In defending a gun conviction involving a discredited officer, a federal prosecutor told an appellate court that a witness gave untruthful testimony to the grand jury investigating the corruption involving the Baltimore Police Department’s Gun Trace Task Force.
Assistant U.S. Attorney Peter Martinez told members of the Fourth Circuit Court of Appeals Friday that prosecutors investigating the police misconduct case put forward a witness against former Det. Daniel Hersl without vetting his account.
Keyon Paylor’s “sworn admission of guilt [in his gun case] is the truth, his grand jury testimony was false,” Martinez said.
“So the government did suborn perjury in the grand jury?” Judge Stephanie D. Thacker asked. “The government had to think what he was saying in the grand jury was true.”
“I’m not going to speak to the mental state of the prosecutor who put Paylor in the grand jury,” Martinez responded.
Thacker seemed exasperated at Martinez’s argument, saying she was concerned that the government was “talking out of both sides of its mouth” and questioning whether its argument was in the “best interests of justice.” At one point, Thacker said, “What is going on?”
The appeal is being brought by Paylor, who was arrested in 2015 by a squad of officers including Hersl, who would go on to join the Gun Trace Task Force. Paylor maintained from the start that the gun found on his family home’s porch was planted, and that officers stole money from him. Prosecutors found recorded jail calls after his arrest in which he made those assertions to family members. But Paylor opted to plead guilty, with his attorneys saying it was his word against the officers.
“He knew Hersl was a dirty cop, but he couldn’t prove it,” said Deborah Loevy, of the Exoneration Project at the University of Chicago Law School.
As the U.S. Attorney’s Office, led by prosecutors Leo Wise and Derek Hines, and the FBI started combing through cases in their racketeering investigation against Hersl and other members of the GTTF, they found Paylor’s jail calls, gave him immunity and brought him to testify before a grand jury.
Ultimately, Paylor’s claims were not charged, as he said he was too scared of the officers to testify in open court and said he would serve out the rest of his sentence.
A federal district judge, Ellen Hollander, previously denied Paylor’s request to have his conviction overturned, saying that he swore to tell the truth when he pleaded guilty.
“‘A guilty plea is a grave and solemn act ...’ and I cannot ignore the sanctity of an oath to tell the truth,” said Hollander, adding that she did not find there was enough evidence to support Paylor’s claim.
Martinez, who originally prosecuted Paylor and was not involved in the Gun Trace Task Force investigation, continues to stand behind Paylor’s conviction. He said Friday that it was supported by other officers who took part in the arrest, and that additional investigation was conducted that “eviscerates” Paylor’s claim, namely an account from Paylor’s stepfather.
“We had an obligation to get to the truth, and we did,” Martinez told the court.
Martinez argued that Paylor was put in front of the federal grand jury hastily, saying that he was interviewed and taken before the grand jury the same day. He said that move was not improper because the grand jury is a forum to memorialize testimony in a continuing investigation.
But Thacker pushed him, saying that the only reason to take Paylor’s testimony, which diverged from his original guilty plea, was because they believed his allegations that the gun was planted and money was stolen.
Martinez defended Hersl: “There was no wrongdoing by Hersl in this case. That is our position.”
Federal authorities have been reluctant to vacate convictions against the convicted officers, even as they continued to level more misconduct allegations. In the state courts, the Baltimore State’s Attorney’s Office has vacated hundreds of convictions involving convicted officers, but the Maryland U.S. Attorney’s Office only agreed to vacate two — involving planted drugs.
Hersl is serving 18 years in prison, after being convicted by a jury in a trial where his attorney admitted he took money during arrests but said that constituted a theft from the Baltimore Police Department, and not a robbery. Hersl has disavowed the trial defense, and maintains he never committed any crimes.
“His position is that he’s fully innocent and hasn’t done anything wrong,” Walter Timothy Sutton told The Sun this week, in response to a separate lawsuit being brought against Hersl. “He was trying to take bad guys off the streets.”