Ed Forchion, also known as NJWeedman, was indicted in February in New Jersey for two counts of alleged “witness tampering”, which he emphatically disputes. As has been his usual practice, he is seeking trial by jury to address these charges.
In response, the state filed a motion for pretrial detention to incarcerate Forchion, without proving him to have committed any crime, while he awaits his day in court. One of the reasons cited by the state for incarcerationg Forchion on a pretrial basis is that the state alleges that Forchion’s practice of seeking or advocating for jury nullification amounts to obstruction of the administration of justice.
Per N.J.S.A. 2A:162-20 [Pretrial detention], the Court should consider in pretrial detention:
the protection of the safety of any other person or the community, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process . . . (emphasis supplied).
The State moved for detention “with regard to the third prong of the triad, that would be obstructing, a criminal justice process” (T15-24 to 6-1): “[a]nd his goal in this case is jury nullification. Again, that is obstructing the administration of justice.” (T35-7 to 9).
(“T” denotes material from the transcript of detention hearing dated March 7, 2017.)
Forchion correctly argues in his appeal that:
“Jury nullification” should not be grounds (an unconstitutional “prior restraint”) for denying freedom. It is Mr. Forchion’s First Amendment Free Speech right to advocate the theory of jury nullification.
Indeed, the status of this topic as free speech that is supposed to be guaranteed under the First Amendment has been upheld by courts more than once:
● in Florida, where a judge affirmed that handing out FIJA brochures regarding jury nullification is legal based on principles of free speech
● in New York, where a federal judge dismissed false jury tampering charges against someone handing out brochures that advocated jury nullification
● in Colorado, where a judge dismissed false jury tampering charges against two people handing out FIJA’s educational material on jury nullification
Forchion is a father and cancer patient. Moreover, he is well known not merely for showing up, but for eagerly seeking out opportunities to make his case in court. Subjecting him to pretrial incarceration impedes him not only from fulfilling his financial responsibilities to his family, but also from accessing the medical treatment he needs for his very serious medical condition. In using his advocacy of jury nullification—which is well within his legal rights to conduct—as a thinly veiled excuse to imprison him, the state sinks to a new depth depravity and maliciousness in its ongoing vendetta against him.