A federal appeals court ruled Friday that the Maryland U.S. Attorney’s Office had taken a “two-faced position” that is “at odds with justice” in its efforts to preserve the conviction of a man arrested by a member of the Gun Trace Task Force.
Keyon Paylor, 31, wasn’t simply among the scores of people who had been arrested by former Det. Daniel Hersl before his conviction on racketeering charges. Federal prosecutors brought Paylor before a grand jury investigating the Gun Trace Task Force corruption scandal to testify that Hersl had stolen from him and planted a gun in 2014.
But the prosecutor who originally handled Paylor’s case maintained that his gun conviction should stand, even telling a judge the grand jury testimony his counterparts had elicited from Paylor against Hersl was “false.”
U.S. District Judge Ellen Hollander ruled against Paylor in 2019, saying she could not “ignore the sanctity of an oath to tell the truth” when he pleaded guilty — even though Paylor said he did so under duress because at the time Hersl had not been proven to be a dirty cop.
Paylor appealed, and judges on the Fourth Circuit Court of Appeals heard argument in March 2021.
Now, more than 2 /12 years later, a three-judge panel said Paylor should have another chance to argue that his conviction should be vacated. The government argued that Paylor hadn’t presented sufficient evidence of Hersl’s misconduct predating his guilty plea.
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“But, this was not for lack of trying,” wrote Judge Stephanie Thacker, joined by judges Roger Gregory and Henry Floyd. “Prior to his decision to plead guilty, Appellant repeatedly and consistently raised red flags about Detective Hersl as a dirty cop and sought records of complaints against Detective Hersl and the other officers in his case.”
Paylor was granted access to only four complaints against Hersl. An outside review of the Gun Trace Task Force scandal published in 2022 revealed that, in the years preceding Paylor’s arrest, Hersl had racked up the second-most complaints in the department and was identified internally as an officer “most likely to experience a negative interaction with the public based on [his] history.”
“... As Appellant points out, since the time of his 2015 guilty plea, it has come to light that Detective Hersl’s misconduct was far more pervasive than Appellant — or anyone — could have known at the time,” the judges wrote, ordering a new evidentiary hearing for Paylor to argue his case.
Paylor told me in 2018 that he wanted his record cleared so he could pursue new opportunities. “I want a fresh start,” he said. “This will open more doors for me.” But, while waiting for Hollander’s ruling in 2019, he picked up a new robbery charge and was sentenced to six years in prison. He is currently incarcerated.
One of his attorneys in the federal appeal, Deborah Loevy, cheered Friday’s ruling.
“Mr. Paylor is grateful that the Fourth Circuit recognized the blatant hypocrisy of the government’s position in his case,” she said in an email. “As the Court said, ‘the truth is the truth,’ and Mr. Paylor looks forward to demonstrating that his innocence is true.”
Hersl is serving 18 years in prison after being convicted by a jury on federal racketeering charges. Hersl has maintained his innocence and recently asked to be released early from prison because he has been diagnosed with cancer. His request was denied.
Paylor was arrested by Hersl and three other officers — John Burns, Timothy Romeo and Jordan Moore — in January 2014. Paylor said he was returning from a check-in with his probation officer, which required him to pass through a metal detector. Hersl wrote in a statement of probable cause that officers drove behind Paylor and saw him looking back at them, then taking off running onto a front porch and shoving the gun under the cushion of a chair.
On jail calls after his arrest, Paylor disputed that the officers saw him with a gun and said $5,000 was stolen from a dresser drawer. Hersl’s report said $97 was recovered. “Hersl and them took my money,” Paylor said on one recorded call.
Federal prosecutors Leo Wise and Derek Hines took Paylor before the grand jury during the Gun Trace Task Force investigation. But, afterward, Paylor said he didn’t wish to continue cooperating due to fear of retaliation.
Before that, prosecutors had made a motion for a substantial reduction in Paylor’s sentence, called a Rule 35 motion.
In Friday’s appellate court ruling, the judges remarked how rare it was for prosecutors to make such a motion. While there were approximately 1.5 million people incarcerated in federal prisons in 2014, federal prosecutors made only 1,645 Rule 35 motions that year.
“But now that Appellant seeks to have the same conviction vacated, the Government claims that Appellant’s original plea — the same plea the Government disavowed in prosecuting Detective Hersl — is, in fact, accurate. What?” the appellate judges wrote. “The Government cannot have it both ways. There is only one truth.”
Assistant U.S. Attorney Peter J. Martinez, who handled Paylor’s original case in 2014, argued against reversing his conviction. “The record shows that, with one exception, every known instance of criminal misconduct by Hersl happened after” Paylor’s guilty plea in 2015, he told the judges. But the judges noted that Hersl’s criminal convictions included a 2014 robbery and that prosecutors in the Gun Trace Task Force trial said his misconduct “began prior to 2014.”
Hollander, the district judge who denied Paylor’s request in 2019, had noted Paylor’s uphill battle to get anyone to hear his side of the story.
“We have to talk reality: We have a young man with a record,” Hollander said. “He continued to believe he had been framed, but was anyone going to believe him? … How was he going to convince anyone to believe him over a law enforcement officer?”
But, ultimately, she placed more weight on his guilty plea, saying he had made a “calculated decision to negotiate a favorable plea deal that substantially limited his period of incarceration.”
And she said there was “no extrinsic, independent evidence that Hersl engaged in misconduct that tainted Paylor’s prosecution.”
Although Paylor, like many of the victims the government believed in the Gun Trace Task Force case, has no independent proof the gun was planted and money taken, he is now armed with new evidence of Hersl’s long history of misconduct. Prior to the passage of Anton’s Law in 2021, police internal affairs files in Maryland were secret. And, in early 2022, the outside review of the Gun Trace Task Force scandal shed new light on 15 years of complaints against Hersl.
The report concluded that the department’s handling of complaints against Hersl was, “simply put, a catastrophic institutional failure.”
“With all eyes on Hersl — including at the highest levels of BPD — he continued to engage in misconduct without significant consequences,” the report said.
