Interesting split Fourth Circuit finds police lies made subsequent plea involuntary

The Fourth Circuit today has a very interesting split panel opinion that might be seen as an example, at least by the defense bar, of bad facts making for good plea agreement law.  Here is how the majority opinion in US v. Fisher, No. 11-6781 (4th Cir. Apr. 1, 2013) (available here), gets started:

It is axiomatic that, "to be constitutionally valid, a plea of guilty must be knowingly and voluntarily made." United States v. Brown, 117 F.3d 471, 473 (11th Cir. 1997). And "a guilty plea is not knowingly and voluntarily made when the defendant has been misinformed" as to a crucial aspect of his case.  Id.

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.  Accordingly, we reverse the district court’s decision holding otherwise and remand for further proceedings.

Judge Agree wrote a lengthy dissenting opinion in Fisher, which makes these initial observations about the panel's ruling:

The majority opinion concludes that Fisher’s plea of guilty was involuntary because of "affirmative misrepresentations" made by Officer Lunsford in applying for the search warrant that uncovered evidence against Fisher.  In so doing, the majority relies on an independent theory of prosecutorial misconduct purportedly grounded in Brady v. United States.  Indeed, while the majority avers that its holding is based on Brady v. United States, its application of the "material misrepresentation" standard in this case lacks support in any published case from any court.  While the majority attempts to distinguish the several cases militating against Fisher’s claim to relief, it identifies no authority actually in support of its position.  In short, I am at a loss to identify the basis in due process jurisprudence upon which the majority opinion bases its decision.

With that handicap, I address below the theories presented by Fisher in his brief on appeal and conclude he is not entitled to withdraw his guilty plea.  As the learned district court judge correctly determined, Fisher is bound to his guilty plea, and the majority opinion articulates no reasoned basis founded in the established precedent of the Supreme Court, or any other court, to decide otherwise.