U.S. Attorney asks court to overturn conviction in GTTF-related case that split office

Maryland U.S. Attorney Erek L. Barron has personally intervened in a case that split his office, asking a judge to overturn the conviction of a man arrested by a former Gun Trace Task Force member a decade ago.

The appeal by Keyon Paylor has been long simmering. Convicted of a gun charge in 2014, he was later used as a grand jury witness by prosecutors pursuing corruption allegations involving members of the GTTF. But when Paylor asked that his conviction be thrown out, the original prosecutor on his case told a judge the grand jury testimony his counterparts had elicited from Paylor was “false” and that his conviction should stand.

After taking nearly three years to consider his case, the Fourth Circuit Court of Appeals said in December that the office had taken a “two-faced position” and should consider previously unavailable evidence of misconduct by Det. Daniel Hersl.

Late Wednesday, Barron submitted a motion to vacate Paylor’s conviction.

“Without conceding the verity of all Paylor’s assertions in his motion, based on its review of the totality and unique circumstances of his case, the government submits that the interests of justice favor acceding to the relief sought and consents to the vacatur of Paylor’s guilty plea,” Barron, along with Assistant U.S. Attorney Tamara Fine, wrote.

Paylor’s Chicago-based attorneys at the firm of Loevy & Loevy, who have stuck with the case for six years, cheered the decision.

“We are grateful to the U.S. Attorney for re-evaluating this case and recognizing that justice is best served by vacating Mr. Paylor’s conviction,” Gayle Horn said in an email Thursday. “We agree with the government that there cannot be two irreconcilable versions of one event, and maintain that Mr. Paylor’s version is the truthful one.”

Paylor was arrested by Hersl and three other officers — John Burns, Timothy Romeo and Jordan Moore — in January 2014. Hersl is serving 18 years in prison after being convicted by a jury on federal racketeering charges. Hersl continues to maintain his innocence.

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 last year’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.”

Peter J. Martinez, the federal prosecutor 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 appellate 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.” Martinez left the U.S. Attorney’s Office in January.

U.S. District Court Judge Ellen Hollander denied Paylor’s request in 2019, saying she placed more weight on his guilty plea than the accusations involving Hersl. He had made a “calculated decision to negotiate a favorable plea deal that substantially limited his period of incarceration,” she said. And she said there was “no extrinsic, independent evidence that Hersl engaged in misconduct that tainted Paylor’s prosecution.”

Hollander 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?”

Barron became Maryland’s top federal prosecutor in October 2021, while Paylor’s appeal was pending. In his motion to vacate the conviction, he wrote that he had conducted a review of the case after it was sent back from the appellate court. He said he considered “the prosecutors’ good faith pursuit of justice; the need to protect communities from violent crime, the need to uphold the rule of law and ensure that no one is above the law; the need to honor statements made under oath; and the importance of wisely using government and judicial resources.”

“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,” Barron wrote.

If Hollander grants the motion to vacate the conviction, Barron said prosecutors will drop the case.