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Court affirms conviction for staged evidence find caught on body cam

An appeals court has upheld the conviction of a Baltimore Police Department officer whose controversial reenactment of an evidence find was captured on his body worn camera in 2017.

Richard Pinheiro was indicted on charges of fabrication of physical evidence and misconduct in office and convicted by a judge at a bench trial. He was sentenced to three years in prison with all but time served suspended.

The Court of Special Appeals affirmed the conviction Monday in a reported opinion, finding there was sufficient evidence to convict Pinheiro. Judge Michael W. Reed wrote the opinion and was joined by Judge Christopher B. Kehoe and retired Judge James P. Salmon, who was sitting by special assignment.

The 2017 incident caused prosecutors to review hundreds of cases involving Pinheiro and the other officers at the scene. Prosecutors  ultimately dropped dozens of cases in which the officers’ credibility was central.

A spokeswoman for the Maryland Office of the Attorney General said Tuesday that the three-judge panel’s opinion marked the first time an appellate court interpreted the criminal law against fabricating evidence.

“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,” Raquel Coombs said in an emailed statement. “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 reenactment.”

Michael J. Belsky, partner at Schlachman, Belsky & Weiner, P.A. in Baltimore, represented Pinheiro. He was not immediately available for comment Tuesday.

Pinheiro was part of a drug unit that was conducting surveillance in January 2017 when officers observed suspected drug transactions in an alley, according to the opinion. Pinheiro and another officer detained the suspected buyer and found narcotics in his vehicle; they then searched the alley and found additional drugs.

While searching the alley, the officers had their body worn cameras activated and recording; when they left the scene they deactivated their cameras, according to the opinion. Pinheiro then returned to continue the search and found an additional plastic bag of suspected heroin, according to the opinion.

Pinheiro left the alley with the bag and then realized his camera was not activated, according to the opinion. He then turned his camera on to “reenact” his search, but a feature of the body worn cameras had captured 30 seconds of video before the camera was fully activated, footage that showed Pinheiro replacing the drugs under trash in the alley, according to the opinion.

When contacted by the prosecutor handling the drug possession case involving the video, Pinheiro “admitted that he arranged the drugs and reenacted the recovery because ‘they ding us for holidays if we forget to turn our (camera) on,'” according to the opinion.

The Maryland Office of the Public Defender publicized the video and then-Baltimore Police Commissioner Kevin Davis announced an investigation into the incident. Public defenders later criticized the Baltimore City State’s Attorney’s Office for continuing to call Pinheiro and the other officers at the scene as witnesses in cases without disclosing Pinheiro’s alleged misconduct to the defense attorney.

On appeal, Pinheiro argued body worn camera video was not physical evidence to be fabricated and there was insufficient evidence at trial that he intended to affect the truth of the footage or deceive the court. The appellate panel disagreed, interpreting the language of the statute to apply to camera footage and finding that Pinheiro intended to stage the footage to deceive subsequent viewers.

The court also held that the mental state required under the statute is “a specific intent to impair the verity of the physical evidence” and “a general intent to deceive observers of the fabricated evidence into believing the evidence is authentic.”

Pinheiro also argued the act of recording the reenactment was not wrongful, in and of itself, to support his conviction for common law misconduct in office, but the court found that the state showed at trial that he staged the footage, submitted it without documentation of the recreation, knew it would be used at trial and admitted to the reenactment later. The trial judge convicted him based on “reasonable inferences deduced from the evidence” at trial, according to the opinion.

The case is Richard Pinheiro v. State of Maryland, No. 3009, Sept. Term 2018.

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