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Federal judge on alleged Baltimore Police Gun Trace Task Force victim: 'Who would've believed him?

Former Baltimore detective Daniel Hersl was sentenced to 18 years in federal prison for racketeering. (Kevin Richardson / Baltimore Sun video)

Two years after federal prosecutors in the Gun Trace Task Force case took a young Baltimore man convicted of gun possession before a grand jury to testify against a dirty police officer, lawyers with the U.S. attorney’s office say they doubt his claim of innocence and are fighting his effort to get his conviction overturned.

An attorney for the man, Keyon Paylor, said the U.S. attorney’s office was “flip-flopping,” while U.S. District Judge Ellen Hollander questioned how Paylor would ever be able to convince the government he was innocent.

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“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?”

Assistant U.S. Attorney Peter Martinez, who handled the case originally, told Hollander that the Gun Trace Task Force prosecutors hadn’t run their efforts by him and that he believed they did not have a full picture of the case.

“The unified position of our office is that Mr. Paylor is guilty, and his [guilty] plea [in April 2015] was knowing and voluntary,” Martinez told the judge.

Hollander did not rule on Paylor’s motion Thursday.

Paylor’s case has been taken up by attorneys from the Exoneration Project at the University of Chicago Law School, including attorneys from a Chicago-based law firm that recently won a $15 million jury verdict in Baltimore federal court for a wrongful murder conviction.

Paylor, 27, was arrested in 2014 by Detective Daniel Hersl and three other officers who said Paylor ran from them and ditched a gun under the seat cushion of a chair on his front porch. Hersl is now serving 18 years in federal prison for racketeering conspiracy, with a jury finding he robbed people between 2014 and 2016 in addition to stealing overtime pay and lying in official paperwork. The other officers involved in Paylor’s arrest have not been charged with any crimes.

Paylor said in a recorded phone call from jail, placed two days after his arrest, that he never had a gun. He said Hersl, who had arrested him before, “plays a dirty game” and said the officers had taken money out of his dresser drawer and not reported it in paperwork they filed. He tried to fight the case at the time but doubted his ability to prevail, said his attorney, Gayle Horn. He ultimately took a favorable plea offer.

As federal authorities were investigating Hersl and other members of the Gun Trace Task Force, one tool they used was listening to contemporaneous jail calls made by arrestees in which they privately told others they had money stolen. Paylor was approached by the FBI and federal prosecutors, and eventually taken before a federal grand jury, though his case was not among those brought against Hersl.

Martinez said Hersl had met with the government at least twice in “proffer sessions” after he was charged with racketeering, and admitted to misconduct — but not in Paylor’s case. He also noted that Paylor’s original defense attorney, Brendan Hurson, had aggressively sought Hersl’s misconduct records at the time in order to make the argument the evidence was planted — but abandoned the effort.

Hollander interjected, saying she had limited the internal disciplinary records Hurson could look at.

“Maybe I wasn’t generous enough,” Hollander said.

She said there’s a standard that the courts are “not going to tarnish a law enforcement officer” unless a complaint against them is sustained.

“I had no idea a good portion of those complaints might be true,” Hollander said.

Horn said federal prosecutors were taking a “use and lose” approach with Paylor.

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“This is a particularly egregious case of the government not doing justice,” Horn said.

In state courts, the Baltimore state’s attorney’s office has been reviewing thousands of cases brought by Gun Trace Task Force detectives, not just those in which misconduct was charged by federal authorities. At last report, they had moved to vacate about 220 cases. But they also said they were trying to maintain convictions when the case didn’t hinge on a corrupt officer’s word, and have decided to not touch 180 other cases.

Far fewer arrests made by the convicted officers went federal. Gun Trace Task Force prosecutors Derek Hines and Leo Wise vacated the convictions of two men on whom drugs were planted, and cut short the sentences of several others, with the convictions remaining intact. Paylor has served out his time and wants the case removed from his criminal record to help him with job opportunities and other matters.

Paylor’s attorneys said that if Hollander did not agree to vacate his conviction, they would seek an evidence hearing where they would seek to call witnesses, including Hines, Wise and officers who worked with Hersl.

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