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.
Judge Fredrik Motz
"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.
