A grand jury has indicted a Baltimore police officer on charges of misconduct and fabricating evidence in connection with a body camera video that the public defender’s office said showed him planting drugs.
Officer Richard A. Pinheiro Jr., 29, was charged Tuesday. Prosecutors said there were “alleged questionable evidence-gathering acts captured on body-worn camera footage.”
State’s Attorney Marilyn J. Mosby said the charges reflected her pledge “to apply one standard of justice for all.”
“It's critical we remain transparent throughout the process to the extent the law allows as we continue to rebuild community trust,” she said in a statement Wednesday. “Yesterday’s indictment is another example of our office applying justice fairly and equally.”
Pinheiro’s attorney said the officer didn’t break the law.
“Officer Pinheiro simply tried to document the recovery of evidence with his body-worn camera that he had previously recovered,” attorney Michael Davey said. “This is just another overreach by the Baltimore State’s Attorney’s Office, and an attempt to prosecute a police officer when there’s no evidence to do so.”
The fabricating-evidence charge is a misdemeanor, which carries a maximum penalty of three years’ imprisonment and a $5,000 fine. Misconduct in office is a common-law offense, which means that the court is free to impose any penalty that does not constitute cruel and unusual punishment.
The video was one of three that surfaced in the summer of 2017 that defense attorneys said depicted questionable activity.
In announcing Pinheiro’s indictment, prosecutors said they had cleared three officers involved in another video.
Mosby said at the time that she was troubled by the events captured in that video. She said she was considering reimposing a do-not-call list of problem officers.
Then-Commissioner Kevin Davis had forcefully defended the officers, clashing with Mosby. Prosecutors said in December that they had dropped 56 cases involving the officers.
Mayor Catherine E. Pugh fired Davis last week. She cited the city’s continuing violence.
In a report released Wednesday, prosecutors said they determined “the overwhelming weight of the evidence is more consistent with an error of judgment by the involved officers.”
“The acts on the video were just the recovery of drugs and there is nothing false or fraudulent in the [body camera] videos that would deceive or mislead a reasonable person,” prosecutors said.
Pinheiro’s video, which was released by the public defender’s office in July and quickly drew national attention, shows the officer placing a soup can into a trash-strewn lot.
That portion of the footage was recorded automatically, before the officer activated the camera. Police body cameras have a feature that saves the 30 seconds of video before activation, but without audio.
After placing the can down, the officer walks to the street and flips his camera on.
“I’m gonna go check here,” the officer says. He returns to the lot, picks up the soup can and removes a plastic bag filled with white capsules.
Police said Wednesday that Pinheiro had been suspended since the incident occurred, and would remain so. City records show he was hired by the department in 2011, and in 2016 earned a salary of $62,676, with a net income of $67,570. Officers in Baltimore routinely earn overtime pay.
Spokesman T.J. Smith noted that the department made changes to its body camera policy, requiring officers to “keep their cameras on from the beginning of an event until that event is over and they have left the scene, to ensure that if any additional police actions take place, they are captured on the cameras.”
The public defender’s office flagged the video for prosecutors. Prosecutors dropped the heroin-possession charge against the man arrested. He had been held for more than six months, unable to post $50,000 bail.
Prosecutors said the video prompted them to drop more than 110 cases involving the three officers in the video from Pinheiro’s camera.
Pinheiro is the second officer to be indicted on criminal charges connected to actions captured by a body camera. Officer Donald Gaff was charged in November 2016 with second-degree assault and misconduct based on body camera footage. His trial is scheduled for March.
Public defender Deborah Katz Levi said her office believes prosecutors continue to show a “frightening lack of transparency” surrounding officers under investigation.
“There are people facing incarceration in which these officers played a part, and still no disclosures as to the status of the other officers,” Levi said. “The State’s Attorney’s Office does not get to hold onto this information while people’s liberty is at stake.”
Under the department’s body camera policy, officers are supposed to start recording “at the initiation of a call for service or other activity or encounter that is investigative or enforcement-related in nature,” and during any other confrontational encounters. They may stop recording under certain circumstances, such as when civilians request to not be recorded in encounters with officers and during exchanges with confidential informants.
Davis said last year that officers had been “reluctant” to properly use cameras, a program the city invested millions of dollars in to foster accountability, but improvements were being made.
Police and prosecutors clashed over the second video, which showed an officer finding drugs in a cigarillo bag with his body camera not activated. The officer can be seen in the footage putting down the bag, turning on his camera, and picking the bag up again — a sequence that spans about 20 seconds. Davis said another officer’s camera had documented what the first officer’s camera did not.
That footage, from a June 2017 arrest, came to light when one of the officers involved — aware of the recent controversies regarding body cameras — notified the department himself.
Mosby said last year the fact that the officer flagged the video “doesn’t negate the fact that he re-created what he actually found. That goes directly to his credibility, and had it not been for that 30 seconds of pre-recoridng, we might not have known.”
“This cannot be the face of policing in Baltimore City,” Mosby said. “It undermines public trust and creates indefensible doubts in the minds of the general public, judges and jurors.”
Davis said there was “nothing questionable” about that incident.
“The officers did exactly what I and the community expect of them: to go out and make legal arrests based on sound probable cause,” Davis said. “I will not be a bystander when my police officers are doing what I and my commanders expect them to do in this crime fight.”