Cop’s Lies Cost Government on Appeal

     (CN) – A divided 4th Circuit reversed a Baltimore man’s drug conviction, finding his confession was effectively coerced by the lies an investigator told to get a warrant to search his home and car.
     Cortez Fisher was arrested outside his home on Oct. 29, 2007. A search turned up 50 empty glass vials in his pants pocket, 4th Circuit Judge James Wynn Jr. wrote in his synopsis for the three-judge panel.
     Based on the sworn affidavit of Mark Lunsford, a Baltimore City Drug Enforcement Agency Task Force Officer, police got a search warrant for Fisher’s home and car, and found crack cocaine and a loaded handgun.
     In the affidavit, Lunsford said a “reliable” informant had told him that Fisher was selling drugs from his home and car, and that the informant had provided him with a description of Fisher, his address, and the make, model and license plate number of his vehicle, Judge Wynn wrote.
     Fisher was charged with possession with intent to distribute cocaine and possession of a firearm by a convicted felon. He pleaded guilty and was sentenced to 10 years in prison.
     A year later, in September 2009, Lunsford was charged with a number of fraud and theft-related offenses related to his work as a DEA officer. Among these was that he falsely attributed information to a confidential informant with whom he was splitting reward money.
     Lunsford pleaded guilty to several of the charges in March 2010, and in the process admitted to the FBI that the confidential informant he identified in his affidavit for the Fisher search warrant “had no connection to the case,” and that someone else had been his informant.
     After Lunsford’s guilty pleas, Fisher filed a pro se motion seeking to have his guilty pleas vacated based on Lunsford’s criminal misconduct. A court appointed a public defender for Fisher, but his motion was denied.
     His counsel immediately filed a motion asking the court to reconsider its order, and a supplement to Fisher’s pro se motion to vacate.
     In May 2001, Senior District Judge Frederick Motz found there was little doubt that had Fisher known of Lunsford’s misconduct, he would have filed a motion to suppress, “and that motion may well have been successful.”
     Nevertheless, Motz wrote, Fisher admitted under oath that he unlawfully possessed a firearm. Under those circumstances, Motz wrote, he did not see failing to allow Fisher to withdraw his guilty pleas would result in a miscarriage of justice.
     “Certainly, [Defendant] was denied of an opportunity to pursue a motion to suppress that might have been meritorious, but neither the government nor his own counsel was aware of Lunsford’s criminal misconduct at the time that [Defendant] entered his guilty pleas and was sentenced. Therefore, it cannot be said that [Defendant’s] counsel was ineffective or that the government breached any obligation that it owned to him,” Motz wrote. (Brackets in 4th Circuit ruling, quoting Motz.)
     Despite these reservations, the district court granted Fisher’s motion for a certificate of appealability on his Sixth Amendment ineffective assistance of counsel claim.
     The 4th Circuit then granted his motion to expand the certificate to include the issue of whether the belated disclosure of Lunsford’s misconduct rendered his guilty pleas invalid under the Due Process Clause.
     To set aside his plea as involuntary, a defendant most show impermissible government conduct.
     “This case presents highly uncommon circumstances in which gross police misconduct goes to the heart of the prosecution’s case,” Wynn wrote.
     He said that defendants and their attorneys often weigh what they believe to be the merits and demerits of the prosecution’s case, before deciding whether to make a plea. In this case, Wynn said, Fisher’s attorney indicated that her examination of the warrant was a critical part of her evaluation of the government’s case.
     “Because the lawyer thought that there were not grounds on which to challenge the warrant, she believed the government’s case to be ‘a strong one’ and advised defendant to enter a plea,” Wynn wrote.
     Although he acknowledged Judge Motz’s misgivings and the government’s contention that had it learned of Lunsford’s misconduct it would have informed Fisher and his counsel of it, Wynn said neither point voids the fact the prosecution was based on the initial lies told to secure the search warrant.
     Wynn also rejected the government’s contention that Fisher has never claimed he is actually innocent. “Neither cites, nor did we find, a case holding that a defendant’s factual innocence is a prerequisite to finding a plea invalid,” Wynn wrote.
     “In sum,” he continued, “Defendant has successfully shown that impermissible government conduct – an officer’s deliberate lie that led to the warrant that led to the discovery of the evidence against him – occurred.”
     Wynn found that because Fisher showed “a reasonable probability” that he would not have pleaded guilty had he known of Lunsford’s misconduct, that misconduct renders Fisher’s pleas involuntary.
     In vacating Fisher’s guilty pleas, the majority of the three-judge panel said, “allowing a defendant’s guilty plea to stand when a police officer intentionally lies in a search warrant affidavit undermines public confidence in our judicial system.”
     Citing the 2nd Circuit’s ruling in United States v. Gribben, Wynn wrote: “‘Whether to prosecute, issue a warrant, indict and convict are serious matters that are decided in large measure based on what a police officer relates. So when an officer does not tell the whole truth, public confidence in the fair administration of criminal justice inevitably is eroded.'”
     In dissent, 4th Circuit Judge Steven Agee sided with the lower court.
     “As the learned district court judge correctly determined, Fisher is bound to his guilty pleas, and the majority opinion articulates no reasoned basis founded in the established precedent of the Supreme Court, or any other court, to decide otherwise,” Agree wrote.
     He added: “To be clear, I certainly agree with the majority that Lunsford’s conduct in falsifying the identity of the informant on the search warrant was reprehensible. But our natural reaction of extreme distaste to Lunsford’s criminal act does not instantaneously transform Fisher’s guilty plea into some form of due process violation that permits him to now withdraw that plea. Only a well-grounded application of settled precedent would permit such an extraordinary result. With respect for my distinguished colleagues, that indispensable factor is missing in the majority opinion.”

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