| At 11:10 a.m. on January 2, 2014, police officers in Baltimore, Maryland arrested 22-year-old Keyon Paylor on a weapons violation.
According to the statement of probable cause written by Detective Daniel Hersl of the Baltimore Police Department, he and three other plainclothes officers were in an unmarked vehicle north of the city’s downtown when they saw a young Black man walking very quickly down Bartlett Avenue.
Hersl said the man spotted the officers in their unmarked vehicle and picked up the pace before running up on a porch. “Upon hopping over the porch wall of 649 Bartlett onto 651 Bartlett Avenue, these detectives could clearly observer Keyon Paylor reach into the front of his waistband areas with his right hand before removing what appeared to be a black handgun” and then place the weapon under a chair cushion on the front porch, Hersl wrote. He said Paylor ran inside the house, where he was arrested. Several of the officers searched inside. Hersl said the officers found a small amount of marijuana sitting on top of the porch cushion hiding the gun. According to Hersl, Paylor said, “The weed’s mine. I don’t know nothing about the gun,” before Officer Jordon Moore lifted up the cushion.
Paylor had previous convictions for possession of a controlled substance with intent to distribute and possession of a firearm by a minor. His case was transferred to the U.S. District Court for Maryland. A federal grand jury indicted Paylor on June 4, 2014 on a single count of weapons possession by a convicted felon.
Paylor had a lengthy history with Hersl dating back to an arrest when Paylor was 13 years old. Paylor said Hersl and his then-partner falsely accused him of possession of heroin, and he was acquitted at trial.
Hersl and Sgt. John Burns—one of the officers involved in the weapons case—had also been involved with several other charges filed against Paylor. In calls to his family from jail, Paylor said the officers had stolen several thousand dollars from him during their search. He also said the weapon wasn’t his. “They didn’t see me put no gun nowhere,” he said.
Brendan Hurson, a federal public defender, represented Paylor. He moved to suppress the weapon and the statement Paylor was said to have made, arguing that Hersl and the other officers had lacked probable cause to make an arrest. Separately, Hurson prepared to mount a defense based on a pattern of misconduct by Hersl. He filed a request for complaints and internal affairs investigations against Hersl and the other officers.
Hurson said in his motion that Baltimore had paid nearly $200,000 to settle three lawsuits alleging Hersl used excessive force, and that there were allegations that he had submitted false information on search-warrant applications. Hurson wrote: “Det. Hersl exhibits extreme bias toward defendants like Mr. Paylor … Det. Hersl’s behavior in this case is in keeping with his behavior in other investigations of Black residents of Baltimore City. I intend to show the jury that Det. Hersl, who is white, has a history of harassing Mr. Paylor and other young Black men in Baltimore City.”
Prosecutors with the U.S. Attorney’s Office opposed Hurson’s discovery request but eventually obtained 30 internal affairs files related to Hersl and the other officers and turned the documents over to Judge Ellen Hollander for review. On April 9, 2015, Judge Hollander ordered disclosure of four files and part of a fifth.
Paylor then dropped his motions to suppress and entered a guilty plea on April 21, 2015. Hurson would later write that the limited disclosure didn’t provide enough evidence to challenge the officers’ potential testimony about the arrest. “I reluctantly but affirmatively advised [Paylor] to abandon his motions to suppress evidence and accept the government plea offer and to plead guilty,” he wrote.
Prior to Paylor entering his plea, a prosecutor detailed the government’s case, stating that the officers had seen Paylor remove a Heckler & Koch .45 caliber pistol from his waistband and place it under a cushion on his front porch.
Judge Hollander asked: “Mr. Paylor, is that an accurate summary of the facts in this case?”
Paylor answered: “Yes, ma’am.”
“Did you, in fact, commit the crime as summarized by the government? “
“Yes, ma’am.”
Paylor was later sentenced to five years in federal prison.
On February 23, 2017, a federal grand jury in Maryland indicted Hersl and six other officers on wide-ranging corruption charges, including theft and falsifying reports. The officers were all members of the police department’s Gun Trace Task Force (GTTF), created in 2007 to get illegal weapons off the city’s streets. Hersl joined the unit in 2016.
As part of that investigation, FBI agents listened to the phone calls that Paylor had made from the jail after his arrest. Because his allegations were similar to those in the indictments, prosecutors contacted Paylor’s attorneys and asked to debrief him.
Prosecutors interviewed Paylor on June 15, 2017. He said that on the morning of his arrest he had just met with his probation officer, a visit that required passing through a metal detector. (In one of his calls from jail, he had asked family members to contact the probation officer.) Paylor said that as he walked home, a friend called out that the police were behind him.
Paylor said he told the friend that there was nothing to worry about, because he wasn’t doing anything. Paylor said the officers took between $4,000 and $5,000 from his second-floor bedroom and that he watched from the bottom of the stairs as Burns went through his personal belongings.
Shortly after the interview, Paylor testified before a federal grand jury. He said: “Daniel Hersl came and the other two officers that was with him, they were searching me. And Sgt. Burns, he was upstairs in my room. He was searching my room, ripping my room apart, taking my drawers and stuff out. And then he must’ve found my money that I had in my drawer. He stepped out to the top of the steps and was looking at me and seeing me looking at him. Then he stepped back. And then he told the officer that went outside—they told him to bring me outside and put handcuffs on me.”
Ten minutes later, Paylor said, the officers took him to the porch and showed him the chair cushion and the pistol. “I told him like, ‘Man, that’s not my gun,’ and then he going to say, ‘Yeah, we just seen you put this right here.’ So I’m like, ‘I ain’t put nothing right there.’ The next thing you know, they put the rubber gloves on. He start[s] unloading the gun on the porch, and then took his gun off his hip and put it together and put his gun back … And then they call for the paddy wagon. They put me in the paddy wagon.”
Paylor said he pleaded guilty to get the most favorable outcome.
A prosecutor asked: “So you felt it was a risk worth taking, even though your testimony indicates today that that gun was not yours, is that right?
“Yes.”
“But to be clear, the testimony you’ve given today to the grand jurors is truthful and complete and accurate testimony?
“Yes.”
After Paylor finished his testimony, the grand jury returned a superseding indictment against Hersl.
On July 5, 2017, prosecutors filed a Rule 35 motion, asking for a reduction in Paylor’s sentence based on his cooperation in the GTTF investigation. Paylor declined the offer, claiming he was afraid of police retaliation if he took the deal.
A federal jury convicted Hersl of racketeering, robbery, and extortion on February 13, 2018, and he was later sentenced to 18 years in prison. During the proceedings, prosecutors said that Hersl’s misconduct had been occurring for years prior to 2014.
On March 12, 2018, Paylor, now represented by Gayle Horn with the Exoneration Project at the University of Chicago Law School, moved to vacate his conviction, stating that his guilty plea was entered without full knowledge of the extent and longevity of Hersl’s misconduct, which hadn’t been disclosed.
“There is now reliable evidence that since at least 2014—before Mr. Paylor pled guilty—Hersl had been committing crimes against and violating the constitutional rights of some of the most vulnerable and marginalized members of our society, all while acting in his capacity as an officer of the law,” the motion said.
The government opposed the motion, discounting the significance of Paylor’s grand jury testimony. “Paylor confessed his guilt repeatedly, to the Court, the probation office, and through his counsel,” the response said. “There is no reason, legal or otherwise, to ignore those confessions now.” It also said that there had not been any failure to disclose exculpatory evidence, as Paylor’s attorney was aware of Hersl’s known misconduct at the time of his plea.
Without holding an evidentiary hearing, Judge Hollander denied Paylor’s motion on November 22, 2019. She said there was no disclosure violation because there was no indication that the GTTF investigation began before Paylor entered his guilty plea. In addition, Judge Hollander said Paylor’s grand jury testimony didn’t change the fact that he intelligently entered a guilty plea. She noted that federal prosecutors didn’t call Paylor to testify against Hersl nor use his testimony as the basis for additional charges against Hersl.
Paylor appealed. By then, he was out of prison, having been released on May 11, 2018.
During oral arguments before the Fourth U.S. Circuit Court of Appeals appellate court, prosecutors tried to dance around Paylor’s competing accounts of his arrest. First, a prosecutor said Paylor’s plea colloquy was a truthful account and his grand jury testimony was not. According to reporting in ProPublica, Judge Stephanie Thacker asked the prosecutor if that meant the government had suborned perjury before the grand jury.
The prosecutor skirted a direct answer and said that a grand jury was simply an investigative tool and witnesses sometimes testified at grand juries before their accounts were fully vetted. Thacker said that didn’t appear to be the case here; Paylor had entered a plea.
“The government didn’t feel an obligation to get to the truth before it put somebody in the grand jury, under oath, to say something completely opposed to what he had pled guilty to?” Thacker asked.
Eventually, the prosecutor said that the government investigated Paylor’s claims after he testified and found them to be untrue.
On December 15, 2023, the appellate court vacated Judge Hollander’s order and returned the case to U.S. District Court for further discovery and an evidentiary hearing.
The opinion, written by Thacker, said: “This case presents the extraordinary circumstance in which the Government has taken antithetical stances supporting two completely different versions of the truth relative to Appellant’s offense of conviction. But, there cannot be two sides to the truth. The truth is the truth.”
It wasn’t just the divergence between Paylor’s plea and his grand-jury testimony that was problematic, the ruling said. Prosecutors appeared to have different timelines, arguing at Hersl’s trial that his misconduct likely predated Paylor’s arrest and arguing in legal briefs against Paylor that Hersl’s only misconduct prior to Paylor’s sentencing occurred in November 2014 and was disclosed to Paylor’s attorney.
“The Government’s two-faced positions and contrary statements before the court are clearly at odds with the notion of justice,” the ruling said. Paylor had not presented sufficient evidence to support withdrawing his plea, the ruling said, but he deserved a chance to search for that evidence and present his case at a hearing.
On February 7, 2024, Hollander ordered the parties to engage in and complete discovery within 90 days.
On February 28, 2024, the government agreed to vacate Paylor’s conviction. The filing noted the problems with the case and the dual accounts of the arrest. Hersl wrote the incident report, but he had been convicted for a “pattern of misconduct similar to the behavior alleged by Paylor shortly after the incident and during Paylor’s testimony to a grand jury,” the motion said. “While these prosecutions were based on the government’s reasonable belief in the evidence and by substantial federal interests, public confidence cannot sustain irreconcilable versions of one event.”
Judge Hollander granted the motion to vacate on March 3, 2024, and then granted a separate motion to dismiss the case on March 6, 2024.
– Ken Otterbourg
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