of first amendment rights which this court is well aware of.

FACTS

On Dec. 1^st, 2000 Plaintiff was convicted of violating N.J.S. 2C:35-5a(1) and 2C:35-5b(10) (first degree), and “conspiracy,” contrary to N.J.S. 2C:5-2 (second degree) in Camden County Superior Court and sentenced to 10 years flat. After 17 months in prison Plaintiff was admitted into the ISP on April 3^rd, 2002. None of the 38 rules/directives Plaintiff signed required DNA testing or payment. Nowhere in ISP rules or regulations is DNA required. On June 6^th, 2002 thru 10^th 2002 Plaintiff was incarcerated by ISP for exercising his FREE SPEECH RIGHTS. Again on August 19^th, 2002 Plaintiff was arrested by ISP for exercising his 1^st Amendment Rights to FREE SPEECH. Plaintiff was held for 5 months in the Burlington County Jail until the Honorable Judge Irenas issued a injunction on Jan 24^th, 2003 ordering Plaintiff back into the ISP.

At no time prior to Sept 22nd, 2003 was Plaintiff by law ordered to submit to DNA testing or the penalty of payment for such testing. Neither of Plaintiffs co-defendants were ordered to such testing or monetary penalties

LEGAL ARGUEMENTS

A.) L. 2003, c. 183 is “unconstitutional” as applied to this defendant and others similarly situated in that it attempts to apply punishments retroactively as a Ex Post Facto Law. Ex post facto laws are prohibited by Article I, Section 9 of the U.S. Constitution.

Legal definition of a Ex Post facto law: a law that retroactively alters a defendant's rights esp. by criminalizing and imposing punishment for an act that was not criminal or punishable at the time it was committed, by increasing the severity of a crime from its level at the time the crime was committed, by increasing the punishment for a crime from the punishment imposed at the time the crime was committed, or by taking away from the protections (as evidentiary protection) afforded the defendant by the law as it existed when the act was committed. “Every law, which makes criminal an act that was innocent when done, or which inflicts a greater punishment than the law annexed to the crime when committed, is an ex post facto law within the prohibition of the Constitution. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798); Ex parte Garland, 71 U.S. (4 Wall.) 333, 377 (1867); Burgess v. Salmon, 97 U.S. 381, 384 (1878)

Plaintiff asserts that at the time of his 12/1/2000 negotiated Plea bargain agreement no such requirement for DNA testing existed. Additionally no statutory law existed requiring Plaintiff to pay the cost of any DNA testing. Plaintiff is in the last month of his 20 month statutorily required ISP enrollment. None of the laws Plaintiff was convicted of (N.J.S. 2C:35-5a(1) and 2C:35-5b(10) (first degree), and conspiracy, contrary to N.J.S. 2C:5-2 (second degree)) impose any of the penalties described by L. 2003, c. 183 – Thus plaintiff asserts L. 2003, c. 183 is a Ex Post Facto punishment. It is clear Constitutional Law that state Legislatures, shall not pass laws, after a fact done by a subject, or citizen, which shall have relation to such fact, and shall punish him for having done it. The prohibition considered in this light, is an additional bulwark in favour of the personal security of the subject, to protect his person from punishment by legislative acts, having a retrospective operation

B.) L. 2003, c. 183 is “unconstitutional” as applied to this defendant as in violation of the 14^th Amendments “equal protection clause”.

The Plaintiff had two co-defendants, neither of his co-defendants are punished by this new legislation. This is inviolation of equal protection doctrine. The defendants were all convicted of the same crimes yet, now this defendant/plaintiff is being punished additionally for no reason at all.

INCONCLUSION

The plaintiff begs the Court to issue a temporary INJUNCTION barring defendants from seizing DNA or testing body fluids from Plaintiff. It is clear Plaintiff will be arrested for refusing to provide body fluids to the State of New Jersey a “defendant” in this case.

________________________________

ROBERT EDWARD FORCHION, Jr.

Aka- NJWEEDMAN