By Kevin Rector The Baltimore Sun

BALTIMORE — A Baltimore Police officer was found guilty by a judge Friday of fabricating evidence in a case in which his own body-camera footage showed him placing drugs in a vacant lot and then acting as if he had just discovered them.

During his trial, Officer Richard Pinheiro Jr. said that he intentionally recorded the body-camera video to serve as a re-creation of a legitimate discovery of heroin that he had made in a similar manner — but failed to record — moments earlier. He said the re-created video was for “documentation” purposes.

Circuit Judge Melissa Phinn did not accept that explanation, saying it was “without a doubt that he created the video to deceive” — namely in order to avoid being disciplined for not recording his initial discovery of the drugs. And in finding Pinheiro guilty of a second count of misconduct in office, Phinn said his actions represented a “willful abuse of his authority for his own personal gain.”

However, Phinn also said she did not consider Pinheiro “a bad person,” calling the day he recorded the video “an unfortunate day for everybody” and saying she did not believe Pinheiro deserved jail time.

She gave him a three-year suspended sentence and two years of supervised probation, the second year of which will be switched to unsupervised probation if he does not have any compliance issues during the first year. Pinheiro must also perform 300 hours of community service in Baltimore.

Prior to sentencing, Pinheiro told the court he was sorry that he made the re-created video but was “only being a proactive officer” and “had no intent to deceive anybody.”

He declined to comment through an attorney after the sentencing.

Deborah Levi, director of special litigation for the Baltimore public defender’s office, which first made the footage public, called the verdict against Pinheiro “an important step forward” in holding Baltimore police officers accountable for illegal conduct.

Baltimore State’s Attorney Marilyn Mosby, whose office was criticized by defense counsel in the drug case last year for not addressing the video more promptly, lauded the convictions and said it would continue to apply “one standard of justice” in Baltimore.

“The effectiveness of the justice system greatly depends on our citizen’s confidence that the evidence collected by police and presented in court by the state is of high virtue and lacks corruption,” Mosby said. “Unfortunately the evidence in this case proved otherwise and we are pleased that the court saw fit to hold this Officer accountable for his actions.”

Pinheiro remains on the force. Under Maryland law, officers are only removed automatically if convicted of a felony. Fabricating evidence and misconduct in office are both misdemeanors.

Police spokesman Matt Jablow said Friday that Pinheiro remains suspended with pay pending the conclusion of an Internal Affairs investigation. Any additional discipline, including potential separation from the department, could only come if Pinheiro is found guilty by fellow officers of violating department policies at an administrative trial board. Jablow declined to comment otherwise.

David Rocah, senior staff attorney at the American Civil Liberties Union of Maryland, said he “cannot imagine a more screwed-up, idiotic way of trying to manage a police department or any other public office.”

“On what planet is it not ridiculous that an officer is convicted in a court of law, beyond a reasonable doubt, of having fabricated evidence, and yet we have to continue paying him to not do his job and can’t terminate him — even though his credibility is permanently destroyed — unless a panel of other police officers decide that they agree?” Rocah said.

Police reform advocates have pushed legislation for yearsto change state law to allow police departments to fire officers convicted of misdemeanors, without success.

The guilty findings and sentencing in Pinheiro’s case came just hours after attorneys gave their closing arguments.

Chaz Ball, Pinheiro’s attorney, argued that Pinheiro had simply forgotten to record his initial discovery out of his eagerness to solve the drug case he was working on, and was “an honest officer who made an honest mistake.”

Assistant State’s Attorney Stacy Ann Llewellyn dismissed Ball’s assessment, arguing that Pinheiro not only made no effort to note the true nature of the re-creation video — while recording it or afterward to his supervisors — but took steps to make the re-created video seem as authentic as possible.

“We’re here because he was not honest about his mistake,” Llewellyn said. Such conduct, she said, is “flatly illegal.”

The case made national news when defense counsel released the body-camera footage in the summer of 2017. Against a backdrop of rampant police misconduct allegations elsewhere in the department, defense counsel alleged that Pinheiro had been caught red-handed planting drugs. The controversy was further stoked with the release of two other body-camera videos, from separate incidents, that defense counsel said raised similar questions about officers’ manipulation of evidence.

Police, including then-Commissioner Kevin Davis, pushed back against the narrative that officers were “planting” evidence, and early on described a scenario in which a “re-creation” may have occurred.

Prosecutors dropped the heroin-possession charge against the man arrested in the case, who was unable to post $50,000 bail and was held in jail for more than six months. And in January, they charged Pinheiro.

Prosecutors focused less on the drugs, which they did not suggest were planted, and more on the video, which they said was a fake.

On Friday, Llewellyn argued that Pinheiro “concealed the truth” because he “didn’t want to get dinged” administratively for not having his camera on during the initial discovery of the drugs — which the video showed him taking out of a soup can in a trash-strewn ally.

“He only cared about himself,” Llewellyn said.

Pinheiro’s disregard had ramifications for the man arrested for the drugs, Llewellyn said.

Pinheiro and a team of other officers were on the street that day as part of an operation that included covert surveillance. That surveillance led them to another stash of drugs in the area: a bag of pills containing heroin, but one that was tied up.

Llewellyn said the fact that the bag was tied up was not helpful to the case against the man being arrested, who was being accused of street dealing, because dealers who push pills from a nearby stash like the one found normally leave them untied, for quick access to the drugs.

The second bag that Pinheiro allegedly found in the alley was untied, bolstering the officers’ case, Llewellyn said.

Pinheiro made no effort to ensure that the man arrested and his defense team would be told that the video was “not a real-time recovery of the second stash,” which would have been critical to their defense and which Pinheiro had an “affirmative duty” to disclose, she said.

“An officer can’t create evidence to support what his testimony is going to be at trial, because that is just wrong,” Llewellyn said.

Ball argued that Pinheiro was honest about the nature of the video when contacted by prosecutors, and has since been honest about the incident. He said body cameras were still “relatively new” at the time, and Pinheiro’s only intention was to provide documentation for a good bit of police work that he mistakenly failed to record.

That failure “doesn’t change the fact that there was a drug deal that took place,” Ball said.

He said Pinheiro had no intent to deceive, lie or “impair the verity” or truthfulness of the evidence he was presenting — an element of the charges against him that the state had the burden to prove.

In fact, Ball argued, Pinheiro’s re-created video was true to reality — reflecting the correct way in which the evidence was found, the correct amount of drugs, the correct type of drugs, and even the correct fashion in which the drugs had been concealed in the ally — and not in plain view — at the time of their recovery. That shows Pinheiro’s intent to be honest, he said.

“The video doesn’t impair the truth. The video shows the truth,” Ball said.

If anything, Ball said, the man arrested on the day the drugs were recovered benefited from Pinheiro’s video, given that it led to his case being dropped by prosecutors.

Llewellyn called the idea that the arrested man had benefited “outrageous,” and said Pinheiro’s actions “compromised the integrity of the whole process” of prosecuting the arrested man.

“When things are fake and fraudulent, when they are fabricated, they are a lie,” Llewellyn said. “It’s a lie.”

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