by Ken Armstrong, ProPublica

An unusual recent court decision offered harsh criticism of a behavior that has left dozens of men condemned to death since the 1970s, spotlighting cases where prosecutors offered claims that contradicted what they said elsewhere.

This story was originally published by ProPublica.

When Baltimore police arrested Keyon Paylor in 2014, one of two things was true.

Either Paylor hid a gun that the police found, or the police planted the gun and framed Paylor.

The two things cannot both be true. Even so, the U.S. Department of Justice presented the first version as true while convicting Paylor of being a felon in possession of a firearm, then presented the second version as true while prosecuting a corrupt police detective who had arrested Paylor.

If you find this confounding, you’re not alone. When Paylor later challenged his conviction, the use of conflicting theories by the U.S. Department of Justice did not sit well with a judge on the 4th U.S. Circuit Court of Appeals.

“Which is the truth?” the judge, Stephanie Thacker, asked an assistant U.S. attorney during oral argument in 2021.

“Does the government not share at least my concern that the government has talked out of both sides of its mouth on this case?” she asked the prosecutor.

The case of Keyon Paylor—in which the 4th Circuit appeals court issued a strikingly blunt opinion two months ago—is but another in a string of cases in which prosecutors offer one version of the truth while trying one person, then offer a very different version while trying another person.

I wrote about contradictory prosecutions in 2017, and this ruling and others suggest the practice has not abated.

In U.S. v. Driggers, a case involving guns stolen from a train in Chicago, the defendant, Nathan Driggers, was convicted of being a felon in possession of a firearm. When prosecuting a co-defendant named Warren Gates, the federal government contended Gates bought guns from the train robbery from two other men. But in trying Driggers, the government contended Gates bought them from Driggers.

Confused? You are, again, not alone. The government denied using conflicting theories, but the 7th U.S. Circuit Court of Appeals wasn’t persuaded. In a 2019 opinion, it wrote, “The government has not explained to us (or to anyone else) how these two conflicting factual representations can coexist, and we are at a loss to reconcile them.” Still, the court upheld Driggers’ conviction.

In the cases I found previously, prosecutors presented shifting theories on which defendant stabbed someone, or chopped someone’s skull, or held someone’s head underwater. Most cases involved a gun: Prosecutors would say one defendant fired a fatal shot, then, in a separate trial, before a different trier of fact, say a different defendant fired it.

In 2009, in Lynn, Massachusetts, a state prosecutor argued that Bonrad Sok fired the single shot that killed a man outside a restaurant; six months later, in a separate trial, the same prosecutor said the shooter was actually Kevin Keo. Both men were convicted.

Sometimes, prosecutors offered not two versions of the truth, but three. In Stuart, Florida, a convenience store clerk was shot and killed in 1982. In a first trial, the prosecution argued John Earl Bush was the shooter; at a second trial, it argued Alphonso Cave was the shooter; at a third trial, it argued J.B. Parker was the shooter. All three men were convicted and sentenced to death. Bush was executed in 1996. Cave died last year while still on death row. Parker’s sentence last year was reduced to life, for reasons unrelated to the prosecution’s contradictory positions.

At least 29 men have been sentenced to death in the U.S. since the 1970s in cases where prosecutors were accused of presenting competing versions of the truth, from what I found searching legal cases. When prosecutors change their version of who did what, it can lead to more serious charges or harsher sentences for more people. But as one federal judge wrote in a capital case, “Such actions reduce criminal trials to mere gamesmanship and rob them of their supposed purpose of a search for truth.”

The U.S. Supreme Court has never ruled squarely on whether conflicting prosecution theories violate due process. Lower courts are divided. In a handful of cases, a court has overturned a conviction or a death sentence, finding the prosecution’s contradictory stances to be fundamentally unfair. But more often than not, courts have allowed the tactic, even as many have described it as unseemly or worse.

Jurors seem more taken aback by the conduct than many judges. For the 2017 article, I called a juror in a Missouri case in which the jury had convicted the defendant of being the second of two robbers in a fatal robbery. When I told her that the same prosecutor had argued, just two weeks before, in a separate trial, that the second robber was someone else, she gasped. “I think our justice system should actually be justice,” she said. Later, as we kept talking, she was so shaken that she began to cry.

The Prosecution’s First Version of the Truth

In January 2014, four Baltimore police officers arrested Paylor. One of the officers was Detective Daniel Hersl.

Hersl wrote up an incident report and probable cause statement, saying this is what happened:

The four officers were in an unmarked police car. They saw Paylor walking. When Paylor noticed the officers, he fled down the street. The officers followed in their car and saw Paylor arrive at his front porch, where he removed what appeared to be a black handgun from his waistband and put it under a chair cushion. Police lifted the cushion and found a loaded handgun.

Paylor, 22 at the time, had prior convictions on gun and drug charges, according to court records. After this arrest, he was indicted by a federal grand jury on a charge of illegal possession of a firearm by a felon.

Paylor’s version of what happened differs from Hersl’s. According to a brief filed by Paylor’s current lawyers, Paylor was simply walking home. When the police detained him in his home’s downstairs, one officer went upstairs and stole thousands of dollars from a bedroom dresser. Police planted the gun on his porch and framed him, Paylor said. After his arrest, he called relatives from a jail phone; in recorded conversations, he denied the gun was his, claimed the police stole his money and said, “Hersl plays a dirty game.”

At that point, Hersl had dozens of misconduct complaints and had been sued multiple times, according to court records. He was so notorious that in 2014, Young Moose, a Baltimore rapper, called Hersl out by name in his song “Fuck The Police.” (In a first-person account, D. Watkins, a University of Baltimore professor, would later call Hersl “arguably the most hated cop in Baltimore.”)

Paylor’s attorney, hoping to use Hersl’s history to discredit him, asked for every internal affairs department file in which Hersl had been accused of misconduct. Prosecutors turned over 30 files to the judge, who, in turn, allowed Paylor’s attorney to see only four of them and part of another, according to court records. Paylor’s attorney believed that provided too little ammunition to impeach Hersl and suggested Paylor plead guilty.\

The federal gun charge carried a maximum sentence of 10 years. Paylor was also accused of violating probation on a state charge, for which he was looking at another 15 years.

The government offered Paylor a deal: plead guilty and get five years on the federal charge and time served on the state charge.

Paylor took the deal—and at a hearing in 2015, the Justice Department presented its first version of the truth in this case.

Peter J. Martinez, an assistant U.S. attorney, appeared on behalf of the government. Asked by the judge for a summary of the facts, Martinez adopted Hersl’s version of events. He said if this case had gone to trial, the government would have proved, beyond a reasonable doubt, that the gun was Paylor’s and that he had tried to hide it from the police.

The Prosecution’s Second Version of the Truth

In 2015, the same year Paylor pleaded guilty, the FBI was investigating possible corruption within the Baltimore Police Department. The investigators eventually focused on a special unit called the Gun Trace Task Force. Task force officers, the federal investigation would show, were robbing people, many of them drug dealers who were unlikely to complain—and unlikely to be believed, if they did.

Officers were stealing money and planting evidence, the very sorts of behavior alleged by Paylor. “They were, simply put, both cops and robbers at the same time,” a federal prosecutor would say in court.

Hersl joined that task force in 2016 and became a key suspect.

In March 2017, the FBI arrested Hersl and six other task force officers on federal racketeering charges. (Another task force member would later be arrested, bringing the total to eight.)

The investigation continued after the initial arrests. Investigators listened to recorded phone calls made from jail by people arrested by Hersl and other task force members—and came across the calls made by Paylor.

The federal prosecutors handling this case were Leo Wise and Derek Hines.

Wise wrote a book about the case, “Who Speaks for You? The Inside Story of the Prosecutor Who Took Down Baltimore’s Most Crooked Cops.” “This is a story of belief and disbelief, of how I came to believe that the Task Force’s victims were telling the truth and the police officers were lying,” he wrote.

In the book, Wise wrote of how the recorded jail calls helped corroborate accounts that might otherwise be dismissed: “The jail calls were like time capsules; they told us what had happened and when it happened. If we ever got to trial, they could also help us convince a jury that the victims weren’t lying.”

In June 2017, Hines and FBI agents met with Paylor, according to court records. Paylor reiterated what he’d said in those calls, that he was innocent. Hines then put Paylor before a grand jury, where the Justice Department presented its second version of the truth in this case.

Paylor, under oath, testified that police framed him, planting the gun.

The Justice Department didn’t charge Hersl in connection with the Paylor case, but it did file a motion asking that Paylor’s sentence be reduced, saying Paylor had “provided substantial assistance to the government.” Paylor turned down the offer, telling his lawyer that “the risk of retaliation by the police was too high” if he went through with the motion, according to court records.

“There Cannot be Two Sides to the Truth”

Hersl was convicted of racketeering offenses in February 2018 and sentenced to 18 years. Seven other members of the Gun Trace Task Force were also convicted. In the fallout, charges were dropped or convictions vacated in more than 800 cases the officers had handled, because their word could not be trusted.

The extent of the police misconduct was so great that the Baltimore city comptroller created a settlement tracker “to memorialize the devastating impact of the Gun Trace Task Force on our City.” To date, the city has settled 41 lawsuits for nearly $23 million, according to the tracker. Hersl was involved in 10 of those settled cases, the tracker says. Justin Fenton, a reporter now with the Baltimore Banner, wrote a book about the scandal, “We Own This City,” which was the basis for an HBO miniseries with the same name. Fenton has also written about the Paylor case.

In March 2018—one month after Hersl was convicted—Paylor filed a motion asking that his own conviction be vacated. The Justice Department opposed Paylor’s request, and in 2019, a U.S. District Court judge denied the motion.

The case then went to the 4th U.S. Circuit Court of Appeals, where one of the issues was whether the federal government could contradict itself: Should the government be allowed to defend Paylor’s conviction after having presented him, to a grand jury, as a victim of a corrupt police officer?

At the 2021 oral argument, conducted by video conference because of the pandemic, Paylor’s lawyer was Debra Loevy, executive director of the Exoneration Project, a free legal clinic whose staff represents people they believe were wrongfully convicted. Loevy told the court that the government vouched for Paylor while going after the police, “and then they threw him under the bus.”

The lawyer representing the federal government was Martinez, the same prosecutor who had helped secure Paylor’s conviction.

“Let me ask you this,” Judge Thacker, who had previously been a federal prosecutor herself, said to Martinez. “In the government’s view, was Mr. Paylor’s testimony at his plea hearing the truth, or was his testimony at the grand jury, that the government put on, the truth?”

“Very much the former, your Honor,” Martinez said.

“So the government put on testimony in the grand jury that was not truthful?” Thacker said.

Martinez wouldn’t give a yes or no. He said prosecutors put Paylor before the grand jury immediately after investigators interviewed him.

The judge pressed. “They can’t both be true,” she said of the two accounts.

“His sworn admission of guilt is the truth. His grand jury testimony is false,” Martinez said.

“All right, all right, so then the government did suborn perjury in the grand jury?” the judge said.

Again, Martinez avoided a yes or no. Instead, he said that while prosecutors can’t knowingly present perjured testimony, the grand jury “is an investigative tool,” and prosecutors often put witnesses in the grand jury while still vetting their reliability.

But Paylor had pleaded guilty, the judge said. And the government knew that. “So the government had to think that what he was saying in the grand jury was true, and what he said at the plea hearing was not true,” Thacker said.

“I’m not going to speak to the mental state of the prosecutor who put Paylor in the grand jury,” Martinez said.

The judge asked Martinez, “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?”

In the back-and-forth, Martinez said that after Paylor’s grand jury testimony, the government further investigated Paylor’s claim of being framed and concluded it was false. And ultimately, Martinez said, Paylor’s claim wasn’t used in any charge against Hersl or mentioned in Hersl’s trial or sentencing. (Loevy, Paylor’s attorney, disputed that the government’s subsequent investigation undermined Paylor’s claim of innocence.)

Thacker had few kind words for the government, saying it “hasn’t been the best judge of who’s telling the truth in this case.”

Loevy, in a recent interview, said, “I don’t recall ever having an argument like that—where the court was that vocally angry at one side’s position.”

Two months ago, the three-judge panel issued a unanimous opinion, written by Thacker.

The court didn’t vacate Paylor’s conviction, but for Paylor’s lawyers, it did the next best thing. The court’s ruling returned the case to a lower court for a hearing at which Paylor’s attorneys will have the chance to present evidence of the breadth of Hersl’s misconduct, particularly any instances that preceded Paylor’s guilty plea. The ruling authorized Paylor’s attorneys to conduct discovery, meaning they can now have access to records they were previously denied; plus, they can depose Hersl, asking him questions under oath.

“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,” Thacker wrote. “But, there cannot be two sides to the truth. The truth is the truth.”

The judge wrote: “The Government’s two-faced positions and contrary statements before the court are clearly at odds with the notion of justice.”

“Thanks!”

I wanted to ask the various prosecutors in this matter about the 4th Circuit’s opinion lambasting the government.

I emailed Martinez, who left the Department of Justice and now works for a large law firm. He emailed back, saying: “As I understand the relevant DOJ regulations, I am prohibited from speaking with you, absent authorization, regarding the work I did in the United States Attorney’s Office.”

The Justice Department separately sent me an email, saying, “We are not commenting on this case, nor are we authorizing Mr. Martinez to comment.” Can I speak with Derek Hines and Leo Wise? I wrote back. “Department guidelines generally prohibit commenting on pending cases, therefore Wise and Hines are not authorized to sit for an interview. Thanks!” the Justice Department responded.

Wise and Hines are both now working on the DOJ team prosecuting Hunter Biden, the president’s son, on gun and tax charges.

Hersl asked last fall to be released early from prison on grounds of compassion. An emergency motion said Hersl has been diagnosed with metastatic prostate cancer; a doctor, in September, wrote that Hersl’s life expectancy is less than 18 months. The DOJ opposed the motion—noting, among other things, that Hersl has shown no remorse, continuing to maintain his innocence—and a judge denied Hersl’s request.

Hersl was represented at his trial by William Purpura. Purpura, in an interview with ProPublica, said he once asked Hersl if he ever planted a gun on anyone. Hersl laughed, according to Purpura, and said no, that in Baltimore there’s no need to put a gun on someone.

In 2021, while this appeal was pending, Paylor pleaded guilty to a state robbery charge and was returned to prison. He got back out in December.

Paylor was released from prison last month, after serving time in a robbery case. Before that, he had already served his sentence on the gun charge involving Hersl. I asked Gayle Horn, another of Paylor’s lawyers, why they keep fighting that 2015 conviction, and she said, “We’d like to see justice be done.”

Paylor, asked the same question, said: “Because from day one, I’ve been telling people I was innocent. Now I’m just trying to clear my name.”

Update, Feb. 29, 2024: On Feb. 28, two days after ProPublica published this story, the U.S. Department of Justice filed a document in U.S. District Court reversing its previous position and conceding that Keyon Paylor’s conviction should be vacated “in the interest of justice.” The DOJ defended its earlier use of opposing theories as “based on the government’s reasonable belief in the evidence” but stated that “public confidence cannot sustain irreconcilable versions of one event.”

Gayle Horn, one of Paylor’s attorneys, told ProPublica, “We are grateful to the U.S. Attorney for taking a fresh look at this case and recognizing that Mr. Paylor’s conviction should be vacated.” Referring to the “irreconcilable versions” cited by the DOJ, Horn said, “And I would just add that Mr. Paylor’s version is the truthful one.”  

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