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More than 2½ years ago, defense attorneys released Baltimore Police body-camera footage showing Officer Richard Pinheiro Jr. placing drugs in a vacant lot and then acting as if he’d just discovered them. A year later, Pinheiro was convicted of fabricating evidence and misconduct in office, a decision upheld last week by a state appeals court.
Prosecutors have dropped cases that relied on Pinheiro’s police work, and say they’d never call him again as a witness.
Still, Pinheiro remains on the city police force and keeps getting paid, working a desk job as internal affairs detectives continue their own investigation into whether he broke department policies when he broke the law.
Police officials said the process for handling officers like Pinheiro is out of their control — determined by the state’s controversial Law Enforcement Officers Bill of Rights. They say the “eventual outcome will be appropriate.”
Calling Pinheiro’s continued paycheck a disgrace, police reform advocates and defense attorneys say the department’s claims about its hands being tied are misleading, and that the state law it’s hiding behind should be dismantled as a legal relic that for too long has allowed officers to avoid accountability.
“It perfectly encapsulates everything that is wrong with the BPD, everything that is wrong with policing in Maryland, and everything that is wrong with policing in the United States," said David Rocah, senior staff attorney with the ACLU of Maryland. “It’s all wrapped up in a nice little bow for everyone to see, staring us in the face, and yet we continue to do nothing to address the problems."
Deborah Levi, director of special litigation for the Baltimore public defender’s office, which initially released the footage, said the retention of Pinheiro after his conviction undermines police efforts to restore trust in the community.
“Whether this was an independent BPD decision, or one imposed on them due to legislation and/or the collective bargaining agreement with the union, appropriate accountability measures for serious misconduct are urgently needed and should include termination for this level of established police misconduct," Levi said.
The Fraternal Order of Police Lodge 3, the police union that represents rank-and-file officers in Baltimore, has long defended the Officers Bill of Rights as providing critical protections for cops who work under tough conditions.
“It perfectly encapsulates everything that is wrong with the BPD, everything that is wrong with policing in Maryland, and everything that is wrong with policing in the United States."
— DAVID ROCAH, ACLU
Pinheiro, who was hired in 2011 and took home about $55,500 in fiscal 2019, according to city records, could not be reached for comment.
Chaz Ball, his attorney, said they are “reviewing all options moving forward" in relation to his criminal case, including possibly appealing again to the state’s highest court. Ball otherwise declined to comment, including responding to the criticisms of Pinheiro’s continued employment.
Baltimore State’s Attorney Marilyn Mosby, whose office brought the charges against Pinheiro, has dropped cases against other criminal defendants that relied on his testimony or police work.
Zy Richardson, a spokeswoman for Mosby’s office, said Baltimore Police officials “must make their own decisions about personnel,” but city prosecutors “would never use this officer as a witness in a case, given his conviction and clear credibility concerns.”
During his November 2018 trial, Pinheiro had told the court the footage, from his own body camera, showed him re-enacting a legitimate but unrecorded discovery of heroin he’d made moments before, for “documentation” purposes. He said he was “only being a proactive officer” and “had no intent to deceive anybody.”
But Baltimore Circuit Judge Melissa Phinn said it was “without a doubt that he created the video to deceive," and gave Pinheiro a three-year suspended prison sentence, two years of probation and 300 hours of community service.
In affirming Phinn’s ruling last week, the Court of Special Appeals said Phinn had reasonably concluded Pinheiro’s re-creation represented “a willful abuse of his authority for his own personal gain."
Under the Officers Bill of Rights, officers can be automatically fired if they are convicted of felonies, but not when they, like Pinheiro, are convicted of misdemeanors. Officers convicted of misdemeanors can be fired only if they are also found guilty of violating policies by an internal trial board comprised of fellow officers. Even then, punishment in Baltimore would be up to Commissioner Michael Harrison, who has the discretion to approve a lighter penalty.
“Although we understand how some aspects of that process may be concerning, we have confidence that by following the process outlined by [Maryland] law, the eventual outcome will be appropriate," the police department said in a statement.
The department did not answer why it has taken internal affairs so long to review Pinheiro’s case, or whether his appeal to the higher court further stalled the internal investigation after his initial conviction.
Generally, the department pauses its internal investigations of officers until any related criminal cases are adjudicated, though it does not have to do that by law. It does so in part because officers can be compelled to make statements in administrative cases but not in their own criminal cases, and if they make a compelled statement that incriminates them in their administrative trial, it would not be admissible in their criminal case.
The department did not answer questions about Pinheiro being allowed to work a desk job for so long when it is in desperate need of more officers on the street, given shortages and the city’s violent crime epidemic.
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Rocah said there is no legal requirement that the department wait for Pinheiro’s criminal appeals to be resolved before taking administrative action against him, and called the fact Pinheiro is still on the force “insane."
“Here’s an officer, convicted beyond a reasonable doubt — which is a standard higher than the standard for the administrative proceedings involving police officers — of having falsified evidence. Why should the department not be able to fire him based on that?” Rocah said. “How can anyone say that it is a rational way to run an organization — that following [an officer’s criminal conviction], you still have to pay him to not do his job unless some other police officers say it’s OK to fire him? It’s so insane.”
Rocah said there have been bills put forward in Annapolis to change the Officers Bill of Rights to give police departments more discretion to fire officers, including those convicted of misdemeanors, and to make the outcome of such internal investigations public. But lawmakers have rejected them repeatedly, or let them die in committees.
“The whole system is designed to prevent accountability,” he said.
Pinheiro’s case, which made national news in the summer of 2017, was one of several at the time in which defense counsel claimed that body-camera footage raised questions about officers manipulating evidence, forcing the police department to revisit and reiterate its policies for officers’ use of body cameras to capture crime scenes and other interactions with suspects and residents.
The office of Maryland Attorney General Brian Frosh, which represented the state in the appeals case, said the latest ruling is the first in which a state appellate court has weighed in on a fabricating evidence conviction stemming from the manipulation of body-camera footage, and sets an important precedent.
“As more and more officers are equipped with body-worn cameras, there will be instances where an officer, inadvertently or otherwise, fails to activate their camera,” Frosh’s office said. “The Court’s opinion makes clear that an officer may not respond to an initial failure to activate a body-worn camera by later activating the camera and staging a re-enactment."