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Detective Lunsford's Lies Invalidate Guilty Plea

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By William Peacock, Esq. on April 02, 2013 4:06 PM

A plea bargain is supposed to bring finality to a case. Along these lines, the Supreme Court, in Blackledge v. Perry, stated:

when a criminal defendant enters a guilty plea, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea ... [He] is limited ... to attacks on the voluntary and intelligent nature of the guilty plea.

However, when the prosecution's entire case relied upon fictitious statement made by a corrupt police officer, how "voluntary and intelligent" can that plea be?

Cortez Leon Fisher, at least per the record, is a career criminal. In 2004, he pled guilty to a felon in possession of a firearm charge. Three indictments against him, between 2000 and 2004, were shelved by prosecutors, reports the City Paper. Even the present charges, which he has not denied, occurred while he was still on probation.

Note however, that the three shelved indictments and the present case all involved Detective Mark Lunsford, who is now himself a felon. He has admitted lying in sworn affidavits and theft of jewelry and large sums of cash.

In this case, a warrant was issued on the basis of a sworn affidavit executed by Lunsford. The affidavit stated that a confidential informant had provided information about Fisher's drug-dealing, handgun possession, physical description, make and model of his vehicle, and his license plate number. The search turned up drugs and a loaded gun.

With the advice of counsel, and largely based on the strength of the warrant, Fisher pled guilty in 2009. Lunsford pled guilty in 2010. Fisher's subsequent motion to vacate the plea was denied by the district court, even though the court recognized that "Unquestionably, if [Defendant] had known of Lunsford's criminal misconduct, he would have filed a motion to suppress, and the motion may well have been successful."

The question before the Fourth Circuit was whether a police officer's misrepresentations invalidate a guilty plea under the Due Process Clause.

In order to invalidate a plea under 28 U.S.C. § 2255, per Ferrara, a defendant has to show (1) some egregiously impermissible conduct antedated the entry of his plea and (2) the misconduct influenced his decision to plead guilty.

The problem for Fisher, which the dissent highlights, is that there is no case directly on point with these "extraordinary" facts. To be sure, there are cases where prosecutors have made "unfulfillable promises" to induce guilty pleas, such as a case where a prosecutor promised no prison time (and didn't deliver). In fact, nearly every case on point deals with prosecutorial misconduct, not police misrepresentations.

Nonetheless, Lunsford's lies "strik[e] at the integrity of the prosecution as a whole."

Fisher also relied on the strength of that affidavit and warrant in making his decision to plead guilty. So did his attorney, who swore under oath that her case strategy would have varied greatly and "I believe ... that I very likely would have obtained a better result than the 10 year sentence I advised [Defendant] to accept in 2008."

Blatant misrepresentations led to an indictment and a decision to take a plea bargain that likely would have been rejected had the truth been known. That plea is thereby invalid under Brady v. United States.

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