Special to the Chronicle by Houston-based investigative journalist Clarence Walker, [email protected]. This is Part 8 in his continuing series of stories about prosecutorial misconduct and police corruption in the drug war.

In an unusual recent case, the US 4th Circuit Appeals Court overturned a conviction in a crack cocaine case despite the defendant having pleaded guilty. The case involving Baltimore drug dealer Cortez Leon Fisher was not overturned because the plea agreement was coerced or not voluntary -- the usual standard -- but because it was based on the lies of a corrupt police officer.

The case -- but not this tale -- began with an October 29, 2007 raid on Fisher's home executed by Baltimore police officer and DEA drug task force member Mark Lunsford. The search turned up crack cocaine and a loaded weapon. To avoid a decades-long stretch behind bars, Fisher copped a plea to one count of possession of crack cocaine with intent to distribute and one count of possession of a firearm by a convicted felon. Federal District Court Judge Frederick Motz then sentenced Fisher to 10 years in federal prison.

Fisher subsequently appealed to overturn his plea agreement after Lunsford was indicted on theft and perjury charges involving his use of bogus informants to falsely arrest and rip off drug dealers. In July 2010, the crooked cop got 20 months in federal prison for his crimes.

Lunsford's arrest and conviction uncovered a pattern of fabricating evidence to enrich police officers and selected informants, who received payments in cases in which they had not provided information. Reward money was fraudulently awarded to undeserving informants, and the proceeds were split between Lunsford and the snitches.

A search of Lunsford's home turned up jewelry belonging to alleged drug dealers and $46,000 in cash stolen from them. Federal prosecutors made no effort to return the stolen money to its rightful owners, but instead seized it for their own coffers.

But it gets worse. Lunsford also had a long history with Fisher and some of his family members, whom he had previously arrested on drug charges, some of which had been dismissed. In this light, Lunsford's pursuit of Fisher takes on the appearance of a personal vendetta.

When Fisher discovered that Lunsford had been indicted for perjury and theft in 2009, he wrote a pro se appeal to the judge who sentenced him, requesting that his guilty plea be vacated. But Judge Motz demurred.

"Unquestionably if the defendant had known of Lunsford's misconduct he would have filed a motion to suppress, and the motion may well have been successful," Motz wrote in denying the appeal. Nevertheless, "the defendant does not deny he was in possession of a firearm (as he admitted under oath during his Rule 11).Under these circumstances, I cannot find that a failure to allow defendant to withdraw his guilty plea would result in a 'miscarriage of justice.'"

Fisher appealed that decision to the 4th Circuit Court of Appeals. In his appeal, Fisher wrote that Lunsford "set me up and arrested me unlawfully." The informant in the case, Fisher said in the appeal, "never gave Lunsford information concerning drug activities at Fisher's home." Citing prior arrests of Fisher by Lunsford years ago, the appeal went on to say that after Lunsford arrested Fisher in 2007 in the current case, "the officer returned to my apartment later, stole a safe containing all my jewelry specifically numerous diamonds with blue and red design, including a diamond watch."

The 4th Circuit overturned the trial judge. The key question for the court was whether a police officer's misrepresentations of facts invalidated a guilty plea under the due process clause. The court noted that in order to invalidate a plea, the defendant must show that egregious impermissible conduct preceded the entry of the plea and that the misconduct influenced the defendant's decision to plead guilty.

While one member of the three-judge panel voted to dismiss Fisher's appeal, arguing that "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 now to withdraw his plea," his was a dissenting opinion.

Judges James Wynn and Henry Floyd disagreed. Lunsford's lies influenced Fisher to cop a plea and his perjury "undermined the entire proceedings, thus rendering the defendant's pleas involuntary, and violated his due process rights," they wrote. "A plea based on law enforcement fraud is invalid even if the person is guilty," the court held in its ruling in the case.

Cortez Fisher is still behind bars, waiting to see if the US Attorney's Office in Maryland will dismiss his case. Meanwhile, Lunford, the dirty cop, has already been released from prison, as have other defendants caught up in Lunsford's perjury and bogus search warrants.

Fisher was scheduled to appear in court on October 25th to resolve the matter, but a court clerk told the Chronicle a new date has not been announced yet. Fisher's attorney, Marta Khan, did not respond to phone and email messages seeking comment about the matter.

"I was supposed to be home like the other people that they let go behind Lunsford's lies but I believe the feds will try to recharge me," Fisher told the Chronicle in a letter from prison."But I am ready for a new trial since I have all this new evidence."

Cop v. Drug Dealer

Baltimore police officer Mark Lunsford despised drug dealer Cortez Fisher. Their adversarial history stretches years to when Lunsford rode patrol near Baltimore's notorious Murphy Homes Project, where Fisher and his brother called "Midget" sold drugs, according to court documents.

Between 1993 and 2004, Lunsford's aggressive efforts to rid the crime-ridden community of drug dealers helped fellow narcotics officers make some of the cases against Fisher, including one particular case in 1999 when Fisher faced charges for armed marijuana trafficking.

In 2001, Fisher picked up another drug case, but was never convicted. Doggedly pursuing Fisher, Lunsford finally nailed him in 2004 on drug trafficking and a weapons charge filed in federal court. Fisher immediately copped a plea to serve 36 months in prison.

After finishing serving the 36 months, Fisher got nailed again on drug charges by Lunsford, this time costing him another 12 months behind bars. But Lunsford wasn't through yet.

In a search warrant affidavit dated October 29, 2007, Lunsford wrote that he received reliable information from a snitch that Fisher was selling drugs out of his house. Then, based on that false report, Lunsford claimed he personally saw Fisher sell drugs from his car. It was all a lie.

Court records filed in Fisher's case include a redacted FBI document dated October 23, 2009, where Lunsford admits that he fabricated source information in Fisher's and numerous other narcotics cases that sent citizens to prison. Lunsford told FBI agent that, fully aware of Fisher's involvement in the drug trade, he had lied when he said the informant he had named in the affidavit was the source of his information about Fisher.

Fisher may well have had a career as a drug dealer, but as the 4th Circuit noted, "even the guilty can suffer a miscarriage of justice."

Cortez Fisher remains imprisoned as he awaits word on what prosecutors will do. In the worst case, he will stay there until 2017. Meanwhile, the crooked cop whose perjurious information led to Fisher's arrest and subsequent plea bargain is a free man, not on parole, and not in the clutches of the criminal justice system.

For the guy from the mean streets of Baltimore, there is nothing left to do except to start over -- again.

"They took everything I had," he explained.

The Senate Judiciary Committee held a hearing on mandatory minimum sentencing last Wednesday as Chairman Sen. Patrick Leahy (D-VT) and fellow committee member Sen. Rand Paul (R-KY) sought to create momentum for a reform bill they filed together this spring, the Justice Safety Valve Act (Senate Bill 619).

The hearing comes in the face of a federal prison population that has increased seven-fold in the past 30 years, driven in large part by mandatory minimum sentences, the number of which has doubled in the past 20 years. Many of them are aimed at drug offenders, who make up almost half of all federal prisoners. Taxpayers are shelling out more than $6.4 billion this fiscal year to pay for all those prisoners.

Mandatory minimum sentencing reform has already won support from the Obama administration, with Attorney General Eric Holder last month issuing guidance to federal prosecutors instructing them not to pursue charges with mandatory minimums in certain drug cases and announcing last week that the shift would also include people who have already been charged, but not convicted or sentenced.

And it has support on the federal bench. The same day as the hearing last week, Judge Robert Holmes Bell, chairman of the criminal law committee of the US Judicial Conference, sent a letter to the committee expressing the federal judiciary's position that mandatory minimums lead to "unjust results" and its "strong support" for the Justice Safety Valve Act. The letter noted that the federal judiciary has a longstanding policy of opposing mandatory minimums.

The hearing began with an extended photo-op and media availability as Sens. Leahy and Paul chatted before the cameras in an exercise in bipartisan camaraderie.

"Senator Paul and I believe that judges, not legislators, are in the best position to evaluate individual cases and determine appropriate sentences," said Leahy. "Our bipartisan legislation has received support from across the political spectrum."

Leahy noted the Justice Department's recent moves on mandatory minimums, but said that wasn't enough.

"The Department of Justice cannot solve this problem on its own," Leahy said. "Congress must act. We cannot afford to stay on our current path. Reducing mandatory minimum sentences, which have proven unnecessary to public safety, is an important reform that our federal system desperately needs. This is not a political solution -- it is a practical one, and it is long overdue."

Paul, for his part, was on fire at the hearing. The libertarian-leaning junior senator from Kentucky decried not only the inequity of the harsh punishments but also of policies that disproportionately affect racial minorities.

"I know a guy about my age in Kentucky who grew marijuana plants in his apartment closet in college," Paul related. "Thirty years later, he still can't vote, can't own a gun, and when he looks for work, he must check the box, the box that basically says, 'I'm a convicted felon, and I guess I'll always be one.'"

It wasn't just white guy pot offenders Paul was sticking up for.

"If I told you that one out of three African-American males is forbidden by law from voting, you might think I was talking about Jim Crow 50 years ago," Paul said. "Yet today, a third of African-American males are still prevented from voting because of the war on drugs. The majority of illegal drug users and dealers nationwide are white, but three-fourths of all people in prison for drug offenses are African American or Latino."

As was the case with the Judiciary Committee hearings on marijuana law reform earlier this month, octogenarian Sen. Charles Grassley (R-IA) appeared to be the sole holdout for maintaining harsh war on drugs policies. Grassley, the ranking minority member on the committee, complained that the move to pull back on mandatory minimums ignored the fact that the law was originally written to address sentencing disparities based on judicial discretion.

"No longer would sentences turn on which judge a criminal appeared before," Grassley said before criticizing the Supreme Court for making federal sentencing guidelines advisory and the Obama administration for citing prison costs as a reason to reduce mandatory minimums. "So we have this oddity, this administration finally found one area of spending it wants to cut," Grassley complained.

Among witnesses at the hearing, only Scott Burns, formerly of the drug czar's office and currently executive director of the National District Attorney's Association, sided with Grassley. He said crime is down and it is a myth that the federal system is in crisis.

"Prosecutors have many tools to choose from in doing their part to drive down crime and keep communities safe and one of those important tools has been mandatory minimum sentences," Burns said.

But other witnesses, including former US Attorney for Utah Brett Tolman, disagreed. Tolman told the committee that the mandatory minimum sentencing structure was inherently unfair because it put all discretion in the hands of prosecutors, who have a vested interest in securing convictions and harsh sentences. Political concerns of prosecutors rather than the public safety too often drive charging decisions, which should instead be left up to judges, he said.

Even conservative witnesses agreed that mandatory minimum sentencing had become excessive.

"The pendulum swung too far, and we swept in too many low-level, nonviolent offenders," said Mark Levin, policy director of the Right on Crime Initiative of the Texas Public Policy Foundation, a leading voice in the conservative criminal justice reform movement.

The bill has been filed, the hearing has been held, support has been made evident. Now, it is up to the Congress to move on the Justice Safety Valve Act and other pending sentencing reform legislation.

After decades of ever-increasing resort to mass incarceration in the United States, we seem to be reaching the end of the line. Driven in large part by economic necessity, state prison populations have, in the past three years, begun to decline slightly. The federal prison system, however, continues to grow, but now, there are signs that even at the federal level, the winds of change are blowing, and the conditions are growing increasingly favorable for meaningful executive branch and congressional actions to reform draconian sentencing policies.

There are currently more than 100,000 people incarcerated in federal prisons for drug offenses, or nearly half (47%) of all federal prisoners. The federal prison population has expanded an incredible eight-fold since President Ronald Reagan and a compliant Congress put the drug war in overdrive three decades ago, although recent federal prison population increases have been driven as much by immigration prosecutions as by drug offenses.

Earlier this week, the Chronicle reported on Attorney General Holder's speech to the American Bar Association in San Francisco, where he announced a comprehensive federal sentencing reform package with a strong emphasis on drug sentencing, especially a backing away from the routine use of mandatory minimum sentencing via charging decisions by federal prosecutors.

"A vicious cycle of poverty, criminality and incarceration traps too many Americans and weakens too many communities," Holder said Monday. "However, many aspects of our criminal justice system may actually exacerbate this problem rather than alleviate it. Too many Americans go to too many prisons for far too long and for no good law enforcement reason. We cannot simply prosecute or incarcerate our way to becoming a safer nation."

On drug sentencing, Holder said he would direct US attorneys across the country to develop specific guidelines about when to file federal charges in drug offenses. The heaviest charges should be reserved for serious, high-level, or violent offenders, the attorney general said.

But while Holder outlined actions that can be taken by the executive branch, he also signaled administration support for two pieces of bipartisan sentencing reform legislation moving in the Senate. Those two bills, the Justice Safety Valve Act (S. 619), introduced in the spring, and the Smarter Sentencing Act (S. 1410), introduced just last week, have better prospects of moving forward now than anything since the Fair Sentencing Act passed three years ago. .

That's because it's not just Democrats or liberals who are supporting them. The Justice Safety Valve Act, sponsored by Sens. Rand Paul (R-KY) and Patrick Leahy (D-VT), has not only the usual suspects behind it, but also The New York Times, conservative taxpayer advocate Grover Norquist, and a group of 50 former prosecutors. And, somewhat surprisingly, that bane of liberals, the American Legislative Exchange Council (ALEC), just came out in with model legislation mirroring the act's provisions.The Justice Safety Valve Act would allow federal judges to sentence nonviolent offenders below the federal mandatory minimum sentence if a lower sentence is warranted.

The other bill, the Smarter Sentencing Act, also has bipartisan support and was sponsored by Sens. Dick Durbin (D-IL) and Mike Lee (R-UT). It would reduce some federal mandatory minimum sentences, make a modest expansion to the safety valve provision (though continuing to exclude anyone previously incarcerated in prison for more than 13 months in the past 10 years), and make the 2010 Fair Sentencing Act applicable to persons sentenced before its enactment, which would reduce sentences for people convicted of crack cocaine offenses.

The Justice Safety Valve Act has companion legislation in the House, again bipartisan, sponsored by Reps. Bobby Scott (D-VA) and Thomas Massie (R-KY). And another House bill, the Public Safety Enhancement Act (H.R. 2656), cosponsored by Scott and Rep. Jason Chaffetz (R-UT), would allow certain federal prisoners to be transferred from prison to community supervision earlier if they take rehabilitation classes, thus saving taxpayer money while improving public safety.

Only bolstering the case for further sentencing reform is the US Sentencing Commission's preliminary report on crack retroactive sentencing data, released late last month. That report found that some 7,300 federal crack defendants received an average 29-month reduction in their sentences, saving roughly half a billion dollars in imprisonment costs without an concomitant increase in crime rates.

"Taxpayers have received the same level of crime control but for a half- billion dollars cheaper," noted Families Against Mandatory Minimums (FAMM). "What’s not to love?"

Given the passage of the Fair Sentencing Act three years ago with conservative support, the proven budgetary benefits of reducing incarceration, and the current role of conservatives in pushing for reform, the chances are better than ever that something could pass this year, and even if it doesn't, the changes announced by Holder should ensure that at least some federal drug defendants will get some relief, observers said.

"The policies Holder described in his speech will probably help produce reduced drug sentences in some cases," said Marc Mauer, executive director of the Sentencing Project. "But it is also important in a symbolic sense. The fact that the attorney general is leading this conversation may help to open up the political space where we can have a different discussion about crime policy. The discussion has been evolving significantly over recent years, and in some ways, his speech represents an affirmation that the climate has shifted, and that there is commitment from the top to moving forward on sentencing reform."

"I think we're at a moment when bipartisan sentencing reform is possible," said Bill Piper, national affairs director for the Drug Policy Alliance. "We've got those bipartisan bills in Congress, we have that ALEC endorsement, we have Holder's speech, and more."

"Given how little bipartisan cooperation there is on anything, it's remarkable that we have two bills in the Senate addressing mandatory minimums," Mauer noted. "This bipartisan cosponsorship is very intriguing, and is contributing to the momentum. There has been no significant backlash to Holder's speech, and that suggest a pretty broad recognition that the time has come to move in this direction."

Not every reformer was as sanguine as Mauer. In California, marijuana reformers and industry players, many of whom have borne the brunt of a federal crackdown, were offended that Holder would give a speech in San Francisco and not address their issue. Harborside's Steve DeAngelo posted the following statement in reaction: "Eric Holder's speech advocating drug war changes rings hollow to those of in states that have already passed reform legislation, only to see it relentlessly attacked by Mr. Holder's very own US Attorneys," DeAngelo said. "We had hoped the Attorney General would clarify federal policy toward state cannabis laws, as he promised to do almost a year ago. But instead of concrete action to support state reform efforts, Holder offered more vague promises about future changes in federal policy."

Conversely, it wasn't just reformers seeing possible changes on the horizon.

"It is impressive that Holder has decided to stay with a lame duck president and emphasize this issue," said Phil Stinson, professor of criminal justice at Bowling Green University. "I think there is a consensus forming for reform, and I would not have thought that possible two years ago. If something is going to happen, I expect it to happen within the next 18 months."

Stinson made a telling, if seldom mentioned, point.

"This is largely driven by economics," he said, "but also by the fact that by now, almost everybody knows a family member or friend or friend's child who has been behind bars. It has taken awhile to get to this point, but now the issue is ripe, and the opportunity is there."

"It looks like there is a real opportunity in Congress," Piper argued. "The general consensus is that there are too many people in prison and too many tax dollars wasted. Even some of the most conservative offices we talk to want to talk about sentencing reform. Something is possible, even though this is Congress and the Obama administration we're talking about. The stars are aligning, but it will take a lot of work to get it done. There seems to be something real happening with sentencing reform based on the number of Republicans starting to talk about it, and I'm certainly more optimistic than I was a year ago."

"While things are moving in the Senate, the House is more difficult to predict," said Mauer. "But even if something does get through, the scale of the problem of mass incarceration is going to require a wholesale shift in approach and policy. The current proposals are steps in that direction, but it will require a much more substantial shift if we are to see significant reductions."

Or, as Nora Callahan of the November Coalition has long argued, reforms on the back end -- sentencing -- will have limited impact on people sent to prison for drug offenses, absent change on the front end -- ending drug prohibition and prohibition-driven policing.

Whether a perfect storm for sentencing reform is brewing remains to be scene, but there are winds blowing from unusual directions. The collision of Democratic social justice liberalism and Republican fiscal conservatism and libertarianism could on this occasion produce, if not a perfect storm, at least the first rumblings of a political earthquake.

[See our related story this issue, "As Pressure Mounts, Holder Acts on Sentencing Reform."]

A federal judge Monday found that the New York Police Department's stop-and-frisk search tactics violated the constitutional rights of racial minorities in the city and ordered a federal monitor to oversee broad reforms in the department. Federal District Court Judge Shira Scheindlin did not find stop-and-frisks unconstitutional in themselves, but ruled that NYPD's policy on them amounted to "indirect racial profiling."

The ruling came in Floyd v. the City of New York, in which plaintiffs represented by the New York Civil Liberties Union and the Center for Constitutional Rights challenged the massive program, which has resulted in hundreds of thousands of street searches each year (4.43 million between 2004 and 2012, according to trial evidence), the vast majority aimed at young black and brown people, and the vast majority of which resulted in no findings of drugs or weapons.

The stop-and-frisk program did, however, contribute to the arrest and temporary jailing of tens of thousands of New Yorkers caught with small amounts of marijuana. Possession of small amounts was decriminalized in New York in 1978, but the NYPD effectively invalidated decriminalization by intimidating people into removing baggies of weed from their pockets and then charging them with public possession, a misdemeanor. Such tactics helped make New York City the world leader in marijuana arrests.

In her ruling Monday, Judge Scheindlin argued that the city's stop-and-frisk policies showed disregard for both the Fourth Amendment's protection against unreasonable searches and seizures and the 14th Amendment's equal protection clause. She said the evidence showed that police systematically stopped innocent people in the street without any objective reason to suspect them of wrongdoing.

Scheindlin didn't limit her criticism to the actions of police officers, but also held high NYPD and city officials responsible for what she called a "checkpoint-style" policing tactic.

"I also conclude that the city’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner," she wrote. "Blacks are likely targeted for stops based on a lesser degree of objectively founded suspicion than whites," she noted.

While Scheindlin wrote that she was "not ordering an end to practice" of stop-and-frisk searches, she said that the racially disparate manner in which searches were carried out demanded reforms that "protect the rights and liberties of all New Yorkers, while still providing much needed police protection."

In addition to the outside monitor, Scheindlin ordered other remedies, including a pilot program in which officers in five precincts will be equipped with body-worn cameras to record street encounters and a "joint remedial process" where the public will be invited to provide input on how to reform stop-and-frisk. 

While Scheindlin noted NYPD's expressed purpose in the widespread searches was to reduce the prevalence of guns on the street, she said police went too far in their zeal, stretching the bounds of the Constitution as they did so.

 "The outline of a commonly carried object such as a wallet or cellphone does not justify a stop or frisk, nor does feeling such an object during a frisk justify a search,” she ruled.

And, after hearing more than two months of sometimes wrenching testimony from stop-and-frisk victims, Scheindlin deplored what she called "the human toll of unconstitutional stops," calling them "a demeaning and humiliating experience."

"No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life," she wrote. And it wasn't just fear of being stopped. Racial minorities in the city "were more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband."

The city and the NYPD had argued that the targeting of young people of color was justified because they were more likely to commit crimes, but Scheindlin wasn't buying, especially since the searches usually came up empty.

"This might be a valid comparison if the people stopped were criminals," she wrote. "But to the contrary, nearly 90% of the people stopped are released without the officer finding any basis for a summons or arrest." The city had a "policy of targeting expressly identified racial groups for stops in general," she noted. "Targeting young black and Hispanic men for stops based on the alleged criminal conduct of other young black or Hispanic men violates bedrock principles of equality," she ruled.

The ruling didn't sit well with Mayor Michael Bloomberg, who has defended and championed stop-and-frisk as an effective crime fighting measure. In remarks after the verdict, Bloomberg lashed out at the judge and the ruling.

"This is a very dangerous decision made by a judge who I don’t think understands how policing works," Bloomberg said."The judge clearly telegraphed her intentions, and she conveyed a disturbing disregard for the intentions of our police officers, who form the most diverse police department in the nation. We didn’t believe we got a fair trial," he complained.

“Our crime strategies and tools -- including stop, question, frisk -- have made New York the safest big city in America," Bloomberg said. "We go to where the reports of crime are," he added. "Those, unfortunately, happen to be poor neighborhoods, or minority neighborhoods.... There are always people that are afraid of police ... some of them come from cultures where police are the enemy. Here, the police department are our friends."

And the police know best, he added. "The public are not experts at policing," Bloomberg said. "Personally, I would rather have [Police Commissioner] Ray Kelly decide how to keep my family safe, rather than having somebody on the street who says, 'Oh, I don’t like this.'"

But the Center for Constitutional Rights suggested that the mayor should grow up and do what's right.

"The NYPD is finally being held to account for its longstanding illegal and discriminatory policing practices," the group said in a statement Monday. "The City must now stop denying the problem and partner with the community to create a police department that protects the safety and respects the rights of all New Yorkers."