United States v. Cortez Fisher, 711 F.3d 460 (4th Cir. 2013) a/k/a Oh, Wow, Do Cops Actually DO THIS?
This is not really a new case, but it’s a good one to keep in mind for a couple of reasons—1) it reminds us that guilty pleas do not sanitize government misconduct, and 2) in federal cases, the 2255 can be a powerful remedy for undoing injustice.
Marta Kahn, of Baltimore, Maryland was the Outstanding Lawyer for this defendant.
The opinion starts off with a BANG:
In this extraordinary case, the law-enforcement officer responsible for the investigation that led to the defendant’s arrest and guilty plea himself later pled guilty to having defrauded the justice system in connection with his duties as an officer. Regarding this case specifically, the officer admitted to having lied in his sworn affidavit that underpinned the search warrant for the defendant’s residence and vehicle, where evidence forming the basis of the charge to which the defendant pled guilty was found. We hold that the officer’s affirmative misrepresentation, which informed the defendant’s decision to plead guilty and tinged the entire proceeding, rendered the defendant’s plea involuntary and violated his due process rights.
Mark Lunsford, the Dirty Cop in this case, was a Baltimore City Drug Enforcement Agency Task Force Officer. He applied for the search warrant for Fisher’s house and car. In the application, he made the following claims:
- He targeted Defendant after a CI told him Fisher distributed drugs, and that the CI told him Fisher had a gun in the house.
- Described his CI as “reliable” and had helped with “numerous arrests.”
- CI provided physical description of Fisher, the house and Fisher’s car
- The CI identified Fisher through the use of a photograph.
All of that, it turns out, were lies. A year after Fisher went to prison for 10 years, Dirty Cop was charged with various fraud and theft offenses in connection with his duties as a DEA officer, including falsely attributing information to a CI with whom he was splitting reward money. As part of Dirty Cop’s cooperation with the FBI, he admitted that the CI in this case had “no connection to the case” and that another individual was “the real informant.”
The district court judge denied Fisher’s motion to withdraw his plea that he brought by way of a 2255 motion. Marta Kahn was appointed on motion by the Federal Public Defenders Office, and she appealed the case to the Fourth Circuit.
Fisher (through Kahn) made the following arguments:
The district court erred in finding Fisher’s guilty plea was knowing, intelligent, and voluntary because he did not know at the time he entered his plea that Dirty Cop lied in his search warrant affidavit. The plea is constitutionally infirm because 1) Dirty Cop’s underlying pre-plea misconduct rendered his plea involuntary under Brady v. United States, 397 U.S. 742 (1970); and 2) the government failed to meet its evidentiary disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963).
As to the Brady v. United States argument:
The United States Supreme Court has outlined the following standard as to the voluntariness of guilty pleas:
A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutors business (e.g. bribes).
Brady at 755.
Therefore, in order to set aside a plea as involuntary, the defendant who is fully aware of the direct consequences of the plea must show that (1) “some egregiously impermissible conduct (say, threats, blatant misrepresentations, or untoward blandishments by government agents) antedated the entry of his plea” and (2) “misconduct influenced his decision to plead guilty or, put another way, that it was material to that choice.” Ferrara v. United States, 456 F.3d 278, 290 (1st Cir. 2006).
The Court had no difficulty finding this happened in this case. As the majority holds, Brady v. United States does not limit government misrepresentations to prosecutorial promises designed to elicit a guilty plea. The government cannot make “plain and inexcusable misrepresentations not anchored to any permissible litigation strategy.” Ferrara, 456 F.3d at 293.
Additionally, it did not matter to the Court that neither the prosecution nor defense counsel knew of the misstatements at the time that Fisher entered his guilty plea. “Neither the timing, nor the prosecution’s good faith, however, negates the undisputed fact that the evidence the prosecution presented to Defendant and his counsel during deliberations as to whether Defendant should plead guilty was obtained under a search warrant issued solely on the basis of an untruthful law enforcement affidavit.”
The Court found that, under the totality of the circumstances—a law enforcement officer intentionally lying in an affidavit that formed the basis for a search, where evidence forming the basis of the charge to which he pled guilty was found—Defendant’s plea was involuntary and violated his due process rights. Also, allowing a guilty plea to stand under these circumstances undermines public trust in the judicial system.
Because the Court rendered its opinion in the basis of the Brady v. United States claim, it declined to address the Brady v. Maryland claim.
While this is a great case for Justice, bear in mind that Judge Agee wrote a thoughtful and lengthy dissent that argues, essentially, that the Brady v. Maryland right is a TRIAL right. This is the same argument that the West Virginia State Supreme Court recently rejected (Buffey v Ballard, No. 14-0642, September 2015). As for the Brady v. United States claim, Judge Agee appears to commit to the position that the misrepresentations are problematic only to the extent they were made for purposes of inducing the guilty plea (here, he contrasts the facts in this situation—“tangentially related to the plea process, like a warrant application months in advance of the defendant’s guilty plea . . .”).
Excellent outcome for an outrageous example of law enforcement misconduct!